In the realm of South African labour law, the challenge of premature referrals in dismissal disputes has become a practical concern demanding careful consideration. Striking a balance between procedural adherence, determination of the dismissal date requirement, and efficient resolution processes is crucial.
A premature referral occurs when an employee lodges a dispute with the relevant forum before exhausting internal processes or the prescribed timelines set by legislation become applicable. This means that parties must determine the exact date on which the employment relationship was terminated, as this forms the basis for calculating statutory timeframes for the referral of disputes. At the heart of a premature referral is a single dismissal date, which serves as the cornerstone for calculating the timeline for dispute resolution. Whether an employee was dismissed with immediate effect, given notice, or during a disciplinary process, determining the dismissal date accurately is paramount.
Section 190 of the Labour Relations Act (LRA) provides that:
(1) The date of dismissal is the earlier of-
(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.
(2) Despite subsection (1)-
(a) If an employer has offered to renew on less favourable terms or has failed to renew a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract;
(b) If the employer refuses to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to continue work;
(c) If an employer refuses to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee and guides the identification of the date of dismissal.
The above provision guides the determination of a dismissal date and will be relied on to determine an employee's true date of dismissal. Practical steps include providing dismissal notices and recording the last day of an employee rendering a service.
In the case of Enforce Security Group v Fikile and Others (DA24/15) [2017] (LAC), the Labour Appeal Court held that the question of whether a dismissal exists determines whether the CCMA and Labour Court will have jurisdiction to entertain the dispute. Any finding in a dismissal dispute that there was no dismissal means that the CCMA and, therefore, the Labour Court will not have the jurisdiction to adjudicate the dispute.
In South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others (CA10/2005) [2008] (LAC), the Labour Appeal Court held that the issue that was before the Commissioner was whether there had been a dismissal or not. This was an issue regarding the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal is determining whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of Section 191 of the LRA.
The case of South African Police Services (SAPS) v Gebashe and Others (D676/11) [2014](LC) underscores the importance of striking a balance between procedural adherence and addressing urgent matters promptly, in line with the LRA's principles. It showcases the Court's recognition of exceptional circumstances that may warrant deviating from traditional procedures while still adhering to the requirement of a single dismissal date. To ensure that the correct date of dismissal is determined correctly, employers should keep records of disciplinary outcomes, final salary payments and attendance records of employees as it aids in establishing the single dismissal date and chronology of events, to name a few. It is further recommended that the dismissal outcome or any other outcomes of disciplinary hearings are clearly communicated to the employee to avoid any premature referrals or disputes regarding the date of dismissal.
Navigating premature referrals of dismissal disputes demands practical insight and compliance with the LRA's principles. The single dismissal date is a practical anchor, ensuring accurate calculation of dispute resolution timelines and will assist in determining the CCMA, Bargaining Council or Labour Court's jurisdiction.
Originally published 04 September 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
