An employee is required in terms of the Labour Relations Act to refer an argument about his or her dismissal within a certain period of time.
According to section 191 of the Act there must first be an argument about the dismissal. An employee then refers the dispute to either the bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA). The Section envisages that the date of dismissal and the date of the dispute may not necessarily be the same.
Is the employee required to wait for the outcome of the appeal before referring the dispute? The answer is no. If the employee decides to wait, the waiting should not be more than 30 days from the lodging of the appeal. Otherwise the referral will be out of the prescribed 30 day period.
In the case of First National Bank of South Africa vs CCMA the court held that the dismissal is the date on which the employee is informed of his dismissal, not the date when he is informed of the outcome of the appeal.
By way of an example. Employer A dismissed employee B on June 20, 2006. B lodged an appeal against his dismissal on June 25. The outcome of the appeal confirming B's dismissal was made on July 25. B's date of dismissal notwithstanding the appeal is June 20, but the dispute about his dismissal arose on June 25 when he lodged the appeal.
The 30 day period prescribed in the Act expired on July 20.
In other words B was required to refer his dispute which arose on June 25 within 30 days from the date of dismissal. The fact that B has appealed against the dismissal is irrelevant in determining the date of dismissal.
What is critical is the date of dismissal, because the 30 days start running from the date of dismissal and not when the dispute arose.
Upon consideration of the example given it is clear that the referral of the dispute to the relevant forum will happen even as the appeal process is under way.
Employees are advised to make sure that whatever attempts they make to resolve their dismissals should not exceed 30 days from the date of dismissal.
- Sandile July is a director at Werksmans Attorneys.