Understanding the Date of Dismissal Under the Labour Relations Act 66 of 1995

The Labour Relations Act (“LRA”) plays a pivotal role in regulating the relationship between employers and employees in many jurisdictions, particularly in South Africa. One of the critical aspects of this legislation is the concept of “date of dismissal,” which has significant implications for both employers and employees. This article delves into the definition, implications, and legal considerations surrounding the date of dismissal under the Labour Relations Act.

Definition of Date of Dismissal
The date of dismissal refers to the specific day on which an employee’s employment is terminated by the employer or the employee resigns. This date is crucial as it marks the beginning of various legal processes, including potential claims for unfair dismissal, the calculation of severance pay, and the initiation of dispute resolution mechanisms.

Legal Framework and the importance of the Date of Dismissal

1. Time Limits for Claims: The date of dismissal is critical for determining the timeframes within which an employee can lodge a complaint or claim before the Commission for Conciliation, Mediation, and Arbitration (CCMA) or other relevant bodies. In South Africa, for example, employees typically have 30 days from the date of dismissal to file an unfair dismissal claim.
2. Calculation of Benefits: The date of dismissal also affects calculations related to severance pay, outstanding wages, and other benefits. Employers must ensure that all financial obligations are settled up to this date.
3. Legal Proceedings: The date marks the commencement of any legal proceedings that may arise from the dismissal. This includes arbitration or court cases concerning the fairness of the dismissal.

Section 190 of the Labour LRA provides that the date of dismissal is

• The date of dismissal is the earlier of
• the date on which the contract of employment is terminated; or
• the date on which the employee left the service of the employer
• despite subsection (1)

———————-
(d) if an employer terminates an employee’s employment on notice, the date of dismissal is the date on which the notice expires, or if it is an earlier date, the date on which the employee is paid all outstanding salary.
Section 191(1)(b) of the LRA allows the CCMA to condone the late referral of the dispute on ‘good cause’. In an application for condonation, the CCMA is required to take into consideration; the degree of lateness, the reason for the lateness, the referring party’s prospects of success, prejudice to the respondent should the condonation be granted and any other relevant factors.
In a recent application for condonation for the late referral in the matter between Zikhona Nyumka and Mobius Services (Pty) Ltd t/a Mobius Consulting, the CCMA made the following ruling:

To mitigate disputes regarding the date of dismissal, employers should consider the following best practices:

1. Clear Communication: Employers should clearly communicate the decision to dismiss an employee, including the reasons and the effective date of termination.
2. Documentation: Maintain thorough documentation of the dismissal process, including records of any disciplinary hearings, notices, and communications with the employee.
3. Follow Procedures: Adhere to fair procedures as outlined in the LRA to minimize the risk of claims for unfair dismissal.
4. Seek Legal Advice: When in doubt, employers should seek legal counsel to ensure compliance with the LRA and to understand the implications of the date of dismissal.

Conclusion

The date of dismissal is a critical element within the framework of the Labour Relations Act, influencing various legal, financial, and procedural aspects of employment relationships. Both employers and employees must understand its significance to navigate the complexities of employment law effectively. By adhering to fair practices and maintaining clear communication, employers can protect themselves against potential disputes, while employees can ensure their rights are upheld in the event of termination. Understanding the nuances of this concept is essential for fostering a fair and equitable workplace.