So, you’ve terminated an employee’s services but aren’t sure of the “date of dismissal.” Determining the official date of dismissal isn’t as straightforward as one might think and can become tricky, depending on the circumstances.

Determining this date is crucial for employers, primarily when former employees refer disputes to the CCMA or Bargaining Council. According to Section 191(1)(b)(i) of the Labour Relations Act (LRA), disputes must be referred within 30 days of the dismissal date – no sooner, no later. If an employee gets the date wrong, this can lead to a jurisdictional point for employers where the referral may be deemed defective.

The LRA gives us Section 190 to determine the dismissal date. It’s the earlier of two options:

• The date the employment contract terminates, or
• The date the employee left the services of the employer.

Easy right? Well, there are a few twists:

• Contract Renewal: If you offer a fixed-term employee less favourable renewal terms (or skip renewing entirely), the dismissal date is when the employer offered the less favourable terms or notified the employee of the intention not to renew the contract.
• Refusal to Resume Work: If you refuse 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 resume work.
• Refusing Reinstatement or Re-Employment: If you refuse to reinstate or re-employ an employee, that first refusal date becomes the dismissal date.
• Early Exit: If you terminate 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.

Let’s say an employer terminates an employee’s services with notice effective on 31 October. The employee decides not to return to work from 25 October and instead refers a dispute to the CCMA on that date. That earlier exit date is 25 October, which is then the official termination date.

This view was supported in the case of Helderberg International Importers (Pty) Ltd v McGahey NO and Others [2015] 4 BLLR 430 (LC), where the Court held that the termination date in a constructive dismissal is the date on which the employee leaves the services of the employer, whether notice was given or not. In this case, the employee resigned on 31 August 2013 and tendered their services until 30 September 2013 (their notice period). On 26 September 2013, before the expiry of their notice period, the employee referred a dispute to the CCMA for constructive dismissal. At Arbitration, the Commissioner confirmed that the referral was not premature and that the date of dismissal was the date of resignation rather than the date when the employee left the employer’s services, which was on 30 September 2013. On review, the Labour Court set aside the award and found that the employee’s referral to the CCMA was premature as the employee had tendered and worked their notice period, so no dismissal had occurred on 26 September 2013, meaning that their referral was defective.

It’s important to note that the situation would have been different had the employer not required the employee to work their notice period. In this case, the referral within their notice period would not have been premature as the employee’s services had ceased with the employer on the last day the employee rendered their services to the employer. (Chabeli v Commission for Conciliation, Mediation & Arbitration & Others (2010) 31 ILJ 1343 (LC)).

The date of dismissal isn’t just a formality; it’s a key factor in whether the CCMA will have the necessary jurisdiction to hear the dispute. If the employee refers the dispute too early or too late, an employer has grounds to challenge their referral. Even minor factors, like when the final paycheck is issued or an internal appeal is pending, can shift the official date of dismissal.

For employers, the lesson is clear: document everything, calculate carefully, and know your rights. Missteps in establishing the correct dismissal date can create legal consequences and affect your case, so make sure to get it right.

Getting the dismissal date correct is more than just a box-ticking exercise; it’s about protecting your business from unnecessary disputes. Pay attention to every detail and ensure you’ve got your dates in a row because precision isn’t just excellent; it’s essential in employment and labour law.

Written by Jaundré Kruger, National Manager, CEO SA