Often employees will appeal their sanction internally after being dismissed. How does an employer determinate when the date of dismissal is? Will it be on the date that the employer informs the employee of their dismissal, or when the outcome of the appeal is served on the employee?
In terms of section 190(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”.
In terms of section 190(2)(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.
For example, An employee is dismissed for repeated late coming. The disciplinary hearing takes place on 12 March, and the notice of dismissal is issued on 17 March. Since the employee has been employed for 11 months, the employer gives him two weeks’ notice, but advises the employee that he is not required to work out his notice period. The employer pays the employee until the end of March, which payment is made in full on 28 March. The date of dismissal is 28 March, being the date on which the employee is paid in full. This is the earlier date since the notice period expires on 31 March. If he were required to work out his notice, the date of dismissal would still be 28 March, as this is the earlier date.
In South African Municipal Workers Union obo PM Cindi and PZ Potsane v South African Local Bargaining Council & 2 Others Case No. JR2299/14 it was decided that the dismissal of the union’s members were not and could not have been suspended by their noting of an appeal against their dismissal. The court had to further establish whether the employer could effectively stop paying their salaries, pending the outcome of an internal appeal. By the time their salaries were stopped, there was no longer an employment relationship between them and the employer. Their noting of the disciplinary appeal did not serve (and could not have served) to preserve the employment relationship.
The Judge also referred to the Labour Appeal Court case in Booysen v National Union of Metalworkers of South Africa (JA2013/13)  ZALCJHB 161, which held that:
“When an employee is lawfully, albeit unfairly dismissed, the employment relationship is terminated there and then. Unlike in legal proceedings where an appeal suspends the operation of a judgment, no such doctrine of suspended operation is applicable to a dismissal by an employer.”
This was further confirmed in Bafokeng Rasimone Management Services (Pty) Ltd v Van Wyk (87403/2014)  ZAGPPHC 87, “in view of the applicant’s dismissal, there is no longer a question of a contract of employment for him to enforce against the first respondent. That, until such time that the dismissal is set aside, he is not entitled to be remunerated by the first respondent. His right to remuneration lasted as long as he remained an employee of the first respondent. Even if the applicant had appealed against his dismissal, it is now trite that such an appeal would not automatically suspend his dismissal. As only an order of the court is suspended by the noting of an appeal”.
It is clear from the above that the employment relationship ceases at the date of initial dismissal, and not once the outcome of the appeal is communicated to the employee.
Employers are urged to ensure that should an employee appeal their dismissal after an enquiry, that the outcome of the appeal is also served on the employee as soon as possible.
Article by: Anesta Kruger
Dispute Resolution Official – Cape Town
Thanks, Anesta. This clears up a grey area with the necessary case law to use in future.