By Lelanie du Plessis
Can an employee refer a dispute on unfair dismissal to the CCMA when he or she was dismissed before actually working for the employer?
In the judgment of Jack v. Director-General Department of Environmental Affairs (2003) 1 BLLR 28 (LC) and Wyeth SA (Pty) Ltd v. Manqele & others (2005) 6 BLLR 523 (LAC), the court held that the termination of an employment contract, even though the employee has not yet started working or received remuneration, constitutes dismissal in terms of the Labour Relations Act (No. 66 of 1995), as amended (“the LRA”).
The definition of “employee” as found in section 213 of the LRA includes a person who has accepted an offer of employment to start working at a later date. It is imperative though that the employer has made an offer of employment and that the employee has accepted the offer unequivocally.
Even though the employee has not yet started working or received remuneration, the employee’s dismissal still needs to be substantively and procedurally fair. In Van Deventer v. Venture SA (Pty) Ltd (2007) 28 ILJ 268 (CCMA) the commissioner found himself obliged by the Wyeth ruling and therefore held that the employer was still bound to dismiss the employee for a fair reason and that a fair procedure should be followed.