Thursday, March 1st, 2018
By Gibbs du Toit
Question: My employment was terminated about two weeks ago. I lodged an appeal following the decision. The company has no policy in place about the period within which the appeal process has to be finalised. I heard from a friend that, apparently, I only have a certain period within which I can refer my case to an external forum and now I am not sure how to go about it.
Answer: In terms of section 185(a) of the Labour Relations Act (No 66 of 1995) every employee has the right not to be unfairly dismissed.
Section 191(1)(a) of the Labour Relations Act stipulates that in such circumstances where an employee has been unfairly dismissed the employee is entitled to refer the matter to a relevant forum.
In terms of section 191(1)(b) of the Labour Relations Act a referral about unfair dismissal must be made within 30 days of the date of a dismissal. It furthermore stipulates that done at a later date, such referral must be made within 30 days of the employer’s making a final decision to terminate the employee’s employment.
While there is a requirement that employees have to resort to the employer’s internal appeal process should they believe the decision or sanction is unfair, one should try to avoid that a stagnation of the process gives rise to a late referral of the matter to the relevant external forum. There is a possibility that a late referral in parallel with a condonation application could be dismissed. As a result, the applicant could be prejudiced.
As far as your enquiry is concerned it can be assumed that you still have time to lodge an unfair dismissal referral with the relevant external forum. There is also the option of waiting for the outcome of the appeal and to use the date of such as the date on which the employer took the final decision with regard to the termination of the employee’s services.
Employees are therefore encouraged to make sure a referral of this nature takes place within 30 days of dismissal. This recommendation will also apply to cases where the employer fails to finalise the appeal process.