2nd July 2021 at 4:36 pm #12295Ivan IsraelstamKeymaster
LEGAL DATE OF DISMISSAL
Section 190 (1) of the LRA provides that the date of an employee’s dismissal is the earlier of:
(a) the date on which the employment contract terminated or
(b) the date on which the employee left the service of the employer.
The LRA neither defines the word “left” nor the word “service” in section 190 (1)(b)
Does section 190(1)(b) mean that the dismissal took effect on:
• the last day on which the employee performed work for the employer or
• the last day on which the employee, according to the instructions of the employer, was required to provide work or
• the last day on which the employee was physically present at the employer’s premises or
• the last day of the employee’s notice period?6th July 2021 at 6:22 pm #12307Michael BagraimKeymaster
In essence the LRA does not define the word “left” but it has been routinely interpreted as not being physically present.
MICHAEL BAGRAIM6th July 2021 at 6:26 pm #12308Ingrid LewinKeymaster
“The provision that the date of dismissal shall be the date on which the employee left the service of the employer, if earlier than the date of termination of the contract, appears to contemplate a situation in which the employee left the service of the employer before the expiry of any notice which might have been given. It also means that employees who left their work because of intolerable conditions, and then subsequently resigned, are deemed dismissed on the date they left work [Helderberg International Importers v McGahey NO (2015) 36 ILJ 1586 (LC)].” Grogan J Workplace Law Juta 2020
From this quotation from John Grogan’s book, I suggest that the date of dismissal is the date on the on which the employee was physically present at the employer’s premises.
In circumstances where the employee is not routinely working from the employer’s premises, I think that the most likely approach for identifying the date of dismissal would be to identify the last date on which the employee actually provided work.
INGRID LEWIN26th July 2021 at 10:41 am #12333Patrick DealeKeymaster
It would be the last day on which the employee “performed work for the employer”. It would make no difference if the reason for stopping the performance of the work was the employer’s instruction or the employee’s decision. At the core of the employment relationship is the employee’s duty to perform the work (or tender to perform it) – and the employer’s recipricol duty to pay for the work performed (wage or salary). It would constitute a breach of the employment contract if either of them failed to perform their respective duty. The effect of the breach would be to terminate the employment contract. The date of the breach would be the date of dismissal.
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