BCHC: The date of dismissal in a reasonable expectation of renewal dispute?

Introduction

It is easy to assume that the date of dismissal in a reasonable expectation of renewal dispute would be when an employee’s fixed term contract expires. This date becomes important to determine when an employee has to refer an unfair dismissal dispute to the CCMA or bargaining council.

Section 190(2)(a) of the Labour Relations Act

Section 190(2)(a) of the Labour Relations Act, 66 of 1995 (the LRA) however provides an exception in reasonable expectation of renewal disputes with regard to when the date of dismissal is. In such cases the date of dismissal is the date on which the employer offered the less favourable terms or the date when the employer notified the employee of the intention not to renew the contract.

Some may argue that section 190(2)(d) of the LRA applies in such cases which states that the date of dismissal is when the notice of termination expires or, if it is an earlier date, the date on which the employee is paid all outstanding salary.

Section 190(2)(a) however specifically caters for reasonable expectation of renewal disputes and section 190(2)(d) was inserted in a later amendment in 2014 to deal with circumstances where section 190(2)(a) does not apply i.e. where an employer, for whatever reason, decides to terminate a permanent contract of employment by giving notice or decides to terminate a fixed term contract of employment early.  If this was not the case section 190(2)(a) would have been repealed in 2014. It could in any event never have been the intention of the legislature to allow an employee to pick a date of dismissal as this would lead to uncertainty.  There is also no requirement for an employee to be given notice before the agreed expiry of a fixed term contract.

The above interpretation has been confirmed by the Labour Court in Ndlambe Municipality v CCMA & others [2008] JOL 22780 (LC).

Conclusion

Employers should therefore check whether employees’ reasonable expectation of renewal disputes in the CCMA or bargaining councils have in fact been filed within the prescribed 30-day period as calculated from the date on which the employee was informed that the contract would not be renewed or would be renewed on less favourable terms.