Dismissal: Fact or Assumption?

One would have thought that an employee would know as a question of fact that s/he was dismissed, but it transpired in the matter of Chantal Bisschoff and Curro Holdings t/a/ Curro Academy Wilgeheuwel (handed down on 11 September 2020) that this is not always the case.

Although the matter before the Labour Court turned on an application for condonation, one of the issues in dispute before the court was whether the applicant had resigned or whether she was dismissed. As it turned out, she was neither dismissed nor had she resigned.

It was common cause that Bisschoff, who was pregnant at the time, was instructed to attend a disciplinary hearing, and that she informed the employer that she would not do so as she felt that she had already been dismissed. She was of the view that the charges against her were trumped-up, and that the real reason for her dismissal was related to her pregnancy.

The employer replied that if she failed to attend the hearing, this failure would be regarded as proof thereof that she had resigned. The fact that she referred the matter to the CCMA on the same day as she received the notice to attend a disciplinary hearing, was a further indication that she had resigned. She collected her belongings from the school some four  days later.

Following a default award, which was rescinded, Bisschoff waited more than a year before she approached the Labour Court to have the rescission reviewed.

When applying for condonation, she denied that she resigned, and submitted that she would suffer prejudice if this dispute could not be determined on the merits.

The court made short shrift of the application, finding that she should not have referred the matter to the CCMA if it was pregnancy-related as the CCMA lacked the necessary jurisdiction to determine automatically unfair dismissal disputes.

The court further held that the delay was excessive, and that she did not provide a comprehensive explanation for the delay. Despite having found that “this in itself is fatal to the application” the court proceeded to consider the prospects of success.

The court held that her explanation that she would be dismissed when the hearing proceeded in absentia, was not convincing because she had referred her alleged unfair dismissal dispute two days before the enquiry was due to start. She could therefore not assume that she was dismissed in circumstances where such a dismissal might only occur “pursuant to the disciplinary enquiry”.

Having considered the degree of lateness, the explanation and the weak prospects of success on the merits, the court dismissed the application for condonation.

This judgment once again confirms that employees should not refer alleged dismissal disputes based on an assumption that they were dismissed.  The dismissal must be a fact – and the reason for that fact will determine whether the matter should be referred to the CCMA or the Labour Court