You only have 2 month window to challenge a dismissal as unfair

As of July1, 2015, the law and procedure with regard to bringing a claim for unfair dismissal has been substantially altered. Prior to this change, as an employee you could challenge a dismissal as unjustified or unfair via a written communication addressed to the employer within six months of the dismissal. The summons often included a demand for continued payment of wages and possible re-employment or continuation of employment for this time period, taking account of labour market conditions. However, as of July 1, 2015, a legally unauthorized or unfair dismissal is deemed insufficient and the employee have less time to bring a claim for unfair dismissal or challenge / appeal against the dismissal. If you do not agree with the dismissal, you should ask the court within a two month period to set aside and overturn the termination. This does not happen by summons, but through a petition process. If you are late in bringing a claim or file a false claim, then you will be turned down in your appeal against the dismissal. The dismissal will then be final and the termination cannot be set aside.

Immediate or Instant Dismissal

The position taken by the courts on this issue was highlighted in a recent case. The employee was summarily dismissed on October 2, 2015. The dismissal was immediately confirmed in writing by the employer. The employee immediately protested the dismissal by SMS. Subsequently, the lawyer for the dismissed employee enacted the traditional summons procedure as opposed to an application procedure to obtain injunctive relief via a preliminary injunction (an emergency measure), as well as to secure re-employment and advanced payment of wages. Such a claim under the old law was very common. But in this case the court did not accept the arguments of the dismissed employee, highlighting a shift in legal thinking as seen below.

Understanding Procedure and Requirements

On December 4, 2015, the lawyer for the dismissed employee in the above case produced another argument. He asked the court to consider the case as an application to set aside the termination of employment through its petition process as per the new law rather than the summons procedure. However, the Sub District Court held that as of July 1, 2015, an unfair dismissal can only be set aside by submitting an application to the court. The application to set aside the termination of employment must be submitted in court in accordance with the law by the employee within the period of two months after the dismissal. If the request is not filed on time, the dismissal is declared final and cannot be set aside.

Importance of Making a Timely Application

According to the judgment in the case, it appeared from the evidence that the employee had not submitted an application to set aside the dismissal. The two-month period time limit for making an application to the court had also already expired on December 3, 2015. It was also not possible to consider the request of December 4, 2015 of allowing the interim relief summons (as under the old law) to be seen as a timely filed petition to set aside the dismissal of the employee. Furthermore, the court argued that it would not be possible to uphold a request that allows a party to change the procedure it follows i.e. to change from following the summons procedure to following the petition procedure.

According to the court, although the summons was intended to challenge the immediate dismissal of the employee, it was found that no such claim was made in the submitted summons – a necessary criterion. The primary requests in the summons were, in fact, for re-employment and wage payment. This did not justify, in the eyes of the court, to allow the claimant to switch from one procedure. Therefore, the application had to be seen as a summons and not a petition.

The Result

The interim relief application was rejected because the judge considered the claimant’s explanation implausible. The judge also believed that the claimant’s failure submit an application to set aside the dismissal meant that the dismissal would remain intact and cannot be set aside.

Conclusion

If you wish to challenge the dismissal, you must submit an application to the court within two months after the dismissal asking it to set aside the dismissal. This time period given to make such an application and cannot be interrupted or extended. Therefore if the request is not submitted within the two month period the dismissal would be considered final and cannot be challenged or set aside. The employee will then not be able to do anything against the dismissal.

 By:  GMW Advocaten