The applicant referred an unfair dismissal dispute to the Bargaining Council.  The respondent placed the dismissal in dispute.

He was served with a notice to attend a disciplinary enquiry on 1 July 2011, resigned on 17 June 2011 and withdrew his resignation in writing on 20 June 2011.  At the disciplinary hearing the chairperson issued a guilty finding on 3 August 2011 but did not issue a sanction on the ground that the employment relationship terminated on 31 July 2011.

The applicant testified that the withdrawal of his resignation was accepted and that he was dismissed as the UI19 stated that the reason for termination of service was dismissal on 31 July 2011.

It was argued on behalf of the respondent that the resignation was accepted but the withdrawal thereof not.  In fact, the non-acceptance of the withdrawal was reiterated at the disciplinary hearing. Looking at the probabilities, the commissioner noted that he found it improbable that the respondent would hold a disciplinary hearing and issue a finding on 3 August 2011 after they had dismissed the applicant for unknown reasons on 31 July 2011.

The applicant had therefore not proved the existence of a dismissal.

Written by Advocate Nicolene Erasmus

First published by SA Labour Guide