Procedural fairness in dismissal

From IR Network Daily Update; Saner v Department of Health - Gauteng - (2022) 31 PHSDSBC 7.1,7 also reported at [2022] 4 BALR 341 (PHSDSBC) case.

Subject matter classification:

Procedural fairness in dismissal - Dismissal - Employee who continued to work for two years after retirement age without fresh contract claiming that he had been dismissed when his contract was not renewed - Dismissal not proved.

Mini Case Summary:

After the applicant reached the age of 65 years he continued working as a medical officer for the respondent department for two years, at the end of which his services were terminated. He contended that this amounted to an unfair dismissal as he had been employed on an indefinite period contract. The respondent argued that the applicant had not been dismissed, but that when payment for part-time doctors was discontinued, he was given the opportunity to sign a new contract, which he had not done. His name had, accordingly, been removed from the PERSAL system.

The Commissioner noted that when an employee assumes duties without the written permission of the department, an employment relationship is not established. In terms of the Public Service Act, 1994, the mandatory retirement age of public servants is 65 years. Any further periods of service must be for fixed periods. The applicant had, accordingly failed to discharge the onus of proving that he had been dismissed.

The application was dismissed.