RE-INSTATEMENT: THE PRIMARY REMEDY UNDER THE LRA

Modern day employees are well versed in their employment rights, especially when it comes time to head down to the CCMA. But how clued up are employers in understanding what risks they are exposed to when matters come before a Commissioner at the CCMA?

We will be reviewing unfair dismissal remedies, more particularly reinstatement.

Reinstatement is seen as the primary remedy in unfair dismissal cases and it is only subject to a few exclusions where Commissioners should deviate from this relief.

S193(2) of the Labour Relations Act 66 of 1995 (“the LRA”), provides for these exclusions:-

“(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless

  • the employee does not wish to be reinstated or re-employed;
  • the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
  • it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
  • the dismissal is unfair only because the employer did not follow a fair procedure.”

Sections 193(2)(a) and (d) LRA are self-explanatory, but what of an intolerable continued employment relationship (s193(2)(b) LRA) and where it is not reasonably practicable (s193(2)(b) LRA)?

The intolerability of continued employment relationship was considered in the case of Jonas v CCMA & Others. Mr. Jonas was dismissed for disrespectful treatment of subordinates. His dismissal was found to be substantively unfair by the CCMA but the commissioner refused to reinstate him on the assertion that it was not reasonably practicable to do so (i.e. in terms of s193(2)(c) LRA).

The Labour Court reviewed the CCMA’s decision and found that although the commissioner relied on s193(2)(c), it was clear from his reasoning that he had found that it would actually be intolerable to reinstate him (i.e. s198(2)(b) LRA).

This intolerability was evidenced by the employer through Jonas’s pursuit of defamation claims against employees who participated in securing his unfair dismissal. The Court considered Jonas’s actions against the employer’s reliance on the exclusion of reinstatement and ordered that Jonas should be reinstated.

The Court cautioned commissioners that although an employer can rely on other factors that may have warranted disciplinary action, they should not fall into the trap of refusing the primary remedy of reinstatement.

The matter of Xstrata SA, an employee had been dismissed for gross negligence in relation to his part in a fatal accident that had occurred in one of Xstrata’s plants. The CCMA held the dismissal to be substantively unfair, but only awarded the employee compensation and not re-instatement.

The matter was taken on review and eventually ended up before the Labour Appeal Court who held that in order to avoid an order of reinstatement by relying on s193(2)(c) LRA, employers are obliged to satisfy the arbitrator that reinstatement is not reasonably practicable.

“Reasonably practicable” does not mean “practical” – it speaks to the possibility of something, therefore if it is not possible it will not be feasible (e.g. the employee’s job no longer exists or financial constraints of the employer).

The Court found that Xstrata had failed to lead any evidence as to why reinstatement would not be reasonably practicable and that the commissioner had misdirected his assumption that reinstatement would not be a competent remedy.

The employee was, accordingly, reinstated.

The common thread in the above cases, and any other case dealing with a matter of this nature, is that it is the responsibility of the employer to lead evidence on its reliance on any of the exclusions provided for in s193(2) of the LRA. The difference between a reinstatement order and one of compensation can be stark, both in terms of monetary consideration and the practical reality within the workplace dynamics.

It is important to remember that commissioners are creatures of statute. They are only empowered to do what the relevant legislative provisions enable them to do. Whilst exclusions to the remedy of reinstatement are provided for in the LRA, it is not the responsibility of the commissioner to reach a conclusion of the application of same on their own.

Employers should heed the importance of presenting all necessary considerations to a Commissioner and making clear their expectations and/or requests.

If you find yourself facing an unfair dismissal claim and are unsure of what to do next, please contact our offices to arrange a consultation for us to assist you.

CASES REFERRED TO:

Xstrata SA (Pty) Ltd (Lydenberg Alloy Works) v National Union of Mineworkers obo Masha & Others (2016) 37 ILJ 2313 (LAC): http://www1.saflii.org/cgi-bin/disp.pl?file=za/cases/ZALAC/2016/25.html&query=Xstrata%20SA%20(Pty)%20Ltd

Jonas v Commission for Conciliation, Mediation and Arbitration & Others (2017) 38 ILJ 376 (LC): http://www1.saflii.org/cgi-bin/disp.pl?file=za/cases/ZALCPE/2016/17.html&query=(2017)%2038%20ILJ%20376%20(LC)

Note: This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. BLC Attorneys will accept no responsibility for any actions taken or not taken on the basis of this publication.

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