One of the most intriguing aspects when dealing with an employee/MISA member who has been substantively unfairly dismissed (that is without a fair and valid reason), is the agglomeration of emotions and expectations. Some expected, in fact, insisted to be reinstated and others expect nothing less than the maximum compensation.
Remedies for Unfair dismissal:
The Labour Relations Act 66 of 1995 (LRA) codified the remedies when an employee is unfairly dismissed in section 193: “If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may – …order the employer to reinstate the employee from any date not earlier than the date of dismissal; …order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or …order the employer to pay compensation to the employee.” (Own Emphasis)
There are three remedies available – reinstatement, re-employment or compensation. Let’s focus on reinstatement today.
The remedy of reinstatement means that you will be restored to your former position with your employer from a date between the date of dismissal and the current date.
Reinstatement may not always consist of back-pay. The court or the arbitrator has discretion to elect whether reinstatement will be made retrospective as well as the degree of retrospectivity. The Labour Appeal Court in Kroukam v SA Airlink (Pty) Ltd 2005 26 ILJ 2153 (LAC) (Kroukam case) confirmed that retrospective reinstatement is not a right that an employee has. (Paragraph 127)
Reinstatement is however not a default remedy as the LRA provides a guideline in subsection 2 that “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.” (Own emphasis)
It appears that reinstatement is the ‘preferred’ remedy for an employee whose dismissal is ruled to be substantively unfair unless there are compelling reasons why compensation should be more appropriate in the circumstances.
Application – Labour Appeal Court
In the Kroukam matter the Labour Appeal Court confirmed that a court or arbitrator has no discretion not to award reinstatement or re-employment unless one of the listed factors is present.
The discretion of the arbitrator and the Courts in applying their minds to the guidelines provided in the LRA was reconfirmed in Matsekoleng v Shoprite Checkers (Pty) Ltd (2013) 2 BLLR 130 (LAC). The Court held that although reinstatement is generally appropriate when an employee’s dismissal is substantively unfair, it may not be granted when an employment relationship is rendered unsustainable by the employee’s allegations against his or her superiors and by his or her poor disciplinary record.
The court or arbitrator will have to find reasons for deviating from reinstatement or re-employment by relying on one of the stipulated exceptions as mentioned above.
An employee whose dismissal has been found to be substantively unfair is primarily entitled to be reinstated unless one of the exceptions are applicable, in which case the court or arbitrator will have to consider the other remedies that are prescribed by the LRA.
MISA – Just a phone call or an e-mail away!
Kindly utilise the following e-mail addresses and links for assistance during this time:
Employer UIF/TERS Submissions UIFClaim@ms.org.za
Legal/Labour-related enquiries Legal@ms.org.za
* Legal Reception 0114763920
MISA Benefit claim-related enquiries Claims@misa.org.za
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