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Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

F: How to Approach Remedies

Ordering re-employment

 

 

(118) An arbitrator may order the re-employment of an employee if the employee's dismissal consists of a failure by the employer to re-employ the employee as contemplated by section 186(1). In addition, an arbitrator may order the re-employment of an employee if it is not appropriate for the employee to be reinstated. The arbitrator may order the employer to reemploy the employee in either the work in which the employee was employed prior to the dismissal or in other reasonably suitable work. The LRA contemplates two broad situations in which it is appropriate to order re-employment. These are—
(118.1) the arbitrator directs the employer to re-employ the employee in the work the employee previously performed but an order of reinstatement is inappropriate because, for example, the evidence indicates that the employee should be employed on different terms and conditions of employment;
(118.2) the arbitrator directs the employer to re-employ the employee in work which is reasonably suitable. An order of re-employment in reasonably suitable work is appropriate where there are circumstances which prevent the employer taking the employee back in the position held prior to the dismissal.

 

(119) The power to order re-employment gives arbitrators a broad discretion to fashion an appropriate remedy in cases in which reinstatement is not appropriate or feasible but fairness dictates that the employee should return to work with the employer.50

 

(120) An arbitrator may only order re-employment into work that is reasonably suitable. This should be ascertained with reference to all relevant factors including—
(120.1) The skills and experience required to perform the job;
(120.2) The remuneration and benefits in the new position compared to those received in the previous position;
(120.3) The status attached to the new position when compared with the previous position.

 

(121) An arbitrator who orders an employer to re-employ a dismissed employee must indicate precisely the terms and conditions under which the employee is to be employed. The arbitrator must stipulate in the order of re-employment—
(121.1) the extent to which terms and conditions of employment are changed or remain the same;
(121.2) the extent to which the employee's service is to be regarded as continuous or interrupted;
(121.3) what benefits, if any, the employee should receive in respect of the period between dismissal and re-employment.

 

(122) In general terms, an order of re-employment is more likely to be appropriate in cases in which the reason for dismissal was the employee's incapacity or the employer's operational requirements. However, there may be cases in which it is an appropriate remedy for a misconduct dismissal.

 

 

50 For a useful discussion, see the Namibian case Transnamib Holdings Ltd v Engelbrecht (Nm) at p 1403 C-F in which it is said that the principal difference between the two concepts is that reinstatement relates to the identical job, while re-employment relates to a similar job.