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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

Reinstating an employee

 

 

(111) An arbitrator who finds that an employee's dismissal is substantively unfair must direct the employer to either reinstate or re-employ the employee unless—
(111.1) the employee does not wish to be reinstated or re-employed;
(111.2) a continued employment relationship would be intolerable;
(111.3) it is not reasonably practicable for the employer to reinstate or re-employ the employee.

 

The employee does not wish to be reinstated or re-employed

 

(112) An arbitrator must ensure that the employee has an opportunity to state during the arbitration whether reinstatement or re-employment is sought as a remedy. If the employee does not want either of these remedies, the arbitrator should clarify that the employee does not in fact wish to be reinstated or re-employed and that the employee has adopted this position with full knowledge of the employee's rights under the LRA. Once the arbitrator is satisfied that the employee has made an informed decision not to seek reinstatement or reemployment, it is not appropriate for the arbitrator to interrogate the employee's reason for not seeking this relief any further.

 

The circumstances surrounding the dismissal would make a continued employment relationship intolerable

 

(113) An employer who alleges that a continued relationship would be intolerable must present evidence to the arbitration that demonstrates this on a balance of probabilities. This evidence should establish that there are no reasonable prospects of a good working relationship being restored. An employer may seek to satisfy this burden by leading credible evidence, for example from co-employees who testify that they could not work with the dismissed employee.

 

(114) The conduct of the employee prior to or after the dismissal, including during any disciplinary or arbitration proceedings, may have the result that the employee's reinstatement or re-employment would cause significant disruption in the workplace. For example, it may be intolerable for the employer to reinstate or re-employ an employee in a position of trust where the employee has been found to have been dishonest in the disciplinary enquiry,45 or to reinstate or re-employee an employee if the dismissal which would otherwise have been fair, is found to have been unfair only because the employer acted inconsistently.

 

It is not reasonably practicable for the employer to reinstate or re-employ the employee.

 

(115) This criterion relates to factors other than the employment relationship which would render reinstatement or re-employment an inappropriate remedy. This criterion will be satisfied if the employer can show that reinstatement or re-employment is not feasible or that it would cause a disproportionate level of disruption or financial burden for the employer. The fact that another employee has been appointed in place of the unfairly dismissed employee is not in itself a reason to deny reinstatement, as the reinstatement of an unfairly dismissed employee may constitute a ground for terminating the employment of the newly appointed employee on the grounds of the employer's operational requirements. If reinstatement is not reasonably practicable, the arbitrator should consider whether ordering re-employment in other reasonably suitable work would provide a fair outcome. The onus is on the employer to present evidence to show that a remedy of reinstatement or re-employment is not reasonably practicable or that reinstatement should not be from the date of dismissal.46 If the arbitrator is satisfied that reinstatement and re-employment are not appropriate remedies, the arbitrator must direct the employer to compensate the employee in accordance with the provisions of the LRA. Whether the employee took reasonable steps to mitigate the losses caused by dismissal is not a relevant factor in determining either whether reinstatement should be granted or the date from which it should take effect. 47

 

(116) An employer who is ordered to reinstate an employee must place the employee back in employment in the same position and restore the contractual relationship that applied to the employee prior to dismissal.

 

(117) A reinstated employee's service is regarded as unbroken and the contract of employment as uninterrupted. If reinstatement is made fully retrospective the employee is placed in the same position he or she would have been in had there been no dismissal.48 If an employee is reinstated, any changes in terms and conditions of employment introduced between the dismissal and the order of reinstatement, apply to the employee.49

 

 

45 Maepe v CCMA & others (LAC) at para 14.
46 Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others (CC) at para 29.
47 Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others (CC) at paras 40-43.
48 Equity Aviation Services (Ply) Ltd v CCMA and others (CC) at para 36.
49 Myers v National Commissioner of the South African Police Service and another (LC) at para 21.