When it has been found that an employee has been unfairly dismissed the Labour Relations Act (LRA) requires arbitrators and judges to use reinstatement as the remedy of first resort That is, forcing the employer to take the employee back (often with full back pay) must be considered ahead of any other remedy. Unfair dismissal refers to firings for misconduct or poor performance, incapacity dismissals, discriminatory dismissals, constructive dismissals, retrenchments or any other unfair termination of the employment by the employer.
The requirement for reinstatement to be implemented is limited where:
- The dismissal was only procedurally unfair
- The employee prefers not to be reinstated
- Reinstatement would be intolerable or impractical
Reinstatement means that the employee must be returned to the same job on the same terms and conditions as existed before the dismissal unless the terms and conditions of the job have improved since then. If the arbitrator or judge intends the reinstatement to be fully retrospective he/she is required to make this clear in the award/judgement. This would then mean that:
- the employer would have to pay the employee all remuneration and benefits accrued between the date of dismissal and the date of reinstatement
- the employee’s status is as if there was never a termination of employment.
Where the CCMA or court decides that the employee is to return to work but not in the same job as before it may order re-employment instead of reinstatement as long as the new job contains suitable work.
When the employee is reinstated it will be either to his/her job with the employer who dismissed him/her or to a new employer that has taken over the old employer’s business (or part thereof) as a going concern.
There is nothing specific in law that gives the reinstated employee a higher status merely by virtue of his/her being a reinstated employee. That is, the employee’s status does not automatically increase over that of his/her colleagues or over the status existing prior to the dismissal merely because of the reinstatement order.
However, psychologically the reinstated employee may well have grown in status. This is because:
- His/her colleagues may see him/her as a ‘hero’ for having stood up to the employer or for having ‘beaten the system’.
- Management may be too scared to discipline him/her or to take any other controlling type action for fear of losing another court case. This could be expensive, time consuming and humiliating in the eyes of the workforce.
- Section 5 of the LRA prohibits the employer from victimising the employee in any way for reasons related to the employee having previously exercised his/her labour law rights against the employer. Therefore, any time the employer takes action against the reinstated employee he/she could claim that this was an unfair retaliation for the employee having taken the employer to the CCMA, Labour Court or bargaining council.
It must be stressed that the above concerns do not prevent the employer from disciplining, retrenching or otherwise dismissing a reinstated employee. However, it does mean that the employer would need to do so with the utmost care. This means that the employer must ensure that:
- The dismissal and/or other disciplinary procedures are followed to the letter of the law. That is, the procedures laid down by the LRA and in case law must be followed without the slightest deviation.
- The proof that the reason for the discipline or dismissal was fair is 100% solid.
In order to achieve the above two most challenging tasks the employer may need to make use of far better labour law expertise than was utilised for the case in which the employee was reinstated. The alternative to following the this advice would be:
- either to give the reinstated employee free reign by avoiding any disciplinary or other action against him/her. However, this would allow the employee to control management which is an unthinkable alternative; or
- bungling the case the second time and ending up in the Labour Court for an automatically unfair dismissal based on victimisation. Where, for example, an employer has dismissed an employee in retaliation for having previously exercised his/her legal rights the court can award retrospective reinstatement or compensation of up to 24 months remuneration.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za