Sections 193(1) and (2) of the Labour Relations Act list a hierarchy of remedies available to employees who are found to have been substantively unfairly dismissed in arbitration hearings.
On the one hand, retrospective reinstatement is a remedy limited to cases of substantively unfair dismissal. On the other hand, identified procedural unfairness qualifies for financial compensation, as opposed to reinstatement, as a remedy.
Sections 193(1) and (2) of the Labour Relations Act read: “Remedies for unfair dismissal and unfair labour practice (1) 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 (a) order the employer to reinstate the employee from any date not earlier than the date of dismissal; (b) 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 (c) order the employer to pay compensation to the employee. (2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless (a) the employee does not wish to be reinstated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure.”
However, not every employee who is held to have been substantively unfairly dismissed is granted retrospective reinstatement, even though that is precisely the remedy they sought.
Section 193(2) leaves little dispute that retrospective reinstatement “must” be applied in cases of substantively unfair dismissal, yet exceptions are nonetheless made for cases in which the unfairly dismissed employee does not seek reinstatement or in cases where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or it is not reasonably practicable for the employer to reinstate or re-employ the employee”.
In a recent Labour Court judgment in Sinenhlanhla Precious Mthetwa v the CCMA & 2 others (Case number JR1806/18), the acting judge was required to pass judgment on an arbitrator’s election not to select a retrospective reinstatement remedy in a case where the arbitrator held that the employee had been substantively unfairly dismissed and when the employee sought reinstatement.
The employee had pleaded guilty at a disciplinary hearing to various allegations of serious misconduct, including assault, intimidation and harassment. She was dismissed. She challenged the fairness of her dismissal at the Motor Industry Bargaining Council, at which her dismissal was held to have been procedurally and substantively unfair.
After that she sought the remedy of compensation in the pre-arbitration minutes. She then changed her claim to that of retrospective reinstatement at the commencement of the arbitration hearing.
The commissioner granted the employee maximum compensation, as opposed to the retrospective reinstatement she had sought. The employee then took the judgment on review to the Labour Court, arguing that the commissioner had “misconducted herself when she deviated from the primary remedy of reinstatement which the applicant sought ”.
Not so, said the judge, who held that the review application was to be dismissed, holding further that he was left with the sense that the commissioner’s “value judgment” was not “far-fetched or one which a reasonable decision maker could not have arrived at”.
So, why did the commissioner and the judge conclude that the primary remedy of retrospective reinstatement should not apply in this case?
Various reasons were articulated. To begin with, the employee was already on a final warning for misconduct and the employer had sponsored anger management support for the employee in the past, which had apparently failed to be effective.
The commissioner had, more specifically, concluded that “the applicant’s tenure (of employment) would be unsafe and insecure should she be retrospectively reinstated”, a conclusion that the judge noted “is not explained”.
Be that as it may, this judgment aligns with prior case law that gives effect to parts of section 193(2) of the Labour Relations Act, which entitles arbitrators to deviate from the primary remedy of retrospective reinstatement in cases of substantively unfair dismissals.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375, email [email protected] or visit www.tonyhealy.co.za