Sometimes, when an unfair dismissal hearing succeeds, the Commission for Conciliation, Mediation and Arbitration (CCMA) can make a monetary award to the employee. However, this award can be overturned as can be seen in the case of Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM Obo Masha and Others (JA 4/15) [2016] ZALAC 25 (14 June 2016).

The employee was dismissed for gross negligence after a fatal accident at the employer’s plant. The Commissioner ruled the dismissal to be unfair as the employee had not been trained in the procedure which she had not followed. The employee was awarded three months’ compensation.

The Labour Court set the award aside and substituted the award with a retrospective reinstatement order.

On appeal, the employer argued that there was no reason to dismiss the compensation order. The Labour Appeal Court (LAC) noted that reinstatement is the default remedy for an unfairly dismissed employee and only if one of the exceptions exist reinstatement should not be granted.

The Commissioner had apparently relied on section 193(2)(c) of the Labour Relations Act (LRA) which precludes reinstatement that is not reasonably practical.

What does Section 193(2)(c) of the LRA state regarding a dismissed employee?

In terms of this section a Commissioner does not have to reinstate or re-employ a dismissed employee if:

• The employee does not wish to return to the employer, or
.• It is impractical or intolerable to reinstate the employee into the previous working environment.

This only applies if the reason (which is called ‘substantive compliance’) is lacking. If a dismissal is found to be procedurally unfair only a Commissioner may not reinstate or re-employ.

Only the Commissioner has the power to award compensation. However, this means that reinstatement is impossible to achieve and not merely impractical.

In the above-mentioned case, the Commissioner’s misinterpretation of section 193(2)(c) lead to an unreasonable outcome. The Court dismissed the appeal with costs.

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