If an employee is unfairly dismissed but does not want his or her job back, can an arbitrator reinstate this employee? In the case of Mmola v Commission for Conciliation, Mediation and Arbitration and others – (2018) 27 LC 1.11.21 the matter was decided upon.
The employee was dismissed for misconduct. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) found that the dismissal was substantively unfair. The employee was awarded compensation equal to three months’ salary.
After this, the employee attempted to have the award reviewed as he felt that he should have been reinstated and the Commissioner should have found that his dismissal was procedurally unfair. It is clear that a Commissioner must reinstate an employee who is found to have been unfairly dismissed unless:
- The employee does not want to return to work and get his job back or
- It impractical or intolerable to reinstate the employee.
The Court held that although the employee had stated, during the arbitration proceedings, that he did not want his job back, the Commissioner had considered that issue. The Labour Relations Act (LRA) states quite clearly that reinstatement cannot be granted if the employee does not want his job back, which was the case here. An award of compensation was, accordingly, correct at law.
The Court noted that the employee’s claim that his dismissal was also procedurally unfair was based on the argument that the employer had not provided an interpreter. It was found that proper interpretation is a key element of procedural fairness. The lack of a qualified interpreter in this case also rendered the dismissal procedurally unfair. Thus not only was it substantively unfair but also procedurally as well.
Since the Commissioner had also taken into account a number of irrelevant factors in assessing the substantive fairness of the dismissal, the compensation awarded was increased from three to seven months.
On review, compensation amounts can be increased but if the employee did not want the job back that cannot be awarded by an arbitrator or the Court.
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