Should it be found that an employee has been unfairly dismissed, the usual remedy is re-instatement. The case of South African Municipal Workers’ Union and another v Ethekwini Municipality and others – (2019) 1 BILLR 46 (LAC) discusses this further.

An employee was dismissed for gross insubordination for repeatedly refusing to obey an instruction to complete certain work. An arbitrator found the dismissal to be unfair on the basis of inconsistency. However, it was held that – because the employment relationship had broken down – the employee could not be reinstated. The arbitrator awarded compensation equal to six months’ salary.

The award was upheld by the Labour Court.

The Labour Appeal Court held that once a dismissal is found to be unfair the mutually exclusive remedies of reinstatement, re-employment or compensation are to be considered. The exceptions provided in section 193(2) of the LRA must be considered at the same time. This section provides that the employee must be reinstated or re-employed unless:

  • The employee does not wish to resume employment,
  • The dismissal was found to only be procedurally unfair, or
  • Reinstatement would be intolerable or impracticable.

The employer has to prove the existence of these “non-reinstatable” conditions. And if they do not, an arbitrator only then has a discretion to decide on the period of retrospectivity.

The finding of the arbitrator, that reinstatement was not reasonably practicable, was based on findings that other union members had also not complied with the instruction and that the employee has not filed a grievance. A reasonable Commissioner would have found dismissal too harsh a sanction, that progressive discipline could have been applied and that reinstatement was appropriate.

The appeal was upheld and the employee was reinstated subject to a final written warning.

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