Labour Law in a Nutshell October 2019

BAD COMPANY: Should an employee still be reinstated if a dismissal is unfair but the working relationship has broken down? 

This is what the Labour Appeal Court (LAC) had to consider in the recent Afgen[1] appeal.
If a dismissal is found to be unfair, s193 of the LRA says that – S193 of the LRA provides that –

2. The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless

a. …
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 reinstate or re-employ the employee;’ [emphasis added]

In the Afgen case, the CMMA found the dismissal was unfair. The arbitrator decided not to reinstate the employee because the employment relationship had broken down. He instead ordered the employer to pay 3 months compensation to the employee.

On review, the Labour Court ordered the employer to reinstate the employee and to pay her 24 months’ salary as compensation. On appeal, Labour Appeal Court (LAC) overturned the LC judgement and ordered the employer to pay 12 months compensation with no reinstatement.

In so doing, the LAC accepted the dismissal was unfair and noted that –

    • `There has to be an extraordinary reason to deviate from the standard remedies of reinstatement or re-employment under s193 (1);
    • The employment relationship in this case was dependent on the employee and her superior working closely together.
    • There was unchallenged evidence that the employee –
      • Seldom if at all reported back to her superior as she was required to do;
      • Did not take her seriously and bypassed her totally;
      • Did not respect her as her superior;
      • Did not adhere to instructions given to her;
      • Was generally rude;
      • Did not have a good working relationship with her;
      • Did not respond to her emails;
      • Allowed her work to fall behind in an unacceptable manner; and
      • Had received a number of verbal warnings and reprimands for her behaviour, yet this did not improve things and the employee simply ignored them.

The LAC concluded that there was clear evidence to show that there was no way that the employee and her manager would be able to work together. For this reason, it would be totally inappropriate to reinstate the employee into her position in these circumstances.

Tip: The LRA recognises in s193 that there may well be times when it’s just not possible or practical to reinstate an employee when there is a bad relationship between the employee and the employer. The legal system can’t force people to get along with each other when a relationship breaks down for whatever reason. There must be convincing evidence that the relationship of trust has been damaged beyond repair. This is made easier if the employee admits, as she did in the Afgen case, that she would not be able to work with her manager again.

Patrick Deale
labour lawyer & mediator

Email: patrick@deale.co.za
Tel: 083 375 8771
Web: www.deale.co.za

[1] AFGEN (Pty) Ltd v Ziqubu (JA34/18) [2019] ZALAC 40 (13 June 2019);
Source: Worklaw.co.za


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