REINSTATE OR COMPENSATE? Will it be impractical to order reinstatement because an unfairly dismissed employee behaved badly in the arbitration?
The primary remedy for an unfair dismissal is reinstatement. But sometimes it’s not reasonably practicable for the employer to reinstate or to re-employ the employee. The most common reason is that events before and after the dismissal could have damaged the employment relationship so badly it can’t be restored. Another is that a lot of things may have changed in the employer’s business or in the employee’s life in the period between the dismissal and the finding of unfair dismissal.
The LRA recognises and caters for these situations in s193 (2) as follows –
‘The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-
- the employee does not wish to be reinstated or re-employed;
- the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
- it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
- the dismissal is unfair only because the employer did not follow a fair procedure.’
Labour Court recently gave some useful guidelines on how to apply s193(2). A bulldozer driver was required to wear ear muffs but he refused to do so during an altercation. The employer charged him with misconduct for refusing to comply with a reasonable instruction, insubordination and dishonesty. He was dismissed and went to the CCMA.
The commissioner found the dismissal was substantively unfair, but refused to order reinstatement as the employee requested. This was because the employee had conducted himself so badly in the arbitration hearing that the working relationship had broken down irretrievably. Amongst other things, the employee had accused the employer’s representative of bribing witnesses and the commissioner of conniving with the employer’s HR personnel.
On review, the Labour Court set the decision aside and substituted an order of reinstatement. The court observed that CCMA arbitrations are litigious proceedings and thus adversarial in nature. During the course of such proceedings, it is not uncommon for parties to behave irrationally or become emotional.
On appeal, the LAC agreed with the judgment in the following terms –
“This conclusion is unquestionably correct because the role performed by Sibeko as a dozer driver did not embrace a dimension that a display of bad manners in the arbitration proceedings would render a reinstatement inappropriate. The true issue is not that Sibeko was justified in his outbursts, or that there is a degree of mitigation in the given circumstancesfor his poor manners, but rather that the functional role performed by a dozer driver within the employer’s organisation, including the functional rapport or lack thereof with his superiors, was not adversely impacted by such conduct, within the meaning of (c).”
TIP: The decision to reinstate or reemploy will be judged with reference to the employer’s operational requirements. It will not be judged on the conduct of the employee in the arbitration hearing.
Sources: Glencore Holdings (Pty) Ltd and Another v Sibeko and Others (JA16/2016, 2013/JR2189)  ZALAC 65;  1 BLLR 1 (LAC) (1 November 2017); Worklaw Newsletter January 2108.
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