By Sharusha
Moodley, Bregman Moodley Inc Attorneys
According to Section 193(1) of the Labour Relations Act 66 of 1995 (LRA), once a dismissal is found to be unfair, an arbitrator may order reinstatement, re-employment, or compensation for the employee. However, there are certain conditions that must be considered.
Section 193 of the LRA outlines the circumstances under which
reinstatement may not be required. These include:
a.
The employee
does not wish to be reinstated,
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,
or
d. The dismissal is unfair only because the employer did not follow a fair procedure.
In the case of Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (DA6/2021) [2023] ZALAC 5 (14 February 2023), the arbitrator found the dismissal of an employee to be substantively unfair and ordered the employer to pay compensation. However, since the employee was on a fixed-term contract that had already expired at the time of the dismissal, the arbitrator was legally unable to order reinstatement.
The employee challenged the arbitrator's decision on appeal, arguing for reinstatement instead of compensation. However, the Labour Appeal Court held that reinstatement was not a competent remedy in this case because the fixed-term contract had already expired and was not in existence at the time of the dismissal. The court clarified that reinstatement is a remedy for unfair dismissal only when the contract of employment is still in effect at the time of the order.
Therefore, if an employee's fixed-term contract has expired before an
arbitrator's finding of unfair dismissal, reinstatement is not a viable remedy.
In such cases, the arbitrator is obligated to order payment of compensation as
the appropriate remedy under Section 193(1) of the LRA.
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