Section 193 of the Labour Relations Act provides the remedies available to individuals who have been unfairly dismissed or have suffered an unfair labour practice. One of these remedies, where an unfair dismissal is applicable, is that of the so-called “retrospective reinstatement” of an employee.
Subsection 2 states that:
The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-
(a) the employee does not wish to be reinstated or re-employed;
(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.
Taking the above into account, it is clear that this reinstatement and/or re-employment is thus the primary remedy available to employees who have been unfairly dismissed.
We are, however, during the current new normal, experiencing immense delays in the completion of CCMA disputes due to various factors, i.e.:
- COVID-19 Pandemic
- CCMA Budget Cuts
- Postponement of mattes due to illness or other contributing factors
These delays, which are not due to the fault of the employer, can have an impact on the adverse award with specific reference to the amount of compensation awarded as “back pay”.
Commissioners, however, have a discretion when it comes to the establishment of the amount of compensation and/or backpay they choose to award to an employee. They also have a basic mandate to uphold natural justice when making a decision and issuing awards.
Therefore, ensure that the delays in completion of a matter are addressed during the Arbitration and highlight delays which prejudiced the employer.
Where an employee has requested several postponements due to a lack of preparedness or a failure of witnesses to attend, address this during your closing argument for the Commissioner to consider. The same is applicable where a matter has been delayed due to the COVID-19 lockdown where access to the CCMA was prohibited and/or delayed.
Make sure to address the Commissioner on TERS payments which your employees received during this period and that the employee, if reinstated, would not have been eligible for salary payments during a specific period but rather, that the employee would have received TERS like others in the company.
Where matters are delayed, due to the lack of Commissioners as a result of the well-published CCMA budget cuts, make sure to address this during your matter. If placed on record, the Commissioner will need to consider these submissions when drafting his/her award. Where there was a failure to consider TERS payments specifically, the award might also be eligible for variation.
Clearly from the above, one should always consult your employer organisation representative on such matters and ensure that you as the employer, enjoys the representation CEO can offer at all CCMA and/or Bargaining Council processes.
Article by: Jaundré Kruger
Provincial Manager – FS/NC