In a recent award in an unfair dismissal arbitration, the Commissioner ordered the Respondent to reinstate the Applicant retrospectively from the date of his dismissal in the same or similar position to that which he had occupied and on the same terms and conditions of employment enjoyed before his dismissal. She furthered ordered the Respondent to pay the Applicant back pay in the amount of R47 589.40, which amounts to his salary from the date of the dismissal up until the date of reinstatement.
The Applicant was dismissed for various acts of misconduct which were committed during a protected strike which commenced on the 11th of September 2017 and that was still ongoing at the time the award was made.
The question that must be answered is “does the Labour Relations Act give the Commissioner the power to make such an award?”
Section 193 of The Labour Relations Act, Act 66 of 1995 (LRA) stipulate the remedies for unfair dismissals.
- If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may:
- order the employer to reinstate the employee from the date not earlier than the date of the dismissal
- order the employer to re-employ the employee, either in the work in which the employee was before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of the dismissal, or
- order the employer to pay compensation to the employee.
What is clear from the above provision is that the arbitrator may reinstate/re-employ the dismissed employee or award compensation. The awarding of backpay in the case of reinstated employees does not amount to compensation – it is simply the awarding of a loss of income for the period of termination and gives the reinstatement award retrospective effect.
In Nel v Municipality & another (2013) 34 ILJ 1737 (SCA) the meaning of reinstatement was explained by reference to the Constitutional Court’s finding in Equity Aviation Services (Pty) Ltd v Commission of Conciliation, Mediation and Arbitration that reinstatement meant:
“To put the employee back into the same job or position he occupied before the dismissal on the same terms and conditions. Reinstatement is the primary remedy in unfair dismissal disputes, and it is aimed at placing an employee in the position he would have been before the unfair dismissal. It safeguards workers‘ employment by restoring the employment contract. Differently put, if employees are reinstated, they resume employment on the same terms and conditions that prevailed at the time of their dismissal, and do not conclude an employment contract afresh. The employer merely restores the position to what it was before the dismissal.”
When we look at the award ordered by the Commissioner, it seems that she did not take the ongoing strike action into consideration. To restore the employee in the position he was before the dismissal would mean that he can go back to work, but as he would have been part of the ongoing protected strike, he would not have received a salary during the strike action, which commenced before his dismissal and is still ongoing.
The amount the Respondent is ordered to pay will, therefore, amount to compensation, as it is more than the employee was entitled to in terms of the formula set out in Nel supra. Therefore, it is my opinion that by awarding retrospective reinstatement and compensation as a remedy for an unfair dismissal she is exceeding her powers as stipulated in section 193 of the Labour Relations Act, Act 66 of 1995.
Article by: Aletta Eksteen
Dispute Resolution Official – Cape Town