One of the primary functions of the CCMA is to “keep employees employed”. Therefore, it is not surprising that reinstatement or re-employment is the primary remedy for an employee whose dismissal was unfair.
Section 193 of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA) provides that where an arbitrator finds that a dismissal is unfair, they may order reinstatement, re-employment, or compensation.
The question, therefore, is whether reinstatement or re-employment is always the appropriate remedy where it is found that a dismissal was unfair?
Section 193(2) answers that question by providing arbitrators with exceptions where reinstatement or re-employment would be found not fair.
“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,
(b) if 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 SA Revenue Service v Commission of Conciliation, Arbitration and Mediation and others (2017) 38 ILJ 97 (CC), it was held that “Once the Labour Court or an arbitrator has found a dismissal unfair, it or he is obliged to consider which one of the remedies listed in section 193(1) is appropriate, having regard to the meaning of section 193(2).
The Court noted that considering both the provisions of section 193(1) and section 193(2) is important because one cannot adopt the attitude that dismissal is unfair, therefore, reinstatement must be ordered. The Labour Court or an arbitrator should carefully consider the options of remedies in section 193(1) as well as the effect of the provisions of section 193(2) before deciding on an appropriate remedy. A failure to have regard to the provisions of section 193(1) and (2) may lead to the Court or arbitrator granting an award of reinstatement in a case in which that remedy is precluded by section 193(2).”
The application of section 193(2)(a) was made clear in the recent ruling in Real Time Investments 158 t/a Civil Works v Commission for Conciliation Mediation and Arbitration and others (2022) 31 LAC. The Labour Appeal Court ruled that the Labour Court, on review, acted unfairly in reinstating an employee when the employee had not sought reinstatement at the arbitration that took place at the CCMA.
In this matter, the employer did not oppose the review application of the employee because it was believed that the worst that could happen would be that the employee would receive compensation or that the matter would be remitted to the CCMA for a fresh hearing. Section 193(2) was clearly not considered when the reinstatement ruling was made and therefore found to be unfair.
In the event of the deterioration of the employment relationship, employers should testify to why the exception in section 193(2)(b) should apply. Even if the dismissal was deemed to be substantively unfair, it is not always possible to repair the employee/employer trust relationship.
In Xstrata South Africa (Pty) Ltd v Num obo Masha and Others JA4/15  ZALAC 25; 37 ILJ 2313 [LAC];  4 BLLR 384 (LAC), the Labour Appeal Court ruled that reinstatement should not be granted when it is not practically feasible. Something is not feasible if it is beyond possibility, for instance, where the employee’s job no longer exists, or the employer is facing liquidation, relocation, or the like”. Where an employer wants to rely on the exception as stipulated in section 193(2)(c), they must prove that reinstating an employee is not reasonably possible in the sense that it may be potentially futile.
The last exception in section 193(2)(d) is clear. Where it is found that there were procedural irregularities but the reason for the dismissal was fair, reinstatement or re-employment may not be granted as a relief.
In conclusion, section 193 of the LRA requires arbitrators to reinstate or re-employ as a primary remedy where dismissal is unfair. Therefore, it should not be expected that a commissioner or arbitrator would assume that one of the exceptions listed in section 193(2) exists. Therefore, employers must lead evidence during arbitration proceedings to prove why reinstatement or re-employment should not be granted.
Article by: Aletta Eksteen
Dispute Resolution Official – CEO Cape Town