Reinstatement is the primary remedy under the Labour Relations Act, 1995 and involves placing an employee back into the position they would have occupied before their dismissal.
Is reinstatement the correct remedy when an employee has passed the retirement age? This question was answered in the Labour Court in Samuel v Old Mutual Bank and Others (D398/11)  ZALCD 16; (2019) 40 ILJ 205 (LC).
The Applicant was dismissed in 2007 for alleged acts of misconduct. The Arbitration continued for 28 days over a period of almost 4 years and was finalised in 2011. The Commissioner found in favour of the Applicant but declined to reinstate the Applicant and ordered that the Respondent pay the applicant compensation in an amount equivalent to 12 months’ remuneration. The Respondent argued that the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.
This matter was eventually argued before the Labour Court in 2018, after a series of delays, 11 years after the dismissal, as the Applicant was dissatisfied with the decision of the Commissioner not to grant her reinstatement but to order compensation.
By the time the review application was heard, the Applicant had passed the retirement age. At the time of the Applicant’s dismissal, she had not reached retirement age, nor had she reached retirement age at the time the arbitration was concluded.
The Labour Court found that it does not render the effect of the reinstatement order incompetent just because the Applicant has passed her retirement age at the time of the review application.
The Respondent was ordered to reinstate the Applicant on the same terms and conditions as prevailed at the time of her dismissal. As the Applicant had reached retirement age, the reinstatement was for the period May 2007 to August 2012, the date upon which she would have retired, had she not been dismissed. The effect of the reinstatement meant that the Respondent had to pay the Applicant an amount to 5 years remuneration, the period of the reinstatement.
As far as the delay in the finalisation of a matter is concerned the court referred to Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers obo Masha and Others ‘…it is not rational to use the lapse of time between Masha’s dismissal and the arbitration to deny her the primary remedy of reinstatement. If that was a relevant factor, an employer could avoid reinstatement by merely delaying the completion of the arbitration.’
Therefore, the employer must be alive to the possibility that the retirement age is not a barrier to reinstatement as a remedy for an unfair dismissal dispute.
Article by: Anesta Kruger
Dispute Resolution Official – Durban