When a matter is referred to Arbitration, one of the possible awards handed out by the Commissioner is reinstatement. Generally, the award of reinstatement flows as a result of a referral related to a dismissal or end-of-contract matter. With reinstatement, the Commissioner directs the employer (the Respondent) to restore the employee (the Applicant) to their position prior to the alleged dismissal from the business. The same terms and conditions which applied before dismissal or end of the employment contract will apply.
The power of the Commissioner to make an award of reinstatement stems from the Labour Relations Act (LRA), which stipulates as follows:
Section 193 of the LRA determines:
(1) 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-
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal.
The Commissioner can explicitly determine the date of reinstatement. In the absence of the date being mentioned in the award, the date will be considered from the date of the award being handed down.
One of the consequences of reinstatement is that the employee’s term of service is viewed as if it had never been broken. In other words, the period in which the employee had worked for the Respondent will be continuous despite having been dismissed.
The last aspect to consider with reinstatement is the matter of back-pay. Should reinstatement be awarded with back-pay from the date of the end of the employment relationship, the employee (Applicant) will be paid their remuneration from the date of dismissal to the date of the award.
Article by: Zothani Maseko
Dispute Resolution Official – Durban