Many Applicants (employees) refer their dismissals to the CCMA or Bargaining councils whether these dismissals were fair or not. In instances where the dismissal was both substantively and procedurally fair and can be successfully defended, the Applicants case will be dismissed and as such the Applicant will also not be entitled to any relief.
However, when the dismissal is found to be substantively and/or procedurally unfair, the presiding Commissioner will award the Applicant some form of relief which may include one of the following:
- The Commissioner may order re-instatement from a date not earlier than the date of dismissal. Reinstatement is the preferred remedy and should only not be considered when:
- The employee chooses not to be reinstated;
- The conditions that exist will make a future employment relationship intolerable;
- It is not reasonably practical for the employee to be reinstated;
- The dismissal is only unfair because proper procedures were not followed.
Reinstatement will mean that no break occurred in the employment contract between the parties. Reinstatement can be any date from the date of dismissal and may in some instances be retrospective which will lead to a form of “back pay” from the time the employee was dismissed until the date duties are resumed. With reinstatement the employee will be placed back in the position held before dismissal, with the same conditions of service as previously held.
- Re-employment is a remedy which allows for the employee to be re-employed by the employer. Thus, a new employment contract will be concluded, this can also include a new position as well as new conditions of service.
- Compensation is also, in many instances, preferred by the Applicant. Although Commissioners favour placing employees back into employment, compensation may be awarded should one of points (a) to (d) as mentioned above exist. The compensation that the Commissioner may award can be an amount to their discretion but will not exceed the maximum of 12 months’ salary. The merits and history of each case will be considered.
- The Applicant may also choose to withdraw the matter from the roll.
The points mentioned above do not only have to be in the form of an award but may, in many instances, be agreed upon between the parties as a settlement of the dispute between them. This will be in the form of a settlement agreement. This agreement, if reached, will be in full and final settlement and bring an end to the dispute.
The decision-making power here lays with the parties themselves and the appointed Commissioner is only there to assist. If an agreement cannot be reached between the parties, the Commissioner will arbitrate the matter.
It is thus of utmost importance to ensure all dismissals are done fairly, with both substantive and procedural fairness present, to ensure that no adverse awards are issued against and employer during the Arbitration phase.
Article by Carlene van der Lith
Dispute Resolution Official – Kimberley