Many a time when employers settle their disputes in the CCMA, either during conciliation or arbitration and the decision is made that the employee returns to work, a critical distinction to be considered carefully is whether the employee returns as a new employee or on the terms and conditions of their previously terminated employment, as if the dismissal had never occurred.
The relevance of this distinguishing factor is crucial and could have catastrophic consequences if the difference is not understood correctly.
An employee who settles on re-employment returns to the employer’s employ as a new employee. They sign a new employment contract, and their employment start date is not the same as the previous date they commenced employment with the employer. No law specifically prohibits the re-employment of a dismissed employee. The re-employment of a formerly dismissed employee could jeopardise an employer’s position when dealing with future disciplinary situations involving other employees who are guilty of the same or similar misconduct. These employees will undoubtedly argue that the misconduct does not necessarily permanently destroy the employment relationship, and as such, they should not be dismissed for their misconduct. A re-employed employee could take the re-employment to mean that the misconduct was not regarded as serious by the employer and then potentially commit the same offence.
A prime example of this was in the case of Liberated Metalworkers Union of South Africa obo Molefe and others and Harvest Group  (CCMA). In this case, the employer had dismissed a group of employees for participating in an unprotected strike during 2016. Following this dismissal and in early 2017, the employer re-employed 11 of the formally dismissed employees. On word of this, the Union engaged with the employer who confirmed the employment of the 11 former employees. It was agreed that, by implication, there was a demand by the Union to have their members re-employed and that the employer had refused to re-employ them. The Union thereafter referred an unfair dismissal dispute to the CCMA.
In terms of the Labour Relations Act, there is no set definition for reinstatement. Therefore, it is important to consider court decisions in order to define reinstatement.
Case law suggests that in its simplest terms, reinstatement means “to put an employee in the same position he/she was in prior to dismissal.” This means that the employee will resume his or her position on the same terms and conditions as if the dismissal did not occur.
This means reinstatement reinstates and compels the employer to return the employee to the same job on the same terms and conditions that existed before the dismissal unless the terms and conditions of the job have improved since then. If it is decided that the employee is to be reinstated and this is to be done entirely retrospectively, a Commissioner is then required to make this clear in the award/judgement. This would then mean that:
- The employer would have to pay the employee all remuneration and benefits accrued between the date of dismissal and the date of reinstatement;
- The employee’s status is as if there was never a termination of employment.
In terms of S193(1)(a) of the Labour Relations Act, “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 any date not earlier than the date of dismissal.” Therefore, the date of reinstatement will depend on the Court or the arbitrator.
In Equity Aviation Services (Pty) Ltd v CCMA 21, the Court stated that: “The ordinary meanings of the word reinstate means that the reinstatement will not run from a date after the arbitration award. Ordinarily, then, if a Commissioner of the CCMA orders the reinstatement of an employee, that reinstatement will operate from the date of the award of the CCMA unless the Commissioner decides to render the reinstatement retrospective.”
When an employee is dismissed, the relationship between employer and employee generally deteriorates due to a lack of trust within the relationship. Tensions between the parties might rise, making reinstatement of no beneficial effect on either party. Therefore, a court or arbitrator cannot force an employee to accept the remedy of reinstatement. The Act has taken this somewhat into consideration. In terms of S193(2) of the Labour Relations Act, the Labour Court or arbitrator must require the employer to reinstate or re-employ the employee unless:
- The employee does not wish to be reinstated or re-employed.
- The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.
- It is not reasonably practicable for the employer to reinstate or re-employ the employee; or
- The dismissal is unfair only because the employer did not follow a fair procedure.
Article by: Thabo Mongale
Dispute Resolution Official – Kimberley