In circumstances where conciliation is not possible in a dispute, and the aggrieved party wishes to proceed further with their matter, they may do so by requesting the matter to be set down for arbitration. Once the arbitration process commences, an arbitrator has two primary options after evaluating the evidence placed before them: do they find in favour of the employer or in favour of the former employee? Should the arbitrator find in favour of the employer, then the dispute is dismissed.

In circumstances where the arbitrator finds in favour of the former employee, the arbitrator must then consider appropriate recourse to address the actions taken against the former employee. In terms of legislation, the arbitrator has three options before them: they may order that the former employee be reinstated (with or without backpay), they may order that the former employee be re-employed, or they may order that the former employee be compensated. In instances where it is found that the process was only procedurally unfair, the Commissioner may make an order of compensation.

There are scenarios where reinstatement or re-employment is not possible, including that the former employee may be employed elsewhere or that it is not feasible to expect the former employee to return to work for the former employer due to a breakdown of the relationship. In these circumstances, the arbitrator will make an award to compensate the former employee for the unlawful actions taken against them.

Zondo JP (as he was then) stated in SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others (2017) 38 ILJ 97 (CC) that it was not practical to make an open or closed list of considerations to be had when considering an appropriate award of compensation. Our Courts, Commissions and Councils have come to consider many relevant circumstances, including the length of the period in which the former employee was unemployed for, the length of service which the former employee would have accrued, and any blameworthiness on the part of the former employee.

In cases where an employee was unfairly dismissed, such an employee may receive compensation of less than or equivalent to twelve (12) months of income. In the case where an employee was dismissed for a reason which is considered to be automatically unfair, such an employee may receive compensation of less than or equivalent to twenty-four (24) months of income. This, however, resides within the jurisdiction of the Labour Court.

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Article by: Avishkar Singh
Dispute Resolution Official – Durban