Section 193(2)(b) of the Labour Relations Act reads as follows;
(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
2021 saw several fascinating cases that touched on this issue. And Professor Alan Rycroft, during a recent SASLAW webinar, went into a brief discussion of the relevant cases.
We will not delve into the facts of the cases but will briefly touch on the essential aspects of the issues that we believe are important to take away.
In Standard Bank of SA Ltd v Leslie & Others (2021) 42 ILJ 1080 (LAC), the Labour Appeal Court held that the suspicion surrounding the employee and his suspicious behaviour both before as well after the incident could be taken into account when assessing whether or not the continued relationship would be intolerable. It is worth noting that the employee was not actually found guilty of the misconduct they were dismissed for. However, the takeaway here is that all relevant circumstances need to be considered when considering reinstatement.
In the case of VSB Construction t/a Techni-Civils CC v NUM obo Mngqola and Others (PA11/2018)  ZALAC 21 (23 July 2021), the Labour Appeal Court stated the importance of employers leading evidence in their arguments to demonstrate the exceptional circumstances, brought about by the Applicant’s misconduct, which makes the continued relationship intolerable, and by doing so, avoid reinstatement. In this case, even though the employee’s misconduct could easily be deemed to have broken the trust relationship between the employer and employee, the employer failed to argue that these exceptional circumstances existed. As such, reinstatement was ordered by the Court.
Finally, considering the Booi v Amathole District Municipality (CCT 119/20)  ZACC 36 (19 October 2021), the Constitutional Court focused on the meaning of the word “intolerable”. The Court held that the word “intolerable” implies a level of unbearability. In essence, this means that an employer-employee relationship that has merely become difficult, or perhaps sour, does not necessarily amount to it becoming intolerable. Therefore, reinstatement may indeed be justified.
In short, employers need to take from these cases that when arguing for a relevant sanction, specifically dismissal, it is of the utmost importance that evidence is presented and that the impossibility of a continued working relationship is properly argued. The mere mention that the trust relationship has been broken due to the employee’s misconduct may not always be sufficient to convince chairpersons and arbitrators that the situation is, in fact, so dire.
Article by: Wesley Field
Provincial Manager – Bloemfontein