Section 186(2) of the Labour Relations Act (LRA) provides a list of instances when an unfair labour practice could arise between an employer and employee. One of these instances refers to ‘the failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement’.
This type of unfair labour practice dispute usually arises in retrenchment situations when there was an agreement between the employer and a retrenched employee to the effect that the employee will be re-employed when a vacancy becomes available and the employer does not re-employ that employee, the conduct on the part of the employer may constitute an unfair labour practice
The Labour Court held in NUMSA obo Members v Timken SA (Pty) Ltd  ZALCJHB 52 that “it is an established principle of our law that whenever the situation that led to the retrenchment improves, resulting in the need for additional personnel, the employer is obliged to give preference to the re-employment of the retrenched employees should they be suitably qualified.”
It is also important to note that section 189(3)(h) of the LRA places an obligation on employers to disclose the possibility of future re-employment of the employees who were retrenched, this disclosure must be contained in the written notice issued to consulting parties.
An unfair labour practice dispute in terms of section 186(2)(c) requires an agreement to have been in existence (verbal, written, individual or collective). The Labour Court held in Motor Industry Staff Association and Another v Stanmar Motors (Pty) Ltd and Others (2012) ZALCJHB 84 that it is trite law that failure to re-employ when there is a formal binding written agreement, amounts to an unfair labour practice, in terms of section 186 (2) (C ) of the LRA. The onus rests on the applicants to show that there is an obligation on the employer to re-employ him.
This was reiterated in National Union of Mineworkers and Others v WBHO Construction (Pty) Ltd (2017) ZALCJHB 512 where it was held that in order to successfully rely on a failure to re-employ in terms of such an agreement, the employee bears the onus of proving that the agreement imposes an obligation on the employer to re-employ the employee.
Once the employee has fulfilled this onus, the employer will have to explain why he failed to re-employ the complaining employee, a possible reason could be that the retrenched employee was not considered as he/she did not fill the criteria for the vacancy. However, if the employer fails to provide a valid reason, the employer could find himself in a situation where the CCMA awards re-employment to the employee as a remedy.
Note that the scenario discussed above does not apply to a situation where an employer fails to re-employ or reinstate an employee as per a CCMA settlement agreement or arbitration award. In that scenario, the employee will have recourse by following contempt of court proceedings, not unfair labour practice proceedings.
It is therefore advisable to always consider retrenched employees when filling vacancies that arise after a retrenchment and that the agreement to re-employ should also include a time frame within which employees will be considered for re-employment, this will protect the employer from an open-ended obligation to re-employ several years down the line.
Article by: Cathryn Ann Gungadeen
Dispute Resolution Official – Durban