What is the chance of being reinstated following a dismissal?

“I recently dismissed an employee that was causing serious conflict in our workplace. I’ll admit that the dismissal was done rather hastily, but we had to get rid of this employee. The employee has taken us to the CCMA, and given that there may be issues with the dismissal, the CCMA may not find in our favour. That’s fine and I’m prepared to pay compensation, we just cannot afford to have this employee back at work. What are the chances that the CCMA may order the reinstatement of the employee if he is successful?”

Employers often claim that the employment relationship has irretrievably broken down and that an employee’s reinstatement would be intolerable, with the hope that this claim will prevent an employee from returning to work even if they were unfairly dismissed. But how easy is this claim to make and what must be proven to avoid reinstatement?

To answer this question, it must be explained that reinstatement is the primary remedy where a dismissal has been found to be substantively unfair, and a court or arbitrator must order the employer to reinstate or re-employ the employee unless one or more of the circumstances specified in section 193(2)(a)-(d) of the Labour Relations Act 66 of 1995 (“LRA”) exist, in which case compensation may be ordered depending on the nature of the dismissal. 

Amongst the circumstances where reinstatement or re-employment would not be ordered by a court or arbitrator is when the circumstances surrounding the dismissal of an employee are such that a continued employment relationship would be intolerable as provided for in section 193(2)(b) of the LRA. 

So, what then qualifies as “intolerable”?

Fortunately, our Constitutional Court recently had occasion to take an indepth view on this in the case of Booi v Amathole District Municipality and Others. In this case, the employee – Mr Booi – was dismissed by the Municipality for misconduct. Aggrieved by the dismissal, he referred a dispute to the South African Local Government Bargaining Council where the arbitrator found that the employee was not guilty of the four charges he was charged with in the internal disciplinary hearing. The arbitrator found that the employee’s dismissal was procedurally fair but substantively unfair. The arbitrator awarded the employee retrospective reinstatement to the effect that the municipality was ordered to pay the employee.

The municipality however, approached the Labour Court to review and set aside the award. The Labour Court upheld the arbitrator’s finding that the employee’s dismissal was procedurally fair but substantively unfair. However, the Labour Court held that the arbitrator’s decision not to deviate from the primary remedy of reinstatement is unsustainable based on the available evidence, such being that the manner in which the employee conducted himself, although insufficient to sustain a finding of misconduct, was completely destructive to the prospect of a continued employment relationship. The Labour Court set aside the award of retrospective reinstatement, replacing it with one of compensation in a sum equivalent to eight months’ remuneration. 

The employee unsuccessfully sought leave to appeal to the Labour Appeal Court, whereafter he approached the Constitutional Court seeking enforcement of his right to reinstatement as the primary remedy whenever an employee’s dismissal is found to have been substantively unfair. 

The Constitutional Court then had to consider whether a court or arbitrator was entitled, in terms of section 193(2)(b) of the LRA to assess whether a continued employment relationship would be intolerable, when considering the remedy of reinstatement. 

The Constitutional Court held that the term “intolerable” implies a level of unbearability, and must require more than the suggestion that the relationship is difficult, fraught or even sour. The court held that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one and that a conclusion of intolerability should not easily be reached. It therefore requires that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability, with such evidentiary burden further heightened where the dismissed employee is exonerated from all charges. 

The Constitutional Court therefore disagreed with the Labour Court and held that there was no basis for the Labour Court’s interference with the arbitrator’s exercise of his discretion to reinstate the employee and ordered that the employee be reinstated and awarded with back-pay.

What the above judgment therefore implies is that if the dismissal of your employee is found to be substantively unfair, and you cannot meet this high burden of showing intolerability in the event of reinstatement, there is a strong possibility that reinstatement could be on the cards. It may be prudent to seek the help of your attorney or labour specialist to assist you with the matter going forward.

November 15, 2021
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