Employment law update – Employers thwarting dismissed employees’ attempts for reinstatement by filling their positions

August 1st, 2017
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Nadine Mather BA LLB (cum laude) (Rhodes) is an attorney at Bowmans in Johannesburg.

In Mashaba v South African Football Association (“SAFA”) [2017] 6 BLLR 621 (LC), the applicant, Mr Mashaba, was dismissed from his position as head coach of the South African National Football team (Bafana Bafana) and referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Before the matter was set down at the CCMA, the applicant became increasingly concerned that, if his dismissal was found to be substantively unfair, the CCMA Commissioner may be reluctant to reinstate him if a new head coach had been appointed by the South African Football Association (SAFA). Consequently, the applicant instituted urgent proceedings in the Labour Court for an order restraining SAFA from appointing a new head coach before the CCMA proceedings were concluded.

The applicant contended that his application was for interim relief only and was accordingly required to demonstrate, among other things, a prima facie right to the relief sought and a well-grounded apprehension of irreparable harm if the relief was not granted.

The court noted that s 193(2) of the Labour Relations Act 66 of 1995 (the LRA) requires an employee whose dismissal is found to be substantively unfair to be reinstated unless –

  • the employee did not wish to be reinstated;
  • the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; or
  • it is not reasonably practicable for the employer to reinstate the employee.

In this regard, the court found that the appointment of a new head coach would have no bearing on whether the restoration of the employment relationship would be tolerable, nor would the appointment of a new head coach make the applicant’s reinstatement reasonably ‘impracticable’.

The court held that an employer may not prevent a dismissed employee’s request for reinstatement by replacing him and then arguing that it cannot reinstate the dismissed employee because there is someone occupying his former position. The right, which the LRA provides by virtue of s 193(2), is the right of an employee to be reinstated if their dismissal is found to be substantively unfair and provided none of the exceptions listed above are applicable.

The court held further that ‘an order of reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement.’ That is an eventuality an employer must take into account when it replaces a former employee who is challenging their dismissal. If an employer does not take appropriate steps in its contract with the replacement employee, it runs the risk that it may be faced with the possibility of terminating that relationship or of trying to renegotiate the replacement’s contract if the former employee is reinstated. It followed that the appointment of a new head coach would not cause the applicant irreparable harm.

The court found that the applicant had failed to prove a prima facie right to the relief sought because SAFA’s contract with a new head coach had nothing to do with his unfair dismissal dispute. The court could not dictate how employers should conduct themselves in contracting with third parties, unless the contract was unlawful. Moreover, the applicant’s right to be reinstated did not translate to a right to have his position kept vacant on the assumption that the unfair dismissal claim might succeed. If the relief were to be granted, the court would have to take an interim view that the dismissal was substantively unfair. The court held that it could not ‘second-guess’ the outcome of the CCMA proceedings in this way.

In the circumstances, the court was not satisfied that the applicant had demonstrated the existence of a right to restrain SAFA from employing a replacement head coach pending the outcome of the CCMA proceedings, even if the applicant would be entitled to reinstatement at the conclusion of those proceedings. The application was dismissed accordingly.

Employees precluded by statute from resigning without notice to avoid disciplinary action

In Nogoduka v Minister of the Department of Higher Education & Training and Others [2017] 6 BLLR 634 (ECG), the applicant, Mr Nogoduka, was employed by Ikhala Tvet College (the College) as a lecturer. The applicant was placed on suspension pending an investigation into various allegations of misconduct, including allegations of gross dishonesty and insubordination. The applicant was later served with a charge sheet calling on him to attend a disciplinary hearing.

Following the issuance of the charge sheet but prior to the disciplinary hearing, the applicant resigned with immediate effect. The applicant claimed that his employment situation had become increasingly intolerable, because he had refused to be involved in the ‘political machinations’ of senior officials of the College and as a result become marginalised and unhappy. The College, however, declined to accept the applicant’s resignation and proceeded with the disciplinary hearing in his absence. The applicant was found guilty of the charges of misconduct and the chairperson handed down a sanction of dismissal.

The applicant instituted proceedings against the minister and the Director General of the Department of Higher Education and Training and the College (collectively the respondents), in terms of which he sought an order setting aside the disciplinary proceedings held against him, and for the respondents to take such steps as may be necessary to correct his employment records so as to reflect the applicant’s resignation as an employee. The applicant also sought an order directing that the respondents procure and facilitate the payment of his pension money following his resignation.

In support of the relief sought, the applicant contended that the chairperson committed a gross irregularity by proceeding with the hearing as it was clear from the circumstances that the College had accepted his resignation and, at the time of the hearing, he was no longer an employee of the College. The College contended, however, that the applicant resigned in order to avoid the disciplinary proceedings despite the fact that his contract of employment provided for a one-month notice period.

Having found that it had jurisdiction to entertain the matter under s 77(3) of the Basic Conditions of Employment Act 75 of 1997 because the dispute concerned a contract of employment, the court considered s 16B(6) of the Public Service Act 103 of 1994 (the Act), which provides as follows: ‘If notice of a disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice of the resignation applicable to that employee’. In this regard, the applicant was subject to a one-month notice period.

The court held that s 16B(6) was inserted into the Act to cater for precisely the circumstances that arose in this matter, namely, where an employee ‘resigns’ in order to avoid an adverse disciplinary finding and thereby to leave her or his employment with a seemingly clean record. Accordingly, in these circumstances where the disciplinary proceedings had been instituted against the applicant before his ostensible resignation, the College was precluded in terms of
s 16B(6) of the Act from accepting his resignation and the applicant was obliged to serve his one-month notice period.

In light of the above, the court found that the applicant was still an employee at the time of the disciplinary hearing and remained so at the conclusion of the hearing as well as when the sanction of dismissal was handed down. The applicant therefore chose not to attend the disciplinary hearing at his own risk.

As regards the applicant’s claim in relation to his pension money, the court held that his claim had to fail because he had not yet submitted the required forms for the withdrawal of his pension money. The application in its entirety was dismissed with costs.

This article was first published in De Rebus in 2017 (Aug) DR 38.

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