Reinstatement trumps other remedies

May 1st, 2012
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Lubbe v Roop NO and Others (LC) (unreported case no JR 1303/09, 20-1-2012) (Lagrange J)

By Moksha Naidoo

Section 193(2) of the Labour Relations Act 66 of 1995 obliges the Labour Court or an arbitrator to reinstate an employee unless –

  • the employee does not want to be reinstated;
  • continued employment would be intolerable;
  • it is not reasonably practical for the employee to be reinstated; or
  • the employee’s dismissal is substantively fair but procedurally unfair.

In the Lubbe case the applicant employee approached the Labour Court seeking to have the remedy of compensation ordered by the first respondent arbitrator set aside and replaced with reinstatement.

Factual background

After 30 years’ of service with the second respondent, the South African Police Service (SAPS), the employee was dismissed on numerous counts of misconduct in December 2004. Prior to this, in 2002, he was charged with these counts of misconduct.

He referred his dismissal to the third respondent, the Safety and Security Bargaining Council (the council), and on 2 November 2006 his dismissal was held to be unfair.

The SAPS successfully reviewed this decision and, in a judgment dated 20 March 2007, the Labour Court remitted the matter to the council for a fresh hearing.

The second arbitration ran for 49 days, with the arbitrator handing down his award on 28 July 2009.

The arbitrator found the employee guilty of four unrelated charges, three of which, according to the arbitrator, would have only attracted warnings and the fourth, a final written warning. Based on this, the arbitrator found the sanction of dismissal too harsh.

On the issue of remedy, the arbitrator took the following view:

‘[I]n considering what relief he is entitled to, I do not believe reinstatement is even remotely an option in this instance. Firstly, the manner in which [the employee’s representative], representing the views of Lubbe, constantly made the refrain that Lubbe was the object of a well-orchestrated vendetta involving a number of very senior members of SAPS in order to rid the SAPS of Lubbe, and, in the light of, the request for reinstatement is very puzzling. Secondly, the very period between the dismissal of Lubbe and the finalisation of this arbitration is roughly seven years, a period during which the SAPS did undergo many changes [and] must reflect a workplace very different to that which Lubbe left in 2002, and it is inconceivable that he could simply go back and that it would be business as usual.’

The arbitrator awarded the employee ten months’ compensation despite the employee seeking reinstatement.

Labour Court

On review, the employee argued that there was no basis for the arbitrator to have denied him reinstatement, more particularly as the SAPS had led no evidence to establish an irretrievable breakdown in trust between itself and the employee.

In support of the Labour Appeal Court (LAC) judgment and subsequent Supreme Court of Appeal (SCA) judgment in Edcon Ltd v Pillemer NO and Others (2008) 29 ILJ 614 (LAC), the Labour Court confirmed the principle that an employer bears the onus of establishing that the employee’s conduct led to an irretrievable breakdown in trust between the parties.

From the above excerpt of the arbitrator’s award, two considerations led to his conclusion on the question of remedy: Firstly, the contention made by the employee’s representative that senior members of the SAPS conspired against the employee and, secondly, the SAPS underwent changes to its working environment over the past seven years, rendering the employee incapable of fitting in should he return.

On the first consideration, the court held: ‘[T]here is no basis for permitting an employer to avoid an order of reinstatement merely because the employee’s representative accuses it of acting in bad faith.

Turning to the second consideration, the court said:

‘In this instance the arbitrator simply assumed, without hearing evidence on the issue, that the workplace will have changed to an extent that the applicant would be unable to adjust to it.’

The court further reaffirmed the principle in Republican Press (Pty) Ltd v CEPPWAWU and Others 2008 (1) SA 404 (SCA), wherein the court stated that delays in concluding matters did not in itself justify compensation over reinstatement.

In reaching his conclusion, Lagrange J stated:

‘I am satisfied that in denying the applicant the primary remedy of reinstatement for his substantively unfair dismissal, the arbitrator reached conclusions that could not reasonably be reached on the evidence before him, even to the extent that there was no evidence before him to justify his conclusion that it would be intolerable to reinstate the applicant. He also failed to consider relevant factors such as the applicant’s length of service. Accordingly his award of compensation as an appropriate form of relief must be set aside.’

The court ordered the SAPS to reinstate the employee by no later than 6 February 2012 and, further, to back pay him until the date of dismissal (being December 2004).

Exceptions

This case reiterates the principle that reinstatement is the primary remedy for an unfair dismissal dispute (where prayed for) and, unless an exception, as envisaged under s 193(2), presents itself, it should always be applied.

An example of circumstances giving rise to such exception can be found in the matter of Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008) 29 ILJ 2189 (LAC).

In that decision a senior commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) was charged and dismissed for sexual harassment. An arbitrator found that the employee’s conduct did not amount to sexual harassment and, despite finding that the employee had lied under oath on certain issues, ordered the CCMA to reinstate the employee. On review, the Labour Court accepted the CCMA’s argument that the employee’s dishonest conduct meant that the remedy of reinstatement was incompetent and replaced the reinstatement order with one of compensation. The court’s views were supported on appeal, where the LAC held the following:

‘The appellant gave false evidence under oath. Reinstatement was going to mean that he was reinstated to a position in which he had to expect others to respect an oath when he himself had been found to have shown no respect for the same oath. In my view, it was going to be reasonably impracticable for the first respondent to reinstate the appellant to such a position. On what basis could he expect parties and witnesses giving evidence before him to show respect for the oath they would take before giving evidence when he had shown no respect for such oath himself? In my view that state of affairs would be such that the appellant could not perform his duties effectively and when an employee cannot perform his duties effectively, it seems to me that it is reasonably impracticable within the meaning of that phrase in s 193(2)(c) of the Act to order the employer to reinstate the employee.’

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2012 (May) DR 49.