Employment Law Update – Reinstatement remedies

July 1st, 2024

In Jacobs v Commission for Conciliation, Mediation and Arbitration and Others [2024] 5 BLLR 517 (LC) the Commission for Conciliation, Mediation and Arbitration (CCMA) found a dismissal substantively unfair but did not grant reinstatement. In this case the employee had been dismissed for gross negligence. The employee was required to implement and maintain a system for the employer so that passengers on buses could pay for rides with smart cards. The employee had gone on leave six days before the employer planned to roll out the automatic pay system by which passengers could pay for their rides with their smart cards. He had assured management that everything was in place to ensure a successful roll-out but on the day of the roll-out the smart card system did not work, and it was a public relations disaster for the employer. Furthermore, approximately 18 000 of these cards went missing and were then later found. The employee was called to a disciplinary hearing on his return to work and was charged with gross negligence and providing misleading information to the employer about the adequacy of the systems in place. He was dismissed and referred the dispute to the CCMA after his internal appeal was unsuccessful. The CCMA found that the dismissal was substantively unfair as the employee did not abandon his work and had remained in contact despite the fact that he was on approved leave. It was found that while there was negligence, it was not gross negligence and, therefore, a summary dismissal was substantively unfair in the circumstances. Notwithstanding this finding of a substantively unfair dismissal, reinstatement was not awarded.

On review, the Labour Court (LC) found that in the absence of a cross-review against the finding of a substantively unfair dismissal, the only issue to be determined was whether the decision not to reinstate satisfied the review test. It was held that it is trite law that an employee is entitled to the primary remedy of reinstatement in the case of a substantively unfair dismissal, subject to limited exceptions. In this case the commissioner had found that reinstatement would be intolerable and, therefore, relied on s 193(2)(b) of the Labour Relations Act 66 of 1995 to justify not granting reinstatement. It was found by the CCMA that reinstatement would be intolerable because of the employee’s seniority and the fact that there had been a breakdown of the relationship between the employee and the IT department and a lack of cooperation by the employee in the investigation. The delay in having the matter arbitrated was also a contributing factor.

The LC found that none of the reasons given for this decision are ones that a reasonable decision-maker would have based such a decision on. It was also found that the length of time to resolve the matter was not a ground of intolerability under s 193(2)(b). While it may have been relevant to reinstatement being impracticable this could not be relied on as this was referred to under s 193(2)(c) whereas the commissioner relied solely on s 193(2)(b) to justify not awarding reinstatement. It was also found that even if the delay did render reinstatement impracticable, such delays were common and there was no evidence led that the employee could not be accommodated in his former position. It was held that the commissioner had not taken into consideration the case law in terms of which it has been found that s 193(1)(b) cannot be invoked with broad brush strokes to justify not awarding reinstatement.

The LC per Whitcher J set aside the award with retrospective effect, with two months’ remuneration to be excluded from his back pay.


In Mathebula v General Public Service Sectoral Bargaining Council [2024] 5 BLLR 476 (LAC) the employee was dismissed for alleged mismanagement of state funds. There were also some charges relating to failure to disclose a personal interest in certain entities. The dismissal was found by the bargaining council to be substantively and procedurally unfair. Reinstatement was ordered by the bargaining council but on review the Labour Court (LC) substituted the reinstatement order with a compensation order for six months’ remuneration. The LC found that there was a breakdown in the trust relationship because the employee had stated during the arbitration that there was a conspiracy against him by the employer, but he did not lead evidence to support this.

On appeal, it was argued that the LC had not properly exercised its discretion under s 193(2) of the Labour Relations Act 66 of 1995 to not order reinstatement. The Labour Appeal Court (LAC) had to consider whether the circumstances around the termination would render continued employment intolerable or impracticable. The LAC referred to the fact that the Constitutional Court has found that reinstatement is the primary remedy if a dismissal is substantively unfair. It was found that an intolerable relationship was not merely a difficult relationship but there needed to be evidence to show that the relationship was intolerable. If the employee commits other offences after the dismissal, then this may be dealt with after reinstatement. The LAC found that this general allegation of there being a conspiracy was not sufficient to justify not granting reinstatement. The employee had had a perception that people at the employer wanted to get rid of him and the employee had not been given an opportunity to deal with the allegation that the employment relationship could not be restored and would be intolerable. The appeal was upheld. The reinstatement was, however, only granted with effect from the date of the appeal judgment as there had been considerable delays in this matter which had mainly been caused by the employee’s attorney.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2024 (July) DR 41.

De Rebus