In Mthethwa v Commission for Conciliation, Mediation and Arbitration and Others [2022] 9 BLLR 814 (LAC) the employee had been dismissed following altercations that she had with two employees. In this regard, she allegedly held one employee by her clothes and poked her in the face, threatening to assault her. There was also another altercation with another employee on the same day where she accused the employee of trying to ‘steal her man’. The two employees who were involved in the altercations were issued with final written warnings.

The employee pleaded guilty to charges of assault, harassment, intimidation and bringing the employer’s name into disrepute and was dismissed. The employee then approached the Commission for Conciliation, Mediation and Arbitration (CCMA) seeking reinstatement on the basis that the dismissal was substantively and procedurally unfair. The commissioner at the CCMA found that the dismissal was indeed substantively unfair but did not order reinstatement as the commissioner formed the view that the employee’s tenure with the employer would not be secure should she be reinstated. The Labour Court (LC) also found that compensation was the appropriate remedy in the circumstances although the LC found that the commissioner’s finding that employment would be insecure was meaningless as there was no evidence to suggest that reinstatement would be intolerable or impracticable. On appeal, the Labour Appeal Court (LAC) found that arbitrators are obliged to order reinstatement or re-employment if a dismissal is substantively unfair unless there is an exception recognised in law. The LAC accordingly found that it was able to revisit the relief ordered because the LC had made a misdirection by finding that a reinstatement order would not necessarily have the desired effect of safeguarding the employee’s tenure of employment as no evidence had been lead that reinstatement would be intolerable and impracticable in the circumstances. Therefore, the appeal was upheld, and reinstatement was ordered with no order as to costs.

In Sibiya v South African Police Service [2022] 9 BLLR 822 (LAC) the employee was a major-general of the South African Police Service (SAPS) and was dismissed for his alleged involvement in the unlawful return of Zimbabwean suspects held in South Africa to the Zimbabwean authorities. The employee alleged that his dismissal was part of a conspiracy to remove him from office. He referred an unfair dismissal dispute to arbitration, which was referred to the LC. The employee initially sought compensation and then subsequently sought to change the relief sought to reinstatement. The LC found that the charges had been trumped up and, therefore, that the dismissal was substantively unfair. The employee was awarded one year’s compensation because the employee did not seek reinstatement in his statement of claim because he knew that his position had since been filled. The employee then instituted an appeal contending that the LC had erred in not granting reinstatement. This is because the employee had given notice in a pre-trial minute and practice note that he intended to amend his claim from compensation to reinstatement. It was held that in the case of a substantively unfair dismissal arbitrators are obliged to reinstate employees unless exceptions apply, such as reinstatement would be intolerable and impracticable. It was held that there was no reason to deny reinstatement because no evidence had been led to prove that reinstatement would be impracticable. Although the position the employee held at the time of his dismissal might have been filled, there were several different positions at the same rank that the employee could fill.

It was found that the LC had erred in finding that the employee was bound by the fact that he initially sought compensation and not reinstatement as the LC had disregarded the pre-trial minute and practice note. It further held that nothing in the Rules for the conduct of proceedings in the LC precludes an amendment to pleadings verbally and courts have a discretion to allow amendments provided that the other party is not prejudiced. Therefore, the appeal was upheld, and SAPS was ordered to reinstate the employee. It was held, however, that fairness dictated that SAPS only be required to pay back pay for the period that the employee was out of work. Therefore, SAPS was ordered to reinstate the employee and pay 14 months’ salary as backpay unless the employee decided not to return to service, in which case he would be entitled to the 12 months’ compensation ordered by the LC.

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

This article was first published in De Rebus in 2022 (Nov) DR 36.