Employment law update – ‘Trial by ambush’ – can an employee be reinstated without formally seeking reinstatement?

August 1st, 2022
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In Real Time Investments 158 t/a Civil Works v Commission for Conciliation, Mediation and Arbitration and Others [2022] 6 BLLR 524 (LAC), the employee, employed by Real Time Investments 158 (the Company) as a general worker, was involved in a physical altercation with a colleague over money outside the gates of the Company’s premises shortly after working hours. As a result of the altercation, the employee was dismissed for gross misconduct.

Aggrieved by his dismissal, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA commissioner found that the employee’s dismissal was procedurally and substantively fair. Thereafter, the employee instituted a review application in the Labour Court (LC) in which he sought an order –

  • reviewing and setting aside the CCMA award;
  • referring the matter back to the CCMA for a hearing de novo; and
  • ‘further and/or alternative relief’.

The Company elected not to appear to oppose the review application since, at worst for the Company, the matter would be remitted to the CCMA, and it would save the Company from incurring unnecessary costs.

The LC found that the CCMA award was reviewable on the basis that the physical altercation happened outside the Company’s premises after working hours, and there was no evidence that the business of the Company had been affected by the altercation. Thus, it was not reasonable for the CCMA to have found that the employee committed any misconduct. The LC went on to find that since there was no evidence why the employee should not be reinstated, and reinstatement was ‘the primary remedy’, it had to be ordered in circumstances where the employee was not guilty of any work-related misconduct.

The LC accordingly reviewed and set aside the CCMA award, replacing it with an order that the dismissal of the employee was substantively unfair. It further ordered the Company to retrospectively reinstate the employee from date of his dismissal.

Upon becoming aware of the order, the Company took the matter on appeal to the Labour Appeal Court (LAC). In this regard, the Company contended that it did not appear to oppose the review application because the employee had not sought reinstatement. Acting on the advice of the employer’s organisation representative and an advocate, as far as the Company was concerned, if the award was set aside, at worst the matter would have been referred back to the CCMA for a fresh hearing. It argued that the LC should not have ordered reinstatement in circumstances where the employee did not seek such relief.

The LAC found that the unfairness of what had occurred on review was obvious, namely, the employee had not sought reinstatement in his review application and the Company had not been notified that such an order may be granted. The LC could not grant such an order without at least ensuring that the Company was aware that such relief was sought or contemplated and had been afforded a reasonable opportunity to respond to the granting of such relief.

It was accordingly not unreasonable for the Company to assume that, at worst for it, the matter would be remitted to the CCMA and that an order for reinstatement would not be granted in circumstances where the employee did not seek such relief. The request in the employee’s application for ‘further and/or alternative relief’, could hardly have served that purpose.

The LAC held that fairness is paramount and the so-called ‘trial by ambush’ has always been deplored. It is trite that court pleadings serve to define the issues, which are to be adjudicated upon by the court. An applicant is not only required to state the relief sought but to make out a case for such relief. In this matter, the employee specifically did not seek reinstatement in his pleadings and thus did not raise it as an issue to be decided by the court. A pleading is intended to enable the other party to fairly and reasonably know the case it is called upon to respond to.

In the circumstances, reinstatement had been unfairly granted and the Company had fallen victim to an ambush. Practicality demanded that the entire judgment of the LC be set aside because consideration of whether reinstatement should be granted depended on all the relevant facts.

The appeal was upheld and the entire order of the LC was set aside. The matter was referred back to the LC to be heard on an opposed basis before a different judge.

Refusing an offer of alternative employment

In Reeflords Property Development (Pty) Ltd v De Almeida [2022] 6 BLLR 530 (LAC), the employee was employed by Reeflords Property Development (the Company) as operations coordinator of the Company’s sales department. Upon returning from maternity leave, the employee was called to a meeting and given a week to consider a proposal that she be transferred from the sales department to the development department. Upon learning that certain of her functions had already been allocated to the new head of the sales department, the employee was advised that the transfer would take place and she would be required to perform marketing functions going forward.

The employee lodged a grievance relating to the transfer and contended that it amounted to a demotion. She requested that she be reinstated into the position that she enjoyed prior to her taking maternity leave. A short while later she was given a retrenchment notice in terms of s 189 of the Labour Relations Act 66 of 1995 (the LRA) advising her that given the restructuring of the Company’s operations, her sales position had become redundant.

During consultation, it was proposed that the employee be employed in an alternative position of marketing executive. Given that the employee lacked the necessary skills for the position, the employee agreed to be employed as marketing executive on condition that she receive marketing training and she be paid a travel allowance at the Automobile Association of South Africa mileage rates. The employee was thereafter offered an employment contract for the new position, which made no provision for the training or a travel allowance. As a result, she refused to accept the marketing position on the basis that it was not a reasonable alternative. The employee was subsequently retrenched.

The employee referred an unfair dismissal dispute, claiming that her dismissal was automatically unfair for a reason related to her pregnancy or otherwise substantively and procedurally unfair.

The Labour Court (LC) granted the Company absolution from the instance in respect of the automatically unfair dismissal claim. However, the LC found the dismissal to be substantively unfair because the Company had failed to establish that the employee had unreasonably refused an offer of alternative employment, and procedurally unfair, because she had not been adequately consulted before being transferred to her new post. The Company was ordered to pay the employee compensation in the amount of six months’ remuneration and to pay certain of her costs.

On appeal, the Company contended that the LC had erred in finding that the retrenchment was substantively and procedurally unfair since the employee had accepted the alternative marketing executive position yet thereafter unreasonably refused to accept the position, and that costs should not have been granted against it. The employee contended that she would have accepted the alternative position had her conditions been met and that consequently no reasonable alternative was provided to her.

With reference to s 189(2) of the Labour Relations Act 66 of 1995, the Labour Appeal Court (LAC) noted that to be meaningful, consultation in the context of a contemplated retrenchment must be genuine and engaged in with the purpose of seeking alternatives to retrenchment. The LAC found that the employee had not been consulted adequately on the restructuring. Further, the alternative offer of employment presented by the employee was reasonable and had seemingly been accepted by the Company until it suddenly backtracked by rejecting the employee’s conditions for accepting the new position.

No explanation was provided by the Company as to why it had omitted the conditions from the employment contract nor why it did not offer to correct the terms of the contract. The Company did so at its own peril. In refusing to adhere to the terms of the agreement reached with the employee, the LAC found that the Company had acted both in bad faith and unfairly. The offer of the alternative position without training and a travel allowance was not a reasonable one and, as a result, the employee’s retrenchment was substantively and procedurally unfair.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2022 (August) DR 30.

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