Reinstatement in the Context of ‘Deemed Dismissal’: A Critical Analysis of Recent Case Law

• Author: Okpaluba, C.
• DOI: https://doi.org/10.47348/SAMLJ/v34/i1a1
• Published date: 24 October 2022
• Date: 24 October 2022
• Citation: (2022) 34 SA Merc LJ 1
• Pages: 1-28

Articles

REINSTATEMENT IN THE CONTEXT OF

‘DEEMED DISMISSAL’: A CRITICAL

ANALYSIS OF RECENT CASE LAW

CHUKS OKPALUBA*

Research Fellow, Centre for Human Rights,

University of the Free State, South Africa

MPFARISENI BUDELI-NEMAKONDE**

Professor of Labour Law, School of Law, College of Law, UNISA

Abstract

The ‘deemed dismissal’ or ‘discharge’ clause is not mentioned either in

the reinstatement provisions of section 193 of the Labour Relations

Act 66 of 1995 (‘LRA’), or indeed, in any other provision of that Act.

Such an expression can be traced to several public sector employment

statutes such as: section 14(1)(a) of the Employment of Educators

Act 76 of 1998; section 59(3) of the Defence Act 42 of 2002; and section

17(3)(a)(i) and (b) of the Public Service Act 103 of 1994 (‘PSA’).

Notwithstanding that the substance and process of the ‘deemed

dismissal’ disputes are quite different from those encountered in the

law of unfair dismissal under the LRA, the determination whether

reinstatement would be made in such a circumstance has been guided

by the provisions of section 193(2)(a)–(d) of the LRA. After discussing

the important South African cases of Phenithi v Minister of

Education 2008 (1) SA 420 (SCA); Minister of Defence and Military

Veterans v Mamasedi 2018 (2) SA 305 (SCA); and Ramonetha v

Department of Roads and Transport, Limpopo [2018] 1 BLLR 16

(LAC), and those from the Botswana and Namibian jurisdictions, it

becomes obvious that the Ramonetha case was quite different from the

others. The conclusion, therefore, is that the judgment of the Labour

*LLB LLM (London) PhD (West Indies).

** LLB LLM (UNIN) PhD (UCT).

1https://doi.org/10.47348/SAMLJ/v34/i1a1

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Appeal Court sends a clear message to the employer that the statutory

discretion invested in it by the PSA requires it to act within a space of

time; the PSA does not give the employer the unbridled power to

literally approbate and reprobate at the same time.

Keywords: deemed dismissal; unfair dismissal; dismissal; remedy; reinstate-

ment; unfair labour practice

IINTRODUCTION

The remedy of reinstatement, which is tantamount to an order by the

arbitrator or Labour Court to the employer to restore the unfairly

dismissed employee to the status quo ante of the dismissal, is the primary

remedy for unfair dismissal in contemporary South African labour law.

1

So, too, case law abounds to illustrate the circumstances where the

labour arbitrator, the Labour Court, the Labour Appeal Court (‘LAC’),

the Supreme Court of Appeal (‘SCA’) and the Constitutional Court have

awarded the unfairly dismissed employees the remedy of reinstatement,

or those circumstances where they have not made such an order because

of the presence of so-called statutory ‘non-reinstatable conditions’.

2

In

other words, both circumstances have attracted so many judicial

pronouncements that there is abundant case law to bear witness to the

courts’ elucidation of those statutorily stipulated conditions as well as

the so-called non-statutory obstacles to accessing the remedy of re-

instatement — all these having been developed by the courts over the

last two decades of the operation of the Labour Relations Act 66 of 1995

(‘LRA’). Quite apart from the foregoing, however, several issues of a

preliminary, jurisprudential and sundry nature have also arisen from the

cases concerning whether the order of reinstatement should or should

not be made in any given case.

3

Among such issues, the two most frequently contested in the courts in

recent times stand out. First, the question whether a claim for reinstate-

ment is subject to the Prescription Act 68 of 1969 (‘Prescription Act’) has

arisen quite recently in two cases before the Constitutional Court.

4

1

Equity Aviation (Pty) Ltd v CCMA 2009 (1) SA 390 (CC) para 33; Damelin (Pty) Ltd v

Solidarity obo Parkinson [2017] ZALAC 6 (10 January 2017) paras 41–43.

2

Section 193(2)(a)–(d) of the LRA.

3

See Okpaluba & Budeli-Nemakonde, ‘Twenty years of the remedy of reinstatement in the

law of unfair dismissal in South Africa: Some preliminary, jurisprudential and sundry issues’

(2020) 35(1) SAPL 1–53.

4

Myathaza v JHB Metropolitan Bus Service (SOC) Ltd t/a Metrobus 2018 (1) SA 38 (CC);

and Mogaila v Coca-Cola Fortune (Pty) Ltd 2018 (1) SA 82 (CC).

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