Reinstatement, re-employment and compensation : a comparative discussion of concepts and perspectives in the employment law of Lesotho and South Africa

• Author: K.E. Mosito,T. Mohapi
• Pages: 1-34
• Date: 01 January 2017
• Record Number: lesotho_v25_n1_a1
• Published date: 01 January 2017
• DOI: 10.10520/EJC-bf57f8c86

REINSTATEMENT,RE-EMPLOYMENTAND COMPENSATION:

A COMPARATIVE DISCUSSION OF CONCEPTS AND

PERSPECTIVES IN THE EMPLOYMENT LAW OF LESOTHO

AND SOUTH AFRICA

Mosito, K.E.* & Mohapi T.**

Abstract

There are three main employee’s remedies in unfair dismissal

cases recognised by the labour legislation in both Lesotho and

South Africa. The primary remedy is reinstatement, with re –

employment going on the side. If it is impracticable to award

the two remedies, then the third remedy, namely

compensation comes into picture. This article comparatively

evaluates the manner in which those remedies are

conceptualised and applied by the courts and tribunals in

those jurisdictions. It concludes that while there are close

similarities in the way the remedies are conceptualised and

applied, there are also dissimilarities.

INTRODUCTION

Since Lesotho is an enclave of South Africa, most of what happens

in the later country, impacts significantly on what happens in the

former. The same holds true of the conceptualisation, application

and practice of law. In our previous joint contribution, a point was

made that in Lesotho and South African employment laws,

reinstatement, re-employment and compensation are available to an

employee as remedies for unfair dismissal.

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No endeavour was

*Dip (Law); BA Law, LLB (NUL); PGD in Labour Law (Conciliation &

Arbitration) (NUL); LL.M (Edin); PhD (UCT); Associate Professor of Law,

Dean of the Faculty of L aw and President of the Court of Appeal of

Lesotho.

however made to evaluate the way in which those remedies are

conceptualised and applied by the courts and tribunals in those

jurisdictions. Thus, the purpose of this article is to comparatively

evaluate the way in which those remedies are conceptualised and

applied by the courts and tribunals in Lesotho and South Africa.

This will be achieved by scrutinising the conceptual nature and

application of each of these remedies and determining whether,

regard being had to these aspects, the remedies are similarly

afforded their fullest effect. The remedies are considered seriatim. By

way of conclusion the salient points and issues discussed

throughout this article will be highlighted.

REINSTATEMENT

The ordinary meaning of the word “reinstate” is to put the

employee back into the same job or position he or she occupied

before the dismissal, on the same terms and

conditions.

2

Reinstatement is aimed at placing an employee in the

position he or she would have been but for the unfair dismissal. It

safeguards workers‟ employment by restoring the employment

contract. In Lesotho, the Labour Code Order

3

provides for

**BA(Law); LL.B (NUL); PGD in Labour Law (Concil iation & Arbitration)

(NUL/UNAM/UCT); LL.M (UNISA); Corporate Secretary at Metolong

Authority; Part – time lecturer Faculty of Law, NUL.

1

Mosito, K.E. & Mohapi , T. “A critical evaluation of the law on remedies

in cases of unfair dismissal for employee misconduct: Lesotho and South

Africa in perspective”, Lesotho L. J. 133 – 164.

2

Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation

and Arbitration and Others [2008] ZACC 16 at para 36.

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The Labour Code Order, 1992 (as amended) provides in Section

73(1) that, „[i]f the Labour Court or the Arbitrator holds the dismissal to be

unfair, it shall (emp hasis added), if the employ ee so wishes, order the

reinstatement of the employee in h is or her job without loss of remuneration,

seniority or other entitlements or benefits which the employee would have received

had there been no d ismissal. The Court or the Arbitrator shall ( emphasis added)

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LLJ Vol. 25 NO.1

reinstatement. The apex courts in both Lesotho

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and South Africa

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have considered reinstatement to be a primary remedy whose

purpose is:

… to put the employee back into the same job or

position he or she occupied before the dismissal, on the

same terms and conditions … It is aimed at placing the

employee in the condition he or she would have been

but for the unfair dismissal. It safeguards workers‟

employment by restoring the employment

contract. Differently put, if employees are reinstated,

they resume employment on the same terms and

conditions that prevailed at the time of their

dismissal….

Reinstatement therefore restores the status quo ante. This explains

the purpose of section 73 of the Labour Code

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as a whole, in

particular, the importance of determining the practicability of

reinstatement, including its implications for the workplace

dynamics. The Court of Appeal

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has held that, reinstatement is the

primary remedy for unfair dismissal. Section 73 itself requires it

once it is established that the employee so wishes. Section 73 (1)

makes the remedy of reinstatement mandatory upon a finding of

not make such an order if it considers reinstateme nt of the employee to be

impracticable in light of the circumstances.’

4

Lesotho Flour Mills v Mochela Matsepe C OF A (CIV) 58/2015 para 13.

5

Equity Aviation Service s (Pty) Ltd v Commissioner for Conciliation, Mediation

and Arbitration and Others. 2009 (1) SA 390 (CC) at 404 D-F (para [ 36].

6

S 73 of the Labour Code Order No.24 of 1992.

7

Lesotho Flour Mills v Mochela Matsepe (supra) at para 14.

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