Twenty years of the remedy of reinstatement in the law of unfair dismissal in South Africa : some preliminary, jurisprudential and sundry issues

• Date: 01 October 2020
• Published date: 01 October 2020
• DOI: 10.25159/2522-6800/5077
• Author: Chuks Okpaluba,Mpfariseni Budeli-Nemakonde
• Pages: 1-53

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/5077

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online) 2219-6412 (Print)

Volume 35 | Number 1 | 2020 | #5077 | 53 pages

© Unisa Press 2020

Twenty Years of the Remedy of Reinstatement in the

Law of Unfair Dismissal in South Africa: Some

Preliminary, Jurisprudential and Sundry Issues

Chuks Okpaluba

Research Fellow,

Centre for Human Rights,

University of the Free State

okpaluba@mweb.co.za

Mpfariseni Budeli-Nemakonde

Professor of Law and Director,

School of Law, College of Law,

University of South Africa

budelm@unisa.ac.za

Abstract

Reinstatement as a remedy for unfair dismissal was known to and applied by the

Industrial Court of the bygone labour relations regime of 1956. It was, however,

the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the

modern South African labour relations system designed essentially to do justice

between the employer and the employee and, fundamentally, to achieve industrial

justice. After two decades of the operation of the adjudicative institutions

established by the 1995 Act, it is time to evaluate the ways in which the labour

arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and

applied the provisions of the LRA relating to reinstatement. This evaluation

exercise also extends to the immense contributions of the Supreme Court of Appeal

and the Constitutional Court to the jurisprudence surrounding reinstatement as an

unfair dismissal remedy in contemporary South African labour law. This article

starts by defining reinstatement, distinguishing the remedy of re-employment and,

further, the Constitutional Court’s judicial activist innovation to the labour relations

lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary

and jurisprudential in nature—issues that were probably not contemplated by the

enabling legislation, but which have arisen in adjudication. These include

resignation and its effect on reinstatement, automatic reinstatement in the form of

a declaration, and whether a court is able to order either ‘interim reinstatement’ or

‘semi-urgent interim relief’.

Okpaluba and Budeli-Nemakonde

2

The latter part of this article examines those non-statutory obstacles to accessing

the remedy of reinstatement. These include the employer’s non-compliance with

the order of reinstatement, as was the issue in the protracted litigation concerning

Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v

National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National

Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act

applies to claims for reinstatement; and such sundry issues as whether arrear wages

could be recovered as a judgment debt. Finally, we consider whether an employee

nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

Keywords: employee; employer; prescription; re-employment; reinstatement; automatic

reinstatement; instatement; unfair dismissal

Introduction

The most important and primary remedy for unfair dismissal under the Labour Relations

Act 66 of 1995 (LRA) is the order of reinstatement,

1

followed by re-employment and

compensation.

2

The Act goes further in subsection (2) of section 193 to lay down conditions

that may militate against making the order. In other words, the existence of any of the

conditions listed in paragraphs (a)–(d) of section 193(2) would impel the arbitrator or the

Labour Court not to make the order but to consider making the order of re-employment or

compensation, as the case may be. Since the LRA is itself a product of section 23(5) and

(6) of the Constitution of the Republic of South Africa, 1996,

3

the interpretation of its

provisions, in so far as it is possible, must be in conformity with the spirit, purport and

objects of the Bill of Rights.

4

There is no doubt that the link between contemporary labour

relations rights and practices and the Bill of Rights has emboldened attempts to drag

constitutional-law adjudicative principles into labour adjudication such as resorting to

declaratory judgments to enforce labour relations issues by requesting the court to issue an

‘automatic reinstatement’ order in the form of a declaration

5

or the court’s making an order

of ‘interim reinstatement’ or ‘semi-urgent interim relief’.

6

1

Section 193(1)(a) of the LRA. It is therefore the law that once the employer is unable to discharge the onus

of showing that a dismissal was for a fair reason and that dismissal was the fair sanction to impose in the

circumstances of a case—for instance, where the employer had set a sales target which shows that either

the period was too short or that the target was incapable of being achieved, hence the dismissal for poor

work performance was found to be unfair—there would be no reason why reinstatement, the primary

remedy, shoul d not be ordered—Damelin (Pty) Ltd v Solidarity obo Parkinson [2017] ZALAC 6 (10

January 2017) paras 41–43.

2

Sections 193(1)(b) and (c) of the LRA, respectively.

3

Act 108 of 1996, now referred to as the Constitution of the Republic of South Africa, 1996.

4

Per Langa DP, Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty)

Ltd 2001 (1) SA 545 (CC) para 24; Equity Aviation (Pty) Ltd v CCMA 2009 (1) SA 390 (CC) para 35.

5

Edcon v Steenkamp, and Related Matters 2015 (4) SA 247 (SCA); Steenkamp v Edcon 2016 (3) SA 251

(CC).

6

De Beer v Minister of Safety and Security (2013) 24 ILJ 3038 (LAC) para 23.

Okpaluba and Budeli-Nemakonde

3

Also discussed in this article are such issues as:

• the problems of delay in the adjudicatory process and its effect on the remedy;

• those instances where the employer had failed to comply with an order to

reinstate; and

• the question whether a claim for reinstatement is subject to the Prescription Act.

7

It is our conclusion that the legislation was well intended while the lawmakers were wise

not only because they crafted the remedies in such a way that made reinstatement a priority

remedy over the other remedies on a finding of unfair dismissal, but also because they laid

down the conditions precedent to making such an order, bearing in mind that a personal

relationship is called into question in an employment relationship. The law was well

conceived and invariably elegantly drafted except for human elements in the interpretation

of its provisions and, sometimes, of the individual litigant’s efforts to get the courts to tailor

their judgments to suit their individual fancies or when litigants proceed to treat the court’s

judgment according to their particular understanding, rightly or wrongly, of that judgment.

Such conduct has led to some of the difficulties encountered in the enforcement of court

orders which would ordinarily not have arisen. In spite of these problems, which are not

commonplace and could be treated as exceptions rather than the rule, reinstatement has

served the purpose of guaranteeing job security, which is a priceless commodity in the face

of rampant unemployment in today’s ‘tight economic and labour market times’.

8

7

See De Beer v Minister of Safety and Security (n 6).

8

Per Coglan CJ, Edwards v Board of Trustees of Bay Islands College [2015] NZEmpC 6 (3 February 2015)

para 287, citing Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40 paras 61–68.