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Reinstatement isn't always a given remedy
12 April 2021 00:00 by Saber Ahmed Jazbhay
Reinstatement isn’t always a given remedy in dismissal for misconduct cases. Section 193(2) of the Labour Relations Act compels arbitrators to consider facts even though no evidence has been led or presented: a fresh perspective from the Labour Appeal Court in the recent case of Booysen v Safety and Security Sectoral Bargaining Council and Others  ZALAC 7 (30 MARCH 2021).
Written by Saber Ahmed Jazbhay, Legal Practitioner/Arbitrator with Bargaining Councils, for LexisNexis South Africa
Consider this scenario: An employee of the SAPS, who was acquitted of statutory rape, was dismissed after being found guilty of engaging in sexual intercourse, albeit consensual, with a girl who had just turned 16 years old. His dismissal was upheld by the arbitrator. The employee, who was a chef as opposed to a police officer, appeals against the decision. He wanted to be reinstated into his job as a chef. SAPS did not lead evidence, during the arbitration, that the employment relationship had been rendered intolerable. On review, it was found that the dismissal was unfair. However, despite the fact that the employee sought reinstatement, the employee wasn’t reinstated. Rather, it awarded the employee compensation equivalent to 12 months. Section 193 of the Labour Relations Act (LRA), it held, requires that in the case of a dismissal that is found to be substantively unfair, an employer must be required to reinstate or re-employ the employee, unless the employee does not wish to be reinstated or employed, the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable, or it is not reasonably practicable for the employer to reinstate or re-employ the employee.
It held that, on his own version, even though the employee, was not a police officer employed by SAPS, he had sexual intercourse with a 16 year old, a person barely above the age of consent. It was reasonable to assume in the circumstances that the local community (of Graaff-Reinet) identified the employee as a member of SAPS and that what he did, on his own version, was not compatible with the SAP’s stated values and was likely to bring the SAPS into disrepute. In the court’s view, a continued employment relationship would be intolerable or not reasonably practical. Thus, an award of compensation was more one that better fitted the requirements of s 193.
The finding of the Labour Court (LC) was not based on evidence but factual assumptions.
Was the LC correct? Yes, the Labour Appeal Court (Port Elizabeth) agreed with it in a reportable judgment handed down on the 30th March 2021, citation pending, in the case of Booysen v Safety and Security Sectoral Bargaining Council and Others, ZALCPE, Case PA12/18 (30th March 2021).
Thus reinstatement isn’t therefore an automatic remedy. Section 193(2) compels arbitrators to consider facts even though no evidence has been led or presented.
Mediterranean Textile Mills (Pty) Ltd v SACTWU  2 BLLR 142 (LAC), is authority for the principle that even where no specific evidence is led by the employer as to the intolerability of a continued employment relationship or the impracticality of reinstatement, the Labour Court or arbitrator is obliged “to take into account any factor which…is relevant in the determination of whether or not such conditions exist” (at para 30) The conduct of the employee is a relevant factor which the Labour Court or arbitrator should take into account in this determination.
Saber Ahmed Jazbhay