Patrick Deale – Bad Company

2019-11-27

Should an employee still be reinstated if a dismissal is unfair but the working relationship has broken down?

This is what the Labour Appeal Court (LAC) had to consider in the recent Afgen appeal.

S193 of the Labour Relations Act (LRA) says that if a dismissal is unfair - ‘The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless:

The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable
It is not reasonably practicable for the employer to reinstate or re-employ the employee [emphasis added]

In the Afgen case, the Commission for Conciliation, Mediation and Arbitration (CCMA) found the dismissal was unfair. The arbitrator decided not to reinstate the employee because the employment relationship had broken down. He instead ordered the employer to pay three months compensation to the employee.

On review, the Labour Court ordered the employer to reinstate the employee and to pay her 24 months’ salary as compensation. On appeal, Labour Appeal Court (LAC) overturned the Labour Court judgement and ordered the employer to pay 12 months compensation with no reinstatement(1).

In so doing, the LAC accepted the dismissal was unfair and noted that –

There has to be an extraordinary reason to deviate from the standard remedies of reinstate-ment or re-employment under s193 (1)
The conduct of the employee plays a crucial role in this regard.
The employment relationship in this case was dependent on the employee and her superior working closely together

There was unchallenged evidence that the employee –

Seldom if at all reported back to her superior as she was required to do
Did not take her seriously and bypassed her totally
Did not respect her as her superior
Did not adhere to instructions given to her
Was generally rude
Did not have a good working relationship with her
Did not respond to her emails
Allowed her work to fall behind in an unacceptable manner
Had received a number of verbal warnings and reprimands for her behaviour, yet this did not improve things and the employee simply ignored them.

The LAC concluded that there was clear evidence to show that there was no way that the employee and her manager would be able to work together. For this reason, it would be totally inappropriate to reinstate the employee into her position in these circumstances.

TIP: The LRA recognises in s193 that there may well be times when it’s just not possible or practical to reinstate an employee when the there is a bad relationship between the employee and the employer. The legal system can’t force people to get along with each when a relationship breaks down for whatever reason. There must be convincing evidence that the relationship of trust has been damaged beyond repair. This is made easier if the employee admits, as she did in the Afgen case, that she would not be able to work with her manager again.

(1) AFGEN (Pty) Ltd v Ziqubu (JA34/18) [2019] ZALAC 40 (13 June 2019); Source: Worklaw.co.za Offices in KZN and Johannesburg C: 083 375 8771 E: patrick@deale.co.za www.deale.co.za