http://www.polity.org.za
Deepening Democracy through Access to Information
Home / Press Office / Labour Law Management Consulting RSS ← Back
Close

Email this article

separate emails by commas, maximum limit of 4 addresses

Verification Image. Please refresh the page if you cannot see this image.

Sponsored by

Close

Article Enquiry

Reinstated Employees Can Become Untouchable

Verification Image. Please refresh the page if you cannot see this image.
Close

Embed Video

Reinstated Employees Can Become Untouchable

3rd September 2018

SAVE THIS ARTICLE      EMAIL THIS ARTICLE

Font size: -+

The Labour Relations Act (LRA) requires that, where a dismissal is unfair,  reinstatement must be considered ahead of any other remedy.

Reinstatement means that the employee must be returned to the same job on the same terms and conditions as existed before. And the employer can be required to pay the employee for the entire period from dismissal to reinstatement.

Advertisement

Where it is ordered that the employee be ‘re-employed’ he/she is to return to work but in a different job.

There is nothing specific in law that gives the reinstated employee a higher status merely by virtue of his/her being a reinstated employee. That is, the employee’s status does not automatically increase over that of his/her colleagues or over the status existing prior to the dismissal merely because of the reinstatement order.

Advertisement

However, psychologically the reinstated employee may well have grown in status. This is because:

  • His/her colleagues may see him/her as a ‘hero’ for having stood up to the employer or for having ‘beaten the system’.
  • Management may be too scared to discipline him/her or to take any other controlling type action for fear of losing another court case. This could be expensive, time consuming and humiliating in the eyes of the workforce.
  • Section 5 of the LRA prohibits the employer from victimising the employee in any way for reasons related to the employee having previously exercised his/her labour law rights against the employer. Therefore, any time the employer takes action against the reinstated employee he/she could claim that this was an unfair retaliation for the employee having taken the employer to the CCMA, Labour Court or bargaining council.

It must be stressed that the above concerns do not prevent the employer from disciplining, retrenching or otherwise dismissing a reinstated employee. However, it does mean that the employer would need to do so with the utmost care. This means that the employer must ensure that:

  • The dismissal and/or other disciplinary procedures are followed to the letter of the law. That is, the procedures laid down by the LRA and in case law must be followed without the slightest deviation.
  • The proof that the reason for the discipline or dismissal was fair is 100% solid.

In order to achieve the above two most challenging tasks the employer may need to make use of far better labour law expertise than was utilised for the case in which the employee was reinstated. The alternative to following the this advice would be:

  • either to give the reinstated employee free reign by avoiding any disciplinary or other action against him/her. However, this would allow the employee to control management which is an unthinkable alternative; or
  • bungling the case the second time and ending up in the Labour Court for an automatically unfair dismissal based on victimisation. Where it is found, for example, that an employer has dismissed an employee in retaliation for having previously exercised his/her legal rights the court can award retrospective reinstatement or compensation of up to 24 months remuneration.

To book for our 14 September JHB seminar on HOW TO WIN AT THE CCMA please contact Ronni via ronni@labourlawadvice.co.za or 0845217492.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za.

EMAIL THIS ARTICLE      SAVE THIS ARTICLE ARTICLE ENQUIRY

To subscribe email subscriptions@creamermedia.co.za or click here
To advertise email advertising@creamermedia.co.za or click here

Comment Guidelines

About

Polity.org.za is a product of Creamer Media.
www.creamermedia.co.za

Other Creamer Media Products include:
Engineering News
Mining Weekly
Research Channel Africa

Read more

Subscriptions

We offer a variety of subscriptions to our Magazine, Website, PDF Reports and our photo library.

Subscriptions are available via the Creamer Media Store.

View store

Advertise

Advertising on Polity.org.za is an effective way to build and consolidate a company's profile among clients and prospective clients. Email advertising@creamermedia.co.za

View options
Free daily email newsletter Register Now