The Commission for Conciliation, Mediation and Arbitration (CCMA) or the courts, may not always order the reinstatement of an employee where their dismissal is found to be unfair.
This is according to Jacques van Wyk, director at Werksmans Attorneys, who said that these situations are ‘exceptional’ and typically only occur where reinstatement is impractical or the circumstances are such that a continued employment relationship would be intolerable.
Van Wyk pointed to the recent Labour Appeal Court (LAC) case of AFGEN (Pty) Ltd v Ziqubu as an example.
In this case, the employee had been employed for just over a year. They had suffered from depression and were on sick leave for two months during 2011.
In December 2011, the employee was charged with misconduct for sending unauthorized emails to customers and making unlawful statements in the emails relating to a meeting which the employer was to convene with the employee regarding her work performance.
In the emails, the employee asked customers of the employer to provide a report on their dealings with her so as to assist her in a work performance meeting to be convened by the employer.
No work performance meeting was scheduled as averred by the employee. The employer only became aware of this after several customers complained about having to complete the report.
A disciplinary hearing was held during which the employee was found guilty on both charges and issued with a final written warning. The employee referred to an unfair labour practice dispute to the CCMA.
In January 2012, the employee was once again charged with misconduct for the same offence relating to the emails sent to customers.
The charges were that:
- The trust relationship had broken down;
- The employee had brought the name of the company into disrepute;
- The employee was insubordinate; and
- The employee had made false accusations against management.
“Disregarding the fact that it was irregular to charge the employee on the same facts as those in December 2011, the chairperson at the disciplinary hearing (who had also chaired the previous hearing) found the employee guilty of the first two charges and she was summarily dismissed,” said van Wyk.
“The insubordination charges also pertained to the same facts forming the subject matter of the first final warning, save for the additional allegation that the employee had abused company resources by sending her curriculum vitae to potential future employers using the employer’s computers.
“This resulted in another final written warning being issued. The employee was found not guilty of the fourth charge.”
While it was clear from the above facts that the dismissal was not substantively fair, the CCMA still had to rule whether the employee should be reinstated.
The CCMA ultimately ruled that the employer-employee relationship had broken down to such an extent that reinstatement would not be appropriate. The employee was awarded three months salary as compensation.
This was upheld by the Labour Appeal Court (LAC) which held that because the employee fell directly under the supervision of her manager, with whom she had to interact on a daily basis and from whom she had to take instruction and report to on a daily basis, a continued working relationship would be impractical, said van Wyk.
“The court held that the break down in the trust relationship was evident in the employee’s clear disregard for her manager,” he said.
Van Wyk said this was evident from the testimony the manager gave regarding the employee’s conduct at work.
Further, the employee’s own union representative stated to the chairperson of the disciplinary hearing that no relationship exists between the employee and management.
The type of relationship required in this position was one in which the employee would need to work closely with her superior.
“In the absence of such relationship, reinstatement would be inappropriate,” said Van Wyk.
“This was compounded by the short duration of the employee’s term with the employer.”
“Employees’ conduct towards an employer both before and after their dismissal may, in appropriate circumstances, bar such employee from reinstatement even if their dismissal is found to be substantively unfair,” said van Wyk.