The test pertaining to reinstatement revisted – Dunwell Property Services CC v Sibande &and Others

Posted: November 28, 2011 in Uncategorized

In casu the employer by way of letter and in the absence of any enquiry terminated the employment of the employee.  This was done, apparently on advice from the Department of Home affairs, on the basis of the employee using South Africa using a false SA Identity document.

The Labour Appeal Court, per Ndlovu JA concluded that it was never found that the employee’s Identity Document was false and that as such the dismissal was both procedurally and substantively unfair (at paragraphs 21, 27 and 28).

Ndlovu JA however found that the employee should not be reinstated as the trust relationship had broken down completely and irretrievably, in consequence of certain post dismissal statements made by the employee in relation to senior personnel of the employer (at paragraph 34)

Interestingly Ndlovu JA expressly reiterated that “[w]hether or not an unfairly dismissed employee should be reinstated, as contemplated in section 193(2) of the LRA, the overriding consideration in the enquiry should be the underlying notion of fairness between the parties, rather than the legal onus, and that ‘[f]airness ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment.’ (Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others (2008) 29 ILJ 2507; also reported as [2008] ZACC 16; [2008] 12 BLLR 1129 (CC) at para 39)” (at paragraph 34).

It is thus clear that the Labour Appeal Court is giving due effect to the pronouncement by the Constitutional Court pertaining to fairness to both parties when considering reinstating an employee.

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