And yet more on reinstatement – Visser v Mopani District Municipality & Others [2011] ZASCA 248

Posted: December 2, 2011 in Uncategorized

The Labour Appeal Court recently stressed certain principles to reinstatement.  As such it was remarked that onus plays no role in determining whether an employee should be reinstated and that the decision is solely motivated by fairness to both parties.

 

In casu the employee was reinstated following an arbitration hearing where his dismissal was found to have been both procedurally and substantively unfair.  This decision  was unsuccessfully taken on review and consequently on appeal to the Labour Appeal Court.  The Labour Appeal Court found that the Labour Court correctly concluded that the award was not susceptible to review.  the Labour Appeal Court however went further and based on the fact that  the employee was not keen to work in a certain area and that a period of six years have passed since the issuing of the award, set aside the order to reinstate.  It might be noted that both these issue arose after the award was issued.

 

The employee appealed the matter to the Supreme Court of Appeal where Snyders J concluded that “[w]hen the LAC embarked on an investigation of facts that occurred subsequent to the award in relation to a determination of an appropriate remedy, it acted as if it was sitting as a tribunal of first instance and was therefore at large to impose such remedy as it deemed appropriate – which it was not. The LAC remained bound to the same test in relation to the remedy as to the merits of the appeal before it. As such the LAC misconceived the nature of its function, by imposing a remedy it regarded as appropriate in the circumstances having itself found that there was no ‘defect’ in the award made” [at paragraph 10].

 

The conclusion reached by Snyders J is not surprising and correct.  What is however of interest is the Labour Appeal Court’s recent willingness to come to the assistance of employers in circumstances where they are required (subsequent to an unsuccessful appeal) to retrospectively reinstate an employee.

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