presentation title: awarding relief 2008 commissioners indaba 19 – 21 st november 2008 sun city,...

Presentation Title: AWARDING RELIEF

2008 Commissioners Indaba

19 – 21st November 2008Sun City, North West Province

PresenterEDDIE TLHOTLHALEMAJE

Sections 193 and 194 of the LRA. Is the Topic Dead and

Buried?

(SOME HOWLERS!)

“1. The dismissal of the applicant was

only procedurally unfair.

2. The respondent is ordered to re-

employ the applicant retrospective from

the date of dismissal”

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

“1. The resignation of the applicant is

equal to an unfair dismissal

2. Since the applicant seeks

reinstatement, he shall be so reinstated on

condition that he is not required to report

to his previous supervisor, Mr. Ntuli”

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

“1. The respondent did not follow fair

procedures in dismissing the applicant.

2. The applicant is reinstated subject

to a disciplinary enquiry being held as

soon as possible”

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

OVERVIEW OF ORDERS GRANTED

FROM 1 APRIL 2007 TO 31 MARCH 2008

Location Outcome Count

GAJB Reinstated 138

GAJB Only Compensated 4614

GATW Reinstated 169

GATW Only Compensated 1758

KNDB Reinstated 185

KNDB Only Compensated 1497

KNPM Reinstated 48

KNPM Only Compensated 278

KNRB Reinstated 5

KNRB Only Compensated 173

WE Reinstated 149

WE Only Compensated 759

Location Outcome Count

GAJB Reinstated 146

GAJB Re-employed 17

GAJB compensation 1

GAJB Only Compensated 2893

GATW Reinstated 130

GATW Only Compensated 891

KNDB Reinstated 173

KNDB Re-employed 2

KNDB Only Compensated 817

KNPM Reinstated 20

KNPM Only Compensated 222

KNRB Reinstated 2

KNRB Only Compensated 79

WE Reinstated 118

WE Re-employed 1

WE Only Compensated 448

SUMMARY OF STATISTICS/ORDERS

FROM 1 APRIL 2007 – 31 MARCH 2008 (TOTAL ORDERS = 9773)

REINSTATEMENTS (694) = 7.1% COMPENSATION (9079) = 92.9%

FROM 1 APRIL 2008 – 31 OCTOBER 2008 REINSTATEMENTS (589) = 9.9% RE-EMPLOYMENT (20) = 0.3% COMPENSATION (5350) = 89.8 %

REINSTATEMENT AS A PRIMARY REMEDY

S191(1) - dismissal unfair – LC/Arbitrator may order:-

Reinstatement

Re-employment

Compensation

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

s193 (2)

The LC/Arbitrator must require the employer to reinstate or re-employ the employee unless…..

No wish to be reinstatedContinued employment unsustainable

Not reasonably practicableDismissal only procedurally unfair

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

WHEN IS REINSTATEMENT INAPPROPRIATE?

Exceptions as per s193 (2)

When dismissal only procedurally unfair (Mzeku & others v Volkswagen SA (Pty) Ltd & others [2001] 8 BLLR 857 (LAC))

The delay in finalizing the matter (Republican Press (Pty) Ltd v CEPPWAWU & Gumede & others (2007) 16 SCA 6.9.1)

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

WHEN IS REINSTATEMENT INAPPROPRIATE?

“Clean hands” principle

Breakdown of trust relationship

Dishonesty in pursuing claim (even if successful)

Giving false evidence under oath (linked to s193 (2) ( c) – (not reasonably practical to reinstate) (Maepe v CCMA)

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

COMPONENTS OF A COMPETENT REINSTATEMENT ORDER

Date from which reinstatement is effective (Discretion)

Date on which the employee must report for duty

Amount of payment (“back-pay”) (if any

ordered) and date specified)

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

“BACK-PAY” v COMPENSATION

Back-pay is not tantamount to compensation and

therefore is not limited to 12 months as envisaged in

s194.

Confusion created by LAC in Kroukam v SA Airlink (Pty)

Ltd [2005] 12 BLLR 1172 and CWIU v Latex Surgical

Products (Pty) Ltd (2006) 27 ILJ 292 (LAC)

Cleared by Equity Aviation Services (Pty) Ltd v CCMA

& others Case CCT 88/07[2008] ZACC 16) which

agreed with the SCA in Republican Press (Pty) Ltd v

CEPPWAWU & others 2008 1 SA 404 (SCA2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

REINSTATEMENT vs RE-EMPLOYMENT

REINSTATEMENT:

Per Nkabinde J (Equity Aviation) at para [36]

Primary remedy

Restoration of the employment

contract/Service regarded as unbroken

Placing an employee in the position he would

have been but for the dismissal2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

REINSTATEMENT- Continued

Safeguards workers’ employment (The

core value of the LRA being security of

employment)

Operates from the date of the award

unless ordered to be retrospective

Any changes/improvements to terms

and conditions to apply2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

RE-EMPLOYMENT

A new contract of employment is envisaged

Arbitrator has discretion to set new terms and

conditions of employment

The new terms and conditions of employment

to be clearly stipulated in the award

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

RE-EMPLOYMENT- continued Appropriate in circumstances where the

employer has restructured the business or

incapacity dismissals or even in non-

renewal of fixed term contracts dismissal

disputes.

Re-employment into work that is

reasonably suitable2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

S194 COMPENSATION

Amendments to s194 gave arbitrators the discretion to award compensation that is “just and equitable”

Compensation in the form of “solatium” (Lorentzen v Sanachem (Pty) Ltd (2000) 21 ILJ 1075 (LAC)

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

COMPENSATION FOR SUBSTANTIVELY UNFAIR DISMISSAL-CONSIDERATIONS

Remuneration/benefits at time of dismissal

Time frames between dismissal and award

Whether employee has mitigated losses

Financial loss suffered by the employee

Employee’s prospects of future employment

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

COMPENSATION FOR SUBSTANTIVELY UNFAIR DISMISSAL-CONSIDERATIONS

Nature of unfairness

Offers of reinstatement/re-employment/redress

Employer’s financial position

Whether conduct that led to dismissal also

caused employer any loss

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

COMPENSATION FOR PROCEDURAL UNFAIRNESS -

CONSIDERATIONS

The extent or severity of the procedural

unfairness/serious procedural irregularity

The prejudice suffered by an employee

Whether the manner of the dismissal was such

that it infringed on the fundamental rights of

the employee, e.g. Dignity

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

COMPENSATION FOR PROCEDURAL UNFAIRNESS -

CONSIDERATIONS

Whether the dismissal was substantively fair

The employee’s length of service

Refusal of good faith offers to redress the

irregularity

Compensation vs Arbitration Fee (s140 (2))

Views expressed in Avril Elizabeth Home for the

Mentally Handicapped still relevant2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

CONCLUSIONS

Some key lessons from Equity Aviation:

Reinstatement/re-employment is the primary remedy

The remedies in s193 (1) (a) are in the alternative and mutually

exclusive

Back-pay cannot be equated to compensation, and is not limited

to 12 months

System of expedited adjudication of unfair dismissal disputes far

from operating expeditiously

There is a need for effective remedies2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

SIYABONGA

2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City