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