In Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), the employee sought an order for specific performance consequent on a decision that her dismissal had been void ab initio on the basis of the fundamental breach committed by her employer by dispensing with an enquiry before dismissing her. On what basis did the labour court hold that reinstatement, from the date of dismissal, was the appropriate remedy for the employee (Wereley)?
- The employer had correctly pointed out that an order of specific performance is a discretionary remedy (see Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 777A-B).
- The primary relief sought by Wereley, consequent upon a finding that her dismissal was void ab initio, was her reinstatement from the date of dismissal and the reconvening of the disciplinary inquiry. One of the considerations, in deciding whether to restore the employment relationship after a declaration that a dismissal is a nullity, is whether, on the evidence available, there had been a breakdown in the trust relationship (see Ramabulana v Pilansberg Platinum Mines (2015) 36 ILJ 2333 (LC), paragraph ).
- However, the primary reason Wereley sought an order of specific performance was to ensure that the disciplinary enquiry, which had been convened before an independent chairperson, was concluded before she could be dismissed on account of her alleged misconduct. At the time she was dismissed she had still been on suspension, so her reinstatement did not mean that weaknesses in the trust relationship between her and the employer would immediately be tested by her returning to work. Her only involvement with the employer until the enquiry was concluded and a decision made would be in the course of the inquiry proceedings. For this reason, the labour court did not think that the state of the trust relationship under existing circumstances was a weighty factor affecting its discretion to make an order of specific performance and it did not assume the same importance it might if she had not been on suspension.
In the scenario where an employee alleges that, as a result of a misrepresentation by his or her employer, a termination agreement was concluded, why, according to the labour appeal court in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), would it be the wrong approach to seek a declarator that the agreement is void and what should be the correct approach?