Article 26/2023

The constitutional court recently, in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC), had the opportunity to deal with the perception that, once a finding is made that an employee has been unfairly dismissed, he or she is automatically entitled to a remedy.

What was the approach adopted by the constitutional court?

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With reference to Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC), the constitutional court
held the following viewpoint: ‘Although every employee has the right not to be unfairly dismissed in
terms of s185(a) of the LRA, the infringement of that right neither necessarily nor automatically
confers a right to a remedy…’

In short, the above approach entails that arbitrators will be required to justify why a remedy (e g
reinstatement, re-employment or compensation) was specifically granted on the facts of the case and,
if they are not able to do so, this would potentially constitute a reviewable ground for such arbitration
award.

In assessing if reinstatement is fitting after CCMA deems dismissal in a fixed-term contract unfair, what factors guide this determination?

Is a binding agreement between a retrenching employer and the alternative employer required for the above section to be applicable and what role does the retrenching employer have to play in arranging alternative employment for such section to be applicable?

An accountant at a municipality faced dismissal for attempting to access the account. Reinstated after appealing to the bargaining council, new charges of dishonesty and IT policy breach led to another dismissal.