Article 28/2021

Labour Edge

In order to resist an order or award of reinstatement, is it always a requirement to lead evidence of the irretrievable breakdown of the trust relationship?


The labour appeal court recently, in Drs Dietrich, Voight & Mia t/a Pathcare v Bennett NO and Others (2019) 30 SALLR 160 (LAC), adopted the following approach: in a situation where no evidence was adduced during the trial or arbitration, as in this case, on the effect of an order or an award of reinstatement, the court or the commissioner should consider all the factors and circumstances relevant to that form of relief, including the gravity of the offence committed by the employee. Equally trite is that that dismissal is a penalty of last resort because of the harsh consequences it may have on an employee who is dismissed (Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd ([2016] 11 BCLR 1440 (CC); (2016) 37 ILJ 2485 (CC); [2016] 11 BLLR 1059 (CC), at paragraph [173]).

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.