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]).
