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]).

How did the labour court, in Simunye Workers Forum v Registrar of Labour Relations, per Van Niekerk J, in terms of s111(3) of the LRA, on appeal, deal with the decision of the registrar refusing the application of the aforesaid trade union?

How do procedural fairness requirements relating to dismissals based upon misconduct (as well as incapacity), contained in the 1995 LRA, differ from the environment that preceded this Act?

The purpose of this article is to, firstly, analyse the latest developments in the above regard and, secondly, to determine some of the principles so applicable to each potential type of suspension.