Article 29/2023

The labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), reiterated some very important principles governing the peremptory nature of the relief of reinstatement or reemployment.

In the light of the above, what approach should be adopted by the labour court or the arbitrator when considering such relief?

It is not always properly understood that reinstatement or re-employment is the peremptory relief should a dismissal be found to be substantively or substantively and procedurally unfair unless s193(2)(a) to s193(2)(d) is obviously applicable. With reference to the approach of the constitutional court in, inter alia, Equity Aviation Services v CCMA 2009 (1) SA 390 (CC) and Billiton Aluminium v Khanyale (2010) 31 ILJ 273 (CC), how did the labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), deal with the obligations of an arbitrator or a judge of the labour court to probe any factors relevant as exceptions to the relief of reinstatement or re-employment?

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In Mthethwa, the following approach was adopted:

  • the word ‘must’ in s193(2), indicating the relief of reinstatement or re-employment, is peremptory
  • this entails, inter alia, that the labour court, or the arbitrator, is obliged to reinstate or re-employ (if
    indeed a decision is made that the employee is entitled to relief), unless s193(2)(a) to s193(2)(d)
    is applicable

(SAMWU v Ethekweni Municipality [2019] 1 BLLR 46 (LAC))

  • in simple terms, once substantive unfairness has been established, it is peremptory or obligatory
    to reinstate, unless the above statutory exceptions exist – the labour court, or the arbitrator, is,
    therefore, obliged to probe any factor relevant to such exceptions

(DHL v National Bargaining Council for the Road Freight Industry [2014] 9 BLLR 860 (LAC))

In applying the aforesaid principles to the facts of the case, the labour appeal court held, in Mthethwa, that the basis upon which reinstatement or re-employment did not take place, namely, that employment for the employee would be unsafe taking into account the physical security of the employee, amounted to subjective thinking and clearly constitutes an irregularity

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