In Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), the constitutional court specifically dealt with the statutory exceptions to reinstatement or re-employment as a primary remedy.
What are the important principles that practitioners are to be aware of when considering the content of s193(2)(b) of the LRA, namely, that the continued relationship is made intolerable?
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In Booi, the constitutional court indicated, inter alia, the following:
- even if the statutory exceptions, namely, that the continued relationship is intolerable or that it is
not reasonably practicable to reinstate or re-employ, were not raised in pleadings or even if no
specific evidence was led in this regard, such factor must be considered by the labour court or
the arbitrator
(see, further, Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC))
- as previously indicated, in article 26/2023, there is no automatic right to a remedy and this is equally applicable to compensation as well as reinstatement
(see, further, Toyota v CCMA 2016 (3) BCLR 374 (CC))
- the aforesaid statutory defences must be considered, even if the employee is found not guilty of
the alleged offence - also, the aforesaid statutory defences must be considered, even if peremption is raised
(Minister of Defence v SANDFU [2012] ZASCA 110)
- the level of intolerability required in order to ensure compliance with s193(2)(b) of the LRA entails same to be difficult, fraught or sour
- this level is not easily reached and weighty reasons are required as well as tangible evidence
- the requirement of continued employment being made intolerable must not be confused with incompatibility
- in reviewing an arbitrator’s decision as to whether or not s193(2)(b) of the LRA is or is not applicable, same entails an application of s145 of the LRA (e g a gross irregularity) infused by the reasonable decision-maker test – entailing, in essence, that there is no reasonable objective basis justifying the connection made by the decision-maker in this regard between the evidence before him and the conclusions conclusions reached (so applied also in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC)
