Article 31/2021

Labour Edge

In general terms, the determination of the fairness of a dismissal requires an arbitrator to form a value judgment, having regard to the interests of both the employer and the employee, and to achieve a balanced and equitable assessment of the fairness of the sanction.  What are the types of factors to be taken into account in determining whether the employer had thus acted fairly in deciding to dismiss an employee?

  1. the importance of the rule that had been breached (seriousness of the misconduct);
  2. the reason the employer imposed the sanction of dismissal;
  3. the explanation presented by the employee for the misconduct;
  4. the harm caused by the employee’s conduct;
  5. whether additional training and instruction may result in the employee not repeating the misconduct;
  6. the service record of the employee;
  7. the breakdown of the trust/employment relationship between the employer and employee;
  8. the existence or not of dishonesty;
  9. the possibility of progressive discipline;
  10. the existence or not of remorse;
  11. the job function of the employee; and
  12. the employer’s disciplinary code and procedure (Sidumo (supra), at paragraph [78]; National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC), at paragraph [82]; Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2277 (LAC), at paragraphs [17]–[18]; Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2016) 37 ILJ 2831 (LAC), at paragraph [14]; Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC), at paragraph [30]; Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC), at paragraph [54]; Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC), at paragraph [34]; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC), at paragraphs [37]–[38]; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC), at paragraph [94]).

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?