Article 31/2023

As has been the case as set out in article 30/2023, reinstatement or re-employment is the primary remedy but for the existence of the statutory defences.

Article 30/2023 dealt with s193(2)(b) of the LRA, whereas this article deals with the application of s193(2)(c) of the LRA.

What is the content of the defence of not being reasonably practicable to reinstate or re-employ as recently applied by the labour appeal court in Sibiya v SAPS (2022) 33 SALLR 28 (LAC), based on the viewpoint originally expressed by the constitutional court in 2019?

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In Sibiya, the labour appeal court followed the approach originally identified in Xstrata SA v NUM (2016) 39 ILJ 2313 (LAC); (2016) 27 SALLR 3 (LAC), and approved by the constitutional court in SACCAWU v Woolworths (2019) 40 ILJ 87 (CC), which entails the following:

what is the meaning of the phrase ‘not reasonably practicable’?

  • the term ‘practicable’ does not mean ‘practical’ and entails not practically feasible
  • something is not feasible if it is beyond possible and, therefore, what is required is that the situation would render reinstatement not practically feasible
  • a compelling operational burden exists to discharge the onus in this regard

what are the relevant and irrelevant factors?

  • a survey of the applicable case law indicates that the following factors are regarded as irrelevant:
    • short service
    • the fact that the dismissal took place a long time before the award was handed down
    • the employee needed further training
    • the original job no longer exists, etc
  • however, a survey of such case law indicates that at least the following two factors are regarded
    as relevant to determine the content of s193(2)(c) of the LRA:

    • the employer is facing liquidation
    • the employer is relocating

is there an onus on the employer to show that the reinstatement is thus not reasonably practicable?

  • the constitutional court, in Booi, and the labour appeal court, in Mthethwa, specifically rejected an
    approach that the onus is on the employer to show the existence of such a defence and that the
    arbitrator cannot mero motu, on the totality of the evidence, make such a finding
  • the view is thus held that, irrespective of the evidence presented, it is the statutory duty of the
    arbitrator to deal with this potential defence before making any appropriate award

the applicable review test?

  • the review test of the reasonable decision maker, as formulated in Sidumo, is applicable and that
    entails, inter alia, that:

    • s145(2)(a) grounds remain applicable (the presence of misconduct, gross irregularity, the
      arbitrator exceeding his or her powers or an award improperly obtained)
    • once established, it is not required to utilise specifically the ‘reasonable decision-maker test’

(see, further, Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA))

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