Article 32/2024

LabourEdge

The scenario is as follows: an employee commits misconduct during a fixed-term contract; the employer takes action and dismisses the employee; when the matter is finally heard by the CCMA and a finding is made that dismissal is substantively and procedurally unfair, what are the factors to be taken into account to determine whether or not reinstatement is the appropriate remedy?

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The labour appeal court, in Toyota SA Motors (Pty) Ltd v CCMA and Others (2023) 34 SALLR 74 (LAC); (2023) 44 ILJ 1038 (LAC), approached this issue as follows:

  • integral in the exercise of an arbitrator’s discretion is the nature of the employment contract and whether it is in existence when the appropriate remedy is considered
  • the constitutional court, in Toyota SA Motors (Pty) Ltd v CCMA and Others (2016) 37 ILJ 313 (CC), held that reinstatement was confined to the scenario where, at the date of the finding that the dismissal was unfair, the original employment contract was still in existence
  • where the employee is employed on a fixed-term contract, as is the case in the scenario described above, the expiry of which precedes the finding of an unfair dismissal, reinstatement or re-employment is not legally permissible and the only legal permissible remedy is that of compensation
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?