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
