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
September 2, 2025

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?

September 2, 2025

The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

August 26, 2025

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.