Article 33/2022

The labour appeal court recently ruled that an employer cannot rely at arbitration on a reason for dismissal different from the reason for dismissal utilised internally.  What are the considerations to be taken into account in coming to such a conclusion and what are the consequences of this judgment?

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In Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA and Others (2020) 31 SALLR 142 (LAC), the labour appeal court identified the following relevant principles:

  • an employer should notify the employee of any allegation of misconduct ‘using a form and language that the employee can reasonably understand’ (item 4(1), Schedule 8 Code of Good Practice: Dismissal)
  • while it is immaterial what label is given to the misconduct alleged, notice should be given in a manner which provides a reasonable degree of clarity so as to enable the employee to answer to the allegation raised (see Zeelie v Price Forbes (Northern Province) (1) (2001) 22 ILJ 2053 (LC), at 2063A-C; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others [2009] ZALAC 14; (2010) 31 ILJ 901 (LAC); [2010] 5 BLLR 513 (LAC), at paragraph [41])
  • the arbitration hearing was one de novo with there being no bar on relevant additional evidence being adduced at arbitration.  This was so since the determination of the fairness of a dismissal at arbitration ‘is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator’ (County Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (1999) 20 ILJ 1701 (LAC); [1999] 11 BLLR 1117 (LAC), at paragraph [11]
  • it is, however, not open to an employer to alter or amend the reason for dismissal or to rely on an entirely different reason for such dismissal at arbitration, and there was no merit in the appellant’s submission that the employee’s misconduct ‘must be viewed through the prism of the contextualised version during the course of the domestic hearing and subsequent arbitration proceedings’.  To the extent that this suggested that it was permissible for the reason for dismissal to morph from that advanced by the employer at the time of dismissal to a different reason advanced at arbitration, this was simply not the case

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?