Under which circumstances can an organ of state, such as a municipality, offer employment to an aggrieved employee to settle a delictual claim?
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In Erasmus v Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the high court followed the following approach:
- in Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC), the labour appeal court held that a court may exercise its discretion not to award compensation if: (i) the employer had already provided the employee with substantially the same kind of redress; or (ii) the employer’s ability and willingness to make that redress is frustrated by the conduct of the employee
- the aforesaid principles should equally be applicable in the civil law environment;
- the employer is required to, most importantly, establish its bona fides in making an offer of reinstatement, entailing that it must not be an attempt to merely implement damage control
- generally, an offer of reinstatement will be acceptable to cure or remedy procedural defects but not substantive unfairness – however, this is not an immutable rule – Rawlins v Dr DC Kemp t/a Centralmed [2011] 1 All SA 281 (SCA)
- had Erasmus pursued an unfair dismissal dispute: (i) she would have been entitled to refuse the offer on the basis that the employment relationship had broken down, (ii) her dismissal had been substantively unfair, and (iii) the offer constituted an attempt at damage control – these considerations are equally applicable in casu, dealing with a delictual claim
