When an employee is reinstated by court order, the waters can be muddied and the obligations of the employer can be nuanced.
A recent case handed down by the labour court brought this into the spotlight. An employee, who had been dismissed, was reinstated by the CCMA, with an order for back pay for the period from dismissal to reinstatement. When the employee reported for duty, the company refused to accept his services, citing a potential review application.
According to experts in the employment law practice at commercial law firm Cliffe Dekker Hofmeyr (CDH), the case demonstrates that when an arbitration award or court order reinstates a dismissed employee, the employer is obliged to reinstate the employee on the terms and conditions that existed at the time of dismissal, unless the order expressly provides otherwise.
“Imposing additional conditions for reinstatement, like requiring new certifications or registrations that weren’t previously required, won’t fly with the court unless they are stipulated in the reinstatement order or the original contract,” says CDH.
Before imposing any conditions on reinstatement, CDH urges employers to seek legal advice to ensure reinstatement conditions are lawful and consistent with the original employment contract and the terms of the award or order.
Regarding back pay,
Read more: Reinstatement, Back Pay, and Employer Obligations
A recent court case before the Labour Court revisited whether an employer may end a fixed-term contract (FTC) before its expiry by giving contractual notice.
According to experts in Cliffe Dekker Hofmeyr’s (CDH) Employment Law Practice, many employers assume that simple notice is sufficient, regardless of the underlying reason for dismissal. “This judgment clarifies the distinction between contractual lawfulness and fairness under the Labour Relations Act and offers practical guidance for those engaging employees on FTCs”, says CDH.
In this case, the court was asked to determine the lawfulness (distinct from fairness) of terminating a FTC on one month’s notice – the stipulated notice period in the employee's contract. The employee alleged that the early termination was unlawful and sued for breach of contract.
Read more: Fixed-term contracts: Is early termination on notice lawful?
The role of a chief human resources officer (CHRO) involves overseeing all of a company’s staff management and labour-relations practices. Here’s everything you should know about this challenging, yet highly rewarding, position. By Vanessa Rogers on behalf of Executive Placements
According to technological research and consulting firm Gartner, just a few of the trends and priorities you may find yourself focusing on as a CHRO, include: scarce, yet expensive talent, global supply constraints, and economic pressure (from outside an organisation); and ways to enhance the employee experience, the importance of change management, and working on leader and manager efficacy (from inside an organisation).
Ways to break through the glass ceiling
The courts do not normally interfere with an employer’s decisions relating to appointment of applicants to positions. However, exceptions to this norm might be made where the appointment constitutes a promotion of an internal applicant or where the employer has broken its own rules pertaining to applicant appointment.
Employers too often make appointment decisions based on private agendas instead of on the basis of employment policy and fairness to the applicants. This raises the question as to how employers justify to themselves their right to flout policy and the principles of fairness. Often, this misguided self-justification stems from the employer’s belief in its own management prerogative.
While the right of management prerogative does exist, it is tempered by the principles of reasonableness and fairness. In order to be fair management decisions must be justifiable in the face of proven facts that are rationally connected to the decisions made.
Read more: Labour Appeal Court Knocks Employer Off Tightrope
The Labour Relations Act does not state whether the confession of an employee can justify his dismissal. However, the Criminal Procedures Act does specifically rule out such confessions. It is left to case law to decide such matters.
In the case of SACCAWU obo Dlabantu vs OK Bazaars (Contemporary labour Law Vol. 13 No. 11) a group of employees confessed in front of a video camera that they had consumed cool drinks and sweets belonging to the employer. Although the employees were adamant that they had been coerced into making these confessions they were fired for misappropriating the employer’s property.
At the CCMA the arbitrator found that the dismissals were unfair and reinstated the employees. This was because the employees were found guilty on the grounds of their confessions alone and the employer was unable to explain why it failed to bring corroborating evidence that it had claimed to possess.
OK Bazaars took the arbitrator on review to the Labour Court in the case of OK Bazaars vs CCMA & Others (Contemporary labour Law Vol. 13 No. 11).
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