Reinstatement in South African Labour Law

Abstract

Once a court or an arbitrator finds that an employee has been unfairly dismissed, they are empowered to order the employer to reinstate or re-employ the dismissed employee or pay compensation to the dismissed employee. Reinstatement is the primary remedy if the dismissal is found to be substantively unfair. Reinstatement restores the employee to the position he or she occupied before the dismissal on the same terms and conditions. It rectifies the effect of the unfair dismissal and safeguards job security by restoring the employment contract. Reinstatement can be ordered from any date not earlier than the date of unfair dismissal. The arbitrator or the court has discretion to order reinstatement and they must judicially exercise the discretion. There are circumstances where reinstatement may not be ordered. They include, for instance, when the employee does not want to be reinstated or re-employed, where a continued employment relationship would be intolerable. Furthermore, the reinstatement will not be ordered where it is not necessary or practicable for the employer to reinstate or re-employ the employee. Finally, reinstatement is not appropriate if the dismissal is unfair only because the employer did not follow a fair procedure. Despite these exceptions, the reinstatement continues to be the primary remedy for unfair dismissal. It is submitted that where a dismissed employee has found a new job, compensation must be awarded as the reinstatement is not appropriate for the employee in these circumstances.