The Reinstatement Realisation

The antics of the unpopular president in a certain country across the Atlantic has ushered in much commentary about his Reality TV Show, The Apprentice. Where his signature line, “You’re Fired!” has no doubt tempted more than a few frustrated employers, who would dearly love to employ the same tactics. But the few that do will generally find themselves on the losing end of the resultant court action.

Fortunately, most employers are all too aware of the importance of adhering to accepted labour law requirements when dismissing a staff member. Namely, to ensure substantive fairness, ie the (mis)conduct warrants the dismissal. And to ensure there’s procedural fairness, ie a disciplinary hearing precedes the dismissal, where the employee is given an opportunity to state their side of the story.

But the mere holding of a disciplinary hearing in itself doesn’t automatically mean you’re out of the woods. If a court finds that the hearing wasn’t carried out properly then the dismissal could be deemed procedurally unfair. And this doesn’t just lead to a wad of cash being paid to the employer. You may be ordered to give him or her their old job back.

This is because if the CCMA or Labour Court decides that the dismissal was unfair, the usual approach is to order reinstatement. In other words, your ex-employee will become your employee once more.

There are a few situations where reinstatement would not be ordered by the courts. These situations can be found in the Labour Relations Act, where S193 provides the exceptions to the reinstatement order. The court will not order the employer to re-appoint the employee if:

• the employee does not want to be reinstated into the employer’s business;
• the circumstances surrounding the dismissal were such that a continued employment relationship would be intolerable;
• it is not reasonably practicable for the employer to reinstate the employee;
• the dismissal is only considered to be unfair because the employer didn’t follow the correct procedure. In other words, if the dismissal was substantively fair, and there was good reason for the employee to be dismissed, then the court wouldn’t order reinstatement.

The decision as to whether reinstatement is indeed intolerable or impracticable rests with the court. A cautionary note is that reinstatement can still be ordered even if you’ve already appointed someone else into the employee’s old position.

Of course, there is another option: the employer could ensure that they follow a fair disciplinary procedure before taking the drastic step of dismissing the employer. Being proactive can prove rather useful. So, make sure you’ve implemented disciplinary policies and procedures in your business so that you have the documents and processes at hand if or when you find yourself in need of them.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.