Reinstated? What does it mean and entail
By Saber Ahmed Jazbhay, Attorney and Labour Law Practitioner
The Constitutional Court judgment in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, is authority on the issue of reinstatement and what it means. The Court specifically dealt with the meaning of ‘reinstatement’ awarded in terms of section 193 of the LRA.
Nkabinde J, as she then was had the following to say:
‘The ordinary meaning of the word 'reinstate' is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. …. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers' employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of s 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator.
The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal. The ordinary meaning of the word 'reinstate' means that the reinstatement will not run from a date after the arbitration award. Ordinarily then, if a commissioner of the CCMA orders the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the commissioner decides to render the reinstatement retrospective.’
So the ratio in Equity Aviation is clear. Reinstatement means the restoration of the status quo ante. It is as if the employee was never dismissed. Where reinstatement is awarded, an employer will be in compliance with such an award if the employer, on (or as from) the date of the award having been made, takes the employee back into its service on the same terms and conditions of employment of the employee as it existed at the time of dismissal of the employee. Also, and as a necessary consequence, the original starting date of employment of the employee will remain the same and applicable, if such reinstatement is awarded.
It gets tricky, however, when it comes to the issue of the retrospectivity of reinstatement. That is a completely different issue, however, in terms of the above ratio in Equity Aviation.. In the case under review, Snyman J held that reinstatement was not necessarily coupled with retrospectivity and was" not a sine qua non of it " (sic). Retrospectivity of reinstatement, he held, was a "separate discretion that must be exercised by the arbitrator or the judge when deciding to award reinstatement".
Retrospectivity, in simple terms, relates to what is commonly known as ‘backpay’, and constitutes what the arbitrator or judge expects an employer to pay the employee for the time the employee has been languishing without remuneration as a result of the employee’s unfair dismissal.
In short, reinstatement means taking the employee back on the same terms and conditions of employment as if the dismissal of the employee never occurred , which would apply as from the date of award of reinstatement and with continuity of employment intact.
However, it must be noted that the concept of reinstatement does not per se include the issue of back pay. Back pay is a separate issue and determination, albeit coupled with reinstatement.
So what about backpay?
Interesting that, in Republican Press (Pty) Ltd v Chemical Energy Paper Printing Wood and Allied Workers Union and Others, , the Court clarified the position on backpay as follows:
‘…. I do not think that the backpay to which a worker ordinarily becomes entitled when an order for reinstatement is made is to be equated with compensation (my emphasis)….
As pointed out by Davis AJA in Kroukam, (and I respectfully agree) an order of reinstatement restores the former contract and any amount that was payable to the worker under that contract necessarily becomes due to the worker on that ground alone. Perhaps a court (or an arbitrator) that makes such an order may also order that part of that remuneration shall not be recoverable (I make no finding on that point) but I agree with Davis AJA that the remuneration becomes due under the terms of the contract itself …. ‘
The exercise of the discretion as to the extent of retrospectivity with backpay is firmly founded in the concept of what is fair to both parties. As Froneman J said in Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others.
‘The remedies awarded in terms of the provisions of s 193 of the LRA must be made in accordance with the approach set out in Equity Aviation. That approach is based on underlying fairness to both employee and employer. ….’
In Mediterranean Textile Mills, the Court said 'fairness ought to be assessed objectively on the facts of each case', and then referred with approval to the following passage from National Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others, that fairness ' comprehends that regard must be had not only to the position and interests of the worker, but also those of the employer, in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances (NUM v Free State Cons at 446I). And in doing so it must have due and proper regard to the objectives sought to be achieved by the Act.'
When The Workplace Becomes Unbearable' – Update
By Johann Scheepers
The modern workplace is characterised by all sorts of conflict. The extent of operational demands on the employer and employee is ever increasing. Traditionally competitors were confined to a limited and easily identifiable group. However, as it is often mentioned by very important persons, ‘The world has become a global village’, or words to that effect.
Writer’s limited grasp of ‘the global village’ argument, which apparently has its roots in scientific research and findings by renowned economists, is that companies compete internationally for a slice of the ever shrinking proverbial cake.
As a consequence and in order to remain a viable and profitable entity the captains of industry expect employees to perform or perish. The potential for conflict within the workplace is perpetually on the increase and ever so often unfortunate incidents occur that eventually lead to the dismissal of employees for various reasons, albeit for misconduct, poor work performance/incompetence and ‘retrenchments/lay-offs’, as well as other reasons.
Dismissed employees often contest the dismissal by lodging a claim, in accordance with relevant labour legislation in the form of an ‘unfair dismissal’ based on various grounds, for example unfair discrimination, victimisation, harassment, ‘bullying’ and within the South African context a ‘constructive dismissal’ [which ‘dismissal’ would be addressed more fully hereunder].
Suffice it to at this juncture disclose that in terms of Section 186(1)(e) of the SA Labour Relations Act, 66 of 1995 (the LRA) a ‘Dismissal’ means that – ‘an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.’ [Emphasis added].
The phenomenon of an ‘intolerable’ or unbearable workplace is not confined to South Africa. In an article by Brenda Craig ‘Microsoft to pay $2 Million in Workplace Bullying Case’ (2014) Lawyers and Settlements.com ‘The judge in the Texas employment labour law case, Tim Sulak, has issued a Final Judgement ordering Microsoft to pay $2 million in compensatory and punitive damages and legal fees. Judge Sulak found the tech giant guilty of “acting with malice and reckless indifference” in organized office retaliation against salesman Mercieca.’ [Emphasis added].
At this juncture it is important to record that from a SA legal perspective it is notoriously difficult for an employee to prove constructive dismissal. The reported judgments handed down by the Courts and arbitration awards by Commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA) show that an Applicant rarely succeed by discharging the onus that the workplace became ‘intolerable’. [See: Section 186(1)(e) of the LRA referred to supra].
Furthermore, the Courts and Arbitrators have on occasion recognised or to an extent took ‘judicial notice’ of the operational demands and potential for conflict inherent within the modern workplace.
Marcus C commented as follows on the “stressful nature” attributed to the “modern workplace” in Visser and Amalgamated Roofing Technologies t/a Barloworld (2006) 27 ILJ 1567 (CCMA): “A modern workplace is not heavenly garden of smiling Buddhas focused on the welfare of others. More often than not it represents the contrary picture of a highly stressful and robust environment in which the pressures to perform on staff and even more so, members of management who carry the can, can on occasion contribute to managers conducting themselves in a manner that is less than desirable... managers are after all infallible. They are subject to human limitations like the rest of us and cannot reasonably be expected to perform to the standards of a saint in their conduct towards staff...”
Unfortunately and due to many reasons, some which may be attributed to poor legal advice, misleading advertisement on television wherein a distorted message is projected as if a constructive dismissal claim would with relative ease succeed or simply due to opportunism on the part of an employee, in that the employee would terminate the contract impetuously in response to an argument with a supervisor or as a ‘pre-emptive move’ or stratagem designed to avoid the possibility of a dismissal due to misconduct or poor work performance. What normally follows the pre-emptive resignation is a claim of constructive dismissal in that the workplace supposedly became ‘intolerable’.
As was mentioned above, the SA Courts on occasion by means of admonition alerted employees that the decision to tender resignation should not be done in undue haste or in response to the slightest experience of conflict within the workplace.
In Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others  JOL 29127 (LC); also reported (2012) 33 ILJ 363 (LC), Steenkamp J held and made the following observation:
“It may be that Van Rooyen subjectively felt that his continued employment had become intolerable. Rahmann had lost trust in him and said so. He had been suspended. Rahmann overreacted by sending the SAPS to his house to recover the documents he had removed from the cellar. But I do not think that these actions by the employer, objectively speaking, were enough to make it culpably responsible for the termination of the employment relationship. The test remains an objective one.
To use a winemaker's analogy, the court cannot consider whether, subjectively speaking, an employee with a thin skin like the Pinot Noir grape may have found employment intolerable. It has to look at the situation objectively, and an employee has to be somewhat more robust and vigorous when there are still options open to him – more like the Cabernet Sauvignon cultivar”. [Emphasis added].
In Asara Wine Estate & Hotel at 34, Steenkamp J, held that in order to discharge the onus that there was a constructive dismissal the employee must show that there were no reasonable alternatives to resignation in existence.
The sentiments expressed by Byrne, C in Arries // The Effectiveness Company  4 BLLR 373 (CCMA) at  are apposite in that the Senior Commissioner succinctly noted that to prove constructive dismissal, an employee must show that conditions were not merely “uncomfortable”, but that they were “intolerable”.
In a recent important, and as of yet unreported judgment, Volschenk v Oragma Africa (Pty) Ltd (C414.13) Delivered: 27 May 2014, Steenkamp J. [Courtesy: LexisNexis BLLR - November Preview] the Applicant chose, what could be described as ‘the road less travelled’, by referring a constructive dismissal dispute, couched in the form of a breach of contract, for adjudication to the SA Labour Court.
After an argument with his employer, Volschenk [the Applicant] resigned from the company on two months’ notice, although he was employed on an indefinite contract requiring one month’s notice. “Applicant claimed ‘constructive dismissal’. He did not refer a dispute the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of section 186(1)(e) of the Labour Relations Act, as one might expect. Instead, he referred a contractual claim to this Court, apparently in terms of s 77(3) of the Basic Conditions of Employment Act, relying on breach of contract” [at 2].
The Applicant relied on five contractual damages claims: [3.1] Commission payable; [3.2] Leave pay;
[3.3] Future loss of earnings; [3.4] Performance bonus; and [3.5] Shares in an employees’ share unit scheme. The Respondent raised five exceptions. It claimed that the Applicant’s statement of case did not set out a cause of action for his various claims.
After an argument with the Respondent, the Applicant gave two month’s notice of termination [the contract only required one month’s notice] and approached the LC for relief. The Judge noted that the Rules of the Labour Court required statements of claim to contain clear and concise statements of the facts on which the applicants rely, as well as of the legal issues raised. Applicant failed to set out legally relevant facts which disclosed a cause of action. To make matters worse, the Applicant equated a claim for “damages” with that of compensation as if the same [sort of claim].
Then a further problem was that he failed to quantify the claim for “future loss of earnings”. The Court held that a claim for compensation for an alleged constructive dismissal was a remedy afforded under the LRA, not a contractual claim.
Finally - Applicant could not persuade the Judge that he was “constructively dismissed”; especially in that he graciously gave two month’s notice, instead of the contractual one month’s notice period. The Judge found the two month’s extended notice irreconcilable with a claim that the employment relationship had been rendered intolerable.
The Court upheld all the Respondent’s exceptions, and dismissed the matter with costs.
One could only express the hope that South African employees, if not all employees should keep in mind that a termination of an employment contract is generally regarded as a unilateral act by the employee and could not be retracted ex post facto by contending that it was done ‘in the heat of the moment’ or by lodging a claim based on the ground of a ‘constructive dismissal’. As was set out above the test of ‘intolerability’ would not easily be satisfied.
Dealing with Poor Performance - A Basic Guide
By Des Squire, Managing Member at Amsi and Associates
The first step is to hold a meeting (an informal affair) with the employee. You explain where the employee is falling short, what standard is not being met, and discuss the matter fully to see if the reason for the poor performance can be established.
It may be a domestic crisis that the employee has (pending divorce, sick child, financial problem, etc.) or it may even be a work related problem, such as a supervisor who is victimizing the employee, harassing the employee in some way, and so on.
The important thing is to establish to cause – if you don’t know the cause, you cannot treat the problem. Treating the symptoms is a useless exercise – the problem will not go away unless you treat the cause.
Whatever the cause, try to find a mutually acceptable way of dealing with it – it may be training that is required, it may be that you have to refer the employee to an outside body such as the Department of Social Welfare, a good divorce lawyer, and so on. Perhaps you will have to assist the employee financially, or help them obtain a loan from a financial institution, but it is vitally important that all the proceedings are recorded in detail.
These records will be required if you eventually have to dismiss the employee and the matter is taken up with the CCMA. You will have to prove that correct and fair procedures were followed, and you need written records to do this. Remember that in a case of unfair dismissal, the employee only has to prove that a dismissal took place. The employer must prove the fairness of the dismissal.
At the end of the counseling session, the employee must be warned of the consequences of failure to improve where such warning is appropriate.
Bear in mind that the aim of the counseling session is not to punish the employee, but to assist him/her to recognize and overcome the problem.
There is no rule of thumb regarding how many counseling sessions are required before dismissal, nor how much assistance or training must be given before dismissal, or demotion to a lower position which the employee can handle.
It will depend on many factors, such as length of service, how long has the employee been doing the job before he/she started screwing up, the nature of the job, the extent of the employee’s willingness to co-operate and help solve the problem, what effect the poor performance has had on the Company, and of course the nature of the poor performance itself.
For example, if it is a vital function that is not being done, then that is serious – immediate improvement is required.
In the counseling session, you must be specific – it is not acceptable to state that the employee is “not making the grade” or “is not doing the job properly.”
The specific problem area must be defined and discussed in detail. It is no good telling the employee to “pull his socks up” or “get his act together.”
Be specific about what improvement is required, what standard is required to be met, in what area and by when.
The counseling process is termed as “evaluation, instruction, training or guidance.”
Make sure that this is what you do.
If the matter comes to dismissal, then the Code of Good Practice on Dismissal must be applied, as well as your own procedures if any. You are obliged to consider whether the employee did in fact fail to meet a performance standard, if he or she could reasonably be expected to have been aware of the required standard, whether a fair opportunity was given to the employee to meet the required standard, and most importantly you must assess whether or not dismissal is an appropriate (and perhaps the only available) sanction under the circumstances of the case.
Alcohol at work functions
By Judith Griessel, Griessel Consulting
It is the time of year when many year-end functions typically take place and whether this is on- or off premises, it usually involves alcoholic refreshments.
To what extent should an employer who makes alcoholic beverages available to employees during a function, be responsible to try and mitigate the effects of alcohol consumption in order to safeguard employees and to avoid potential legal liability?
It is trite law that an employer can legally be held liable for damages caused by the actions of its employees if those actions took place within the course and scope of their employment. Apart from that, there is potential for reputational damage to the employer caused by intoxicated employees; or harm caused by such employees to themselves or others by driving under the influence of alcohol or when over the legal limit. Health and safety obligations and possible workplace injuries could also impact on the business.
Essentially, employers should be able to demonstrate that they have a least made an effort to try and manage employees’ conduct around alcohol consumption, or preventing them from driving when over the legal limit or in an intoxicated state.
Most employers generally have an alcohol policy in place, stipulating a “zero tolerance” approach to alcohol consumption in relation to their work or workplace. However, this policy is usually relaxed for the purposes of social work functions. It is therefore important for employers to stipulate in the policy what is expected of employees on such occasions. This could include:
The employer would be entitled to take disciplinary action against an employee for any conduct – on or off the premises – which impacts on the employment relationship. Where employees for example drive company vehicles as part of their job function and their licence is endorsed or suspended as a result of such offences, this will impact directly on the employer’s operations.
From a practical point of view, the employer could also take certain steps at work functions to assist employees in this regard, for example -
Whilst year-end functions should be occasions to unwind and relax with colleagues outside of the normal working environment, caution cannot be thrown to the wind. Both employers and employees still have certain responsibilities around their conduct and are duty-bound to ensure that the company’s interests are not prejudiced in any way.
25 November 2014(Fully Booked)
Southern Sun: OR Tambo International Airport
28 November 2014
Southern Sun: OR Tambo International Airport
26 November 2014
Southern Sun: Century City(Canal Walk): Cape Town
27 November 2014
Southern Sun: Century City(Canal Walk): Cape Town
28 November 2014
Southern Sun: Century City(Canal Walk): Cape Town