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  1. Presentation Title: AWARDING RELIEF 2008 Commissioners Indaba 19 – 21st November 2008 Sun City, North West Province Presenter EDDIE TLHOTLHALEMAJE

  2. Sections 193 and 194 of the LRA. Is the Topic Dead and Buried? 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City (SOME HOWLERS!) “1. The dismissal of the applicant was only procedurally unfair. 2. The respondent is ordered to re-employ the applicant retrospective from the date of dismissal”

  3. 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City “1. The resignation of the applicant is equal to an unfair dismissal 2. Since the applicant seeks reinstatement, he shall be so reinstated on condition that he is not required to report to his previous supervisor, Mr. Ntuli”

  4. 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City “1. The respondent did not follow fair procedures in dismissing the applicant. 2. The applicant is reinstated subject to a disciplinary enquiry being held as soon as possible”

  5. OVERVIEW OF ORDERS GRANTED

  6. SUMMARY OF STATISTICS/ORDERS FROM 1 APRIL 2007 – 31 MARCH 2008 (TOTAL ORDERS = 9773) REINSTATEMENTS (694) = 7.1% COMPENSATION (9079) = 92.9% FROM 1 APRIL 2008 – 31 OCTOBER 2008 REINSTATEMENTS (589) = 9.9% RE-EMPLOYMENT (20) = 0.3% COMPENSATION (5350) = 89.8 %

  7. REINSTATEMENT AS A PRIMARY REMEDY 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City S191(1) - dismissal unfair – LC/Arbitrator may order:- • Reinstatement • Re-employment • Compensation

  8. s193 (2) 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City The LC/Arbitrator must require the employer to reinstate or re-employ the employee unless….. • No wish to be reinstated • Continued employment unsustainable • Not reasonably practicable • Dismissal only procedurally unfair

  9. WHEN IS REINSTATEMENT INAPPROPRIATE? 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Exceptions as per s193 (2) • When dismissal only procedurally unfair (Mzeku & others v Volkswagen SA (Pty) Ltd & others [2001] 8 BLLR 857 (LAC)) • The delay in finalizing the matter (Republican Press (Pty) Ltd v CEPPWAWU & Gumede & others (2007) 16 SCA 6.9.1)

  10. WHEN IS REINSTATEMENT INAPPROPRIATE? 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • “Clean hands” principle • Breakdown of trust relationship • Dishonesty in pursuing claim (even if successful) • Giving false evidence under oath (linked to s193 (2) ( c) – (not reasonably practical to reinstate) (Maepe v CCMA)

  11. COMPONENTS OF A COMPETENT REINSTATEMENT ORDER 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Date from which reinstatement is effective (Discretion) • Date on which the employee must report for duty • Amount of payment (“back-pay”) (if any ordered) and date specified)

  12. “BACK-PAY” v COMPENSATION 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Back-pay is not tantamount to compensation and therefore is not limited to 12 months as envisaged in s194. • Confusion created by LAC in Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 and CWIU v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) • Cleared by Equity Aviation Services (Pty) Ltd v CCMA & others Case CCT 88/07[2008] ZACC 16) which agreed with the SCA in Republican Press (Pty) Ltd v CEPPWAWU & others 2008 1 SA 404 (SCA

  13. REINSTATEMENT vs RE-EMPLOYMENT 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City REINSTATEMENT: Per Nkabinde J (Equity Aviation) at para [36] • Primary remedy • Restoration of the employment contract/Service regarded as unbroken • Placing an employee in the position he would have been but for the dismissal

  14. REINSTATEMENT- Continued 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Safeguards workers’ employment (The core value of the LRA being security of employment) • Operates from the date of the award unless ordered to be retrospective • Any changes/improvements to terms and conditions to apply

  15. RE-EMPLOYMENT 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • A new contract of employment is envisaged • Arbitrator has discretion to set new terms and conditions of employment • The new terms and conditions of employment to be clearly stipulated in the award

  16. RE-EMPLOYMENT- continued 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Appropriate in circumstances where the employer has restructured the business or incapacity dismissals or even in non-renewal of fixed term contracts dismissal disputes. • Re-employment into work that is reasonably suitable

  17. S194 COMPENSATION 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City Amendments to s194 gave arbitrators the discretion to award compensation that is “just and equitable” Compensation in the form of “solatium” (Lorentzen v Sanachem (Pty) Ltd (2000) 21 ILJ 1075 (LAC)

  18. COMPENSATION FOR SUBSTANTIVELY UNFAIR DISMISSAL-CONSIDERATIONS 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Remuneration/benefits at time of dismissal • Time frames between dismissal and award • Whether employee has mitigated losses • Financial loss suffered by the employee • Employee’s prospects of future employment

  19. COMPENSATION FOR SUBSTANTIVELY UNFAIR DISMISSAL-CONSIDERATIONS 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Nature of unfairness • Offers of reinstatement/re-employment/redress • Employer’s financial position • Whether conduct that led to dismissal also caused employer any loss

  20. COMPENSATION FOR PROCEDURAL UNFAIRNESS - CONSIDERATIONS 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • The extent or severity of the procedural unfairness/serious procedural irregularity • The prejudice suffered by an employee • Whether the manner of the dismissal was such that it infringed on the fundamental rights of the employee, e.g. Dignity

  21. COMPENSATION FOR PROCEDURAL UNFAIRNESS - CONSIDERATIONS 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City • Whether the dismissal was substantively fair • The employee’s length of service • Refusal of good faith offers to redress the irregularity • Compensation vs Arbitration Fee (s140 (2)) • Views expressed in Avril Elizabeth Home for the Mentally Handicapped still relevant

  22. CONCLUSIONS 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City Some key lessons from Equity Aviation: • Reinstatement/re-employment is the primary remedy • The remedies in s193 (1) (a) are in the alternative and mutually exclusive • Back-pay cannot be equated to compensation, and is not limited to 12 months • System of expedited adjudication of unfair dismissal disputes far from operating expeditiously • There is a need for effective remedies

  23. 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City SIYABONGA