Back For Good – Or Bad

Reinstated employees can become untouchable.

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The Labour Relations Act (LRA) requires arbitrators and judges to use reinstatement as the remedy of first resort when an employee has been unfairly dismissed. The requirement for reinstatement to be implemented is limited where:

• The dismissal was only procedurally unfair.

• The employee prefers not to be reinstated.

• Reinstatement would be intolerable or impractical.

Reinstatement means that the employee must be returned to the same job on the same terms and conditions as they existed before the dismissal. The arbitrator may in addition order the employer to pay the reinstated employee all remuneration and benefits accrued between the date of dismissal and the date of reinstatement.

Where the Commission for Conciliation, Mediation and Arbitration (CCMA) or court decides that the employee is to return to work, but not in the same job as before, it may order re-employment instead of reinstatement, as long as the new job contains suitable work.