The reinstatement maize we face in the CCMA and
the role of the trust relationship
by Johanette Rheeder
In the Labour Relations Act, the legislature favoured the remedy of reinstatement. Commissioners must reinstate employees unless certain circumstances arise. Compensation is considered when the employer committed a procedural unfair conduct, when reinstatement is not practical, the employee does not want reinstatement or when the trust relationship broke down irretrievably. But sometimes there are other factors at play as well. Factors such as the time delay and a lack of evidence can also play a vital role in the decision of the commissioner or court.
In Lubbe v Roop NO & others (2012) 21 LC 10.1.1 and  JOL 28409 (LC), the case had a 7 year history of two runs at arbitration in the Bargaining Council and the Labour Court for review. The employee challenged the arbitrator’s conclusion that he was not entitled to reinstatement, which is the primary remedy for a substantively unfair dismissal.
The Commissioner gave various reasons as to why he did not feel that reinstatement is the appropriate relief. He believed that reinstatement was not even remotely an option in this instance. The first reason was the fact that the employee used a very common complaint in disciplinary hearings and arbitrations, being that he is the victim of a conspiracy and a well-orchestrated vendetta to get rid of him. The commissioner found it strange that he wanted reinstatement in light of this complaint.
A vendetta to rid an employer of an employee, for no apparent or real reason, is a very difficult allegation to prove. In such a case, this type of allegation will form part of the employee’s defence and the employee will have to provide evidence to this effect to substantiate his defence. An unsubstantiated claim of a vendetta can easily turn around and work against the employee, who may be vigorously cross-examined on this point and may break down his credibility with the commissioner or chairperson. It may also, as it happened in this case, convince a decision maker that reinstatement is not appropriate due to a lack of trust between the parties. The Labour Court considered whether these circumstances, in fact were indicative of a break down in the trust relationship.
The Labour Appeal Court and the Supreme Court of Appeal (SCA) in the Edcon v Pillmer case, have dealt with the circumstances in which an arbitrator would be entitled to conclude that an employment relationship had irretrievably broken down. On the basis of this authority, it is now clear that it will normally not be sufficient for an employer simply to make submissions that there has been an irretrievable breakdown in the relationship, unless a clear basis has been laid in evidence (by way of direct evidence) to justify such a conclusion. It is also evident that such a conclusion will not be easily drawn simply because of the nature of the misconduct at issue in the case.
On this question, the Labour Court found that the only evidence relied on by the arbitrator is the employee’s own representative’s contentions that senior members of the SAPS had conspired against him. The court asked whether the fact that an employee suspects and accuses an employer of bad faith in fact constitutes evidence of a break-down? The court found – no! Equally, there is no basis for permitting an employer to avoid an order of reinstatement merely because the employee’s representative accuses it of acting in bad faith.
In this case, the court found: “the “evidence” of a breakdown of trust are merely allegations of bad faith made by the employee’s representative and the employee never abandoned his claim for reinstatement, indicating that he did not deem the relationship to be irretrievably broken down.
Secondly, the commissioner found, the very period between the dismissal of the employee and the finalisation of this arbitration is roughly 7 years, a period during which the SAPS did undergo many changes and must reflect a workplace very different to that which the employee left 7 years ago. He found it inconceivable that that the employee could simply go back and that it would be business as usual. The Labour Court found that, again, in view of the absence of any material dispute on this question, it seems reasonable to conclude that the arbitrator was probably more influenced by simply the length of the lapse of time between the applicant’s dismissal and the outcome of the award than by any evidence that the nature of the workplace had altered so dramatically that it would not be practical to reinstate the applicant.
Employee representatives who may fight very hard to get retribution for a dismissed employee, must always take cognisance of the remedy the employee wants. If the employee is steadfast on reinstatement, it should be remembered that the employee must, at some stage, reintegrate in the workplace and continue working with superiors and peers – the longer she is away, the more difficult it may become to salvage and maintain the relationship. However, should the employer allege that the employee cannot re-integrate into the workplace, then it should lead evidence to that effect.
Obviously, as held by the SCA, an employer must be alive to the fact that reinstatement always remains a possibility if the ultimate decision goes against it and it cannot rely solely on a long delay in finalising the litigation as a reason for denying the remedy the employee was entitled to in the first place. The court also found that there is also nothing in the award to indicate that the arbitrator gave any consideration to the applicant’s 30-odd years of service at the time of his dismissal or weighed up the relative impact of an award of compensation or reinstatement on someone who was close to retirement.
This case again confirms that the duty to prove is on the employer, and that a decision to dismiss must be based on evidence – not a gut feel!
For more information contact Johanette Rheeder
 Edcon Ltd v Pillemer NO & others (2008) 29 ILJ 614 (LAC) [also reported at  JOL 21412 (LAC), and Edcon v Pillemer NO & others (2009) 30 ILJ 2642 (SCA) [also reported at  JOL 24333 (SCA):
 NCBAWU & another v MF Woodcraft (Pty) Ltd  1 BLLR 43 (LAC)