BACKGROUND
| The Respondent had been employed by AFGEN (Pty) Ltd (“the Appellant”) for just over a year, during which period she suffered from depression and was placed on sick leave for two months. Subsequent to the Respondent’s return, in December 2011, she was charged with misconduct for: (i) sending unauthorized emails to customers and (ii) making untruthful statements in the emails relating to a meeting which the Appellant was to convene to discuss her work performance. The Respondent was found guilty and issued with a final written warning. In January 2012, the Appellant once again charged the Respondent with misconduct, on the same set of facts but on new charges, in that she: (i) had broken the trust relationship; (ii) had brought the company into disrepute; (iii) was insubordinate and (iv) had made false accusations against the management. On this occasion, the chairperson found the Respondent guilty and summarily dismissed her. The Respondent referred the matters to the CCMA, believing the final written warning to constitute an unfair labour practice and the dismissal to be unfair. The Respondent had been employed by AFGEN (Pty) Ltd (“the Appellant”) for just over a year, during which period she suffered from depression and was placed on sick leave for two months. Subsequent to the Respondent’s return, in December 2011, she was charged with misconduct for: (i) sending unauthorized emails to customers and (ii) making untruthful statements in the emails relating to a meeting which the Appellant was to convene to discuss her work performance. The Respondent was found guilty and issued with a final written warning. In January 2012, the Appellant once again charged the Respondent with misconduct, on the same set of facts but on new charges, in that she: (i) had broken the trust relationship; (ii) had brought the company into disrepute; (iii) was insubordinate and (iv) had made false accusations against the management. On this occasion, the chairperson found the Respondent guilty and summarily dismissed her. The Respondent referred the matters to the CCMA, believing the final written warning to constitute an unfair labour practice and the dismissal to be unfair. Commission for Conciliation, Mediation and Arbitration (“CCMA”): The Commissioner found that the final written warning constituted an unfair labour practice and the warning was set aside. Similarly, the employee’s dismissal was found to have been substantively unfair. Section 193(2) of the Labour Relation Act (“LRA”) provides: “The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless: (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to reinstate or re-employ the employee;” The Commissioner held that the employer-employee relationship had broken down to such an extent that reinstatement would not be appropriate. The employee was awarded three months’ salary as compensation. Labour Court (“LC”): On review, the LC substituted the CCMA award with an order that the Appellant reinstates the Respondent and compensate her in the sum equal to 24 months’ salary. Labour Appeal Court (“LAC”): The LAC held that s 193 of the LRA dictates that if a dismissal is found to be substantively unfair, the employee is entitled to reinstatement or re-employment. Further, that there must be an extraordinary reason to deviate from such relief and only so, if s193(2) was triggered. The LAC referred to Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others 2018 1 BLLR 1 (LAC) where the court noted that the degree of relationship between the employee and his/her superior should be considered. In this matter, the Respondent fell directly under the supervision of her manager, with whom she had to interact daily, take instruction and report to on each, and every issue. Thus, a continued working relationship would be impractical. HELD The LAC held that the relationship between the Appellant and the Respondent was dependent on the parties working closely together. In the absence of such a relationship, to reinstate the Respondent would be inappropriate. This was further compounded by the fact that the Respondent had only been under the Appellant’s employ for just over a year. The appeal was therefore upheld with no order as to costs. In respect of the compensation awarded, the order was set aside and substituted for a sum equal to 12 months’ salary. VALUE Review of arbitration award for reinstatement In appropriate circumstances, where a dismissal is found to be substantively unfair, the court may deviate from the obligation to award reinstatement or re-employment. However, the circumstances justifying such a departure are exceptional. Written by Jordan Dias Checked by Pierre van der Merwe |
