Thursday, April 19th, 2018
By Mynie Kriek
Question: My employer dismissed me without having followed any pre-dismissal procedures. When I referred a dispute of unfair dismissal to the CCMA, my employer offered to reinstate me in order to rectify the pre-dismissal process. Is this lawful, and how will it affect my unfair dismissal case?
The set of facts in this scenario corresponds with the matter of Heath v A & N Paneelkloppers (2015) 36 ILJ 1301 (LC). In this particular case, an employee had been dismissed, ostensibly due to her pregnancy. The employee referred an unfair dismissal dispute to the Labour Court, based on discrimination due to pregnancy. Shortly after that the employer offered to reinstate the employee. The employee refused the offer of reinstatement and proceeded with her dispute.
In considering what effect the offer of reinstatement had on any compensation for the automatic unfair dismissal, the Labour Court noted the following:
Where an employer has committed a wrong, as the current respondent clearly has, the employer still has a right to remedy this wrong committed. This is especially the case where the employer unconditionally offers to restore the employment relationship. The fact is that an employer that appreciates and embraces the error of its ways, must be given the opportunity to restore matters to the way they were before it strayed from the right path. Where an employer thus acknowledges wrongdoing and offers fully retrospective reinstatement to a dismissed employee, this should not readily be refuted by a dismissed employee. In such a case, the duty would be on the employee to provide a plausible and reasonable motivation for not accepting the proposal of the employer. Whilst this issue naturally does not detract from the determination that the original dismissal would be unfair, it certainly would have a direct and material impact on compensation to be awarded to the employee for such unfair dismissal. Whilst each such case of course must be considered on its own merits, I venture to suggest the following considerations which would be pertinent in the Court exercising its discretion as to the awarding of compensation in such instances:
74.1 The elapse of time between when the dismissal took place and the offer of reinstatement was made must be considered. The longer the delay, the more likely it would be that it can reasonably be contended that the employment relationship had eroded away. In other words, time is of the essence;
74.2 The offer should not be subject to conditions, and should be fully retrospective. In simple terms, it should constitute a proposal of the complete restoration of the status quo ante prior to dismissal;
74.3 The offer should also contain an assurance to the employee that the employee shall not be subjected to any form of harm or prejudice for having taken issue with his or her dismissal;
74.4 Preferably, the offer should provide a date and time the employee is to return to work; and
74.5 The Court should ultimately decide if the offer was made bona fide, and constituted a genuine attempt to remedy the wrong committed.
The Court took the above details into account, which ultimately impacted the sum of compensation granted to the employee due to her automatic unfair dismissal – the court only awarded compensation for having been discriminated against due to pregnancy. It was actually noted by the court, after having applied the principles outlined above that, had it not been for the fact that the applicant’s dismissal was automatically unfair because it related to her pregnancy, the applicant might have been in a situation where she would have received no compensatory relief because of her refusal to accept the reinstatement offered.
What this case illustrates is that an employer who dismissed an employee for whatever reason is entitled to offer reinstatement to such employee in order to rectify deficiencies in the pre-dismissal process.
It would be prudent for a dismissed employee not to treat an offer of reinstatement flippantly, as the offer could drastically impact the merit of any further unfair dismissal dispute.