The Labour Court recently confirmed that an employer cannot escape an order of reinstatement where its own conduct resulted in the continued employment being made intolerable. Reinstatement is the primary remedy provided in the Labour Relations Act for substantively unfair dismissals. Where an employee seeks reinstatement following a substantively unfair dismissal, the employer can only escape reinstatement being awarded where the circumstances surrounding his dismissal makes the continued employment relationship intolerable or that it is not reasonably practicable for the employer to re-instate or re-employ the employee.
In Lubbe v Roop & Others (as yet unreported Labour Court case; judgment delivered on 20 January 2012; case number JR 1303/09), Lagrange J commented on the lengthy process preceding the latest review application. The employee (Lubbe), previously dismissed from the South African Police Service (SAPS), had already once been involved in an application to review and set aside an arbitration award ordering his reinstatement.
When the matter was remitted back to arbitration, a different Commissioner also concluded that Lubbe’s dismissal was substantively unfair, but ordered that he be paid compensation instead of awarding him reinstatement, as he requested. The Commissioner held that Lubbe was not entitled to reinstatement as his representative consistently argued that there was a conspiracy against his client which was the true reason for the dismissal, and that there is a seven year gap since his original dismissal “…a period during which the SAPS did undergo many changes must reflect a workplace very different to that which Lubbe left in 2002, and it is inconceivable that he could simply go back and that it would be business as usual.”
Lubbe sought to review this finding of the Commissioner, arguing that there was no evidence of the breakdown of the employment relationship before the Commissioner. The Judge considered the judgment of the Supreme Court of Appeal (the SCA) in Edcon v Pillemer NO & others (2009) 30 ILJ 2642 (SCA) where the SCA agreed that it was not sufficient for the employer to present argument on the breakdown of the employment relationship.
The Judge stated as follows:
“If an employee who was unfairly dismissed contends that his employer sought to get rid of him for improper reasons, does that necessarily entail a breakdown in the trust relationship of the type which justifies not reinstating him? It would be somewhat perverse if an employer wishing to assert that the employment relationship had been rendered intolerable, on the basis that its own bad faith in dismissing the employee had instilled distrust of it in the employee, were able to avoid an order of reinstatement on that basis. 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.”
The review application succeeded with the SCA replacing the Commissioner’s award with one reinstating Lubbe. The SCA, in essence, confirmed that reinstatement cannot be avoided merely by arguing that the relationship between the parties had broken down irretrievably or by creating the intolerable circumstances on which you then later seek to rely.
It thus seems that the old adage is true: you cannot have your cake and eat it – especially where you baked it yourself.