1. Presentation Title: AWARDING RELIEF 2008 Commissioners Indaba 19 – 21 st November 2008 Sun City, North West Province Presenter EDDIE TLHOTLHALEMAJE

2. Sections 193 and 194 of the LRA. Is the Topic Dead and Buried? (SOME HOWLERS!) “1.The dismissal of the applicant was only procedurally unfair. 2. The respondent is ordered to re-employ the applicant retrospective from the date of dismissal” 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

3. “1.The resignation of the applicant is equal to an unfair dismissal 2.Since the applicant seeks reinstatement, he shall be so reinstated on condition that he is not required to report to his previous supervisor, Mr. Ntuli” 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

4. “1.The respondent did not follow fair procedures in dismissing the applicant. 2.The applicant is reinstated subject to a disciplinary enquiry being held as soon as possible” 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

5. OVERVIEW OF ORDERS GRANTED FROM 1 APRIL 2007 TO 31 MARCH 2008 LocationOutcomeCount GAJBReinstated138 GAJBOnly Compensated4614 GATWReinstated169 GATWOnly Compensated1758 KNDBReinstated185 KNDBOnly Compensated1497 KNPMReinstated48 KNPMOnly Compensated278 KNRBReinstated5 KNRBOnly Compensated173 WEReinstated149 WEOnly Compensated759

6. LocationOutcomeCount GAJBReinstated146 GAJBRe-employed17 GAJBcompensation1 GAJBOnly Compensated2893 GATWReinstated130 GATWOnly Compensated891 KNDBReinstated173 KNDBRe-employed2 KNDBOnly Compensated817 KNPMReinstated20 KNPMOnly Compensated222 KNRBReinstated2 KNRBOnly Compensated79 WEReinstated118 WERe-employed1 WEOnly Compensated448

7. SUMMARY OF STATISTICS/ORDERS FROM 1 APRIL 2007 – 31 MARCH 2008 (TOTAL ORDERS = 9773) REINSTATEMENTS (694) = 7.1% COMPENSATION (9079) = 92.9%  FROM 1 APRIL 2008 – 31 OCTOBER 2008  REINSTATEMENTS (589) = 9.9%  RE-EMPLOYMENT (20) = 0.3%  COMPENSATION (5350) = 89.8 %

8. REINSTATEMENT AS A PRIMARY REMEDY S191(1)- dismissal unfair – LC/Arbitrator may order:-  Reinstatement  Re-employment  Compensation 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

9. s193 (2) The LC/Arbitrator must require the employer to reinstate or re-employ the employee unless…..  No wish to be reinstated  Continued employment unsustainable  Not reasonably practicable  Dismissal only procedurally unfair 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

10. WHEN IS REINSTATEMENT INAPPROPRIATE?  Exceptions as per s193 (2)  When dismissal only procedurally unfair (Mzeku & others v Volkswagen SA (Pty) Ltd & others [2001] 8 BLLR 857 (LAC))  The delay in finalizing the matter (Republican Press (Pty) Ltd v CEPPWAWU & Gumede & others (2007) 16 SCA 6.9.1) 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

11. WHEN IS REINSTATEMENT INAPPROPRIATE?  “Clean hands” principle  Breakdown of trust relationship  Dishonesty in pursuing claim (even if successful)  Giving false evidence under oath (linked to s193 (2) ( c) – (not reasonably practical to reinstate) (Maepe v CCMA) 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

12. COMPONENTS OF A COMPETENT REINSTATEMENT ORDER  Date from which reinstatement is effective (Discretion)  Date on which the employee must report for duty  Amount of payment (“back-pay”) ( if any ordered ) and date specified ) 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

13. “BACK-PAY” v COMPENSATION  Back-pay is not tantamount to compensation and therefore is not limited to 12 months as envisaged in s194.  Confusion created by LAC in Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 and CWIU v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC)  Cleared by Equity Aviation Services (Pty) Ltd v CCMA & others Case CCT 88/07[2008] ZACC 16) which agreed with the SCA in Republican Press (Pty) Ltd v CEPPWAWU & others 2008 1 SA 404 (SCA 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

14. REINSTATEMENT vs RE-EMPLOYMENT REINSTATEMENT: Per Nkabinde J (Equity Aviation) at para [36]  Primary remedy  Restoration of the employment contract/Service regarded as unbroken  Placing an employee in the position he would have been but for the dismissal 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

15. REINSTATEMENT- Continued  Safeguards workers’ employment (The core value of the LRA being security of employment)  Operates from the date of the award unless ordered to be retrospective  Any changes/improvements to terms and conditions to apply 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

16. RE-EMPLOYMENT  A new contract of employment is envisaged  Arbitrator has discretion to set new terms and conditions of employment  The new terms and conditions of employment to be clearly stipulated in the award 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

17. RE-EMPLOYMENT- continued  Appropriate in circumstances where the employer has restructured the business or incapacity dismissals or even in non- renewal of fixed term contracts dismissal disputes.  Re-employment into work that is reasonably suitable 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

18. S194 COMPENSATION Amendments to s194 gave arbitrators the discretion to award compensation that is “just and equitable” Compensation in the form of “solatium” (Lorentzen v Sanachem (Pty) Ltd (2000) 21 ILJ 1075 (LAC) 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

19. COMPENSATION FOR SUBSTANTIVELY UNFAIR DISMISSAL-CONSIDERATIONS  Remuneration/benefits at time of dismissal  Time frames between dismissal and award  Whether employee has mitigated losses  Financial loss suffered by the employee  Employee’s prospects of future employment 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

20. COMPENSATION FOR SUBSTANTIVELY UNFAIR DISMISSAL-CONSIDERATIONS  Nature of unfairness  Offers of reinstatement/re-employment/redress  Employer’s financial position  Whether conduct that led to dismissal also caused employer any loss 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

21. COMPENSATION FOR PROCEDURAL UNFAIRNESS - CONSIDERATIONS  The extent or severity of the procedural unfairness/serious procedural irregularity  The prejudice suffered by an employee  Whether the manner of the dismissal was such that it infringed on the fundamental rights of the employee, e.g. Dignity 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

22. COMPENSATION FOR PROCEDURAL UNFAIRNESS - CONSIDERATIONS  Whether the dismissal was substantively fair  The employee’s length of service  Refusal of good faith offers to redress the irregularity  Compensation vs Arbitration Fee (s140 (2))  Views expressed in Avril Elizabeth Home for the Mentally Handicapped still relevant 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

23. CONCLUSIONS Some key lessons from Equity Aviation:  Reinstatement/re-employment is the primary remedy  The remedies in s193 (1) (a) are in the alternative and mutually exclusive  Back-pay cannot be equated to compensation, and is not limited to 12 months  System of expedited adjudication of unfair dismissal disputes far from operating expeditiously  There is a need for effective remedies 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City

24. SIYABONGA 2008 COMMISSIONERS INDABA 19 - 21 November 2008 Sun City