Employers are often perplexed when a dismissed employee is retrospectively reinstated by the CCMA or a Bargaining Council.
The employer not only has to take the employee back, but he also has to pay that employee for the period between the date of dismissal and the date of reinstatement.
Employers react differently to a reinstatement award.
Some employers wonder what they did wrong. They are convinced that they followed the law because the employee was dismissed after he was given a hearing chaired by a senior staff member. The charges were based on the company’s disciplinary code, and the dismissal was in line with what the disciplinary code stated. What could possibly be wrong with that?
Others think that the arbitrator was unfair, missed important evidence, or simply took the side of the employee out of pity.
The employment relationship is governed by legislation, trite legal principles and jurisprudence (case law). Complexities arise as a matter of course, even in those matters which the employer considers as “straight forward”.
Someone from within the company is often appointed to chair the hearing. It may be a member of management or a supervisor who does his best, but chairing disciplinary hearings is not his day job – nor is that where his strength lies. Yet, he/she is now required to perform a function that has legal consequences which can cost the employer a hefty sum when things go wrong despite the chairperson’s best efforts.
There are literally hundreds of judgments that have come out of our labour courts which point the finger squarely at mistakes made during the disciplinary process. That mistake can seldom be undone. Reinstatement is the primary remedy for unfair dismissal. The consequence is that the employee is permitted to return to work as usual and to be paid for the period of unemployment. The employer is obliged to accept this consequence or face contempt of Court proceedings.
There is a reason why one goes to a dentist when one has toothache, or why one calls a plumber when a water pipe bursts. For the very same reason, parties to a disciplinary hearing should turn to seasoned labour experts to fulfil the duty of an independent Chairperson.
We can help. We have been assisting parties for decades.
With the advent of modern technology we can assist by chairing either in person or remotely by way of videoconferencing.
Contact us at: [email protected] or by calling Sam, our administrator, on 061 975 0921.
- Written by Dr Hilda Grobler aequitate.co.za