Labour Relations Act, 1995 (Act No. 66 of 1995)Commission for Conciliation, Mediation and ArbitrationGuidelines on Misconduct ArbitrationF: How to Approach RemediesIssues to consider in ordering reinstatement or re-employment |
| (123) | Arbitrators must specify in an award— |
| (123.1) | the date from which reinstatement or re-employment is effective; |
| (123.2) | the date on which the employee must report for work with the employer; |
| (123.3) | the date by or on which the employer must pay any amount of "back pay" for the period between the dismissal and the employee returning to work. The arbitrator should specify the amount of back pay that must be paid to the employee and not merely order the employer to pay a certain number of months' remuneration as back pay. This amount is not compensation.51 |
| (124) | An arbitrator may make an award of reinstatement52 and re-employment effective from— |
| (124.1) | the date of dismissal; or |
| (124.2) | any subsequent date, not later than the date on which the employer is required to reinstate or re-employ the employee. |
| (125) | An award of reinstatement or re-employment may be made effective from a date which is more than 12 months prior to the date of the arbitration award.53 |
| (126) | If the arbitrator elects to order that the effective date of reinstatement or re-employment is later than the date of dismissal, the employee forfeits remuneration and benefits for the period between the dismissal and date of reinstatement or re-employment. An award of this type may be appropriate if, for example, the employee was to some extent to blame for the dismissal or unduly delayed commencing or continuing the dispute proceedings. |
| (127) | Before ordering reinstatement or re-employment that is not fully retrospective, the arbitrator should consider the effect of the order on the employee's membership of, and entitlement to benefits from, any medical, retirement or group life assurance fund, scheme or policy. |
| (128) | In appropriate cases, arbitrators may order that the employee be reinstated or re-employed subject to a sanction such as a warning. In that event, the arbitrator must specify the period for which the sanction is effective. The arbitrator must take into account any applicable disciplinary code. |
| (129) | An arbitrator may not order an employer to either reinstate or re-employ an employee and, in addition, award compensation to that employee. This applies irrespective of whether the arbitrator finds that the dismissal was also procedurally unfair. |
| 51 | Equity Aviation Services (Pty) Ltd v CCMA & others (CC) at paras 47-53. |
| 52 | This cannot be a date earlier than the date of dismissal. See National Union of Metalworkers of SA & Others v Fibre Flair CC t/a Kango Canopies (LAC) at p 1080H-1081A. |
| 53 | Equity Aviation Services (Pty) Ltd v CCMA & others (CC) at paras 47-53. |