I recently warned employers not to rely on technicalities in trying to win labour law cases. At the core of the purpose of labour legislation is the need to ensure that unfairly treated employees receive redress with a minimum of time wasting and technicalities.

Unfair dismissal refers to a multitude of sins including firings for misconduct or poor performance, incapacity dismissals, discriminatory dismissals, constructive dismissals, retrenchments or any other unfair termination of the employment by the employer.

When it has been found that an employee has been unfairly dismissed the Labour Relations Act (LRA) requires arbitrators and judges to use reinstatement as the remedy of first resort. A reinstatement order, forcing the employer to take the employee back (often with full back pay), must be considered ahead of any other remedy.  

The requirement for reinstatement to be implemented is limited where the dismissal was only procedurally unfair, or the employee prefers not to be reinstated or reinstatement would be intolerable or impractical.

Reinstatement means that the employee must be returned to the same job on the same terms and conditions as existed before the dismissal unless the terms and conditions of the job have improved since then. If the arbitrator or judge intends the reinstatement to be fully retrospective he/she is required to make this clear in the award/judgement. This would then mean that the employer would have to pay the employee all remuneration and benefits accrued between the date of dismissal and the date of reinstatement, and the employee’s status is as if there was never a termination of employment.

Due to the emphasis in the law on the need for speedy and full redress it is very difficult for employers to wheedle out of their obligation to pay backpay. This point is starkly made in the case of Potgieter vs Samancor Chrome Ltd (Lex Media 10 March 2025. Labour Appeal Court case number JA 91/22). An unfairly dismissed employee was granted 12 months’ compensation instead of reinstatement. Unhappy with this, he approached the Labour Court and then the Labour Appeal Court (LAC) because he wanted reinstatement with full backpay. Eight years after Potgieter had been dismissed the Labour Appeal Court found in his favour.

Although the employer had acceded to the reinstatement order it disputed Potgieter’s claim that his backpay should cover the full eight-year period and contended that backpay was only due up to the date of the award made by the original arbitrator.

The dispute as to the amount of backpay due ended up in the Labour Appeal Court which found that the employer’s argument that effluxion of time had resulted in the prescription of the employee’s backpay claim was flawed. The Court reiterated the principle that unfairly dismissed employees must be placed in the same position they would have been in had they not been dismissed. The employee was therefore entitled to 8 years’ backpay.

The LAC’s finding reminds employers that they need to train their management to appreciate the legal importance of fair dismissal decisions so that the employer does not need to rely on legal technicalities such as prescription of backpay claims.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.

This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss. 

Written by by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za

To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za  or contact Ivan on ivan@labourlawadvice.co.za