REINSTATEMENT: WHEN DOES A CONTINUING EMPLOYMENT RELATIONSHIP BECOME INTOLERABLE*?

Abstract

In the Labour Relations Act 66 of 1995 (hereinafter “the LRA”) the tolerability of the employment relationship features twice: first, in the definition of dismissal, and second, in the context of remedies for unfair dismissal. Section 186(1)(d) of the LRA defines dismissal as including a situation where:“an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.This is commonly known as a constructive dismissal. Section 193 of the LRA, which deals with the remedies for unfairdismissal, provides in subsection 2 that:“(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless –(a) the employee does not wish to be reinstated or re-employed; (b) the circumstances surrounding the dismissal are such that acontinued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to reinstate or reemploythe employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure.”The concern of this note is the issue of “intolerability” in the context of section 193 of the LRA; in other words, in the context of reinstatement or reemployment. This is not to suggest that that the two sections quoted above will never be considered concurrently. Clearly, once a tribunal or labour court finds that the requirements of a constructive dismissal as defined in section 186(1)(d) are met, the tribunal or court will find it difficult to order reinstatement or re-employment. Furthermore, a tribunal or court may wellfind direction on the meaning of “intolerability” in the context of remedies from judgments and awards on constructive dismissal. After briefly revisiting the principles of constructive dismissal, the focus of this paper will move to section 193(2)(b) of the LRA. Practical problems associated with reinstatement and the impact of recent judgments on the retrospective effect of reinstatement will also be alluded to.