The Constitutional Court held that the arbiter should not have immediately ordered  reinstatement without considering s 193(2) of the LRA.  The arbiter should have  determined whether reinstatement was precluded.  Reasons for ordering reinstatement should have been given because of the contention and evidence that continued employment would be intolerable.  The arbiter failed to reveal why continued employment would be tolerable and on what basis.  The seriousness of the misconduct and the potential impact in the workplace was also a key factor that was overlooked.

South African Revenue Service v CCMA (CCT19/16) [2016] ZACC 38 (8 November 2016) per Mogoeng CJ (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J concurring):