Exercise discretion reinstatement: Factors to consider

1 Comment

1. 

   GilesFiles on November 11, 2016 at 6:31 pm

   Resolving unlawful and unfair dismissals
   
   After commenting on “peremption” (waiver of one’s right to appeal by leaving the other party in no doubt that one is abiding by adverse judgment) Darcy points out that the rule is not absolute; ‘peremption can be overridden in exceptional cases where the interests of justice or constitutional considerations justify its non-enforcement’.

   The wages of racism: Darcy du Toit’s Weekly Comment in IR Network published by LexisNexis [subscription required]

   Further excerpts without footnotes

   That leaves the question of the alternative course that Kruger could have followed and the remedy it might have led to. Recent case law has underlined the distinction between “unfair” and “unlawful” dismissal – i.e., where an employer purports to exercise a power of dismissal which, in fact, it does not possess.

   However, unlawful dismissal can lead to one of two results. Either the dismissal is nevertheless “valid” (or effective) in that it amounts to a “termination of employment” for purposes of the LRA (for example, where it is unlawful only because the employer failed to comply with a statutory requirement); or it is null and void (as in “legally, it never happened”).

   The distinction has deep implications. An unlawful but effective dismissal will almost certainly be substantively unfair and entitle the dismissed employee to a remedy in terms of the LRA. A dismissal that is null and void, on the other hand, cannot terminate employment because, despite the employer’s intention, employment is not interrupted and reinstatement cannot be ordered. A careful inquiry is therefore needed to establish the purpose of the prohibition which the employer has breached in order to decide whether unfairness or nullity was intended to be the consequence.2 (Weekly comment 29 January 2016)

   The Constitutional Court did not find it necessary to consider this issue in the present case; it treated the problem with Kruger’s dismissal as unlawfulness of the first kind, resulting in unfairness and, as such, within the jurisdiction of the CCMA. But unlawfulness of the second kind has also presented itself recently.3 Courts may increasingly find themselves having to resolve disputes of this nature, and the novel issues which they raise, as litigants explore the range of remedies available to them.