Myers v NC: South African Police Services (C338/15) [2015] ZALCCT 68 (17 November 2015) unreported per Whitcher J.

The Labour Court ordered the employer to comply fully with the orders of the SCA, Labour Court and LAC and specifically to appoint the applicant to the lowest notch at salary level 12 with the associated increase in rank to colonel.  In addition the applicant must receive the difference in salary between the lowest notch on salary level 12 and salary level 10, retrospective from the first day of the month following the upgrading of the post to level 12, that is, 1 March 2011.

LC summary:

“Employer ordered to reinstate employee – employer contending employee could not be reinstated as position no longer in existence because of restructuring – reinstatement aimed at placing employee in the position he or she would have been but for the unfair dismissal – once an employee has established a particular benefit or promotion was plausibly within his grasp had he not been unfairly dismissed and this is not rebutted, reinstatement, in fairness, should include these enhancements to his remuneration or rank, retrospectively.”

Excerpts

Analysis

“[20]     Since the SCA judgment the Commissioner has misunderstood the true scope of the relief of reinstatement, despite having two courts nudge it in the right direction. The applicant was unfairly dismissed.   But for this action he would have occupied the very post that was re-graded when two dog units amalgamated.   Had the applicant not been unfairly dismissed, the Commissioner possessed the powers, in terms of regulation 30 (8), to have enhanced the applicant’s grade in those circumstances.  While it is not a certainty the Commissioner would have elected to continue to employ the applicant in the upgraded post this was by no means unlikely.

. . . . .

[25]     I agree with Mr Nortje, counsel for the applicant, that Equity Aviation Services (Pty) Ltd v CCMA and Others is authority for the idea that reinstatement is aimed at placing an employee in the position he or she would have been but for the unfair dismissal.  Once an employee has established a particular benefit or promotion was plausibly within his grasp had he not been unfairly dismissed and this is not rebutted, reinstatement, in fairness, should include these enhancements to his remuneration or rank.”