A ‘labour law remedy’ is the action, via formal order, that the CCMA, bargaining council, Labour Court, Labour Appeal Court or private arbitrator can take against the employer to correct an unfair labour practice or an unfair dismissal. Such remedies include the following:
Reinstatement and re-employment
The Labour Relations Act (LRA) favours re-instatement as the first remedy for unfair dismissal.
In the case of RUSTENBURG platinum Mines Ltd vs CCMA and Others (2004 1 BLLR 34) the Labour Appeal Court upheld the decision of the CCMA and Labour Court to reinstate a security guard whose punishment of dismissal had been found to be too harsh. This decision was later upheld by the Constitutional Court. This was despite the fact that the courts accepted that the guard had failed to do his duties in searching employees. Although this could have caused the employer serious losses the courts found in favour of the employee.
In NUM & Others vs RSA Geological Services (2004 1 BALR 1, P) the arbitrator ordered the employer to re-employ ten employees who had been unfairly dismissed for the suspected theft of kimberlite. As the employer failed to prove these employees were guilty of the theft their dismissal was unfair.
If, for example, an employee was unfairly dismissed for discriminatory reasons the court could, in addition to reinstatement, issue an interdict (order) prohibiting the employer from continuing with its discriminatory acts.
Promotion, demotion discipline
Should it be found that the employer was guilty of unfairly failing to promote an employee, the arbitrator could order the employer to promote the employee.
Likewise, if the employer demoted or disciplined the employee unfairly, the arbitrator could order the reversal of the demotion/discipline.
Restoration of benefits
Should the employer have unfairly removed, reduced or refused an employee’s benefit (e.g. medical aid or pension) the arbitrator could order the employer to restore or provide the benefit to the employee.
Where other remedies are considered by the court or arbitrator to be inappropriate then compensation may be awarded. This means that the employer is ordered to pay the employee reparations to recompense them for the loss of their job, benefits, status etcetera. Under certain circumstances compensation can be as much as 24 months’ remuneration.
It is clear that, regardless of the nature of the remedy, it could, in different ways, prove extremely costly to the employer. Employers therefore need to:
- undergo intensive training as to the labour law in order to avoid breaking it
- discard the attitude that nobody will dictate to them how to treat their employees, and
- learn how to manage employees effectively within the parameters of the law.