Abstract:
Reinstatement is one of the remedies for unfair dismissals. Dismissed employees
have a recourse to approach the Commission for Conciliation, Mediation and
Arbitration1 or labour courts to seek reinstatement. The arbitrator or the courts
have a discretion to order reinstatement based on the facts of the case,
sometimes retrospectively. Retrospectivity is a discretionary matter in the hands
of the courts and therefore the courts of law have been inundated with cases
where the employers wanted to limit the retrospectivity of the application of
reinstatement as a remedy for unfair dismissals. On the other hand, the
dismissed employees would want the court to extend the application. In other
circumstances the court would award compensation instead of retrospective
reinstatement like where reinstating the employee is just practically impossible or
the employee himself does not want to be reinstated.
The Labour Relations Act2 has limited the power or discretion of the employers to
dismiss employees at will. Section 185 of the LRA provides that there should be
fair and valid reason for dismissals. The employer would have to prove the
reason for dismissal for it to be valid. On the other hand, the case law also has
established that where there is unfair dismissal, the arbitrator or the court must
give the primary remedy in favour of the employees which is to reinstate them in
their work. Such reinstatement would have the effect as if the employee was
never dismissed in the first place.
