An analysis of reinstatement as a remedy to unfair dismissal

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.