South Africans found to be unfairly dismissed are not always entitled to the reinstatement of their positions.
However, Bradley Workman-Davies and Michiel Heyns from Werksmans Attorneys said that reinstatement is not always possible, even if none of the factors above are present.In the case [2023], an employee worked for Toyota from March 2010 as a crane driver, and his three-month fixed-term contract was repeatedly renewed until he was dismissed in August 2015.However, the employee had just signed a further fixed-term contract three days before the suspension, lasting from August to October.
However, the arbitrator said reinstatement was not an option, as the employee’s fixed-term contract had expired. “Integral to the exercise of [this discretion] in deciding whether to reinstate, re-employ or compensate the employee is the nature of the employment contract and whether it is extant when an employee’s dismissal is found to be unfair. The remedy of reinstatement is confined to the situation where, at the date of the finding that the dismissal is unfair, the original employment contract is still in existence,” the LAC said.
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