Reinstatement and the meaning of “not reasonably practicable “in terms of section 193 (2) (c)
In SA Commercial Catering & Allied Workers Union & others v Woolworths (Pty) Ltd (2019) 40 ILJ 87 (CC), The Constitutional Court was required to consider and determine the exceptions to the remedy of reinstatement as expressed in section 193 (2) (c) which provides that “the Labour court or the arbitrator must require the employer to reinstate or re-employ the employee unless (c) it is not reasonably practicable for the employer to reinstate or re-employ the employee”.
The Labour Appeal Court found that the dismissal of the employees for operational requirements was unfair. Woolworths argued that reinstatement was not practicable because the full-time posts previously occupied by the employees had become redundant and this was conceded by the employees. Accordingly, the Labour court found that reinstatement was not feasible and therefore awarded 12 months compensation. SACCAWU appealed to the Constitutional Court.
The Constitutional Court referred to a judgment in the Labour Appeal Court in Xstrata which held:
“The object of [section] 193(2)(c) of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the job no longer exists, or the employer is facing liquidation or relocation or the like. The term “not reasonably practicable” in [section] 193(2)(c) does not equate with term “practical”, as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile.”
The Constitutional Court held that “not reasonably practicable” meant more than mere inconvenience and required evidence of the compelling operational burden. In this regard feasibility was used as the basis to interpret practical and what is “not reasonably practicable.” In other words, according to the Court, an employer would have to demonstrate that it would be beyond possibility to reinstate an employee.
The Constitutional Court found that Woolworths had not discharged the onus on it of demonstrating that reinstatement was not reasonably practical.
The effect of this judgment is that if an employer wishes to rely upon this section of the act to argue that an employee should not been reinstated, it will be a tall horse to climb.
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