Part Two

March 28th, 2012, Published in Articles: Vector

You have dismissed and employee at work unfairly, and then made a genuine offer to rectify the mistake. Your employee, on the other hand, refuses the offer.

Labour appeal court (LAC)

Kemp then appealed to the Labour Court and the issues were confined to the following:

  • Whether the employee should have been awarded compensation at all.

  • Whether the amount awarded by the Labour Court was excessive.

The Labour Appeal Court held that, should an employer dismiss an employee unfairly and then wish to reverse the decision, they should be able to do so.
Should the employee fail to except the offer for no valid reason, the employer has a strong case for denying the employee compensation. This principle was defined by Judge Zondo as “an employer’s right to right a wrong”.

Judge Zondo found that Rawlins should not have been awarded compensation at all as she would have suffered no loss had she accepted Kemp’s offer of re-instatement.

Supreme Court of Appeal

Rawlins took the decision of the Labour Appeal Court to the Supreme Court of Appeal. When the matter eventually reached the Supreme Court, twelve years had passed since Rawlins’ dismissal.

The Supreme Court held that it agreed with and would not interfere with the decisions of the LAC. They found that employees’ rejection of repeated offers of re-instatement was unreasonable.

What we learn from this is that:

  • The employer has a “right to right a wrong”.

  • The employer and employee must co-operate to find a solution.

  • A court’s remedial powers are compensatory and not penalising in nature.

  • There is no automatic right to compensation resulting from unfair dismissal.

  • The employee only has a right to be considered for remedial or corrective measures.

  • Employees who fail to show that the employment relationship is irreparable and unreasonably refuses a genuine offer by the former employer to correct a mistake or to remedy unfair dismissal, the employee may not be awarded any compensation at all.

It is paramount that employees think twice before rejecting a reasonable offer of re-instatement to avoid years of costly litigation and facing the risk of walking away with nothing.

Part One of this article was published in the March 2012 issue of Vector.

Shantonette Naidoo, regional director, KwaZulu-Natal

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