The primary remedy for a substantively unfair dismissal is reinstatement, which aims to place an employee into the position he or she would have held had it not been for the substantively unfair dismissal.
Generally speaking, reinstatement awards are coupled with orders for back pay, that is, payment of the remuneration that the employee would have enjoyed over the period between the dismissal and the reinstatement order. This is calculated on the basis of the terms and conditions that the employee was subject to at the date of dismissal.
However, in the period between the dismissal and the reinstatement order, an employee could conceivably have been promoted, been given an increase or had any other form of benefit applied to him or her. This is particularly the case where the resolution of an unfair dismissal dispute takes a long time to conclude.
The rights that accrued to an employee after his dismissal and before the reinstatement order were the subject of the recent Labour Appeal Court decision of National Commissioner of the South African Police and Another v Myers. At the time of his dismissal, the employee was employed as a commander of a South African Police Service ("SAPS") police dog unit. He challenged his dismissal through various courts. Ultimately, the Supreme Court of Appeal found his dismissal to be substantively unfair and ordered the SAPS to reinstate him into the position that he occupied before his dismissal. The order was handed down over five years after the date of the dismissal.
In the meantime, the SAPS police dog unit had been through an organisational restructure in terms of which it was amalgamated with another SAPS dog unit to form the Cape Town K9 Unit. The restructure resulted in the employee's position being declared redundant and therefore ceasing to exist. The position that most closely resembled the employee's previous position was that of the commander of the Cape Town K9 Unit. This was a post at salary level 10. The SAPS reinstated the employee into this position.
The employee, however, contended that he should have been reinstated on salary level 12 and that the back pay due to him should have been calculated on that basis. He was able to adduce evidence of the SAPS' intention to upgrade the position as part of the organisational restructure. Essentially, he contended that he should have been promoted to a higher position despite not having actually worked from the date of his dismissal.
In addressing this contention, the Labour Appeal Court confirmed that the question relating to the remuneration or promotion that the employee would probably have received had he or she not been dismissed, is irrelevant. The relevant question is: what legal rights did the employee actually have at the time of the dismissal that would give rise to higher remuneration or promotion accruing to him or her during the period before his reinstatement?
If the employee's terms and conditions at the time of the dismissal provide for some kind of employment right to accrue, then this will be paid as part of the reinstatement award. On the other hand, if the employee has no legal right to a contractual or statutory promotion or pay increase, a reinstatement order will not confer that right.
The Labour Appeal Court considered the fact that the SAPS had not implemented the intended upgrade of the salary level 10 position and found that the employee did not demonstrate a contractual or statutory right to be promoted to the salary level 12 position and as such, rejected his contention.
The decision highlights the potential risk associated with guaranteed promotions or increases, when these are, for example, part of an employee's terms and conditions of employment. In this regard, where an employee can demonstrate a legal right to a benefit, it could be enforceable even if the employee was not actually rendering services at the time that the right accrued.
Reviewed by Peter le Roux, an executive consultant in ENSafrica's employment department.
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