Remedies

SECTION 193 OF LRA

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• Set out in section 193 of the LRA as follows:
i. Reinstatement or Re-employment
• Reinstatement - dismissed employee is put back into the same job or
position he or she occupied before the dismissal, on the same terms and
conditions.
• Restores the contractual position between employer and employee as if it was
never broken
• Traditional or primary remedy for unfair dismissals.
• Ordered where the dismissal is found to be substantively unfair.
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• Must be granted unless one or more of the situation provided for in 193(2)a-d of the LRA
exist.
• See. Mzeku v VW SA (Pty) Ltd (2001) 2 ILJ 1575 (LAC)
• Malelane Toyota v CCMA and Others (1999) 4 LLD 242 (LC)
• Maepe v CCMA and Another (2008) 29 ILJ 2189 (LAC)
a) employee does not wish to be reinstated or re-employed
b) the circumstances surrounding the dismissal are such that continued employment
relationship would be intolerable
c) it is not reasonably practical for the employer to reinstate or re-employ the employee ,
or
d) the dismissal is unfair only because the employer did not follow fair
procedure.
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• Reinstatement must be from a date not earlier than the date of

dismissal.
• An order of reinstatement may not be conditional or coupled with any
qualification.
• There is no time limit on the length of time a reinstatement order may
be made retrospectively.
• See. Republican Press (Pty) Ltd v Chemical Energy Paper Printing
Wood and Allied Workers Union and Others (2007) 28 ILJ 2503
(SCA).
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• No guidance on how far reinstatement should be backdated.
• Factors such as: employer’s operational requirements, employees
earnings since dismissal.
• Order of reinstatement does not preclude the employer from later
transferring the working arrangements of the employee in accordance
its contractual rights.
• See. Jeremiah v National Sorghum Breweries (1999) 20 ILJ 1055 (LC)
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ii. Compensation
• Provided for in section 194 of LRA as amended.
• Prior to amendment- s194 drew a distinction between compensation
for procedurally and substantively unfair dismissals.
• Procedurally unfair dismissals- compensation between date of
dismissal and date of award.
• S194 as amended – 24 months compensation for automatically unfair
dismissals and 12 months compensation for other dismissals.
• Must just and equitable
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Ferodo (Pty) Ltd v De Reuiter (1993) 14 ILJ 974 (LAC)
• The LAC laid down factors to be taken into account when assessing the quantum of
compensation as follows:
i. Person claiming compensation must have suffered actual financial loss.
ii. Proof that loss was caused by unfair labour practice.
iii. Loss must be foreseeable.
iv. Award must place applicant in a position in which he would have been had the
unfair labour practice not been committed.
v. Court must be guided by what is reasonable and fair
vi. There is a duty on employee to mitigate his damages by taking all reasonable
steps to acquire alternative employment.
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• Any benefit which applicant receives must be taken into account e.g.
severance pay