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South Africa: ConCourt rules – Intolerability of a continued employment

2 November 2021
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A recent Constitutional Court judgment serves as a cautionary tale for employers to ensure that, during conduct-related arbitrations, they provide unassailable evidence that continued employment would be intolerable due to the employee’s conduct. This cannot be raised for the first time in a review application.

The Facts

Mr Mlungisi Booi (Mr Booi) was an employee of the Amathole District Municipality (Municipality) until he was dismissed for misconduct. 

Mr Booi approached the South African Local Government Bargaining Council (SALGBC) to challenge the substantive and procedural fairness of his dismissal. The SALGBC exonerated him on all the charges, found that the dismissal was substantively unfair and awarded him retrospective reinstatement with back-pay in the sum of ZAR 751 340.64.

The Municipality took the SALGBC award on review. One of the grounds of review was that the arbitrator committed a reviewable irregularity by ordering reinstatement even though the trust relationship between Mr Booi and the Municipality had, on the evidence, obviously broken down. Having considered the remedy of reinstatement, the Labour Court found that the way in which Mr Booi conducted himself had destroyed the prospect of continued employment.

The Labour Court held that the arbitrator had failed to take this evidence into account and thus, his decision that Mr Booi be reinstated, fell outside the ‘band of decisions that are reasonable’. The Labour Court set aside the award of retrospective reinstatement and replaced it with one of compensation equal to the back-pay awarded by the arbitrator. Following the Labour Court’s judgment, Mr Booi claimed the compensation awarded to him which was duly paid by the Municipality.

Notwithstanding that he claimed and was paid compensation in terms of the Labour Court judgment, Mr Booi sought leave to appeal the judgment. Leave to appeal was refused and Mr Booi petitioned the Labour Appeal Court. The petition was also dismissed on the basis that it lacked prospect of success, whereafter Mr Booi petitioned the Constitutional Court. The Constitutional Court granted leave to appeal directly to the Constitutional Court.

The Constitutional Court Judgment

The Constitutional Court confirmed that in determining whether to award reinstatement or not, arbitrators and courts are required to consider if the continued working relationship has been rendered intolerable. The Constitutional Court emphasised that reinstatement must be awarded unless the provisions of section 193(2)(a)–(d) of the Labour Relations Act applied, in which case compensation may be ordered.

The Constitutional Court stressed that a reviewing court’s role is to assess whether the intolerability enquiry conducted by the arbitrator led to a decision that could not have been reached by a reasonable decision-maker conducting that intolerability enquiry. It is not the role of the reviewing court to determine the issue afresh.

The Constitutional Court found that the arbitrator’s decision to reinstate Mr Booi fell within a band of reasonable decisions and held that there was no basis for the Labour Court’s interference with this decision.

The Constitutional Court set aside the Labour Court’s judgment and reinstated Mr Booi. On the issue of back-pay, the Constitutional Court limited the award of back-pay due to delays in finalising the dispute, which were occasioned by Mr Booi’s conduct.

The full judgment can be accessed here.