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22 Jun 2021
BY Naa’ilah Abader

Do employers always need to reinstate employees whose dismissal is substantively unfair?

In certain circumstances, employers in South Africa can dismiss employees for their conduct outside the workplace, particularly if this harms the employment relationship, such as employee performance, or when it harms the employer's reputation. But what happens when the aggrieved employee challenges the fairness of their dismissal and seeks reinstatement of employment?

In its recent decision in Booysen v Safety and Security Sectoral Bargaining Council and others, the Labour Appeal Court ("LAC") had to consider whether the appellant, Mr Thembinkosi Booysen was entitled to be reinstated into his employment in terms of the Labour Relations Act ("LRA").

In this case, Mr Booysen, who was employed as a chef by the South African Police Services ("SAPS"), was charged by the SAPS with raping the daughter of his neighbour, a 16-year-old (the "complainant") outside of his working hours. The SAPS did not accept Mr Booysen's defence that he had consensual intercourse with the complainant and dismissed him. Mr Booysen was found not guilty of the rape charge and referred an unfair dismissal dispute to the Safety and Security Bargaining Council, where his dismissal was upheld.

The Labour Court's decision

Mr Booysen then took the matter on review to the South African Labour Court. He sought an order that his dismissal was substantively unfair and that he should be reinstated with retrospective effect.

The Labour Court found that Mr Booysen's dismissal was substantively unfair as it was more probable than not that he had consensual intercourse with the complainant.

However, on the issue of whether he should be reinstated, the Labour Court found that "a continued employment relationship would be intolerable or not reasonably practical" because Mr Booysen admitted to having intercourse with a person barely above the age of consent. Even though he was not employed as a police officer, community members would associate him with the SAPS. His conduct is also incompatible with SAPS' values and would likely bring the SAPS into disrepute. Mr Booysen was accordingly awarded 12 months' remuneration as compensation by the Labour Court.

The Labour Appeal Court's decision

On appeal to the LAC, Mr Booysen argued that no evidence was presented by the SAPS in the arbitration proceedings that the relationship of trust had irretrievably broken down and that his reinstatement was impracticable or inappropriate in the circumstances.

The LAC referred to the LRA, which provides that the Labour Court or the arbitrator must require the employer to reinstate or reemploy an employee unless:

  • the employee does not wish to be reinstated or reemployed;
  • the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
  • it is not reasonably practicable for the employer to reinstate or reemploy the employee; or
  • the dismissal is unfair only because the employer did not follow a fair procedure.

Despite this, the LAC stated that it is "now settled law that the dominant consideration in the enquiry is not on the legal onus but rather on the underlying notions of fairness between the parties" and that fairness must be "assessed objectively on the facts of each case bearing in mind that the core value of the LRA is the security of employment".

In addition, the LAC went on to find that arbitrators and the Labour Court have unfettered discretion in terms of section 193 (2) of the LRA to grant a remedy and ultimately make a value judgement based on the evidence and facts before them as to whether reinstatement would be appropriate.

The LAC then considered whether the Labour Court could have made the factual assumptions it had made to justify not granting reinstatement, i.e., that Mr Booysen would be associated with the SAPS by the community and that his conduct was not compatible with the values of the SAPS.

The LAC found that even where an employer leads no evidence, the Labour Court or arbitrator is obliged to consider any factor relevant in determining if a continued employment relationship would be intolerable or if it would not be reasonably practicable to reinstate an employee. Accordingly, the employee's conduct is a relevant factor that the Labour Court or arbitrator should take into account in this determination.

The LAC concluded that on the objective facts, it was fair for the Labour Court to conclude that an award of compensation, as opposed to reinstatement, was an appropriate remedy, for the following reasons:

  • Mr Booysen, on his own version, had consensual sex with the complainant, who was a child as defined in the Children's Act, 2007 and whose rights he was obliged to protect in terms of the South African Constitution and the core values of the SAPS. As such, Mr Booysen's conduct was likely to bring the SAPS into disrepute.
  • The Labour Court was entitled to draw inferences or assumptions from the proven facts. This includes the assumption that, even though Mr Booysen was employed by the SAPS as a chef and not as a police officer, his conduct negatively impacted the image of the SAPS as the community would identify him as a member of the SAPS or associate him with the SAPS.
  • The fact that Mr Booysen was not found guilty of statutory rape, as well as the fact that Mr Booysen was employed as a chef and not a police officer, were irrelevant to the question of reinstatement in circumstances where his conduct was likely to bring SAPS into disrepute, thus undermining the confidence of the public in the police and where conduct of this nature is not expected of an employee of the SAPS, regardless of rank or designation.

The appeal was accordingly dismissed.

Lesson to be learned for employers

The LAC decided that specific evidence relative to whether or not reinstatement is an appropriate remedy is unnecessary. Instead, an arbitrator or the Labour Court must consider this question based on inferences or assumptions derived from proven facts.

However, this does not mean that employers should not lead such evidence hoping that the issue will be considered despite this lack of evidence. On the contrary, employers must lead relevant evidence concerning this question, or at the very least to ensure that the correct and crucial facts are placed before an arbitrator or court to enable them to infer that reinstatement is not an appropriate remedy.


Reviewed by Peter le Roux, and Executive Consultant in ENSafrica's Employment department.

Naa'ilah Abader

Employment | Senior Associate

+27 82 310 1295