Can an employee be reinstated after his or her retirement date?

labour-guideBy Neil Coetzer, Senior Associate and Nils Braatvedt, Candidate Attorney, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

Consider the primary remedy of reinstatement following a substantively unfair dismissal.

What happens when an employee is dismissed and subsequently reinstated after having reached the normal or agreed upon retirement age?

In the case of Dr Lubka Ivonova v Department of Health: KwaZulu-Natal and Others, the Labour Court was asked to deal with this issue.

Dr Ivonova (“the employee”), a qualified medical practitioner registered with the Health Professions Council of South Africa, was employed at GJ Crookes Hospital in Scottburgh, KwaZulu-Natal.

The hospital does not have either specialists or surgeons and patients requiring urgent and/or major surgery are transferred to other public service hospitals in the province.

On 2 June 2012, a patient had been involved in a serious motorbike accident in which he sustained multiple traumatic injuries which led to severe blood loss and partial amputation of his left leg. He was brought to the GJ Crookes Hospital and the employee, being on duty, attended to him.

The patient underwent several tests at the employee’s insistence before complaining about difficulties in breathing. The patient underwent resuscitation procedures but ultimately succumbed to his injuries.

The employee was charged with contravening the code of conduct for public service in that her negligence had led to the patient’s death. In an internal disciplinary enquiry, the employee was found guilty of the charges against her and she was summarily dismissed.

The employee thereafter referred an unfair dismissal dispute to the appropriate bargaining council in which she sought retrospective reinstatement. The arbitrator however dismissed her claim, finding that her dismissal was both substantively and procedurally fair.

The employee took the matter on review to the Labour Court, alleging that the arbitrator’s award was not one which a reasonable decision maker could arrive at.

The respondents argued that the Labour Court lacked jurisdiction to pronounce on the relief sought by the employee as she had reached her retirement age. The employer contended that a Court Order in favour of the employee would therefore not be legally competent in the circumstances.

Section 193(1)(a) of the Labour Relations Act, 66 of 1995 (“the LRA”) vests the Labour Court and an arbitrator appointed in terms of the LRA with jurisdiction to determine the extent of the retrospectivity of the reinstatement. The Court confirmed that reinstatement can be ordered only from the date of dismissal, but there is no limit up to when it can take effect.

The Court held that an order of reinstatement is consistent with the principles of fairness and justice which require the wrong that was suffered by the employee to be redressed. Restoration of the status quo ante where appropriate provides the fullest redress and is the primary remedy in the LRA.

On the merits of the review, the Court found that the employee had not acted negligently and that her dismissal was substantively unfair. Accordingly, the Labour Court made an order for the retrospective reinstatement of the employee from the date of her dismissal to the date at which she would have retired but for her unfair dismissal, being the end of March 2015. This is an example of the status quo ante being restored in an equitable manner: the employee was entitled to the benefits and remuneration she would have received up to the date of her retirement.

Equally, the employer was not required to provide compensation to the employee for the period that she would not have ordinarily worked following her retirement.

Reinstatement is the primary remedy for an employee whose dismissal was found to be substantively unfair. The LRA prescribes certain instances where reinstatement should not be ordered, for example where the employee does not wish to be reinstated or where it would not be reasonably practicable to do so.

Decision-makers appointed in terms of the LRA must therefore consider the appropriateness and extent of the primary remedy in attempting to restore the status quo ante.

For more information please contact Neil Coetzer or Nils Braatvedt at or (011)  783 8711 /(011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys

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