How far can the remedy of Reinstatement be stretched?

By Neil Coetzer, Partner, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

In Mashaba v South African Football Association (J122/17) [2017] ZALCJHB 53 (21 February 2017) the Labour Court dealt with an interesting application brought by the former head coach of the Senior Men’s National South African Football Team, ‘Shakes’ Mashaba. Mashaba had applied to the Labour Court for an Order preventing SAFA from appointing his replacement until his unfair dismissal dispute had been resolved by the CCMA.  

Mashaba was dismissed by the South African Football Association (“SAFA”) during December 2016. He subsequently referred an unfair dismissal dispute to the CCMA and the dispute was due to be arbitrated in March 2017. He alleged in his affidavits before the Labour Court that he had ‘good prospects’ of winning the arbitration at the CCMA. The reason for his application to the Labour Court was his concern that even if he was successful at the CCMA it was unlikely that he would be entitled to reinstatement if SAFA had already replaced him with another head coach.

Mashaba contended that the matter was urgent as he believed that the appointment of a new head coach was imminent and that it was likely to occur before the CCMA arbitration process was concluded. The Court agreed that the matter was urgent and dealt with the application on that basis.

The Court found that the Labour Relations Act 66 of 1995, as amended (“the LRA”) provides for reinstatement as the primary remedy for unfair dismissal. Reinstatement must be ordered unless one of the reasons set out in section 193(2)(a), (b), (c) or (d) are present. One of those reasons, set out in section 193(2)(c), is that reinstatement is ‘not reasonably practicable’. Mashaba believed that if another head coach was appointed, SAFA would argue that his reinstatement was not reasonably practicable and that he would then be denied the remedy of reinstatement.

The Court found however that SAFA would not be absolved from having to reinstate Mashaba merely because doing so could present a problem. The Court found that the term ‘not reasonably practicable’ does not mean ‘inconvenient’ or ‘impractical’. Referring to the Labour Appeal Court judgment of Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha and Others (2016) 37 ILJ 2313 (LAC), the Court found that the term ‘not reasonably practicable’ referred to the feasibility of reinstatement. Reinstatement must therefore be shown to be not ‘reasonably possible in the sense that it may be potentially futile’.

The Court found that an employer could not thwart an employee’s bid for reinstatement by simply replacing him with another employee. This was something that an employer had to consider before replacing an employee who challenges their dismissal and an employer must be prepared to sort out the mess that it finds itself in should this scenario arise. Consequently, the Court found that even if SAFA did appoint a new head coach before the CCMA arbitration was concluded, the appointment of the new head coach would not be able to protect it against an Order of reinstatement by the CCMA. The Court therefore found that Mashaba would not be deprived of his right to reinstatement. In any event, the Court found that it had no power to prevent parties from entering into employment contracts and so SAFA was free to appoint the new head coach.

Importantly, the Court found that Mashaba’s right to reinstatement did not translate into a right to keep his former position vacant merely on the assumption that he would be reinstated by the CCMA. The Court found that if it were to grant Mashaba’s application it would effectively be second-guessing the outcome of the CCMA arbitration, which was not appropriate.

The Court accordingly dismissed Mashaba’s application.

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

Article published with the kind courtesy of Cowan-Harper Attorneys

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