The remedy of reinstatement

With reference to the matter of Mashaba v South African Football Association (J122/17) [2017] ZALCJHB 53 (21 February 2017).

The Labour Court dismissed an application brought by “Shakes” Mashaba, the former head coach of the National Football team against the South African Football Association (“SAFA”) wherein Mashaba asked for an order preventing SAFA from appointing a replacement until his unfair dismissal dispute is resolved by the CCMA.

Mashaba was dismissed on 21 December 2016 following a disciplinary hearing where he was found guilty of gross misconduct, insubordination, violating SAFA’s communications policy and bringing SAFA into disrepute after a very public emotional outburst from Mashaba on television. Mashaba lodged an unfair dismissal dispute with the CCMA. This disputed was to be arbitrated on 7 – 9 March 2017. Mashaba believed he had a good prospect of winning and he requested SAFA to hold off on appointing his replacement. His request was turned down.

Mashaba then brought an urgent application to the Labour Court for temporary relief pending the outcome of CCMA proceedings. His concern was that, even if he is successful at the CCMA, it would be unlikely that he would be entitled to be reinstated if SAFA had already replaced him with another head coach. The court agreed that the application was urgent and the application was heard on 14 February 2017.

Section 193 of the Labour Relations Act provides for reinstatement as primary remedy for unfair dismissal, unless: the employee does not wish to be reinstated or re-employed or the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or it is not reasonably practicable for the employer to reinstate or re-employ the employee or the dismissal is unfair only because the employer did not follow a fair procedure. A Commissioner or the court is obliged to order reinstatement unless one of the aforementioned conditions applies. Mashaba’s argument was that SAFA would argue that his reinstatement is not reasonably practicable due to another head coach already being appointed and he would be deprived of the remedy of reinstatement he believed he deserved. The court found that SAFA would not be absolved from having to reinstate Mashaba merely because doing so could present a problem. The term “not reasonably practicable” does not mean inconvenient or impractical. The court referred to the Labour Appeal Court judgment of Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha & Others (2016), wherein it was stated 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 further found that an employer may not thwart a dismissed employee’s bid for reinstatement by simply replacing him with another employee. The employer has to consider this and take suitable steps in its contract with the replacement, before replacing an employee who challenges his dismissal. The employer must realize that it runs the risk that it will be faced with the possibility of terminating the relationship with the replacement or of trying to renegotiate the replacement’s contract if the former incumbent is reinstated. In other words, an order for reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement. This is of no concern to the arbitrator or the court and the employer is left to its own devises to sort out the mess it finds itself in having employed someone and then being ordered to re-engage someone in the same position. Consequently, the court found that even if SAFA did appoint a new head coach before CCMA arbitration was concluded, the appointment of new head coach would not be able to protect SAFA against an Order of Reinstatement by CCMA. Mashaba would therefore not be deprived of his right to reinstatement.

The court has the power to enforce the terms of employment contracts but not to prevent parties from entering into employment contracts, so SAFA was free to appoint a new head coach. This is however not a factor that should influence the arbitrator in deciding on reinstatement.

It is important to note 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.  His right to reinstatement will only arise if it is established that his dismissal is found to be substantively unfair. The court found that if it were to grant Mashaba’s application, it would effectively be second-guessing the outcome of the arbitration proceedings, which is not for the court to evaluate in the context of urgent motion proceedings.

Mashaba’s application was accordingly dismissed with no order as to costs.

By Lizelle Marx