Public Newsletter


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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on the appropriateness of disciplinary appeals. We also look at two new cases: the first dealing with when compensation can replace reinstatement in the case of an unfair dismissal, and the second with whether an employer can escape liability for harm caused by an employee out of necessity.

This public newsletter is a free edited version of the Worklaw subscriber newsletter.


Compensation versus reinstatement?

In cases involving unfair dismissal it has become the norm for the employer representative at the CCMA, in closing argument, to submit that the trust relationship has broken down and a continued relationship has become intolerable, and that compensation rather than reinstatement should be ordered if the commissioner finds the dismissal to have been unfair. And increasingly it does not take much for the commissioner to agree.

Let’s take a step back. When the LRA was being drafted in 1994, the key idea was that compensation would be capped (the old Industrial Court had begun to order huge amounts in compensation) because reinstatement would be the normal remedy. But slowly it has become the other way round – compensation has become the normal remedy.

In the recent case of NUM & another v CCMA & others (2007) 27 ILJ 402 (LC) we are reminded that practice is out of step with the LRA. The CCMA had found the employee’s dismissal to be unfair and awarded him compensation. In an application to review the award, it was contended that the commissioner should have ordered the reinstatement of the employee.

The court held that the provisions of s 193(2) are clear. They do not give a discretion to the CCMA or Labour Court. Unless an employee does not want to be reinstated 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 the employee or the dismissal is only found to be procedurally unfair, the court or arbitrator must reinstate the employee.

Evidence must be led by the employer to prove that the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable or that it is not reasonably practicable for the employer to reinstate the employee. The court found that the commissioner had introduced an arbitrary criterion – not found in the Act – that the employee was perceived to be a bad person and that the relationship with his employer was bad. This constituted a gross irregularity. The commissioner should have ordered reinstatement.

The lesson of this case is that if employers genuinely believe that a continued employment relationship is intolerable, evidence of this will have to emerge during the evidence stage – not just a submission at closing argument stage. The CCMA may reject opinion evidence and require something firmer – evidence of why or how the relationship cannot work in the future.

Liability for harm caused by an employee out of necessity- shooting during an armed robbery

A recent decision in the Supreme Court of Appeals brought together two interesting questions. Can an employer escape liability for harm caused by its employee if the harm was caused out of necessity? Second, can a company claim that the employee of a labour broker working at the premises of the company may not sue it because the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) prevents an employee from suing the employer for workplace injuries?

The case in question was Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck (2007) 28 ILJ 307 (SCA). An employee of a labour broker was hired out to the company as a cashier. During an armed robbery she was taken hostage. Employees of the company fired at the robbers’ car, wounding the labour broker`s employee.

The issue was whether the company was liable for damages for the employee’s injuries. The company was being held liable on the basis of the employer’s vicarious liability for the acts of an employee. The company’s argument was that it was reasonable for its employee to shoot at the vehicle to prevent the greater risk of the employee being killed by the robbers. Therefore the shooting was neither negligent nor wrongful.

The company also argued that in terms of COIDA the employee was precluded from suing the employer.

The Supreme Court of Appeals held that our law does recognize that there are circumstances in which positive conduct which results in bodily harm will not attract liability. This is in circumstances of necessity, which is objectively evaluated. The test is whether a reasonable person would have acted in the same way as the employee. Applying this test the court held that it was foolhardy for the company’s employees to prevent the escape of the armed robbers because it exposed the employee to a very real and immediate danger which outweighed the possible risk to her safety if the robbers escaped.

The court held that a reasonable person would foresee the possible consequences and would not have fired at the vehicle; as a consequence the harm suffered by the employee was wrongful and negligent. The company was held to be vicariously liable for the damages suffered.

As regards the claim that the employee was excluded from claiming under COIDA, the SCA held that the employee’s employer was the labour broker and not the company. It was not possible, in terms of COIDA, for there to be two simultaneous employers, with one reaping the benefit of the protection of COIDA without having to meet any obligations in terms of the Act. The company was therefore not immunized from a claim by the employee.


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Bruce Robertson
July 2007
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