- Natalie Elizabeth Du Plessis’s former SAA workplace in East London had permanently closed.
- She argued that SAA could place her at another station rather than returning her to her former job.
- Judge M Makhura found that placement elsewhere would be re-employment and not reinstatement.
The Labour Court in Gqeberha has found that an unfairly dismissed South African Airways employee could not be reinstated just by being placed in another job within the airline.
Judge M Makhura dismissed Natalie Elizabeth du Plessis’s application to review a CCMA commissioner’s decision that awarded her compensation equivalent to 12 months’ pay instead of reinstatement. Du Plessis was dismissed on 9 September 2019 after being found guilty of misconduct.
However, at arbitration, the commissioner found her guilty of only one out of three charges and decided that dismissal was too harsh a penalty. The commissioner took into account that Du Plessis was a first-time offender with 29 years of service and that her actions had not irreparably damaged the working relationship.
As a result, the dismissal was found to be substantively unfair, but the commissioner decided to award compensation rather than reinstatement.
Former workplace had closed
Du Plessis challenged the compensation award and sought retrospective reinstatement. She argued that reinstatement was still reasonably practical because SAA could put her at a different operational site.
The problem was that SAA’s East London operations, now called KuGompo City, had permanently closed and the employees affected had accepted severance packages. During cross-examination, Du Plessis was asked where she could be reinstated if SAA’s East London operation no longer existed.
“I am sure SAA would find a position for me at another station and if not, would offer me a package, the same as all other staff received,” she said.
Another position is not reinstatement
Judge Makhura found that Du Plessis’s proposed solution did not qualify as reinstatement, since reinstatement means putting an employee back into the same position they had before dismissal, under the same terms and conditions. For Du Plessis, that would have meant going back to her job as a Ticket Sales Agent at SAA’s KuGompo City operations, but that workplace was permanently closed.
Judge Makhura stated, “SAA no longer conducts business at that location and no longer has a Ticket Sales Agent position there.” The judge said Du Plessis’s proposal was therefore not truly for reinstatement, as she was asking to be placed at another SAA station in a job she had not held before her dismissal.
“That would not amount to reinstatement because she would not be returning to the job she previously held,” the judgment reads. Instead, it would be considered re-employment or placement in a different position.
Du Plessis also did not identify a specific SAA operation where she could be accommodated or a vacant job she could fill. Judge Makhura found that the commissioner was not expected to guess about possible positions that might have been available elsewhere within SAA.
“The commissioner was not required to construct an alternative case on her behalf or speculate about possible positions that might have existed within SAA,” he said.
Compensation upheld
The Labour Court accepted that reinstatement is usually the primary remedy for unfair dismissal unless one of the exceptions in the Labour Relations Act applies. One such exception is when reinstatement or re-employment is not reasonably practical.
Judge Makhura found that because Du Plessis’s former workplace had permanently closed, reinstatement was not reasonably practical, and the commissioner had acted reasonably in awarding compensation.
The judgment recognised the impact on Du Plessis, who had been unemployed for years while pursuing this dispute. If she had not been dismissed, she could have continued working until SAA’s East London operations closed and might have received a severance package.
SAA went into business rescue in December 2019 and stayed under business rescue until May 2021. However, Judge Makhura found no irregularity in the commissioner’s decision that would warrant a review.
Du Plessis’s review application was dismissed, with no order as to costs.
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