Introduction
Section 193 of the Labour Relations Act 66 of 1995 (LRA) establishes reinstatement as the primary remedy for unfair dismissal. However, the courts and arbitrators possess the discretion to award alternative remedies, such as compensation, where circumstances warrant deviation from this default position.
A significant exception is codified in section 193(2)(b), which permits the denial of reinstatement where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.” This article examines the juristic development of the intolerability standard through an analysis of the Labour Appeal Court’s decision in Golden Arrow Bus Services (Pty) Ltd v CCMA and Others.
The analysis traces the procedural history of the case and evaluates the reasoning adopted at each adjudicative level to explain the evidential and legal standards applicable to determinations of remedy in unfair dismissal cases.
– Ross Simon (Associate, BCom (Law) LLB, Post Graduate Diploma in Labour Law Practice), WP Moolman (Partner: Equity, LLB), Ulrich Stander (Managing Partner & Director, BA LLB LLM IRDP)
CASE BACKGROUND
The employee, a senior, with 26 years of service, held the position of Support Services Manager at Golden Arrow Bus Services (Pty) Ltd. His responsibilities included overseeing the implementation of a new automated smartcard fare collection system. Despite assuring management that the rollout was progressing satisfactorily, the employee proceeded to take approved leave immediately prior to the scheduled launch date of 15 October 2018.
The rollout proved catastrophic. Critical system failures emerged, including the absence of functional card sales infrastructure, shortage of smartcards, and the unexplained disappearance of 18,000 cards. Upon returning from leave, the employee adopted a confrontational stance, refusing to cooperate with management’s investigation into the failures. He expressed distrust in senior colleagues, including the General Manager and legal advisor and leveled unfounded accusations of bias and sabotage against management. These actions precipitated disciplinary proceedings, resulting in his dismissal for gross negligence, dishonesty, and bringing the company’s reputation into disrepute.
THE CCMA ARBITRATION
The arbitrating commissioner found the dismissal to be substantively unfair, characterising the employee’s conduct as negligent but insufficient to warrant dismissal. However, the commissioner declined to order reinstatement, instead awarding maximum compensation of 12 months’ remuneration. This decision was predicated on several key findings – the employee was a senior; the relationship between the employee, operations manager and IT department had broken down following the employee’s failure to co-operate with the investigation into what went wrong; the matter had taken over a year to be heard and reinstatement would be unlikely to succeed. The commissioner concluded that, notwithstanding the employee’s lengthy service record, the cumulative effect of relationship deterioration and demonstrated lack of professional accountability rendered reinstatement inappropriate.
LABOUR COURT REVIEW
The employee successfully challenged the arbitration award through review proceedings in the Labour Court. The Court identified several deficiencies in the commissioner’s reasoning. The Court determined that the commissioner had failed to establish the requisite evidential threshold for intolerability as established in Booi v Amathole District Municipality and Others. The Court found it illogical to rely on factors such as seniority and strained relationships to deny reinstatement when these same factors had been deemed insufficient to justify dismissal. The Court rejected the commissioner’s reliance on procedural delays, noting that such delays are commonplace in CCMA proceedings and do not constitute valid grounds for denying reinstatement.
Consequently, the Labour Court set aside the compensation award and substituted it with an order for retrospective reinstatement, subject to a deduction of two months’ remuneration for procedural delays.
LABOUR APPEAL COURT (LAC) DECISION
The company appealed the Labour Court’s decision to the Labour Appeal Court, which ultimately reinstated the commissioner’s original award. The LAC emphasised that remedy determination under section 193(2) involves the exercise of wide discretion, informed by value judgments based on all relevant circumstances. The LAC held that review courts must exercise appropriate restraint and may only interfere where the arbitrator’s decision was capricious, irrational, or unreasonable.
Referencing the Constitutional Court’s guidance in Booi, the LAC reaffirmed that intolerability requires satisfaction of a high evidential threshold. The standard demands more than mere workplace discomfort or strained relationships; it requires compelling evidence of circumstances that would render continued employment unbearable. The LAC confirmed that the intolerability assessment must be conducted objectively, based on tangible evidence rather than subjective impressions or unsubstantiated employer concerns.
The LAC upheld the commissioner’s consideration of the employee’s conduct during the investigation and proceedings, particularly his refusal to cooperate, unfounded accusations against management, and persistent failure to accept responsibility. The LAC found that such conduct, especially from a senior employee, provided reasonable grounds for concluding that the trust relationship had suffered irreparable damage.
The Golden Arrow decision provides valuable guidance in assessing intolerability claims, employers seeking to establish intolerability must present – objective, tangible evidence of relationship breakdown; clear demonstration that the circumstances surrounding dismissal render continued employment unbearable and evidence that transcends mere workplace conflict or personality differences
The following factors may support an intolerability finding – serious, unfounded accusations against management; persistent refusal to accept responsibility or cooperate with legitimate investigations; conduct demonstrating fundamental breakdown of trust and confidence and evidence of ongoing hostility or confrontational behaviour.
The following factors alone are generally insufficient – seniority or managerial position, procedural delays in resolution, general workplace friction or personality conflicts and subjective employer discomfort or preference
CONCLUSION
The Golden Arrow decision serves as an important reminder that while security of employment remains a fundamental principle of labour law, circumstances may arise where the restoration of the employment relationship is neither feasible nor appropriate. The challenge lies in applying these principles consistently while ensuring that the high threshold for intolerability is maintained.
KEY TAKEAWAYS
Reinstatement is Not Absolute: Despite being the primary remedy under section 193(1), reinstatement may be refused where one of the section 193(2) grounds is satisfied—especially intolerability.
High Bar for Intolerability: Intolerability requires more than workplace conflict or disharmony; it demands proof of such severity that a return to employment would be unbearable.
Caution with Post-Dismissal Conduct: While not determinative, conduct during litigation may be relevant where it compounds earlier breaches of trust. However, care must be taken not to penalise employees merely for pursuing legal remedies.
