What happens to the replacement employee who was employed on a permanent basis because the employer was convinced that the dismissed employee would not come back?

What happens to the replacement employee who was employed on a permanent basis because the employer was convinced that the dismissed employee would not come back?

According to Section 193(2) of the Labour Relations Act, if the employee is found to have been unfairly dismissed, the Labour Court, must make an order that the employee be re-instated, unless: 

a) It is not reasonable practicable for the employer to reinstate the employee. 

b) The dismissal is unfair only because the employer did not follow a fair procedure

 c)The employee does not wish to be re-instated. 

d)The circumstances surrounding the dismissal are so that a continued employment relationship would be intolerable. 

The employer cannot simply refuse to reinstate the employee on the basis that they have employed someone else. Be that as it may, even retrenchment will not be an easy way out for the employer.

If the employer does not take suitable steps in its contract with the replacement, it ought to realise that it runs the risk that it will be faced with the possibility of terminating that relationship or of trying to renegotiate the replacement’s contract if the former incumbent is reinstated. 

It is of paramount importance to note that the permanently employed employee who now faces retrenchment must be consulted with the aim of achieving consensus. 

Section 189 of the Labour Relations Act. 

When an employer contemplated dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult- 

a) any person whom the employer is required to consult in terms of a collective agreement. 

b) If there is no collective agreement that requires consultation- 

i) a workplace forum if the employees are likely to be effected by the proposed dismissals are 

employed in a workplace in respect of which there is a workplace forum. 

ii) any registered trade union whose members are likely to be affected by the proposed dismissal. 

iii) If there is no such trade union, the employees likely to be affected by the proposed dismissals. 

It can happen that the replacement employee may end up being retrenched, if the retrenchment process appears to be justifiable.

It is not clear what other remedies there are to protect them against job loss. It is therefore imperative that employers cater for this in the employment contract where there is still a pending unfair dismissal proceeding.

For more information, kindly contact Duvenage Attorneys and we will gladly assist you.