11 November 2017

Failure to re-employ an employee is when an ex-employee has a reasonable expectation of being re-employed … which expectation comes to naught. In this case, the expectation is created by a pre-existing agreement and failure to give effect to the agreement is deemed to be akin to unfair dismissal.

Section 186(1)(d) of the Labour Relations Act (the “Act”) deals with selective re-employment, where “an employer [who] dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another”. Such an agreement is usually made in the wake of a mass retrenchment, where retrenched employees are promised the chance at re-employment should suitable vacancies arise in future. But the section does not require a collective agreement and any valid agreement, including a mutual separation agreement, voluntary termination agreement, or medical lay-off agreement will do equally well.

Employees alleging a failure to re-employ in terms of an agreement must prove the existence of the agreement which imposes the obligation to re-employ upon the employer. A mere ‘intimation’ of re-employment is not sufficient.

For the purpose of such an agreement, what would constitute a “suitable” vacancy? It is commonly accepted that the employee alleging a failure to re-employ must also prove that they are qualified for the vacant position in question. In the case of Bosal (Afrika) (Pty) Ltd vs NUMSA obo Botha [2000] 3 BALR 325 (IMSSA) the dismissed employee could not prove that he had the necessary skills for the position and the court held that the externally sourced job applicant had been fairly appointed.

If an employer appoints a new employee to perform a retrenched employee’s work in breach of a rehiring agreement, that is held to be an unfair labour practice (OCGAWU obo Mapolie v Metlite Alloys (2002) 10 BALR 1058 (CCMA)). The hiring of a contractor to perform a retrenched employee’s work was held to constitute an unfair dismissal  (NUMSA obo Dayimani and Wire Products Stainless Steel (2004) 25 ILJ2116 (BCA)).

The LRA does not require that employees be rehired on the exact same terms and conditions of employment as were previously in force but if the vacancy can be regarded as being substantially similar, it would be safest to allow the ex-employee the right of first refusal before the position is advertised.