There are no cut and dried rules that specifically prohibits employers from re-employing dismissed or terminated employees in our law.
A process of re-employing terminated or dismissed employees was not meant to be conducted haphazardly or carelessly without a measure of caution as it can have unintended repercussions.
This article aims to redress the issues emanating from the re-employment of terminated or dismissed employees.
What is re-employment?
Re-employment is an act of being employed by the same employer under a new employment contract.
Pros and Cons of re-employing dismissed or terminated employees:
The employer saves a lot of money and time, which would have been spent training a new employee.
Re-employment of dismissed or terminated employees can cause certain offences not to be regarded as severe offences at the workplace. e.g., if the employee was previously dismissed for theft and later re-employed by the company. In the future, it will be difficult for the company to prove that a trust relationship is broken completely when other employees commit a similar offence. Furthermore, re-employment of dismissed or terminated employees can constitute unfair dismissal if the employer previously dismissed a group and re-employ selective employees.
In terms of Section 186(1)(d) of the Labour Relations Act, selective re-employment occurs when an employer who dismissed several employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another. This refusal constitutes a dismissal. At the CCMA, the employer will bear the onus of proof to prove that such dismissal was procedural and substantively fair.
Grounds for Justification
When challenged about re-employing dismissed or terminated employees, employers can raise experience, qualifications, and skills as a justification ground.
May the CCMA issue an order instructing the employer to re-employ a dismissed employee?
Yes, if the employee was dismissed and settles for re-employment at the CCMA, the employer can be instructed to re-employ the employee.
In conclusion, employers need to take precautionary measures before re-employing dismissed or terminated employees.
Need assistance with dismissals? Contact your nearest SEESA Labour Legal Advisor today! Alternatively, leave your number on our website and we will contact you.
About The Author:
Sabelo Sibiya is a multi-product Legal Advisor at the SEESA Newcastle branch. He obtained his LLB degree at the University of Zululand and completed his articles of clerkship and will soon be admitted as an Attorney of the High Court.
References:
- Labour Relations Act 66 of 1995;
- https://labourman.co.za/consequences-of-selective-re-employment-following-dismissal/.
