In view of this, an important question which arises is whether reinstatement may be ordered in circumstances where an employee passes away before a matter is finally adjudicated but where the deceased employee is subsequently found to have been unfairly dismissed. An obvious impediment to an order of reinstatement is the exception that reinstatement need not be ordered where it would not be ‘reasonably practicable for the employer’. This accordingly begs the question as to whether the death of an employee renders his claim for reinstatement impracticable for an employer and, if not, whether such a claim would succeed in our Courts.

The case law on this aspect seems to suggest that employees who have gone to a better place may still be able to have their day in Court and even be reinstated posthumously.

In the case of Estate Late W G Jansen van Rensburg v Pedrino (Pty) Ltd (2000) 21 ILJ 494 (LAC) the Labour Appeal Court found that although the 1956 LRA applied to ‘employers’ and ‘employees, this did not mean that the benefits arising from an employment relationship could not accrue to a deceased employee’s estate. The Court considered the common law position relating to the transmissibility of a claim and held that ‘such a transmission also occurs on death; where a deceased person was a party to a contract, his executor is, as a rule, entitled to sue upon it if the deceased could have sued had he been alive’.

In addition, the Court could find no difficulty in ‘extending the principle of allowing an executor to recover wages to (sic) any other benefit that would have accrued at the time of his death’. The Court concluded that this was a situation of ‘partial reinstatement’, in other words, the deceased employee was reinstated but only until the contract was terminated by the employee’s death.

By introducing the concept of ‘partial reinstatement’, the Labour Appeal Court appears to have taken its cue from the earlier judgement of the Industrial Court in Estate Late Mavuna & Another v National Sorghum Breweries Ltd [ 1996] 5 BLLR 599 (IC). The Court in this matter held that the deceased employee’s estate was entitled to institute a claim for reinstatement or compensation.

While the above cases were decided in terms of the 1956 LRA, they are still relevant to the issue of reinstatement under the present LRA.

By way of example, in Mkhungo & others and Cecil Renaud Educare Centre (2004) 25 ILJ 156 (CCMA) the Commissioner found that although the decisions in Mavuna and Jansen Van Rensberg were good authority under the LRA 1956, there was no reason why the same should not apply under the LRA 1995. Accordingly, the executor of the deceased employee who had referred a dispute to the CCMA before she died, therefore, had the right to claim benefits such as severance and notice pay owed to the deceased employee.

Subsequently, in Basil Read (Pty) Ltd v National Union of Mineworkers & another: In re National Union of Mineworkers & another v Commission for Conciliation, Mediation & Arbitration & Others (2014) 35 ILJ 2153 (LC), although the Labour Court did not expressly deal with the issue of reinstatement of the deceased employee, it referred with approval to Jansen van Rensburg and reiterated that an executor would need to be appointed in order to ‘pursue the interests of the deceased employee’s estate under the LRA’.

Furthermore, in National Union of Mineworkers of South Africa obo Fohlisa and others v Hendor Mining Supplies A division of Marschalk Beleggings (Pty) Ltd [2014] 2 BLLR 185 (LC) the Labour Court held as follows:-

“[26] Given the view taken in this matter about the nature of the reinstatement order, there is no basis upon which the deceased employees should be deprived of the benefits of the judgment handed down by the Labour Court simply because they pre-deceased the LC judgment or the institution of the declaratory application. The declaratory application emanates from and is directly linked to the original matter and the employees are therefore entitled to bring this application and to provide for substitution to the deceased applicants, and their executors and executrixes are rightfully entitled to substitute the deceased individual employees in these proceedings. They are clearly entitled to their remuneration from the date of the reinstatement until the date of their deaths, provided of course that they were party to the original dispute that was heard by the Labour Court.” (Emphasis added).

Although the Constitutional Court subsequently substituted the Labour Court’s Order in National Union of Mineworkers of South Africa obo Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) [2017] 6 BLLR 539 (CC), it confirmed the Labour Court’s position in respect of the reinstatement of deceased employees in that it Ordered the reinstatement of the deceased employees from the date of reinstatement until the date of their respective deaths.

It is therefore clear that the Courts have accepted that a claim for benefits arising from the employment relationship could accrue to a deceased estate, provided that the deceased employee was part of the original dispute and that the deceased employee is substituted by a duly appointed executor in the relevant proceedings.

It follows that if the Labour Court, being one of equity and fairness, were to Order that two employees, who were both unfairly dismissed, be treated differently purely on the basis that one of them passed away, it would be inherently unfair and would fail to give effect to the primary objects of the LRA and to the Constitutional right to fair labour practices.

Finally, in respect of the exception that reinstatement need not be ordered in circumstances where it is ‘not reasonably practicable for the employer’, it would appear on the plain wording of section 193(2)(c) of the LRA that the reason for the impracticability would be in relation to an employer’s own operational necessities and therefore this exception cannot be used to refuse the so-called ‘partial reinstatement’ of a deceased employee.