Reinstatement of a deceased employee

It is common in the workplace and in terms of the Commission for Conciliation, Mediation and Arbitration (CCMA) and Labour Court rulings that the reinstatement of an employee is seen as an appropriate finding for cases of unfair dismissal in terms of the Labour Relations Act. The purpose of reinstatement is primarily for the employee to be placed in the position the employee would have been before the unfair dismissal.

Is the reinstatement of a deceased employee possible?

The answer is YES. The case law of the CCMA and Labour Appeal Court on this aspect is decisive that deceased employees are still entitled to their day in court and even after death to be reinstated.

The decisions are based on the fact that even if an employee dies, the benefits in terms of the employment contract are not forfeited at death if a ruling of reinstatement is ordered. In terms of legislation that that regulates deceased estates, the benefits will accrue to the deceased estate of the employee and can the executor enforce these benefits.

Even though the deceased employee is not actually reinstated, the employment benefits such as a monthly salary, annual leave credit and any other remuneration that the employee is entitled to, will be owed to the employee form the day of reinstatement up to the day of death.

Important to note:

It is important to remember that the exception, namely where it is practically impossible to reinstate an employee due to the employer’s operational requirements, will not apply in cases where it is ordered that a deceased employee be reinstated.

The LWO assist employers to comply with labour law and protect your business. Contact us for any assistance and advice regarding this matter.

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LWO Regsadviseur - LWO Legal Advisor

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