Beyond reinstatement: Navigating intolerability in labour law

Exploring the impact of the Golden Arrow Bus Services v CCMA [2025] ZALAC 38 and Jindal Mining SA v AMCU obo Zwane [2025] ZALCJHB 229  judgments.

Background

In the Golden Arrow case:

• The employee refused to cooperate with the investigation, claiming distrust in senior management and alleging a conspiracy against him;
• The employee was subsequently dismissed for gross negligence and bringing the company’s name into disrepute.
• The Commission for Conciliation, Mediation and Arbitration (CCMA) found the dismissal substantively unfair but declined to reinstate Mr Jacobs, awarding him 12 months’ compensation instead. The Labour Court later overturned this, ordering his reinstatement.
• Golden Arrow appealed, arguing that the employee’s conduct and accusations had irreparably damaged the trust required for a continued working relationship.
• The Labour Appeal Court agreed, stating that the circumstances surrounding the dismissal made reinstatement intolerable. The court emphasised that reinstatement is not automatic in cases of unfair dismissal and must be denied if the employment relationship cannot reasonably continue.

In the Jindal Mining case:

• Jindal Mining dismissed ten mineworkers for alleged poor performance.
• Jindal Mining relied on a clause in the workers’ contracts that allowed termination with one month’s notice and dismissed them without a disciplinary hearing.
• The CCMA found the dismissals both substantively and procedurally unfair. However, instead of reinstating the employees, the CCMA awarded them ten months’ compensation each.
• The court emphasised that reinstatement is the default remedy for substantively unfair dismissal unless it is shown to be intolerable or impractical.
• Jindal Mining claimed reinstatement was impractical due to outsourcing, but this was never raised during arbitration and lacked evidence.
• The court replaced the compensation award with an order for full reinstatement of the workers, backdated to their dismissal date.

Legal implications of the judgment

Reaffirmation of reinstatement as the primary remedy
Both the Golden Arrow and the Jindal Mining judgment reinforces the principle that reinstatement remains the primary remedy in cases of substantively unfair dismissal, unless one of the exceptions in section 193(2) of the Labour Relations Act (LRA) applies. Both judgments emphasised that compensation is not a substitute for reinstatement unless reinstatement is shown to be intolerable or impracticable with credible evidence.

Burden of proof for impracticability and intolerability
Unlike in the Golden Arrow case, where intolerability was substantiated with evidence of irreparable breakdown in trust, the Jindal Mining case highlighted the insufficiency of vague claims. Jindal Mining’s assertion that reinstatement was impracticable due to outsourcing was rejected because it was not supported by evidence during arbitration. The Jindal Mining judgment clarifies that employers must present such claims during arbitration, not later in review proceedings.

Clarification of the “intolerability” standard
The judgment reinforces that reinstatement is not automatic in cases of substantively unfair dismissal. The court confirmed that intolerability must be proven with objective, weighty reasons and tangible evidence. Mere interpersonal conflict or strained relationships are not enough—there must be a breakdown so severe that continued employment is genuinely unbearable.

Employee conduct post-dismissal matters
Even if misconduct does not justify dismissal, an employee’s conduct during and after the dismissal process, including making unfounded accusations or refusing to cooperate, can be relevant in determining whether reinstatement is appropriate. This underscores the importance of professionalism and accountability throughout dispute resolution.

Operational considerations for employers
Employers are reminded that they must provide credible, well-documented evidence if they wish to oppose reinstatement on the grounds of intolerability. The judgment supports employers who act reasonably and transparently in response to breakdowns in trust, especially involving senior staff.

Reinforcement of fairness and employment security
While the decision denied reinstatement, it did so within the framework of fairness. The court acknowledged the employee’s long service but found that his own actions undermined the employment relationship. This balances the LRA’s core value of employment security with the practical realities of workplace dynamics.

What employers should do

• Document everything: maintain clear, factual records of employee conduct, especially in cases involving trust or operational failures.
• Act fairly and transparently: ensure disciplinary processes are procedurally fair and that decisions are based on objective evidence.
• Understand the limits of contractual clauses: Termination clauses do not override the requirement for fair procedure and valid reasons under the LRA.
• Present all evidence at arbitration: claims about impracticability or intolerability must be raised and substantiated during arbitration, not introduced later.
• Avoid relying on post-hoc justifications: Courts will not accept new evidence or arguments that were not part of the arbitration record.
• Assess intolerability objectively: if reinstatement is opposed, provide tangible, credible evidence showing why the relationship cannot continue.
• Avoid emotional or subjective reasoning: courts require more than strained relations or discomfort—intolerability must be proven with substance.

What employees should do

• Cooperate fully during investigations: refusing to engage or making unfounded accusations can severely damage your case.
• Maintain professionalism: your conduct during and after dismissal proceedings can influence whether reinstatement is considered viable.
• Challenge employer claims during arbitration: if the employer raises issues like impracticability or lack of vacancies, employees must cross-examine and contest these claims.
• Know your rights to reinstatement: even if dismissed under a contractual clause, reinstatement may still be ordered if the dismissal is substantively unfair and no valid exception applies.
• Understand the limits of reinstatement: even if your dismissal is found to be unfair, reinstatement may not be granted if your actions have irreparably harmed the employment relationship.
• Seek legal advice early: understanding your rights and obligations can help you navigate disputes more effectively.

Final thoughts

Together, the Golden Arrow and Jindal Mining judgments offer a nuanced view of reinstatement in South African labour law. While Golden Arrow sets a high bar for proving intolerability, Jindal Mining reaffirms that reinstatement is the default remedy unless convincingly rebutted. These cases underscore the importance of presenting full and credible evidence during arbitration and maintaining procedural fairness throughout.

The Golden Arrow judgment serves as a pivotal reminder that reinstatement, while a primary remedy for unfair dismissal, is not guaranteed. The judgments underscore the importance of trust, accountability, and professional conduct in the workplace—especially for senior employees. It also clarifies that intolerability is a high threshold, requiring more than strained relationships or unresolved tensions. Employers must present compelling, objective evidence to justify denying reinstatement, while employees must recognise that their behaviour during and after dismissal proceedings can significantly influence the outcome. Ultimately, this case reinforces the delicate balance between fairness and practicality in South African labour law. Both parties must act responsibly and with integrity to preserve trust and ensure just outcomes.

For advice or more information contact Riona Kalua, Head of our Labour and Employment Team.