Article 28/2023

Does a reinstatement order in itself reinstate an employee?

Does a reinstatement order restore the contract unfairly terminated?

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  • when an employee is unfairly dismissed, the contract between him and his employer is
    terminated by dismissal
  • if a reinstatement order is obtained, this does not restore such employment contract and the employee has no automatic claim to back pay or future pay
  • the reinstatement order indeed directs the employee to tender services and the employer to accept same – the simple truth is that the employer reinstates the employee and the employee cannot rely on the order granted
  • if the employee tenders services in terms of the reinstatement order and the employer refuses such services, no restoration of the employment contract takes place – the reinstatement order is enforced by means of contempt proceedings (an order ad factum praestandum)
  • on the other hand, if the employee fails to tender his or her services, the contract is not restored and he has no claim for back pay or future pay
November 25, 2024

What are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

November 25, 2024

The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation.  At arbitration, the union wanted to join the employees working at the mill.

Is such joinder permissible?

November 25, 2024

What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?