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

What is the viewpoint of the labour appeal court, as expressed in SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Another [2023] 2 BLLR 131 (LAC); (2022) 33 SALLR 60 (LAC)?

An employer set out its employees’ rights in disciplinary hearings in the applicable disciplinary code and incorporated same into their employment contracts.

What are the options available to an employee when an employer allegedly owes such employee monies in terms of a contract of employment?