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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
August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?

July 27, 2026

Before the BCEA Amendment Act of 2018 came into operation, if an employee was owed money in terms of a contract of employment, such employee’s only recourse was to utilise s77(3) of the BCEA to institute a claim with the labour court and the high court having concurrent jurisdiction.

In this period, before the BCEA Amendment Act of 2018, if monies were owed to an employee, in terms of a collective agreement, then, if the terms of such collective agreement had been incorporated into an employment contract, the above route was also the only avenue for such an employee.

Previous articles already dealt with some of the implications of s24 of the LRA. The CCMA only has jurisdiction over the interpretation or application of collective agreements and not the enforcement thereof.

What is the effect of the BCEA Amendment Act of 2018 on the dispute-resolution path for monies owed ito the National Minimum Wage Act (NMWA), a contract of employment, sectoral determination, or a collective agreement?