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Article 29/2023

The labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), reiterated some very important principles governing the peremptory nature of the relief of reinstatement or reemployment.

In the light of the above, what approach should be adopted by the labour court or the arbitrator when considering such relief?

It is not always properly understood that reinstatement or re-employment is the peremptory relief should a dismissal be found to be substantively or substantively and procedurally unfair unless s193(2)(a) to s193(2)(d) is obviously applicable. With reference to the approach of the constitutional court in, inter alia, Equity Aviation Services v CCMA 2009 (1) SA 390 (CC) and Billiton Aluminium v Khanyale (2010) 31 ILJ 273 (CC), how did the labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), deal with the obligations of an arbitrator or a judge of the labour court to probe any factors relevant as exceptions to the relief of reinstatement or re-employment?

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In Mthethwa, the following approach was adopted:

  • the word ‘must’ in s193(2), indicating the relief of reinstatement or re-employment, is peremptory
  • this entails, inter alia, that the labour court, or the arbitrator, is obliged to reinstate or re-employ (if
    indeed a decision is made that the employee is entitled to relief), unless s193(2)(a) to s193(2)(d)
    is applicable

(SAMWU v Ethekweni Municipality [2019] 1 BLLR 46 (LAC))

  • in simple terms, once substantive unfairness has been established, it is peremptory or obligatory
    to reinstate, unless the above statutory exceptions exist – the labour court, or the arbitrator, is,
    therefore, obliged to probe any factor relevant to such exceptions

(DHL v National Bargaining Council for the Road Freight Industry [2014] 9 BLLR 860 (LAC))

In applying the aforesaid principles to the facts of the case, the labour appeal court held, in Mthethwa, that the basis upon which reinstatement or re-employment did not take place, namely, that employment for the employee would be unsafe taking into account the physical security of the employee, amounted to subjective thinking and clearly constitutes an irregularity

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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?

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