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Article 32/2023

What are the factors to be taken into account to determine the period of reinstatement?

What are the factors to be taken into account to determine the amount of back pay?

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In Moroveke v Talane NO (2021) 32 SALLR 34 (CC), the constitutional court recently had to deal with
providing answers to both the aforesaid questions, and dealt with the matters as follows:

reinstatement?

  • the period of reinstatement should take into account the period of unemployment since the date of the dismissal that is substantively unfair or substantively and procedurally unfair
  • the reinstatement order period should not be such to either enrich or impoverish the employee, but its purpose should be to restore the employment relationship

(see, further, Toyota v CCMA (2016) 37 ILJ 313 (CC); Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC); Sibiya v SAPS (2022) 33 SALLR 28 (LAC))

back pay?

  • the purpose of back pay is to make good the employee’s loss and not to punish the employer
  • back pay thus represents the difference between the amount the employee, who has been substantively unfairly dismissed or substantively and procedurally unfairly dismissed, earned before the date of dismissal when compared to the period of unemployment – it is thus possible that reinstatement could be for a period of 24 months, but back pay could be for a shorter or longer time period, depending, in both instances, on different factors, namely, the period of unemployment and the amount of loss

(see, further, Davids v Boland Rugby [2012] ZALCCT 69; Le Monde Luggage v Dunn NO (2007) 28 ILJ 2238 (LAC))

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?