Skip to main content

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?

_____________________________________

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))

September 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.