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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))

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?