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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))

September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?

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?