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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))

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?

June 22, 2026

From the previous articles we’ve compiled this year, you would have gleaned, by now, that it is our viewpoint that s24 of the LRA only governs disputes about the interpretation or application of plant level collective agreements – and does not cover enforcement of such plant level collective agreements. We have also told you that, should the amendment to s23 of the LRA go through, then the jurisdiction of the CCMA will be extended to the enforcement of such plant level collective agreements.
Also, in previous articles compiled by us, we have expressed the view that there is no period prescribing the time within which an interpretation or application dispute of a plant level collective agreement should be referred to the CCMA – therefore, a reasonable time period, based on s191(1) of the LRA, is applicable. From previous articles compiled by us, you will also have gleaned our viewpoint that, currently, there is no provision in the LRA granting the CCMA jurisdiction dealing with condonation applications brought in respect of interpretation or application disputes relating to plant level collective agreements, where such disputes have been referred to the CCMA outside of a reasonable time period.
On the other hand, this article deals with sectoral level collective agreements and attempts to provide some insight into the following burning questions:
• what is the status of a compliance order?
• what is the process to be followed when the enforcement of sectoral collective agreements is sought by bargaining councils?
• what is the time period applicable within which such enforcement is to be sought of sectoral collective agreements by bargaining councils?
• what is the time period to be applied when the LRA is silent?
• on what basis can condonation be granted for the late institution of a claim, or the late issuance of a compliance order?