Article 41/2022

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

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Following the approach adopted in NUM obo Fohlisa v Hendor (2017) 28 SALLR 2 (CC); (2017) 38 ILJ 1560 (CC), the labour appeal court, in the Kubeka judgment, adopted the following approach:

  • in respect of an unfairly dismissed employee, such employee’s employment contract is terminated by dismissal
  • the effect of a reinstatement order is that it does not restore the employment contract and there is no automatic claim for back pay/future pay
  • the reinstatement order simply directs the employee to tender his/her service and the employer to accept such tender – entailing that, in essence, the employer reinstates the employee and not the order
  • in the scenario where the employee tenders his or her services and the employer refuses to accept such tender, there is no restoration of the employment contract – the employer will be compelled to comply with the order by means of instituting contempt proceedings (on the basis that the obligation to accept such tender is an order ad factum praestandum
  • in the scenario where the employee fails to tender his/her service, the contract is not restored and he/she cannot claim back pay/future pay
September 2, 2025

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?

September 2, 2025

The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

August 26, 2025

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.