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?
_____________________________________
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
