Skip to main content

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?

_____________________________________

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
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?