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Article 5/2025

Practitioners find it difficult to appreciate the fact that a reinstatement order does not, in itself, reinstate an employee.

What are some of the considerations underpinning the said approach?

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With reference to Kubeka v Ni-Da Transport (2021) 32 SALLR 14 (LAC), the constitutional court, in NUM obo Fohlisa v Hendor (2017) 28 SALLR 2 (CC), adopted the following approach when dealing with the consequences of a reinstatement order :

  • a reinstatement order does not restore the employment contract
  • a reinstatement order directs the employee to tender services and directs the employer to accept such tender – it is thus the employer that reinstatements the employee and not the CCMA or the labour court
  • if the employee tenders services and the employer refuses to accept such tender, there is no restoration of the employment contract – in order to ensure compliance with the reinstatement order, the employee is required to institute contempt proceedings (an order ad factum praestandum)
  • on the other hand, if the employee fails to tender his/her services, the employment contract is not restored – in such circumstances, the employee is not able to claim relief in terms of the reinstatement order
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?