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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
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?