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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
September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?

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?