If the dismissal of the employee is found to be substantively unfair, how is the period of reinstatement to be calculated? If the dismissal of the employee is found to be substantively unfair, how is the amount of back pay to be calculated?
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The constitutional court, in Moroveke v Talana NO (2021) 32 SALLR 34 (CC), had this to say in respect of the question as to the period of reinstatement :
- when determining such period, the factor to be considered is the period of unemployment – i e if the unfairly dismissed employee was only unemployed for two months, the period of reinstatement should be limited to this period of unemployment
- the purpose of the reinstatement order should be to achieve the above objective and not be utilised to enrich or impoverish the employee
See, further, Toyota SA Motors v CCMA (2016) 37 ILJ 313 (CC)
In the above matter, the constitutional court had the following to say as to the amount of back pay:
- in dealing with this issue, the factor to be considered is the amount that the employee was ‘out of pocket’ during the period of unemployment – if the employee was out of pocket to the extent of R100.00, then this should be the amount of back pay
- the purpose of back pay is to make good the employee’s loss and not to punish the employer
- in essence, back pay should reflect the difference between the amount that the employee would have earned, and indeed earned, during the period of unemployment
See, further, Davids v Boland Rugby [2011] ZALCCT 69
