Article 6/2025

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

June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?