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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

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?