Article 78/2021

Labour Edge

In respect of an order of reinstatement, what is the nature of the claim from the date of dismissal until the date of the arbitration award or labour court judgment ordering reinstatement?


In Kubeka and Others v Ni-Da Transport (Pty) Ltd (2019) 30 SALLR 178 (LC), the labour court recently dealt with this so-called ‘first period’ as follows:

  1. although a split decision, both judgments by the constitutional court accepted the proposition drawn by Madlanga J in National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining Supplies (2017) 38 ILJ 1560 (CC); [2017] 6 BLLR 539 (CC), at paragraph [18], that a reinstatement order covering the first period is an order ad factum praestandum. In other words, it is an order to do something as opposed to an order to pay something. An order ad factum praestandum may be enforced through contempt proceedings. Consequently, a reinstatement order, at least in respect of back pay associated with the first period, constitutes a judgment debt. What this means is that a failure to reinstate and pay back pay for the first period should attract contempt proceedings as a response;
  2. of course, what is needed as a prerequisite to reinstatement is a tender of services. Back pay is only contractually owing upon the full restoration of the employment contract. This required more than a tender of services by the unfairly dismissed employees. The employer should also have accepted those employees back into its employ. If the employer failed to do so, the correct legal path was to have forced it to restore the contract of employment by means of contempt proceedings. Once an employer bends the knee in this regard, back pay becomes payable too;
  3. Madlanga J explained that the judgment ordering reinstatement did not in and of itself reinstate the contract of employment, rather, it was an order directing the employee to tender services, and for the employer to accept those services. If the employer failed to do so, the remedy was to bring contempt proceedings to compel the employer to do so;
  4. Madlanga J, at paragraphs [22] and [23], stated:

‘Cele AJ’s order did not itself reinstate the employees. Rather it ordered Hendor to do so. Although a reinstatement order places a primary obligation on the employer to reinstate, it creates an obligation in terms of which an employee must first present her- or himself for resumption of duties. The employer must then accept her or him back in employment. These are reciprocal obligations. The employee’s obligation to present her- or himself for work and the corresponding obligation to accept her or him back to work flow from the court order. If the employee presents her or his self for work, but the employer refuses to accept her or him back, her or his remedy is not contractual. It is to bring the employer before court for contempt of court. What contempt? For not complying with the judgment debt embodied in the order to accept her or him back into employment. The order of reinstatement cannot be a contractual debt. But the fact that the reciprocal rights and obligations are then governed by contractual principles does not mean that the original obligation to comply with the reinstatement order has also somehow morphed into a contractual debt. For as long as that obligation is not complied with, it continues to maintain its essential nature of being a judgment debt.’;

    1. Hendor Mining Suppliers concerned prescription and non-payment of money. The facts in casu did not concern prescription and the non-payment of money, but non-performance by the losing party.  Notwithstanding these differences, the legal principles of Hendor Mining Supplies are equally applicable to both scenarios.

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