Close but no cigar.

The Labour Court has recently grappled with the question relating to the legal status of an Award for reinstatement in the decision Mahlangu v Rand Water (2023) 44 ILJ 569 (LC).

The Court drew on the wisdom of the Apex Court in Numsa obo Moses Fohlisa and 41 Others v Hendor Mining where it had to determine whether the claim of Employees to backpay as a result of an order for reinstatement had prescribed.  In arriving at its decision in such matter, the Constitutional Court concluded that in the absence of a tender of services, the employment relationship is not reinstated.

The Labour Court has now confirmed that in order for the employment contract to be reinstated, the employee has to tender his/her services to his/her erstwhile employer and such tender has to then be accepted by such employer. The reinstatement order of itself does not reinstate the employment relationship, which remains terminated until the employee tenders his/her services.

Where an employer rejects an employee’s tender of services subsequent to a reinstatement order, the employee does not have a contractual claim for specific performance, as there is in reality no existing contractual relationship which is capable of being enforced.

The only remedy available to the employee where his/her employer rejects his/her tender of services subsequent to a reinstatement order, is to seek redress through an application for contempt of court.

Where an employee fails to tender his/her services in consequence of a reinstatement order, such employee will have no claim for backpay and no backpay will be due, owing and payable to the employee in question.  This has the effect that an employee who is granted an order of reinstatement cannot neglect to tender his/her services and then claim payment of any backpay through the mechanisms of Section 77 (3) of the Basic Conditions of Employment Act 75 of 1997, and the Labour Court would consequently lack jurisdiction to entertain such claim as until the employee tenders his/her services as and until such time the employment contract remains terminated.

Where an employee seeks the remedy of reinstatement but prior to an award of reinstatement being made, finds alternative employment on more favorable terms, such employee should then without delay amend his/her relief sought to compensation prior to an award being handed down to prevent a situation where the award of reinstatement is incapable of being enforced by virtue of him/her not being in a position to tender his/her services in the event of an order or reinstatement being made.   This would in effect render the award a pyrrhic victory as he/she will not even be able to claim backpay without a tender of services.

It is therefore important that where employees are reinstated by either the CCMA or the Labour Court, that they tender their services to their employer in writing to avoid any dispute arising as to whether the employment relationship has been reinstated or not.

Article by David Short, Director
Ephraim Lehutso, Candidate Attorney
Fairbridges Wertheim Becker Attorneys