When it has been found that an employee has been unfairly dismissed the Labour Relations Act (LRA) requires arbitrators and judges to use reinstatement as the remedy of first resort.

The requirement for reinstatement to be implemented is limited where the dismissal was only procedurally unfair, the employee prefers not to be reinstated or reinstatement would be intolerable or unfeasible.

Court’s and arbitrators frequently reinstate unfairly dismissed employees and direct the employer to place the employee in the same job from which he was fired on the same terms and conditions as existed before the dismissal. This is the default remedy and arbiters will implement it unless the employer can show good reason to depart from it. If the arbitrator or judge intends the reinstatement to be fully retrospective he/she is required to make this clear in the award/judgement.

This would then mean that the employer would have to pay the employee all remuneration and benefits accrued between the date of dismissal and the date of reinstatement, and that the employee’s status is as if there was never a termination of employment.

For an employer, having to reinstate an employee, is a double problem. Firstly, it is stuck with an employee it does not want. Secondly, the backpay orders are usually very expensive because many months or even years could have passed by the time the reinstatement order is made. The high cost of such an order tempts employers to try to avoid paying the backpay. However, such a ploy is likely to backfire.

In the case of Mavundla vs Gotcha Security Services (Lex Media 18 June 2025. Constitutional Court case number CCT170/24) the employer was ordered to reinstate the employee with full backpay. The employer refused to reinstate Mavundla, stating that it planned to review the reinstatement award. Almost 14 months later the employer invited Mavundla to return to work on condition that he produce a firearm competency certificate.

Mavundla refused this conditional offer and instituted contempt proceedings in the Labour Court which ordered the employer to reinstate the employee with full backpay and without any conditions. The employer reinstated Mavundla but without backpay.

Mavundla then applied to the Labour Court for a backpay order, but lost that case. He later appealed to the Constitutional Court which overruled the Labour Court’s decision. The employer was forced to pay Mavundla 22 months’ backpay.

Had the employer complied with the original order to pay the backpay it would have avoided the considerable costs of fighting both the Labour Court case and the Constitutional Court case.

In view of the above outcome employers are advised to train their managers to understand the principles of fairness that underlie South African labour legislation strongly favour employees. This means that our laws are designed to prevent employers from sidestepping orders made in favour of employees.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.

This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss. 

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za

To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za  or contact Ivan on ivan@labourlawadvice.co.za