The Labour Appeal Court, in Ithala SOC Ltd v Ntombela and others, found that the employer was not permitted, having reinstated the employees following a finding that their dismissals were substantively unfair, to seek to appeal that finding before the Labour Appeal Court. 

Permitting employers to take employees back while still seeking to appeal the reinstatement award to minimise their potential liability of the payment of backpay would, so the Labour Appeal Court held, turn courts into a gambling den – with a litigant bringing a matter before court not so much to vindicate an entitlement, but to hedge against exposure.  Such a stratagem, the Court held, is odious to the law. 

The matter came before the Labour Appeal Court as an appeal against the dismissal of the employer’s review application.  The Labour Court had dismissed the review application and upheld the arbitrator’s award that the dismissal of the employees was substantively unfair and that they be reinstated and paid backpay.

The employees contended that the appeal had been perempted because the employer had reinstated the employees following the dismissal of the review application.  Peremption is a legal concept based on a party making a choice as to a certain legal process.  The Court held that where -

“a party to a judgment acquiesces therein, either expressly, or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be perempted, i.e. he cannot thereafter change his mind and note an appeal.  Peremption is an example of the well-known principle that one may not approbate and reprobate, or, to use colloquial expressions, blow hot or cold, or have one’s cake and eat it.”

The Labour Appeal Court accepted that the employees were reinstated and that their reinstatement was effected before the start of the appeal process.  Indeed, following their reinstatement, the employees, had received bonuses in 2023 and 2024, and the employer had conferred a long service award for 25 years of service on the one employee. 

The employer sought to explain that it took the employees back into its employ to prevent any potential increase in the backpay which, at the time of reinstating them, stood at 76 months. 

Having reinstated the employees, the Labour Appeal Court found that the employer had acquiesced to the award and that this was fatal to the appeal. 

Written by Ludwig Frahm-Arp, Partner & Danelle Plaatjies, Associate; Fasken