When an employee is reinstated by court order, the waters can be muddied and the obligations of the employer can be nuanced.  

A recent case handed down by the labour court brought this into the spotlight. An employee, who had been dismissed, was reinstated by the CCMA, with an order for back pay for the period from dismissal to reinstatement.  When the employee reported for duty, the company refused to accept his services, citing a potential review application. 

According to experts in the employment law practice at commercial law firm Cliffe Dekker Hofmeyr (CDH), the case demonstrates that when an arbitration award or court order reinstates a dismissed employee, the employer is obliged to reinstate the employee on the terms and conditions that existed at the time of dismissal, unless the order expressly provides otherwise. 

“Imposing additional conditions for reinstatement, like requiring new certifications or registrations that weren’t previously required, won’t fly with the court unless they are stipulated in the reinstatement order or the original contract,” says CDH.  

Before imposing any conditions on reinstatement, CDH urges employers to seek legal advice to ensure reinstatement conditions are lawful and consistent with the original employment contract and the terms of the award or order. 

Regarding back pay, CDH says that the law can be nuanced. “Employers cannot rely on the mere fact that a subsequent court order is silent on arrear remuneration to argue that the employee has abandoned or compromised their claim to back pay.” 

Written by Cliffe Dekker Hofmeyr