In a recent decision by the Labour Appeal Court (LAC), the Court clarified the law on reinstatement, holding that an employer is not obliged to keep an employee’s seat ’warm’ where the employee has not tendered their services within a reasonable period following a reinstatement order. Where an employee fails to tender their services within a reasonable period, their entitlement to reinstatement lapses and an employer is not obliged to reinstate them.

Litigation history

In February 2014, Mr Koopman was dismissed by the City of Cape Town (City) following a disciplinary hearing. Aggrieved by this decision, he referred an unfair dismissal dispute to the South African Local Government Bargaining Council (SALGBG). The SALGBC ruled in Mr Koopman’s favour and issued an award ordering his retrospective reinstatement to 25 February 2014, with backpay. In August 2022, approximately eight years later, Mr Koopman certified the arbitration award, and thereafter brought a contempt of court application against the City for failing to comply with the certified arbitration award.

Before the Labour Court, the City argued, among other things, that the arbitration award had prescribed. The Labour Court found that the arbitration award had prescribed on the basis that arbitration awards were debts for the purposes of the Prescription Act 1969, and they prescribe after a period of three years. On this basis, the contempt application was dismissed.

Findings of the LAC

On appeal, Mr Koopman argued that the prescription period applicable to arbitration awards is 30 years, the same as court judgments. The City, however, raised the issue that Mr Koopman had, to date, failed to tender his services. The LAC held that if this was true, it would dispose of the appeal, rendering the question of prescription moot.

The LAC thus turned its focus to the question of whether Mr Koopman tendered his services following the arbitration award.

The LAC held that an order of reinstatement does not itself reinstate the employee. Rather, it creates reciprocal obligations on employer and employee: the employee must tender their services, and the employer must accept the employee back into employment.

The LAC further explained that when an employee receives a reinstatement order, the employee is provided with an election. If the employee wants to be reinstated, the employee must tender their services within the period specified in the reinstatement order or, on good cause shown, within a reasonable period thereafter. In reaching its decision, the LAC referred to another decision of the Court in City of Johannesburg and Another v Independent Municipal & Allied Trade Union on behalf of Erasmus and Another (2019) 40 ILJ 1191 (LAC), in which the LAC held that where a tender of services is made so late, no valid tender could be made later and the entitlement to reinstatement lapsed for those reasons.

The LAC cautioned that the right to fair labour practices also extends to employers. It would be unfair and unreasonable to expect employers to keep a position open indefinitely for an employee who was unfairly dismissed and later awarded reinstatement, to decide for themselves when they deem it appropriate to return to work and to tender their services. In the present case, Mr Koopman conceded that there was no tender of services since the arbitration award. The LAC held that this failure was fatal to his case.

A suggestion of legislative change

Turning to the relief, the LAC held that it would be appropriate to refer this judgment to the Minister of Employment and Labour to consider potential legislative amendments that could remedy similar situations in the future. The Court proposed that employers be required to initiate communication with an employee after review or appeal proceedings are finalised, informing them as to when they are expected to tender their services. This, according to the LAC, would help provide clarity and certainty for both employers and employees while maintaining the onus on the employee to tender their services.

Key takeaways

A reinstatement order does not itself reinstate employees. Instead, it creates a reciprocal obligation for the employee to tender their services within a reasonable period and for the employer to accept the tender. It is unreasonable to expect employers to keep a position open if the employee does not tender their services in a timely manner. Where employees do not tender their services within a reasonable period following a reinstatement order, employers will not be obliged to reinstate them.

Written by Nadine Mather, Partner, and Nikita Solanki, Associate, Bowmans