When an employee has been unfairly dismissed, the Labour Relations Act (LRA) prescribes reinstatement as the remedy. The employer can depart from this only if it shows good reason.
Full reinstatement requires the employer to pay the employee all remuneration accrued between the date of dismissal and the date of reinstatement. For an employer, reinstating an employee creates a double problem. Firstly, it is left with an employee it does not want. Secondly, backpay orders are usually very expensive.
Many months could pass by the time the reinstatement order is made, which drives up the cost. The high expense of such an order tempts employers to avoid paying the backpay. However, such a strategy is likely to backfire.
Conditional reinstatements and their risks
In the case of Mavundla vs Gotcha Security Services (Lex Media 18 June 2025), Constitutional Court case number CCT170/24), the employer refused to implement a Commission for Conciliation, Mediation and Arbitration (CCMA) reinstatement order.
Almost 14 months later, the employer invited Mavundla to return to work on condition that he produced a firearm competency certificate. This was one of those conditional reinstatements that courts often view with caution.
Mavundla refused this conditional offer. The Labour Court then ordered the employer to reinstate the employee with full backpay and without any conditions. The employer reinstated Mavundla but withheld the backpay. Such actions show how conditional reinstatements can expose employers to further legal battles.
Mavundla then applied to the Labour Court for a backpay order. He lost that case. However, the employee appealed to the Constitutional Court. The court overruled the Labour Court’s decision and forced the employer to pay Mavundla 22 months of backpay.
Lessons for employers
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. This highlights how conditional reinstatements can lead to significant financial and legal consequences.
In view of this outcome, employers must train their managers to understand the principles of fairness that underlie South African labour legislation. These principles strongly favour employees. The law is designed to prevent employers from sidestepping orders made in favour of employees.
Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
