When an employee is reinstated, various consequences arise. Firstly, the employee must tender their service at the date set out in the arbitration award (or within a reasonable time). Secondly, the employer should accept that tender of service. Thirdly, the employer should make payment of the backpay accrued and awarded to the employee, if any.
However, the law reports are replete with examples of employees and employers not following the ‘ordinary’ approach as set out above. Regularly, employers reject the employee’s tender of services and then employee is then left to compel compliance with the award through contempt proceedings. The question then remains: for which period is the employee to backpay – the date set out in the award, or the date on which they are factually reinstated?
This question recently received the attention of the Constitutional Court in Mavundla v Gotcha Security Services (Pty) Ltd (CCT170/24) (18 June 2025). In this matter the employee was dismissed, and following an award issued by the Commission for Conciliation, Mediation and Arbitration (“the Award”), the employee was reinstated with effect from 1 August 2019.
However, the employer refused to accept the employee’s tender of service on 1 August 2019. Rather, after failing to institute review proceedings as intimated, on 25 September 2020 the employer indicated that the employee could report for duty – subject to the condition that he produce a valid firearm competency certificate and industry recognised registration. This, the employer indicated, was required so that the employee could carry out his duties as a VIP Protection Officer.
The employee refused to comply with the employer’s newly imposed conditions and instituted contempt proceedings in the Labour Court. On 1 June 2021 the Labour Court issued an order requiring the employer to reinstate the employee with effect from 1 July 2021. It also ordered that no further conditions would be imposed on the employee, and the employer would engage the employee on the same terms and conditions that prevailed at the time of his dismissal.
The employee was permitted to return to work on 1 June 2021. However, the employer refused to make payment of his arrear backpay – that which accrued to the employee from the date of the Award until his reinstatement (i.e. 1 August 2019 to 31 May 2021). Unsurprisingly, the employee was retrenched two months later. He nevertheless persisted with his claim for his entitlement to backpay accrued between 1 August 2019 and 31 May 2021.
The Labour Court dismissed this claim on the basis that the employee was only factually reinstated on 1 June 2021. This, the Court found, was on the basis that until an employee’s tender of service has been accepted by the employer, no contractual obligation exists between the parties. The employee’s application for leave to appeal, and a petition to the Labour Appeal Court for leave to appeal were rejected.
The Constitutional Court held that the Labour Court’s order was based on a misunderstanding of the Constitutional Court’s previous judgment in NUMSA v Hendor Mining Suppliers (2017) 38 ILJ 1560 (CC). In Hendor the Court held that a reinstatement order does not ipso facto restore a contract of employer and that the contract is only restored when an employer accepts the employee’s tender of services.
The Labour Court accordingly erred in finding that the contempt order automatically replaced the order of reinstatement contained in the Award. The Court held that the only effect a subsequent contempt order has, is to replace the date on which the mutual tender and acceptance of the tender must occur.
The Constitutional Court went on to find that ‘[30] … Hendor is not authority for the proposition that a reinstated employee is only entitled to be paid as from the date of their factual reinstatement.’
On this basis, the Court found that the employee was entitled to all backpay which accrued to him between 1 August 2019 and 31 May 2021 notwithstanding that he was only factually reinstated on 1 June 2021.
This case is a stark reminder to employers to carefully consider the implications of orders requiring the reinstatement of employees, with backpay. Where a reinstatement order is not complied with, backpay continues to accrue to the employee. Specialist legal advice should be taken when dealing with matters of this nature as they are often not as simple as may meet the eye.
