27 March 2025
Introduction:
In instances where the CCMA orders the reinstatement of an employee, the question that arises is how long the employer is supposed to keep the employee’s position open before filling this role. Are employees entitled to decide for themselves when it is appropriate to return to their position after a reinstatement order has been granted?
In light of recent case law, the Labour Appeal Court submitted that employers are not required to keep an employee’s position open after a reinstatement order has been granted if the employee has not returned to the company after a reasonable period of time. Employees are required to tender their services within the period provided in the Reinstatement Order and if no period is provided, then within a reasonable time period.
What is a Reinstatement Order?
A Reinstatement Order is an award provided by the CCMA in favour of an employee, which compels an employer to reinstate an employee to their previous position prior to being dismissed or terminated from their employment, which dismissal or termination the CCMA has deemed to be unfair.
Thus, an employer is obligated to reinstate the employee and restore the employment contract on the same terms and conditions as was before the dismissal or termination occurred.
Case Study:
In the recent decision of the Labour Appeal Court in South African Municipal Workers Union obo Koopman v The City of Cape Town (CA5/2023) delivered on the 22nd of January 2025, the court had to decide whether Mr. Koopman tendered his services to the City of Cape Town (the company) and if so, whether this was done within a reasonable time period after the Reinstatement Order was granted.
Mr. Koopman was employed by the City of Cape Town and was subsequently dismissed in February 2014 after a disciplinary inquiry. Aggrieved by this decision, Mr. Koopman referred the matter to the South African Local Government Bargaining Council (SALGBC) as he believed his dismissal was unfair.
The SALGBC ruled in Mr. Koopman’s favour and provided an award of retrospective reinstatement with backpay in 2014. In August 2022, Mr. Koopman certified the award and approached the court for a contempt of court order against the company for failing to comply with the arbitration award of reinstatement.
The Labour Court dismissed the contempt of court application due to the award having prescribed as arbitration awards are seen as debts for the purpose of the Prescription Act (1969) and therefore prescribe after 3 years. Mr. Koopman was attempting to enforce the award approximately 8 years after it was provided.
In the Labour Appeal Court (LAC), Mr. Koopman argued that the arbitration award had not prescribed, and once certified, should be viewed in line with a court judgement, which prescribes after 30 years.
The company argued that Mr. Koopman had failed to tender his services to the company to date, making the prescription argument irrelevant and contempt of court did therefore not arise.
The LAC referred to the case of National Union of Metalworkers of South Africa obo M Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd), which stated that: ‘A reinstatement order does not itself reinstate the employees. Rather it orders an employer to do so. Although a reinstatement order places a primary obligation on the employer to reinstate, it creates an obligation in terms of which an employee must first present her or himself for resumption of duties. The employer must then accept her or him back in employment. These are reciprocal obligations.’
The LAC held that a Reinstatement Order creates a reciprocal obligation on the employer and employee. The employer is to accept the employee back into its employ, and the employee must return to their employment and tender their services within a reasonable time frame. Mr. Koopman failing to return to the company and tender his services was fatal to his case.
Conclusion:
If an employee has an award granted in his favour, the duty falls on the employee, not the employer to ensure that services are tendered. The right to fair labour practices also extends to employers. It would be unfair and unreasonable to expect an employer to wait for an employee, who was unfairly dismissed and subsequently reinstated, to decide for themselves when they feel it appropriate to return to work and to tender their services.
It is unreasonable to expect employers to keep an employee’s position open if the employee does not return to the workplace and tender their services timeously. Where employees do not tender their services within a reasonable period after a Reinstatement Order has been granted, employers will not be obliged to reinstate them.
What constitutes a reasonable period will depend on the circumstances of each case, what the Reinstatement Order stipulates as well as any relevant communication held between the employer and employee pertaining to the resumption of duties companies can proactively address concerns before they escalate, ensuring a more cohesive and successful workplace.
