Oct 7, 2020

What is reinstatement?

Case law suggests that in its simplest terms reinstatement means the action of giving an employee back a position that he/she has lost OR to put an employee in the same position he/she was in prior to dismissal.

Reinstatement is is not similar to re-employment.

Reinstatement for a dismissed employee, as mentioned, means returning to the position the employee held at the time of the dismissal. In other words, it refers to a legal remedy in which an employee who has been wrongfully terminated from employment is placed back into his/her previous position.

Re-employment may place an employee into a different position, other than the one held at the time of dismissal and/or resignation. In other words, it refers to an employee being appointed into a position after the employee had resigned voluntary or had been dismissed but then at a later time apply for employment which may be in a position different to the one he/she vacated at the time of resignation/dismissal, on different terms and conditions of employment.

Court decisions define reinstatement

In terms of the Labour Relations Act (the Act) there is no set definition for reinstatement therefore it is important to consider court decisions in order to define reinstatement. Effectively this means that the employee will resume his/her position on the same terms and conditions as if the dismissal did not occur.

How is the date of reinstatement defined?

S193 (1) (a) of the Act states that: “If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may, order the employer to reinstate the employee from any date not earlier than the date of dismissal.” Therefore the date of reinstatement will depend on the Court or the arbitrator.

In Equity Aviation Services (Pty) Ltd v CCMA the court stated that: “The ordinary meanings of the word re-instate means that the reinstatement will not run from a date after the arbitration award. Ordinarily then, if a commissioner of the CCMA orders the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the commissioner decides to render the reinstatement retrospective.”

Back pay vs compensation

The issue of reinstatement made retrospectively with back pay was also dealt with. It was stated that reinstatement with back pay is not the same as the remedy of compensation as indicated in S194 of the Act and if awarded back pay by the court or arbitrator it should not be seen as compensation but rather as part of reinstatement.

When reinstatement is not desirable

When an employee is dismissed, the relationship between employer and employee generally deteriorates due to a lack of trust within the relationship. Tensions between the parties might rise making reinstatement of no beneficial effect on either party. Therefore a court or arbitrator cannot force an employee to accept the remedy of reinstatement. The Act has taken this somewhat into consideration. In terms of S193 (2) of the Act, the Labour Court or arbitrator must require the employer to reinstate or re-employ the employee unless:

(a)  the employee does not wish to be reinstated or re-employed;
(b)  the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c)  it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d)  the dismissal is unfair only because the employer did not follow a fair procedure.

Best interests of all parties considered

Therefore the court or the arbitrator cannot force the employee to be reinstated or re-employed. The best interests of the parties should be considered when making a decision regarding reinstatement.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on or 021 556 1075 to speak to one of our consultants.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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