Coca Cola Sabco (Pty) Ltd v Van Wyk (JA11/2013) [2015] ZALAC 15 ; [2015] 8 BLLR 774 ; (2015) ILJ 2013 (LAC) (5 May 2015) per Musi JA.

A dismissed employee was reinstated retrospectively to his former position on terms no less favourable prior to dismissal and without any loss as from the date of dismissal and was awarded his arrear salary.  But the employer unsuccessfully sought to review and appeal that award.  This took nearly five years.

In deciding what amount should be stated in the writ of execution the Labour Court was prepared to allow evidence to be provided by affidavit to the registrar.

The Labour Appeal Court criticised that approach and held that the LRA did not apply to the period between the date of the award and its actual implementation.

Employees seeking payment for that period only have a contractual claim against the employer.  Employers can only become judgment debtors after the contractual claim has been adjudicated.

The Labour Appeal Court allowed the employer’s appeal and varied the order of the Labour Court.

ChatGPT ‘executive’ summary

“. . . the legal arguments and principles related to the effects of a reinstatement order in the context of employment law are discussed. Here are the key points highlighted:

  1. Limitations of Reinstatement Awards:
    • The appellant argues that awards for reinstatement cannot extend beyond the date of the award itself.
    • It is asserted that such awards cannot serve as a basis for a common law contractual entitlement to automatic payment of remuneration that would have been payable had the employee not been unfairly dismissed.
  2. Effect of Reinstatement Order:
    • The court emphasizes that the effect of a reinstatement order is to revive the contract of employment that was terminated by dismissal.
    • The commissioner may order that the reinstatement be effective from the date of the order or retrospectively from any date not earlier than the date of dismissal.
    • Importantly, the commissioner may not order that the reinstatement starts from a date after the issuing of the arbitration award.
  3. Claim for Period Between Award and Implementation:
    • The key question raised is what remedy an employee has to claim money due for the period between the date of the award and the actual implementation of the reinstatement.
    • It is clarified that the money paid to an unfairly dismissed employee as a result of a retrospective reinstatement order is not considered compensation.
    • Compensation and back-pay are deemed mutually exclusive, and the Labour Relations Act does not provide relief for remuneration between the date of the award and the actual date of implementation.
  4. Revival of Contract of Employment:
    • The reinstatement order serves to revive the contract of employment, and the rights and obligations of the parties are once again governed by the terms of the contract.
  5. Contractual Claim for Unpaid Period:
    • The summary emphasizes that a reinstatement award does not cover the period between the award and its implementation.
    • If an employer refuses to pay the employee for that period, the employee has a contractual claim against the employer, which is considered a distinct cause of action.

In essence, the argument presented suggests that the scope of a reinstatement award is limited to the terms specified in the order, and any claims for remuneration beyond that period should be pursued as contractual claims rather than being automatically granted as part of the reinstatement order. This legal perspective clarifies the distinction between the reinstatement award and contractual entitlements for the period between the award and its implementation.”

Selected extracts without footnotes

“[13]      . . . . .  Mr Grobbler, on behalf of the appellant, argued that the court a quo erred in finding that an award for reinstatement “required the payment for the full period up to and including the date of compliance”.  He submitted that awards for reinstatement cannot extend to a date beyond the date of the award.  He further submitted that awards for reinstatement cannot serve as a basis for a common law contractual entitlement to automatic payment of remuneration that would have been payable had the employee not been unfairly dismissed.

. . . .

[16]      The effect of a reinstatement order, therefore, is to revive the contract of employment which was terminated by a dismissal.  On the date on which the reinstatement order is made, the commissioner may order that the reinstatement be effective from the date of the order or retrospectively from any date not earlier than the date of dismissal.  Importantly, for purposes of this matter, the commissioner may not order that the reinstatement will start from a date after the issuing of the arbitration award.  This begs the question, what remedy, if any, does the employee have to claim the money due to him/her for the period between the date of the award and the actual implementation thereof.

[17]      The money paid to an unfairly dismissed employee consequent to a retrospective reinstatement order is not compensation.  Compensation and back-pay may only be granted in the alternative and are mutually exclusive. The back-pay ordered by the commissioner can therefore only refer to the period between the date of dismissal and the date of the order and does not entitle an employee, without more, to remuneration between the date of the award and the actual date of implementation.  The Labour Relations Act does not cater for such relief.

. . . .

[22]      The reinstatement order – as stated above – only serves to revive the contract of employment.  The rights and obligations of the parties would therefore, as in the beginning, again be governed by the contract of employment.

. . . .

[30]      In summary, a reinstatement award does not cover the period between the award and its implementation.  Should an employer refuse to pay an employee for the said period then the employee has a contractual claim – which is a totally different cause of action – against the employer.”