Department of Home Affairs v Public Servants association and Others (CCT148/16) [2017] ZACC 11

The dispute concerned whether a change of work hours constituted a work practice and was therefore not a mutual interest dispute over which the union could strike, and which could not be conciliated at a bargaining council, or whether the change was a matter of mutual interest, which could be conciliated.

The CC said:

[1] ……… disputes about matters of mutual interest referred to conciliation must be conciliated, be they “rights” or “interest” disputes.  It is not the function of the conciliator to pronounce on whether the dispute is one of “rights” or one of “interest”.


[13] …… The LRA does not speak of “rights disputes” or “interest disputes”.  A strike about a matter of mutual interest that a party has a right to refer to arbitration or to the Labour Court under section 65(1)(c) of the LRA may not be protected, but whether it falls within that limitation neither defines the jurisdiction of a conciliator under the Act, nor does it prevent the conciliator from attempting conciliation of the “disputed” dispute.  Her function is to attempt conciliation and if that fails, to certify that the dispute has not been resolved.  After the expiry of the statutory conciliation period, the unions would have been entitled to strike, even if the certification was not forthcoming


National Union of Metalworkers of South Africa obo M Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (CCT04/16) [2017] ZACC 9

The facts were that the Labour Court ordered the reinstatement of the employees. The employer did not reinstate them but appealed the LC decision, which also failed. The employer refused to pay the reinstated employees back pay for the period from the date of their reinstatement by the LC and the date of the order on appeal.  The issue before the CC was “[1] …….. whether the prescription period in respect of the unpaid remuneration is three or 30 years.  The answer turns on whether the employees’ claim is a judgment debt.”


The implications of a reinstatement order are explained by Nkabinde J in  Equity Aviation [Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration [2008] ZACC 162009 (1) SA 390 (CC); 2009 (2) BCLR 111 (CC) (Equity Aviation) at para 36].

“The ordinary meaning of the word ‘reinstate’ is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions.  Reinstatement is the primary statutory remedy in unfair dismissal disputes.  It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal.  It safeguards workers’ employment by restoring the employment contract.  Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal.  As the language of section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator.  The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal.  The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal . . . The fact that the dismissed employee has been without income during the period since his or her dismissal must, among other things, be taken into account in the exercise of the discretion, given that the employee’s having been without income for that period was a direct result of the employer’s conduct in dismissing him or her unfairly.”

[13] What is that legal context in this matter?  What Equity Aviation tells us is certainly central to that context.  Reinstatement may be, but is not always, retrospective.  To state the axiomatic, reinstatement means the resuscitation of the employment agreement with all the attendant reciprocal rights and obligations.  Again to state the obvious, the element of retrospectivity in the reinstatement does not entail the rendering of services for the back-dated period of reinstatement.  That is an impossibility.  Perhaps that makes the very notion of “retrospective reinstatement” a bit of a misnomer, if not a legal fiction.  What then is the practical value of retrospective reinstatement?  It is the reinstatement of all the employee’s benefits in terms of the contract of employment from the date specified in the order so as to “plac[e] an employee in the position he or she would have been but for the unfair dismissal”


[22] …….. 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 employee’s obligation to present her- or himself for work and the corresponding obligation to accept her or him back to work flow from the court order.  On the authority of Escom,[40] which was accepted by this Court in Makate,[41] these obligations are each a judgment debt.  As in all cases where a dispute is settled by adjudication, the judgment becomes the source of the debt, whether the judgment is viewed as strengthening the original underlying debt or novating it.[42]  It is, in the plainest of terms, a judgment debt.

Mogaila v Coca Cola Fortune (Pty) Limited (CCT76/16) [2017] ZACC 6;

The CC considered whether an order of reinstatement is a “debt” which therefore prescribes after 3 years, or not. The employee had been dismissed but had been reinstated by the CCMA. Both a review application and an appeal were dismissed by the Labour Court and Labour Appeal Court respectively. When the employee attempted to return to work she was told by the company that the award reinstating her had prescribed and for that reason the company would not reinstate her.

The CC held

“[27] ….. the arbitration award ordering her reinstatement has not prescribed.  She is entitled to secure its certification under section 143(3) of the LRA, and its enforcement under section 143(1).

[28] Whether the arbitration award in her favour could not have prescribed because the Prescription Act does not apply at all to LRA matters, as the first and third judgments held (or because, even if that statute were applicable, the reinstatement order was “not an obligation to pay money, deliver goods or render services”),[51] or because, as the second judgment held, the CCMA referral interrupted prescription, persisting until the finalisation of the review proceedings in October 2013, Ms Mogaila must succeed.