Tshenolo Waste (Pty) Ltd v Sekgoro and Others

The applicant employer dismissed two employees for alleged dishonesty. The dismissals were challenged at the CCMA, which found them procedurally fair but substantively unfair and ordered retrospective reinstatement with four months’ backpay. The employer initially indicated an intention to review the award and instructed the employees not to report for duty on the reinstatement date. The employer later elected not to review the award but instead instituted fresh disciplinary proceedings on the same charges, resulting in a second dismissal. The arbitration award was certified under section 143 of the LRA and a writ of execution issued for payment of backpay. The employer approached the Labour Court urgently to set aside or stay the enforcement writ, arguing that the employees had not tendered their services and thus were not entitled to backpay.

The urgent application to set aside or permanently stay the enforcement award was dismissed, and the applicant was ordered to pay the costs of the first, second and sixth respondents.

The case clarifies the application of Kubeka in circumstances where an employer’s own conduct prevents a tender of services and later revives the employment relationship through disciplinary action. It confirms that employers cannot rely on a lack of tender to avoid reinstatement obligations where they instruct employees not to report for duty or otherwise act inconsistently with a terminated relationship.