Solidarity obo SW Parkinson v Damelin (Pty) Ltd

Mr SW Parkinson was dismissed by Damelin (Pty) Ltd on 15 May 2012. Solidarity challenged the dismissal at the CCMA, where it was found to be procedurally and substantively fair. On review, the Labour Court (Bleazard AJ) set aside the CCMA award on 2 December 2014 and ordered Mr Parkinson’s reinstatement retrospective to 1 January 2014. Damelin’s appeal to the Labour Appeal Court was dismissed in January 2017. Mr Parkinson had secured alternative employment in August 2014. After the appeal failed, Damelin required him to tender his services. He reported to work on 19 January 2017 but immediately resigned, citing uncertainty about terms and incompatibility with his current employment. Solidarity thereafter instituted proceedings for payment of back-pay flowing from the retrospective reinstatement order.

The Court ordered Damelin to pay Mr Parkinson back-pay for the period 1 January 2014 to 2 December 2014 in the amount of R385 000.00, subject to lawful deductions. No order as to costs was made.

The case confirms and applies Constitutional Court authority that back-pay flowing from a retrospective reinstatement order is a judgment debt and is not dependent on a tender of services or continued employment after reinstatement. It clarifies the distinction between remuneration due for the retrospective period covered by a court order and remuneration after reinstatement, reinforcing employee protection under the LRA.