Solidarity obo SW Parkinson v Damelin (Pty) Ltd

Mr Parkinson was dismissed by Damelin on 15 May 2012. The CCMA found the dismissal procedurally and substantively fair. Solidarity challenged the award on review. On 2 December 2014, the Labour Court (per Bleazard AJ) reviewed and set aside the CCMA award, ordering Mr Parkinson's retrospective reinstatement to 1 January 2014. Damelin appealed unsuccessfully, with the LAC dismissing the appeal on 10 January 2017. Mr Parkinson had secured alternative employment on 21 August 2014. On 17 January 2017, Damelin requested Mr Parkinson to tender his services. On 19 January 2017, Mr Parkinson presented himself at Damelin's Pretoria Campus and tendered his resignation with immediate effect, which was accepted. Solidarity then claimed back-pay of R420,000 for the period from 1 January 2014 to 2 December 2014.

• Whether an employee who was ordered to be reinstated retrospectively is entitled to back-pay for the period covered by the reinstatement order
• Whether the employee's tender of services is a prerequisite for entitlement to back-pay pursuant to a retrospective reinstatement order
• The nature and scope of the obligation to pay back-pay flowing from an order of retrospective reinstatement

1. Mr Parkinson is entitled to back-pay for the period from 1 January 2014 to 2 December 2014. 2. The total back-pay due to Mr Parkinson is R385,000.00. 3. No order as to costs.

Back-pay is an obligation that flows directly from an order of retrospective reinstatement and constitutes a judgment debt. The entitlement to back-pay for the period covered by the reinstatement order (the "first period") is not dependent upon or subject to the employee reporting for duty or tendering services. When a court orders reinstatement, it resuscitates the employment contract on the same terms and conditions, and the duty to retrospectively fulfil contractual obligations, including payment of remuneration, flows directly from that order. An employee is entitled to arrear wages for the retrospective period even if they resign immediately after reinstatement or fail to report for duty.

The Court noted that Mr Parkinson's resignation and its acceptance by Damelin evidently attested to the fact that reinstatement did take place. The Court also observed that whether Mr Parkinson actually tendered his services was a "mere courtesy" and he could have served his resignation in any other manner or simply absconded. The Court remarked that Damelin's argument that Mr Parkinson was not entitled to back-pay because he was earning a better salary in his current employment was "devoid of merit." The Court distinguished between the contractual principle of "no work, no pay" which applies to the period after the reinstatement order takes effect (the "second period") and the period covered by the retrospective reinstatement order itself (the "first period"), where different considerations apply.

This case clarifies the nature of back-pay in South African labour law, confirming that it is an automatic consequence of a retrospective reinstatement order. It is significant for establishing that an employee's entitlement to back-pay for the period covered by a reinstatement order does not depend on the employee actually tendering services or returning to work. The judgment reinforces the principles established in Equity Aviation and Hendor that reinstatement restores the employment contract with all its attendant obligations, and that back-pay for the retrospective period is a judgment debt flowing directly from the order. This provides certainty to employees who are reinstated but may have secured alternative employment or choose not to continue the employment relationship.