Tshenolo Waste (Pty) Ltd v Stanley Sekgoro and Others

The Applicant employed the First and Second Respondents as drivers. They were charged with dishonesty (submitting false accommodation receipts) and dismissed after a disciplinary hearing on 16 August 2019. The Respondents referred an unfair dismissal dispute to the CCMA. On 21 September 2020, an arbitrator found the dismissal procedurally fair but substantively unfair and ordered retrospective reinstatement with four months' backpay (R82,509.76), with the Respondents to report for duty on 5 October 2020. Before this date, the Applicant's attorneys wrote to NUMSA on 1 October 2020 advising that a review application would be filed and that the Respondents should not report for duty. The Applicant then elected not to review the award but instead issued disciplinary notices on 18 November 2020 for the same charges. A disciplinary hearing was held on 30 November 2020 in the Respondents' absence, resulting in their dismissal again. The arbitration award was certified on 15 June 2021 and a writ of execution was issued. The Sheriff attached the Applicant's vehicle on 27 July 2021. The Applicant filed an urgent application on 16 August 2021 to set aside or permanently stay the enforcement.

• Whether the Respondents' employment contracts were restored pursuant to the arbitration award ordering their retrospective reinstatement
• Whether the Respondents were required to tender their services before being entitled to backpay
• Whether employees forfeit their rights under a reinstatement order when they do not report for duty after being specifically instructed by the employer not to do so
• Whether the employer's institution of disciplinary proceedings against the employees constituted recognition of the revival of the employment relationship
• Whether the enforcement award/writ of execution should be set aside or stayed

1. The application is dismissed; 2. The Applicant is to pay the First, Second and Sixth Respondents' costs.

Where an arbitration award orders retrospective reinstatement and the employer specifically instructs employees not to report for duty on the date ordered, and subsequently institutes disciplinary proceedings against those employees, the employment contract is thereby restored. The employer's conduct in instituting disciplinary proceedings is conduct of an employer taking action against its employees where an employment relationship is extant, as disciplinary action can only be instituted where an employer-employee relationship exists. Employees do not forfeit their rights to backpay under a reinstatement order in circumstances where they do not report for duty as a result of the employer's specific instruction not to do so and where the employer subsequently conducts itself as if an employment relationship exists. The principles in Kubeka regarding the need to tender services do not apply where the employer has specifically instructed employees not to tender services and has subsequently acted in a manner consistent with the restoration of the employment relationship.

The Court observed that in urgent applications to stay enforcement, parties should avoid including irrelevant averments relating to the merits of underlying disputes, as these only burden the Court with matters that are of no assistance in deciding the urgent application. The Court also commented on the appropriate exercise of its discretion regarding costs under section 162 of the LRA, noting that it must strike a fair balance between unduly discouraging parties from approaching the Court and allowing parties to bring cases that should not have been brought in the first place. The Court indicated that it was improbable that the Applicant's attorneys would have written to NUMSA on 1 October 2020 specifically addressing the issue of reporting for duty without some trigger or indication from the Respondents' side that they intended to report.

This case clarifies the application of the principles established in Kubeka v Ni-Da Transport regarding reinstatement orders and the entitlement to backpay. It establishes that employees do not forfeit their rights under a reinstatement order where they fail to report for duty as a result of the employer's specific instruction not to do so, and where the employer subsequently acts in a manner consistent with the existence of an employment relationship (such as instituting disciplinary proceedings). The judgment prevents employers from exploiting the technical requirements of tendering services to avoid complying with reinstatement orders through opportunistic conduct. It also confirms that the institution of disciplinary proceedings necessarily presupposes the existence of an employment relationship and can constitute recognition of the restoration of that relationship.