Reinstated: How long can you wait to take your job back?

Image source: Narith Thongphasuk – 123RF.com

Background

Nkosi was dismissed by Prasa in February 2013, along with other employees. Following litigation, the Labour Appeal Court (LAC) ordered their reinstatement with retrospective effect and backpay in November 2017. However, at the time of the LAC judgment, Nkosi was serving a prison sentence for a murder conviction.

Prasa, unaware of his incarceration, paid Nkosi backpay in accordance with the LAC order. Upon discovering his imprisonment, Prasa ceased further action. Nkosi was released on bail in December 2019 and presented himself for duty the following day, but Prasa refused to reinstate him. He launched the present application in July 2023, more than three years later, seeking to compel Prasa to reinstate him.

Legal issues and the court’s findings

Nature of reinstatement orders

The court relied on the Constitutional Court’s decision in Hendor Mining Supplies, which clarified that a reinstatement order does not automatically revive the employment contract. Instead, it requires the employee to tender their services and the employer to accept that tender. Without this mutual action, the employment relationship is not restored.

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Delay in seeking relief

Nkosi waited over three years to bring his application, despite knowing in December 2019 that Prasa had refused to reinstate him. The court found that he failed to provide adequate reasons for the delay, which undermined the urgency and credibility of his claim.

Duty to communicate

The court emphasised that the responsibility to tender services and communicate with the employer lies with the employee. Nkosi failed to inform Prasa of his incarceration or his intention to appeal his conviction. The court found it unreasonable to expect Prasa to track his whereabouts or intentions.

No basis for contempt

Nkosi argued that Prasa should be held in contempt of the LAC order. The court rejected this, finding that Prasa had complied with the order by reinstating employees and paying backpay. Since Nkosi failed to tender his services timeously, Prasa was not in breach.

Legal implications

This judgment reinforces several important legal principles:

• Reinstatement requires action: A reinstatement order is not self-executing. Employees must actively tender their services, and employers must accept them.
  
• Timely action is essential: Delays in seeking relief can be fatal to a claim, especially where the facts clearly indicate when the dispute arose.
  
• Communication is key: Employees must keep employers informed, especially when circumstances (such as incarceration) prevent them from complying with reinstatement orders.
  
• Contempt requires non-compliance: An employer cannot be held in contempt if it has complied with a court order and the employee has failed to fulfil their part.

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Key takeaways

For employers

• Ensure clarity in implementing reinstatement orders.
• Document all efforts to comply with court orders.
• You are not required to chase after employees who fail to tender their services.

For employees

• Understand that reinstatement requires you to act. Present yourself for duty and communicate with your employer.
• Do not delay in seeking legal relief if your reinstatement is refused.
• Keep your employer informed of any circumstances that may affect your ability to return to work.

Final thoughts

The Nkosi judgment serves as a reminder that reinstatement is a two-way process. Employees must take responsibility for their part in restoring the employment relationship. Courts will not compel employers to act where employees have failed to meet their obligations. The case also underscores the importance of timely legal action and clear communication in employment disputes.