Reinstated, but not forgotten: Constitutional Court affirms back pay rights

In a landmark ruling delivered on 18 June 2025, the Constitutional Court of South Africa decisively reaffirmed the rights of employees to fair labour practices in the case of Mavundla v Gotcha Security Services (Pty) Ltd [2025] ZACC 11. The judgment provides critical clarity on the legal consequences of reinstatement orders under the Labour Relations Act 66 of 1995  (LRA) and sets a strong precedent for how delayed reinstatement should be treated in law.

At issue was whether an employee, reinstated by arbitration but only allowed to return to work nearly two years later, was entitled to back pay for the intervening period. The Court’s answer was clear: reinstatement means full restoration—including remuneration from the original date of reinstatement.

Case overview

Mr. Nhlanhla Mavundla, a VIP Protection Officer, was dismissed in March 2019. The CCMA ordered his reinstatement effective 1 August 2019, but his employer delayed compliance until 1 June 2021, citing conditions not included in the award. The Labour Court later dismissed his claim for back pay, reasoning that he had “abandoned” his entitlement by accepting the later reinstatement date.

The Constitutional Court overturned this decision, holding that the original reinstatement date remained valid and enforceable.

Legal implications

Reinstatement restores the contract of employment

The Court reaffirmed that reinstatement under the LRA is not merely symbolic—it restores the employment contract from the date specified in the award. This means that employees are entitled to all contractual benefits, including remuneration, from that date.

“Upon restoration of the contract of employment by factual reinstatement, an employee is entitled to the benefits (including remuneration) which they would have been entitled to but for the dismissal.” — Goosen AJ

Enforcement orders do not replace arbitration awards

The Labour Court had misinterpreted the enforcement order as replacing the original reinstatement date. The Constitutional Court clarified that enforcement orders compel compliance; they do not alter the substance of the original award unless explicitly stated.

No implied waiver or compromise without pleading

The Court found that the Labour Court erred procedurally by introducing the concept of waiver or compromise mero motu (of its own accord), without it being pleaded or argued. This sets a precedent for procedural fairness in labour litigation—courts must not infer abandonment of rights without clear evidence or argument.

Condonation and access to justice

The Court granted condonation for the late filing of the appeal, emphasising that access to justice must not be denied due to minor procedural lapses, especially when the applicant demonstrates reasonable prospects of success.

Clarification of Hendor principles

The judgment revisits and clarifies the precedent set in NUMSA v Hendor Mining Supplies, confirming that arrear remuneration is due from the original reinstatement date, not the date of factual reinstatement—unless the award explicitly limits this.

Broader impact

This ruling has significant implications for:

• Employees: Reinforces protection against delayed reinstatement and unlawful conditions.
• Employers: Highlights the risks of non-compliance with arbitration awards and the importance of procedural integrity.
• Labour practitioners: Provides clarity on the interpretation of reinstatement orders, enforcement mechanisms, and the limits of judicial inference.
• Judiciary: Emphasises the importance of adhering to pleaded issues and avoiding assumptions about waiver or compromise.

Final thoughts

This judgment is a powerful affirmation of the constitutional right to fair labour practices. It sends a clear message: reinstatement must be meaningful, unconditional, and financially complete. Employers must act in good faith, and courts must ensure procedural fairness at every stage.

Let’s continue advocating for justice in the workplace. Share your thoughts or experiences with reinstatement disputes—how can we better support fair labour practices in South Africa?

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.