Factual background

Eleven employees successfully challenged their dismissal and obtained a retrospective reinstatement order with effect from 1 November 2020 in the Labour Court judgment of 6 February 2024. The employer’s appeals failed, and the Constitutional Court refused leave on 27 October 2025. The employees reported for duty on 3 November 2025, but the employer refused to pay any arrear remuneration until all alternative earnings over nearly five years were disclosed. Nine employees resigned between 4 and 6 November 2025. The employees launched an urgent application to hold the employer and its CFO in contempt for non-payment of arrears. In the alternative, they sought declaratory relief confirming entitlement to full arrear remuneration without deduction.

Key issues determined

Two distinct periods of arrear remuneration were identified. Primarily relying on National Union of Metalworkers of SA on behalf of Fohlisa and Others v Hendor Mining Supplies [2017] 38 ILJ 1560 (CC), the court identified:

• Period One: From the retrospective reinstatement date to the judgment date (1 November 2020 to 6 February 2024). Arrear remuneration for this period is a judgment debt. The employer cannot revisit it, as the Labour Court has already determined the extent of retrospectivity. Even if an employee resigns a day after reinstatement, they remain entitled to full arrears for this period.
• Period Two: From the judgment date to the factual reinstatement date (7 February 2024 to 2 November 2025). For this period, the employer may raise defences to a claim for full arrears, including that employees earned income elsewhere and therefore would not, in fact, have rendered services for the whole period.

Dismissed employees have no legal duty to mitigate loss of earnings in this context, but actual earnings during the post-judgment period may be taken into account in determining arrears for Period Two.

Contempt findings

The court found the employer in contempt for failing to pay arrear remuneration for Period One. The employer had an opportunity in the Labour Court judgment of 6 February 2024 to seek limited retrospectivity but did not do so. The court declined to find contempt for Period Two, as there was a genuine dispute requiring adjudication.

The court ordered that:

• The employer was liable for the employees’ full arrear remuneration and benefits for 1 November 2020 to 6 February 2024, with interest from 6 February 2024.
• The employer was in contempt of the Labour Court judgment of 6 February 2024 for failing to pay arrears for that period.
• The employer had to calculate and pay the arrears for Period One within seven days.
• For 7 February 2024 to 2 November 2025, the employer had to calculate and pay arrears within 14 days of the employees providing information on income earned from alternative employment.

Key takeaways

• Employers may not withhold all back pay pending disclosure of alternative earnings. Arrears up to the judgment date are a judgment debt and must be paid in full.
• Any challenge to the extent of retrospectivity must be raised before the trial court and cannot be reopened later.
• For the post-judgment period, employers may require disclosure of alternative earnings and make appropriate deductions.
• Resignation after reinstatement does not affect entitlement to arrears up to the judgment date.