SATAWU obo Sibeko v G4S Cash Solutions (JS442/21) [2025] ZALCJHB 365 (4 August 2025)

Case Note

SATAWU obo Sibusiso Sibeko v G4S Cash Solutions
Labour Court of South Africa, Johannesburg
Case-number JS 442/21 – Judgment delivered 4 August 2025

Reportability

Although the judgment was marked “Not Reportable”, it raises issues of continuing importance to labour-law practitioners and employers who face retrospective reinstatement awards. The decision interrogates the circumstances in which an employer may be ordered to pay extensive back-pay where it resists compliance with an arbitration award and simultaneously alleges that the employee failed to tender services. By systematically applying the Constitutional Court’s jurisprudence on reinstatement, the Labour Court clarifies the legal consequences of refusing a tender of service. The ruling is therefore significant because it emphasises that employers who litigate unsuccessfully against reinstatement awards shoulder the financial risk of protracted proceedings, and because it reaffirms that any subsistence income earned by an employee during the delay does not automatically reduce the back-pay that becomes due. These principles are of general application and for that reason the judgment is of reportable value notwithstanding its internal notation.

Cases Cited

The court relied extensively on Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 2009 (1) SA 390 (CC), a leading authority on the nature and effect of reinstatement. It also drew on Maroveke v Talane NO and Others 2021 (10) BCLR 1120 (CC), which stresses that back-pay must neither enrich nor impoverish the employee. In assessing the risk an employer assumes by appealing, the court referred to Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others 1994 (2) SA 204 (A). For the common-law obligation to remunerate where performance is prevented by the employer, Myers v South African Railways and Harbours 1924 AD 85 and Boyd v Stuttaford 1910 AD 101 were cited. The judgment additionally considered HOSPERSA and Another v MEC for Health: Gauteng Provincial Government (2008) 29 ILJ 2769 (LC) on the effect of suspension, as well as Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC) on costs.

Legislation Cited

The court’s reasoning is firmly anchored in section 193 of the Labour Relations Act 66 of 1995, which designates reinstatement as the primary remedy for unfair dismissal. The notion of statutory interest and the court’s powers under section 158 of the Act are also implicit in the order.

Rules of Court Cited

Although no specific rule is quoted verbatim, the court’s discussion of review proceedings, contempt applications and costs presupposes the application of the Labour Court Rules governing reviews (Rule 7A), interlocutory relief and taxation of costs.

HEADNOTE

Summary

The applicant, a security crewman dismissed for misconduct in May 2015, obtained an arbitration award in June 2016 ordering retrospective reinstatement with no loss of income. The employer, G4S Cash Solutions, launched review and appeal processes that failed only in 2019. Throughout this period the employer refused to allow the applicant to resume duty, alleging that he had not tendered his services and was in any event secretly employed elsewhere. When he eventually reported for work in January 2021 the employer paid no back-pay. The Labour Court had to decide whether the applicant had timeously tendered his services and whether the employer was obliged to pay wages for the four-and-a-half-year hiatus.

Key Issues

First, the court considered whether a valid tender of service had been made on 4 July 2016 and again in 2019. Second, it examined whether the applicant’s participation in a low-paid learnership constituted gainful employment that would disentitle him to back-pay. Third, it had to quantify the remuneration due under a reinstatement order where the employer’s litigation strategy delayed compliance.

Held

The court held that the applicant did tender his services and that the respondent’s refusal to accept the tender rendered it liable for full back-pay. Income earned from the learnership was subsistence-based and did not diminish the employer’s liability. Consequently the respondent was ordered to pay R567 000 (subject to statutory deductions) for the period July 2016 to December 2020, together with costs on the ordinary scale.

THE FACTS

The applicant, Mr Sibusiso Sibeko, commenced employment with the respondent on 1 June 2011 as a crewman earning R10 500 per month. Following allegations of gross negligence and breach of trust he was dismissed on 4 May 2015. He referred an unfair-dismissal dispute to the National Bargaining Council for the Road Freight and Logistics Industry, which on 6 June 2016 awarded retrospective reinstatement effective 4 July 2016.

On 4 July 2016 the applicant physically attended at the employer’s premises, handed the award to Ms Deborah Bishop and offered to resume duty. He was told that the dismissal was under review and that he could not be taken back. The respondent then launched review proceedings that were finally dismissed in 2019. After that dismissal the applicant again tendered his services but was rebuffed, being informed that further challenges were underway.

During the protracted legal contest the applicant entered a state-sponsored learnership between 2018 and 2020, receiving variable stipends of between R1 952 and R4 713 per month. He testified that this was survival income rather than formal employment. He eventually returned to duty on 4 January 2021, whereupon the employer denied liability for any back-pay, contending that the applicant had failed to report earlier and had concealed alternative employment.

THE ISSUES

The Labour Court had to determine whether a valid tender of services had been made by the applicant immediately after the arbitration award and again after the review was dismissed. Connected to this enquiry was the question whether the respondent’s refusal to allow the applicant back amounted to a suspension for which it remained obliged to pay wages. The court also had to decide whether the stipends received during the learnership should be set off against the back-pay. Finally, the proper scope of a costs order had to be considered in light of the respondent’s litigation conduct.

ANALYSIS

Acting-Judge Tshisevhe began by revisiting the Constitutional Court’s formulation in Equity Aviation, emphasising that reinstatement restores the employment contract as if the dismissal never occurred, subject only to the court’s discretion on the period of retrospectivity. The judge noted that the arbitration award made no limitation on back-pay and that the employer deliberately assumed the risk of escalating liability by persisting with unsuccessful litigation.

Turning to the factual dispute, the court found the applicant’s testimony about the 4 July 2016 tender unchallenged, particularly after the respondent withdrew the evidence of Ms Bishop. The absence of any abscondment procedure, which respondent witnesses conceded would ordinarily follow a failure to report, reinforced the conclusion that the applicant did indeed present himself for duty.

In assessing whether the learnership income should reduce the award, the court drew on Maroveke and common-law authorities such as Myers to hold that where non-performance is due to the employer’s refusal to accept service, the employee’s right to full remuneration remains intact. Any meagre stipend earned to stave off destitution could not be equated to the contractual salary and therefore did not constitute unjust enrichment.

The court further relied on Performing Arts Council to highlight that appellate delays cannot be invoked to render reinstatement inappropriate or to truncate back-pay. It likened the respondent’s conduct to an unlawful suspension and applied HOSPERSA, reinforcing that an employer cannot withhold salary when it is itself the cause of the employee’s inability to work.

On costs, the court cited Zungu but found that the equities favoured an adverse costs order because the respondent’s case had been “hirpling” from the outset and its refusal to comply with the award lacked penitence.

REMEDY

The court ordered the respondent to pay R567 000, representing full back-pay for the period July 2016 to December 2020, less statutory deductions. It also granted the applicant his costs, including counsel’s fees where employed. No interest order was sought by the applicant, and the court remarked that the respondent was fortunate in that regard.

LEGAL PRINCIPLES

The judgment entrenches several principles. First, a reinstatement award restores the employment relationship retrospectively unless the tribunal expressly curtails that effect; an employer who resists compliance does so at its financial peril. Second, a tender of service that is rejected by the employer sustains the employee’s entitlement to wages, and any interim subsistence earnings will not necessarily constitute set-off. Third, the common-law rule that wages remain payable where the employer prevents performance dovetails with section 193 of the Labour Relations Act, underscoring that reinstatement is designed to place the employee in the position he or she would have occupied but for the dismissal. Finally, the decision reiterates that costs may follow the event where an employer’s dilatory tactics impose undue hardship on an employee whose dismissal has already been pronounced unfair.