THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case No: JS442/21

In the matter between:

SATAWU obo SIBUSISO SIBEKO Applicant

and

G4S CASH SOLUTIONS Respondent

Heard: 26 March 2025
Delivered: 4 August 2025


JUDGMENT


TSHISEVHE, AJ

Introduction

[1] ‘The strongest trees bend in the storm and rise again.’

[2] This matter concerns an issue where the Applicant seek s payment for
backpay for the period between the date of his reinstatement in terms of the
arbitration award, being 6 June 2016, and the date on which he actually returned to
the service of the Respondent, being January 2021.

2

[3] What the employer did instead, was to engage in attempts to have the order
overturned through appeal processes. It was only after these attempts had failed that
the employee was able to return to work.

[4] However, the employer contends that the Applicant took up other employment
and never tendered his services in compliance with the award of the arbitrator , and
as a result, he is not entitled to any backpay.

[5] On the other hand, the Applicant submitted that he only took up a learnership
program where he earned a stipend.

Issues in dispute and what need to be decided

[6] This court has been called upon to determine whether or not the Applicant
herein (Mr Sibusiso Sibeko) did tender his services after the reinstatement ruling by
the arbitrator for the period July 2016 to December 2020.

[7] Whether or not the Applicant is entitled to remuneration for the period
between the date of dismissal and the day that he actually reported for duty being
from July 2016 to December 2020.

[8] Whether or not the Respondent refused and/or failed to reinstate the
Applicant before 4 January 2021;

[9] Whether or not the Applicant had been out of employment, therefore not
earning a salary for a period of four years and six months.

Salient Background

[10] The Applicant was employed by the Respondent on 1 June 2011 as a
Crewman earning an amount of R10 500-00 per month.

3

[11] Following allegations of misconduct, the Applicant was charged with several
charges relating to gross negligence, misconduct and breach of trust. The Applicant
was dismissed on 4 May 2015.

[12] The Applicant referred a dispute of unfair dismissal to National Bargaining
Council for the Road Freight and Logistics Industry (NBCRFLI) (Bargaining Council).

[13] The Respondent was ordered to retrospectively reinstate the Applicant by 4
July 2016.

Applicant’s case

[14] The Applicant submitted that he tendered his services on 4 July 2016, where
he gave the Respondent’s employee, Deborah Bishop, an award and she informed
him that the matter is under review, as a result he cannot report for duty.

[15] The Applicant’s further evidence is that in 2019 when the review application
was dismissed, he attended at the Respondent in order to tender his services,
however, once again was met by the same Deborah Bishop who refused to reinstate
him saying that they are challenging the judgment.

[16] The Applicant’s further testimony was to the effect that his trade union
SATAWU also sent the Respondent a letter asking them to reinstate him but they
never agreed.

[17] During cross examination, a version was put to the Applicant that he took up
other employment and was dishonest about it as he did not disclose same. The
Applicant stated that it was not employment but an internship where he earned a
meagre stipend ranging between R1952 to R4713.63 at times.

[18] The Applicant submitted that he only took up an apprenticeship training where
he earned the above stipend and referred the Court to salary advises to support the
above income.

4

Respondent’s defence that the Applicant never tendered his services

[19] In the heads of arguments and testimony before me the Respondent’s witness
Ms Nicolette Cronje testified that the Applicant never tendered his services.

[20] Ms Cronje’s further evidence is that she knew of the Applicant for the first time
in 2019, during the contempt application which was brought to her attention by Ms
Deborah Bishop but had no record of him reporting for duty.

[21] Ms Cronje expressly stated that she lacked knowledge of a pending review by
the Respondent as it was launched in 2016.

[22] She averred that if an employee fails to report for duty, abscondment process
ensues and the said staff member will be sent a formal letter or telegram to his last
known address asking him to report for duty on a specific date, failing which an
inquiry commences. She also indicated that she never tried to find out from the
Applicant as to why he was not reporting for duty.

[23] It is common cause that the Applicant’s salary before dismissal was R10500-
00 per month. The Respondent argued that the Applicant failed t o disclose the fact
that he was employed between January 2018 and December 2020. As a result , the
Respondent argued that the Applicant is not entitled to any claim for backpay from
them for the period between 2018 and 2020.

[24] The Respondent called its second witness by the name of Deborah Bishop
who happened to have been seated in the court room throughout the testimony of
Ms Cronje, the Respondent’s first witness.

[25] However, the Respondent’s legal representative, Mr Lerm, requested that the
evidence of Ms Bishop be ignored or struck out after an objection from the
Applicant’s attorneys.

Evaluation of submissions and application of the law

5

[26] The Respondent submission that the Applicant failed to tender his services
cannot be sustained in that , there is no evidence of an abscondment process which
the Respondent said should ensue once a staff member fails to report for duty.

[27] Since the Respondent submitted that I should strike out the evidence of Ms
Deborah Bishop, the evidence of the Applicant that he reported for duty and was
refused to tender his services remains unchallenged.

[28] This Court accepts, without reservation, that the Applicant in fact tendered his
services. The Court further accepts without reservation that the tender of service by
the Applicant was not accepted by the Respondent.

[29] It is not in dispute that the arbitrator ordered that the Applicant be
retrospectively reinstated without any loss of income. It is therefore automatically
clear that the Applicant should be paid backpay in this regard.

[30] The issue of backpay has been clarified by the Constitutional Court in the
case of Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration,
1 this is how Nkabinde J explained reinstatement in Equity Aviation:
“The ordinary meaning of the word ‘reinstate’ is to put the employee back into
the same job or position he or she occupied before the dismissal, on the same
terms and conditions. Reinstatement is the primary statutory remedy in unfair
dismissal disputes. It is aimed at placing an employee in the position he or
she would have been but for the unfair dismissal. It safeguards workers’
employment by restoring the employment contract. Differently put, if
employees are reinstated they resume employment on the same terms and
conditions that prevailed at the time of their dismissal. As the language of
section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the
exercise of a discretion by the court or arbitrator. The only limitation in this
regard is that the reinstatement cannot be fixed at a date earlier than the

regard is that the reinstatement cannot be fixed at a date earlier than the
actual date of the dismissal. The court or arbitrator may thus decide the date

1 Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 2009 (1)
SA 390 (CC) at para 36.

6

from which the reinstatement will run, but may not order reinstatement from a
date earlier than the date of dismissal . . . The fact that the dismissed
employee has been without income during the period since his or her
dismissal must, among other things, be taken into account in the exercise of
the discretion, given that the employee’s having been without income for that
period was a direct result of the employer’s conduct in dismissing him or her
unfairly.”

[31] The Respondent had an option to allow the Applicant to re port for duty at the
time of the reinstatement, however, they opted to challenge the award to no fruition.

[32] It is therefore preposterous that the Applicant would choose a stipend of
around R1900 to R4700, instead of his R10500 salary with the Respondent which is
far higher than the stipend he received.

[33] Therefore, I do not regard the above stipend as an income that should be
considered when paying backpay to the Applicant as it was fugacious and his
backpay should be paid after such hiatus.

[34] The Constitutional Court had in Maroveke v Talane NO and Others
2 held as
follows:
“I am satisfied that the Labour Court was correct when it held that the award
of 12 months’ back pay was unreasonable and not in keeping with the
established principle that reinstatement ought to neither impoverish nor enrich
the employee beyond the extent to which he would have been but for the
dismissal.”

[35] In my view, an employee who was in a situation where his salary was not paid
for over a period of more than four years would have been left with an indelible mark
financially.


2 Maroveke v Talane NO and Others 2021 (10) BCLR 1120 (CC) at para 25.

7

[36] I need to accentuate that this court is therefore not convinced that by paying
the Applicant his backpay without considering the stipend he received after he was
refused to tender his services stand to enrich him.

[37] What then comes to be determined, is whether the Applicant is supposed to
starve in midst of all this? I do not believe that the law has been created in a way that
a person in the position of the Applicant should have to suffer as a result of the
Respondent challenging the award, otherwise that will be too abrasive.

[38] Even though the Applicant was working as an intern or on a learnership
programme, I feel that it is important to indicate that such income cannot be equated
to his then salary with the Respondent. It was however, just another means of
survival on the part of the Applicant for which he should not receive any punishment
by unnecessary deductions or set off.

[39] In fact, I should say that the Respondent is very lucky because the Applicant
did not seek an interest order on backpay, otherwise, they were going to pay an arm
and a leg herein.

[40] This court is of the view that the Applicant is not required to starve or exist in a
state of perpetual poverty or remain destitute in the face of the rejection of his tender
of services. As a family man and in his position, must do what he can to exist or
support his family.

[41] It would be perverse should the Respondent be able to reject a tender of
services and then snatch at a bargain because the Applicant had to earn an income
by other means.

[42] The Respondent should have been aware that they run the risk of
accumulating a huge debt should their legal challenge of the award fail where they
will be expected to pay as a result of their procrastination to reinstate the Applicant
more especially after he tendered his services and they refused.

8

[43] In Performing Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and others:3
‘Whether or not reinstatement is the appropriate relief, in my opinion, must be
judged as at the time the matter came before the industrial court . If at that
time it was appropriate, it would be unjust and illogical to allow delays caused
by unsuccessful appeals to the Labour Appeal Court and to this Court to
render reinstatement inappropriate. Where an order for reinstatement has
been granted by the industrial court , an employer who appeals from such an
order knowingly runs the risk of any prejudice which may be the consequence
of delaying the implementation of the order.”

[44] Upon the restoration of the contracts of employment when workers get
reinstated, the contracts of employment are deemed to have been in place for the
whole period when appeals were being pursued or when applications for leave to
appeal were pending, so is the position in casu.

[45] The Court in HOSPERSA and Another v MEC for Health: Gauteng Provincial
Government,
4 (HORSPERSA) held in relation to failure to pay the salary of the
employee, that:
“[17] An employee has a common law right to be paid her salary. If through
the default on the part of the employee his or her services are not rendered,
the wage must be diminished in proportion to the time during which the
services where not rendered (see Boyd v Stuttaford 1910 AD 101, 104- 105).
The position is, however, different where the employee’s inability to perform
her duties is her employer’s doing. See in this regard Myers v SA Railways &
Harbours 1924 AD 85 where the Court held as follows at 90C: “If however, it
was due to his employer that he had been unable to perform his work, then he
would be entitled to be paid notwithstanding that no service had been
rendered by him.” In terms of the common law, the unilateral suspension of an
employee also does not relieve the employer of the duty to pay the employee.

employee also does not relieve the employer of the duty to pay the employee.
It is also accepted in our labour law that an employer may not suspend an

3 Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union 1994 (2)
SA 204 (A) at p 220 H – I.
4 (2008) 29 ILJ 2769 (LC) at para 17.

9

employee without pay and may only do so it they have contracted to that
effect, either when the contract was first entered into or if a collective
agreement provides for such penalty, or when the employee is faced with
dismissal and agrees to unpaid suspension as an alternative penalty (see
Grogan Workplace Law 2007 at p. 103).”

[46] This Court is alive to the fact that the Court in HOSPERSA dealt with the
consequences of a suspension, the principle applies equally to a refusal to accept
the tender of services which may be seen as a suspension of the services of the
employee in another form. After all, if it swims, waddles and quacks like a duck, it will
likely be a duck.

[47] The Applicant should be given some apricity this time around, maybe his pain
will be extirpated one day.

Costs

[48] I have had regard to the requirements of law and fairness in line with Zungu v
Premier of the Province of KwaZulu- Natal and Others,
5 in considering costs and am
of the view that costs should only be awarded where it is warranted such as in casu
where the Respondent was aware that their case was hirpling throughout.

[49] The Respondent knew that an order of reinstatement had been made by the
Council in favour of the applicant and that he had tendered his services which tender
they rejected. The Respondent also knew that, had they not rejected that tender of
services, the applicant would have worked and earned his wages.

[50] I do not see any penitence from the Respondent conduct that would at least
ameliorate their refusal to pay backpay. I am of the view that a cost order is
warranted in this matter.


5 (2018) 39 ILJ 523 (CC).

10

[51] In the premises, the following order is made:

Order

1. The Respondent is ordered to pay the Applicant an amount of
R567 000, subject to statutory deductions, which amount represents backpay
for the period between July 2016 to December 2020.

2. The Respondent is ordered to pay costs of the Applicant including cots
of a Counsel were warranted.

N. Tshisevhe
Acting Judge of the Labour Court of South Africa

Appearances:
For the Applicant: Ms L Lenyehelo of Lenyehelo Attorneys INC
For the Respondent: Adv JH Lerm
Instructed by: Crawford Attorneys