The Labour Appeal Court, in Ithala SOC Ltd v Ntombela
and others, found that the employer was not permitted, having
reinstated the employees following a finding that their dismissals
were substantively unfair, to seek to appeal that finding before
the Labour Appeal Court.
Permitting employers to take employees back while still seeking
to appeal the reinstatement award to minimise their potential
liability of the payment of backpay would, so the Labour Appeal
Court held, turn courts into a gambling den – with a litigant
bringing a matter before court not so much to vindicate an
entitlement, but to hedge against exposure. Such a stratagem, the
Court held, is odious to the law.
The matter came before the Labour Appeal Court as an appeal
against the dismissal of the employer's review application.
The Labour Court had dismissed the review application and upheld
the arbitrator's award that the dismissal of the employees
was substantively unfair and that they be
