No back-pay for 503 reinstated workers

whether the reinstatement order was retrospective. Massmart’s stance was that it was not retrospective, whereas Saccawu’s stance was that it was.

On July 15 2013, the commission weighed in on the debate and issued a letter expressing its view that “the reinstatement is not retrospective and does not include back-pay”.

In its judgment on Tuesday, the Competition Appeal Court said the original order recognised there would be a gap in service from the date of retrenchment to the date on which the service contracts resume following reinstatement.

“Having carefully considered the matter, I am satisfied the order permits only one interpretation, namely resumption of service with no implication of retrospectivity,” judge Bhekisisa Mnguni said in a ruling in which judges Owen Rogers and Nolwazi Mabindla-Boqwana concurred. Mnguni said the judges who authored the 2012 order served, or used to serve, as judges of appeal in the Labour Appeal Court. “They would have known that in the labour sphere, reinstatement orders are not retrospective unless expressly so specified. I cannot conceive that they would have failed to include an express provision for retrospectivity if this is what they had intended,” Mnguni said.