The Demise of the Remedy of Reinstatement in Employment Contracts: A Note on Recent Developments

Abstract

Under the influence of the English Common Law, the old approach by South African courts to reinstatement as a remedy in cases of unlawful dismissal was uncompromising: Reinstatement was taken as an order for specific performance, which was said to be unavailable in employment contracts.1 The employee was only entitled to an order for damages notwithstanding the unlawfulness of his dismissal. The admitted exception to this rule was with public service employees, whose position was said to be governed by statute, and any dismissal contrary to the statute, was always treated as a nullity.2 English authorities which backed this approach are numerous.3 In essence, this approach by the courts meant that employment contracts were in a class of their own, since specific performance was, in principle, available as a remedy in other cases of breach of contract.