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[2020] ZALAC 64
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Techniflex CC and Another v Maanaso and Another (JA58/2019) [2020] ZALAC 64; (2021) 42 ILJ 366 (LAC) (13 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 58/2019
In
the matter between:
TECHNIFLEX
CC First
Appellant
BEATRICE
TONKIN Second
Appellant
and
ANDREW
SELLO
MAANASO First
Respondent
THOKOZANI
EMMANUEL ZULU Second
Respondent
Heard:
10
September 2020
Delivered:
13
November 2020
Summary:
Practice
and procedure---Contempt of court---- Court to be satisfied beyond
reasonable doubt that respondent refused to comply with
certified
award--- Inconsistencies as to whether employees tendered their
service and were turned away resulting in non-compliance
Labour Court
erred in finding employer in contempt.
Coram:
Musi
JA, Murphy AJA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1] This
is an appeal against the judgment and order of the Labour Court
(Raphulu AJ) in which it held the appellants
to be in contempt of
court for failing to reinstate the first and second respondents. It
accordingly made an order reinstating
the respondents within 15 days
of the date of the order and ordered the appellants to pay each of
them R25000.00. The appeal is
with leave of the Labour Appeal Court.
Background
[2] The
first respondent was employed by the first appellant as a machine
assistant and second respondent as an
artisan trimmer. On being
dismissed by the first appellant on 12 February 2015, they referred
an unfair dismissal dispute to the
Commission for Conciliation,
Mediation and Arbitration (“CCMA”).
[3] On
7 September 2015, the CCMA issued an arbitration award declaring
their dismissal to be both substantively
and procedurally unfair. In
terms of the arbitration award: (a) the first appellant was ordered
to reinstate the first and second
respondents retrospectively; (b)
the first and second respondents were ordered to report for duty on
25 September 2015; and (c)
the first appellant was ordered to pay the
first and second respondents their arrear salaries in the amounts of
R14 400.00 and
R15 600.00 respectively within 14 days of the award.
[4] The
appellants did not reinstate the respondents and they launched an
ex
parte
contempt application against the appellants, in which they
alleged that they had reported for work on 25 October 2015 but the
appellants,
in breach of the arbitration award, refused to reinstate
them.
[5] On
4 August 2017, the contempt application came before the Labour Court
(Whitcher J) for hearing. The Labour
Court issued an order directing
the appellants to show cause why they should not be found to be in
contempt of court.
[6] The
appellants filed their answering affidavit on 27 November 2017. There
was a dispute of fact on the papers
on whether the appellants were in
wilful default of the arbitration award. The Labour Court, therefore,
referred the dispute of
fact to trial for determination.
[7] The
first and second respondents testified at the trial. The second
respondent’s version was that they
reported for duty on 25
September 2015 but were prevented from entering the premises by Mr
Michael Walker, the first appellant’s
operations manager.
Although he deposed to an affidavit confirming the first respondent’s
version (in the founding affidavit)
that they reported for work on 25
October 2015, he denied having any knowledge of why the first
respondent referred to this date
in the founding affidavit.
[8] As
to what transpired on 25 September 2015, the second respondent
testified that they reported for duty at
the first appellant’s
premises on 25 September 2015. He said that he walked to the premises
and met the first respondent
there at 06h45. They were stopped, at
the gate, by the security guard (Patrick) who informed them that they
could not enter the
premises. The security guard went into the
premises and returned in the company of Mr Walker, who advised them
that they were not
allowed onto the premises.
[9] On
being put to him in cross-examination that Mr Walker only arrived at
work, on the day, at 08h00, the second
respondent explained that they
waited at the main gate until management arrived. It was then put to
him that Mr Kruger, the factory
manager, arrives at work at 07h00 in
the morning, and that (as their line manager) he, as opposed to Mr
Walker, would have been
called to the gate to talk to them.
[10] The
first respondent also testified that they reported for duty on 25
September 2015. This version contradicted
the version he gave in his
founding affidavit, namely that they reported for duty on 25 October
2015. The first respondent’s
recollection of the events that
transpired on that day are as follows: He and the second respondent
travelled together to the first
appellant’s premises. On their
arrival at 07h00, both the security guard (Patrick) and Mr Walker
were present. The security
guard, as opposed to Mr Walker, informed
them that they were not allowed onto the premises.
[11] The
first respondent did not deny that Mr Walker only arrived at work at
08h00, and that if he and the second
respondent had reported for work
on 25 September 2015 at 07h00, then Mr Kruger (who arrived at that
time) would have been called
to the gate to talk to them.
[12] The
appellants steadfastly maintained that: (a) the respondents neither
reported for work on 25 September
2015 nor on 25 October 2015; (b)
they abandoned or waived their rights to reinstatement; and (c) they
were only interested in claiming
their arrear salaries as specified
in the arbitration award.
[13] Mr
Walker, who testified on behalf of the appellants, said that if the
respondents had come to the gate on
25 September 2015, the security
guard (Patrick), who was aware of their dismissal, would have stopped
them at the gate and immediately
called Mr Kruger who was their line
manager before their dismissal. Mr Walker confirmed he was at work on
25 September 2015, but
that he only started work at 08h00. He said
that there was only one entrance to the first appellant’s
premises and that he
did not notice the respondents standing at the
gate when he arrived. He also denied being called by Patrick on the
day, and that
he went to the gate as alleged by the respondents.
[14] Mr
Walker admitted that the first appellant only paid the respondents
their arrears salaries on 18 November
2015; two months after the date
of the arbitration award.
[15] Having
heard the evidence of the parties on 29 January 2019, the Labour
Court held the appellants to be in
contempt of court and ordered them
to pay each of the respondents a fine of R25000.00.
Analysis
[16] The
Labour Court erred in finding beyond a reasonable doubt that the
appellants were wilfully in contempt
of court for two primary
reasons. The first being that it was common cause that the certified
award had not come to the knowledge
of the appellants until the
contempt proceedings were initiated by the respondents.
[17] Secondly,
the Labour Court found that the respondents had reported for work on
25 September 2015 and were
turned away, despite the inconsistencies
and contradictions in their evidence. These are as follows:
(a) The
founding affidavit stated that the parties reported for duty on 25
October 2015 whilst their evidence
in court was that they reported
for duty on 25 September 2015;
(b) on
the question of whether the respondents travelled to the premises
together or separately, the first
respondent testified that they
travelled together whilst the second respondent stated that they
walked to the premises alone and
arrived there at the same time; and
(c) in
relation to who exactly turned the respondents away from the first
appellant’s premises, the
second respondent’s version was
that Mr Walker turned them away. On the contrary, the first
respondent’s version was
that Mr Walker was silent, but it was
Patrick, the security guard, who turned them away.
[18] These
inconsistencies were crucial to determining whether the respondents
reported for duty on 25 September
2015 and whether the appellants in
non- compliance with the award turned them away, yet the Labour Court
failed to give sufficient
weight to them.
[19] The
Labour Court furthermore erred in ordering the appellants to pay a
fine to the respondents in the amount
of R25 000.00 each. Importantly
in this regard, the remedies for contempt of court, being
incarceration and/or a fine are meant
to punish the offender for
undermining the judicial authority of the court. Where a fine is
imposed, it is payable to the state
through the registrar of the
court in question and not to the applicants directly. The fine is
imposed as a punishment for contempt
of court and is not meant as a
solatium to the applicant in contempt proceedings. There was
accordingly no basis in fact or law
for the Labour Court to have
ordered that the fines imposed be paid to the respondents.
[20] For
all these reasons, the order of the Labour Court falls to be set
aside. However, this finding does not
absolve the appellants of their
obligation to reinstate the respondents, as the arbitration award
still stands. Although we have
been unable to find that the
respondents tendered their services on 25 September 2015 as claimed,
they did tender their services
in their application for contempt of
court. The appellants are accordingly enjoined to reinstate them with
immediate effect.
Costs
[21] I
consider it fair and just not to make a costs order against the
respondents in the appeal.
[22] In
the result, I make the following order:
1. The
appeal is upheld with no order as to costs.
2. The
order of the Labour Court is set aside and replaced with the
following order:
“
1. The
application is dismissed with no order as to costs.
2. The
respondents are ordered to reinstate the first and second applicants
with immediate effect.
3. The
respondents are ordered to pay the first and second applicants
back-pay from date of service of the application
for contempt of
court.”
F
Kathree-Setiloane AJA
Musi
JA and Murphy AJA concur.
APPEARANCES
FOR
THE APPELLANT: LKA Attorney
Instructed
by LKA Attorneys