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[2024] ZALCJHB 46
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Thaba and Others v Pietersburg Opleiding Tee Klub (SAPS) (J312/17) [2024] ZALCJHB 46 (14 February 2024)
FLYNOTES:
LABOUR – Dismissal –
Reinstatement
–
Commissioner
found dismissal procedurally and substantively unfair –
Ordered reinstatement on same conditions –
Alleged
non-compliance with award – Returned to work on different
conditions of employment – Award dealt with
terms of
conditions of employment – Entitled to remuneration even if
services are not used by employer – Failed
to remunerate
employees – Non-compliance confirmed – Award made
order of court.
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
J312/17
In
the matter between:
ROSA
THABA
First
Applicant
DIKGWADING
FANTA RANTA
Second Applicant
MOLOKO
MARGARET SETJIE
Third Applicant
and
PIETERSBURG
OPLEIDING TEE KLUB (SAPS)
Respondent
Heard
:
13
February 2024
Delivered
:
14 February 2024
Summary:
Failure to comply with award, applicant seeking to
make arbitration award, ordering reinstatement, an order of court.
There has
been no reinstatement, in accordance with the ordinary
meaning of the word. Application is granted with costs.
JUDGMENT
DANIELS J
Introduction
[1]
The applicants were dismissed by the respondent. They approached the
CCMA and secured an arbitration award (the “award”)
in
their favour. The commissioner found that their dismissal was
procedurally and substantively unfair and ordered that they be
reinstated on the same terms and conditions
which governed
them before their dismissal.
[2]
The applicants alleged that the respondent has not complied with the
award, which is denied by the respondent. Further details
appear
below.
Material
facts
[3]
The respondent disclosed that it is a semi-official institution
created and managed in terms of Standing Order (Financial) 71 –
77 of the South African Police Service (“SAPS”) and its
constitution. These documents were not provided to the court,
but
that matters not. It is trite that a club may, through its
constitution, provide for its separate legal personality. In this
matter, the parties were
ad idem
that the club had juristic
personality.
[4]
The applicants applied for their posts in 2012 and were appointed by
the respondent as cooks. From that time, until their dismissal,
the
applicants were employed on a part time basis, as cooks, based at the
Lebowakgomo Police Station. The respondent would call
them in to
cater for events relating to training courses or choir practice. Over
the years, they consistently worked on average
5 days per month and
were paid at R100, 00 per day.
[5]
They were dismissed on or about 3 May 2016, when new individuals were
employed in their previous position. They referred an unfair
dismissal dispute to the CCMA and secured an arbitration award in
their favour, on or about 22 May 2016, under case reference
LP3318-16. The commissioner determined that their dismissal was
unfair and ordered respondent to reinstate them
on the same terms
and conditions which governed them before their dismissal
. In
addition, the commissioner ordered that: ”
The respondent
shall call them to work once an activity requiring their services
occurs at the workplace”.
[6]
In the applicants’ supplementary answering
affidavit,
they state that returned to work after the award,
but they did so on different conditions of employment because now
they were rostered
to work and had to compete with others for the
work. They were not called to work once an activity was arranged
which required
their services.
[7]
In respondent’s supplementary answering
affidavit, it states that during 2016 SAPS decided that all
semi-official institutions
should engage employees as full time
employees of the SAPS. These employees would service SAPS as well as
the semi-official institutions.
SAPS advertised the positions,
previously held by the applicants, as “Food Service Aids”
and encouraged the applicants
to apply. The applicants refused to
apply, according to SAPS because they may have believed that the
posts were advertised by the
club. Accordingly, others were appointed
to these positions on 1 February 2017. In the respondent’s own
words this rendered
the applicants “redundant”.
[8]
Importantly, in its supplementary answering
affidavit, the respondent carefully avoids stating that the
applicants were dismissed.
[9]
The respondent denies that it had failed to comply with the award and
contends that it is common cause that it reinstated the applicants,
and any dispute thereafter is a new cause of action. It was not
common cause, as explained above. Furthermore, it could not be
a new
cause of action when there was no dismissal. Instead, the respondent
failed to comply with the award at the time when the
applicants
returned to work.
[10]
The respondent carefully avoids saying whether it had remunerated the
applicants since February 2017. The probabilities overwhelmingly
indicate that they were not remunerated, although this is not
expressly dealt with on the papers.
[11]
Accordingly, on a full conspectus of all the materials before me, the
pleadings, and the probabilities, I simply cannot accept
the
respondent’s propositions in para 9 above.
[12]
Respondent points to the supplementary affidavit of the applicants,
placing emphasis only on the following underlined portions:
“
Following
the arbitration award
the
respondent called us back to work
however
not on the same terms and conditions as before.
Initially
we were working each time there was an activity
and upon
our return to work the respondent changed the terms and made us
rotate with the other group that was hired during the time
when we
stopped from work.
The
respondent called us back to work in July 2016
until 20
January 2017 and we were never called back to work. See attendance
register marked as annexure B.
When
we approached the above honourable court in May 2017 it was three
months since we were called to work
.” (respondent’s
emphasis)
[13]
To place emphasis on certain aspects of the
applicants’ supplementary affidavit and ignore other aspects is
to ask the court
to ignore the full context, which the court cannot
countenance.
[14]
The applicants launched an application in terms of
section 158(1)(c) on 14 February 2017. It is unclear precisely who or
what caused
the delays since then. The application had been enrolled
during 2017 and 2018. In 2018, on 14 February 2018, Lallie J
postponed
the matter and granted the applicants leave to amend their
founding papers. Both parties supplemented their papers since then.
Legal Issues
[15]
First, it is necessary for the court to determine
whether the respondent complied with the award. It is therefore
necessary to determine
what the award means. Next, we consider the
court’s discretion in relation to section 158(1)(c) of the LRA.
Compliance with the
award
[16]
In
Firestone
SA (Pty) Ltd v Genticuro AG
[1]
the
Appellate Division set out principles governing a court’s
judgment or order:
‘
The
basic
principles applicable to construing documents also apply to the
construction of a court’s judgment or order: the court’s
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the usual, well-known
rules.
See Garlick
v Smartt and Another,
1928
AD 82
at
p. 87; West Rand Estates Ltd. v New Zealand Insurance Co.
Ltd.,
1926
AD 173
at
p. 188. Thus, as in the case of a document,
the
judgment or order and the court’s reasons for giving it must be
read as a whole in order to ascertain its intention
.
If, on such a reading, the meaning of the judgment or order is clear
and unambiguous, no extrinsic fact or evidence is admissible
to
contradict, vary, qualify, or supplement it
.”
[17]
To
restate the principle, an order must be read as part of the entire
judgment.
[2]
[18]
With
the above principles in mind, it is necessary to determine what
“reinstatement” means in the context of the award.
In
Equity
Aviation
(Pty)
Ltd v CCMA and others
[3]
t
he
court held:
“
[36]
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
.”
[19]
In
this matter, fortunately, the award itself deals with the terms and
conditions of employment by ordering that “
the
Respondent
shall
call them to work once an activity requiring their
services
occur
at the workplace
”
.
To safeguard the applicants’ remuneration, the commissioner
directs the respondent to use the services of applicants for
all the
activities for which they were previously used – in other words
all events related to training and choir practice.
The commissioner
need not have bothered given that, in these circumstances, this
should have followed naturally. The common law
position is that, once
reinstated, upon tender of their services, the applicants are
entitled to their normal remuneration even
if their services are not
used by their employer. In
National
Union of Textile Workers and others v Jaguar Shoes (Pty) Ltd
[4]
Booysen
J states:
“
Words
or phrases having a clear meaning at common law should thus, where
they appear in statutes, be accorded that meaning unless
the contrary
intention appears from the statute. (Kleynhans v Yorkshire Insurance
Co Ltd
1957 (3) SA 544
(A) at 551.)
In
terms of s 43(4)(b)(i), an employer is ordered to reinstate the
person in question in his 'employ'. The Act does not prescribe
what
steps the employer should take to do so, save to state in ss (7)
that an employer who pays the remuneration which would
have been
due to the employee in respect of his normal hours of work shall be
deemed to have complied with the order
.”
(Own emphasis)
[20]
The respondent confirmed that, with effect from 1
February 2017, it allocated no work to the applicants. By
implication, and they
were also not remunerated.
[21]
The respondent cannot be said to comply with the
award when it failed to remunerate the applicants after 1 February
2017. Nor can
it be said that they complied with the award when their
services were not utilized for years.
[22]
Whether the respondent uses the applicant’s
services is within its discretion, but it must remunerate them at a
rate of R500,
00 per month – in accordance with the award and
the ordinary meaning of reinstatement.
[23]
If the respondent wishes to dismiss the applicants
for operational reasons, it may do so by following the processes
carefully laid
out in the LRA. On the common cause facts, the
respondent has not yet done so.
Section 158(1)(c) of
the LRA
[24]
In
Deutsch
v Pinto & another
[5]
Landman
AJ (as he then was) held:
“
The
power to make an award an order of court is a discretionary power.
This power must be exercised judicially.
Generally
this court will be in favour of lending enforceability to an award
.
Inherent in the power to make an award an order of court is the power
not to make an award an order of court either for a limited
or
unlimited period.
A
court will however generally be disinclined to let an award hang in
the air
.
Why
would a court not grant an application to make an award an order of
court? There are probably various reasons. One reason would
be where
a party complains that the commissioner failed to apply the rules of
natural justice or acted contrary to the rules or regulations
of
the CCMA designed to ensure that the audi alteram partem rule is
honoured
.”
[25]
In
AB
Civils (Pty) Ltd t/a Planthire v Barnard
[6]
the LAC was faced with a settlement agreement which the parties had
concluded, which one party sought to make an order of court
because
of non-compliance by the other party. The LAC noted that there was a
generalized denial that the settlement had been complied
with, a
denial which lacked conviction. The LAC applied the “interests
of justice” test and stated as follows:
“
Where,
however, there is a dispute about compliance with an award, the
court's discretion is given full play. It
would
then, depending on all the factors in each individual case, decide
whether it is or is not in the interests of justice to
convert the
binding but unenforceable award into an order of court
which
may be enforced through the court's execution machinery
.”
[26]
It is clear I must also apply the interests of
justice test. In this matter as well, the respondent’s
protestations (that
it has complied with the award) lacks conviction.
The applicants, on the other hand, have doggedly pursued the
respondent to comply
with the award. It is in the interests of
justice to facilitate compliance by making the award an order of
court.
Costs
[27]
In
MEC
for Finance: Kwazulu-Natal and Another v
Dorkin
NO and Another
[7]
the court stated as
follows:
“
The
rule
of practice that costs follow the result does not govern the making
of orders of costs in this Court
.
The relevant statutory provision is to the effect that orders of
costs in this Court are to be made in accordance with the
requirements
of the law and fairness. And the norm ought to be that
cost orders are not made unless those requirements are met. In making
decisions
on cost orders
this
Court should seek to strike a fair balance between on the one hand,
not unduly discouraging workers, employers, unions and
employers’
organisations from approaching the Labour Court and this Court to
have their disputes dealt with, and, on the
other, allowing those
parties to bring to the Labour Court and this Court frivolous cases
that should not be brought to Court
.
That
is a balance that is not always easy to strike but, if the Court is
to err, it should err on the side of not discouraging parties
to
approach these Courts with their disputes
.
”
(Own emphasis)
[28]
I have considered the abovementioned rationale for
not awarding costs. However, in this matter, the applicants, despite
having limited
access to resources, pursued their dispute by whatever
means available to them. Given the delays, and the absence of merit
in the
respondent’s opposition, a departure from rule, above,
is necessary in law and fairness.
Conclusion
[29]
The applicants are entitled to the relief sought. Accordingly, I make
the following order:
29.1
The award issued by the CCMA under case number LP3318-16 is
made an order of court,
29.2
The respondent is directed to comply with the award by
reinstating the applicant’s employment contracts,
29.3
The respondent is ordered to pay the costs of the application.
R Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Mr Mathabathe (Legal Aid)
For the
Respondent: Mr Mabete,
State Attorney
[1]
1977
(4) SA 298 (A)
[2]
Administrator,
Cape & another v Ntshwaqela & others
1990
(1) SA 705 (A)
[3]
2009
(1) SA 390 (CC)
at
para
33
[4]
1987(1)
SA 39 (N) at 44
[5]
(1997)
18 ILJ 1008 (LC) at 1016
[6]
(2000)
21 ILJ 319 (LAC) at para 8
[7]
[2008] 6 BLLR 540
(LAC) at para 19