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[2024] ZALCJHB 112
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Malapane v NTT Motor Investments (Pty) Ltd (JR1223/21) [2024] ZALCJHB 112 (11 March 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No:
JR
1223/21
In
the matter between:
VICTORIA SIBONGILE
MALAPANE
Applicant
And
NTT
MOTOR INVESTMENTS (PTY) LTD
Respondent
NTT
TOYOTA HOEDSPRUIT
Heard:
14/06/2023
Delivered
:
11/03/2024
Summary:
Principles of backpay restated. Held: (1) The employer is liable to
backpay with interest the reinstated
employee who was unfairly
dismissed. (2) There is no order as to costs.
JUDGMENT
SETHENE, AJ
Introduction
“
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…”
[1]
[1]
This court, in its daily legislative mandate of dispensing justice
within the employment environment, reviews, sets aside,
confirms
and/or rejects arbitration awards premised on unfair dismissals of
employees, both in the public and private sectors.
Routinely, once
this court confirms that an employee’s dismissal was either
procedurally or substantively unfair (or both)
and the said employee
must be reinstated, the next cardinal question is whether or not the
reinstatement would be accompanied by
backpay to restore the
employee’s status
quo
ante
. This is the central
question this court is called upon to determine in this application.
[2]
However, with brutal frankness, this is a dispute that should not
have found itself in court as the bone of contention
between the
parties is trite law as evinced in the quotation cited above from the
judgment of the apex court. Notwithstanding the
case law from the
apex court, the respondent in this case has elected to raise defences
that are untenable in law and at worse,
indicative of the respondent
who has misconstrued the applicant’s case. A properly drafted
and researched advisory memorandum
to the respondent would have
ensured that this court is afforded time to attend to disputes that
warrant development of labour
law jurisprudence.
[3]
At the same
time, the applicant too has clay feet. The applicant pleads with this
court to order payment of backpay and further
to order the employer
to do the calculations on how much the applicant is entitled to.
Essentially, the applicant pleads with this
court to order the
employer to pay her arrears salary and effectively assume the duties
ordinarily assigned to persons in the finance
and human resources
divisions of the employer. That is not the duty of this court and an
advisory memorandum to the applicant would
have said that much.
Having said that, I am in concert with the approach adopted by my
brother Mr Justice Moshoana in the
Department
of Public Works v the General Public Service Sector Bargaining
Council
[2]
when he held as follows in respect of the proper interpretation of
the backpay following his scholarly interpretation of the decision
of
the apex court
[3]
on the issue
of backpay:
“
Of
momentousness, a commissioner or a judge cannot order payment of
back-pay, which is simply arrears wages. According to the first
judgment an employee may only claim backpay once an employee is
physically taken back by an employer…”
[4]
Be that as it may, I find that at times it is apt that a litigant
must know from the beginning of the judgment that it
has either won
or lost the legal battle.
Salient
background facts
[5]
The employment relationship between Ms
Victoria Sibongile Malapane (the employee) and NTT Motor Investments
(Pty) Ltd (the employer)
commenced on 12 October 2015, and the
employee was duly employed as Financial and Insurance Manager.
[6]
On 10 February 2017, the employee was
alleged to have committed “
gross
negligence and/or gross dereliction of duty and/or bringing the
company’s name into disrepute”
.
Following due process, the employee was charged and dismissed on 28
February 2017.
[7]
Aggrieved by the sanction of dismissal, the
employee approached the Dispute Resolution Centre. Mr Jacques Verhoef
(Mr Verhoef),
who was the appointed commissioner to arbitrate the
dispute of unfair dismissal between the employee and employer,
rendered his
arbitration award on 28 March 2018. Mr Verhoef, in the
arbitration award, found that the dismissal of the employee was
substantively
unfair, and thereby ordered the employee’s
reinstatement on terms and conditions no less favourable to her than
those that
existed and governed the employment relationship prior to
the employee’s dismissal. Consequently, the employer was
ordered
to retrospectively remunerate the employee’s salary
from the period of her dismissal up to the period of her
reinstatement
(28 February 2017 to 28 March 2018).
[8]
On 1 April 2018, the employee reported for
duty as per the arbitration award and was informed she should not
report for duty as
the employer was taking the arbitration award to
this court for review.
[9]
Evidently,
the employer was dissatisfied with the arbitration award and
approached this court to have the said arbitration award
reviewed and
set aside in terms of section 145(1)
[4]
of the Labour Relations Act
[5]
(the LRA), as amended.
[10]
On 22 October 2020, this court heard the
employer’s review application with my brother Mr Justice
Tlhotlhalemaje presiding,
who duly handed down a judgment on 12 March
2021, effectively dismissing the employer’s review application.
[11]
It appears that the employer did not appeal
the judgment or its orders but complied and duly reinstated the
employee on 1 April
2021, and further advanced to the employee an
amount of R200 200.00, as determined in the arbitration award.
[12]
During the employer’s institution of
its review application, being the period from 28 March 2018 to 1 May
2021, the latter
date being the date on which the employer
implemented the arbitration award, the employer has refused to pay
the employee her salary
on the following grounds:
12.1
Reinstatement order makes no obligation to
pay the salary;
12.2
Interest can only be levied once the
damages amount is ascertainable;
12.3
During the period the review application
was lodged, the operation of the arbitration award was suspended as
the security was provided;
12.4
There is no evidence that the employee
suffered any damages; and
12.5
During the period in question, the employee
allegedly had secured a position at one of its dealers.
[13]
In the conspectus of the salient background
facts referred to above, this court is called upon to determine
whether or not the employee
is entitled to payment of her salary
during the period the employer instituted review proceedings until
the implementation of the
award. In this regard, if the court finds
in favour of the employee, I am urged to find that the employee is
entitled to interests.
Evaluation, Analysis
and the Law
[14]
Following
the judgment of this court dismissing the employer’s review
application on 12 March 2021, the employee reported
for duty on 1
April 2021, and the employee was duly reinstated and compensated for
an amount of R200 200.00. This amount was in
compliance with the
arbitration award and it was calculated for a period from 28 February
2017 to 28 March 2018. The said amount
was the equivalent of thirteen
(13) months’ salary (R15 400.00 X 13= R200 200.00). The
reinstatement of the employee and
the payment of the said amount
denote that the employer was implementing the arbitration award and
paying back or remunerating
the employee for the period the employee
did not render service at the behest of the employer. As the apex
court stated in
Equity
Aviation
[6]
:
“…
Differently
put, if employees are reinstated they resume employment on the same
terms and conditions that prevailed at the time
of their dismissal…”
[15]
The
date of the judgment of this court was 12 March 2021. The employer
was therefore obliged in law to remunerate the employee from
the date
of the implementation date of the award being effective from 28 March
2018 to 30 April 2021. In
Coca
Cola Sabco (Pty) Ltd v Van Wyk
[7]
,
the Labour Appeal Court (the LAC) held as follows:
“
Ordinarily,
an employer that complies with an order of retrospective
reinstatement and backpay would not only pay the backpay but
also the
remuneration that the employee was entitled to between the date of
the order and the implementation date, if the employee
tendered his
services during that period.”
[16]
One of the defences tendered by the
respondent is that during the period of the review application, the
employee was employed in
one of its dealerships and thereby rendering
services. The employee’s response to this aspect is that her
duties were solely
to relieve her colleagues who were unable to
attend to their duties from time to time and she was remunerated less
salary to her
substantive position.
[17]
Having dealt with the issue of backpay, I
must now answer the question of whether the employee is entitled to
interest. In terms
of section 143(2) of the LRA, the following is
stated:
“
(2)
If an arbitration award orders a party to pay to pay a sum of money,
the amount earns interest from the date of the award
at the same rate
as the rate prescribed from time to time in respect of a judgment
debt in terms of section 2 of the Prescribed
Rate of Interest Act,
1975 (Act 55 of 1975), unless the award provides otherwise.”
[18]
In the arbitration award, at paragraph 70,
it is clearly stated that the amount payable to the employee shall
earn interest as contemplated
in section 143(2) of the LRA.
[19]
The
issue of interest is also instructive as per the decision of the apex
court. In
Hendor
[8]
,
the apex court held that backpay attracts interest and should be
calculated according on applicable different dates. (See
Top
v Top Reizen CC (2002) 27 ILJ 1948 (LAC)
.
Conclusion
[20]
As stated above, this dispute ought to have been resolved and
finalised in chambers through a comprehensive advisory
memorandum to
both the applicant and the respondent. As laypersons place their
utmost reliance on their legal practitioners, it
is understandable
that at times a client can only be satisfied if a court confirms what
the legal practitioner intimated during
a series of consultations.
[21]
Understand: legal research is one of the fundamental occupational
exercises that should not escape the central daily
routine of a
lawyer. Without conducting extensive legal research in preparation
for legal intercourse, a lawyer’s path is
guaranteed to be
littered with legal storms.
[22]
In the result, the following order is made:
Order
1.
The application succeeds;
2.
The NTT Motor Investments (Pty) Ltd is
liable to pay Ms Victoria Sibongile Malapane her salary for the
period between 1 April 2018
to 31 March 2021, including interest
calculated at the prescribe rate; and
3.
There is no order as to costs.
SMANGA SETHENE
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv
DD Mosoma
Instructed
by:
JM
Modiba Attorneys
For the First
Respondent: Adv DJ Groenewald
Instructed
by: Serfontein
Viljoen & Swart Attorneys
[1]
Equity
Aviation Services (Pty) Ltd V Commission for Conciliation Mediation
and Arbitration and Others
[2008] ZACC 16
;
[2008] 12 BLLR 1129
(CC);
2009 (1) SA 390
(CC); (2008) 29 ILJ 2507 (CC);
2009 (2) BCLR 111
(CC) at para 36.
[2]
JR
1483/18 (5 March 2021) at para 19.
[3]
National
Union of Mine Workers of South Africa obo Fohlisa and Others v
Hendor Mining Supplies, A Division of Marschalk Beleggings
(Pty)
Ltd) (Hendor)
[2017]
6 BLLR 539
(CC); (2017) 38 ILJ 1560 (CC).
[4]
“
145.
Review of arbitration awards
(1)
Any party to a dispute who alleges
a defect in any arbitration proceedings under the auspices of the
Commission may apply to the
Labour Court for an order setting aside
the arbitration award-
(a)
within six weeks of the date that
the award was served on the applicant, unless the alleged defect
involves the commission of
an offence referred to in Part 1 to 4, or
section 17, 20 or 21 (in so far as it relates to the aforementioned
offences) of Chapter
2 of the
Prevention and Combating of Corrupt
Activities Act, 2004
; or
(b)
if the alleged defect involves an
offence referred to in paragraph (a), within six weeks of the date
that the applicant discovers
such offence.”
[5]
Act
66 of 1995.
[6]
Footnote
1 at para 36.
[7]
[2015]
8 BLLR 774
(LAC) at para 18.
[8]
National
Union of Mine Workers of South Africa obo Fohlisa and Others v
Hendor Mining Supplies, A Division of Marschalk Beleggings
(Pty) Ltd
[2017] 6 BLLR 539
(CC); (2017) 38 ILJ 1560 (CC).