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[2024] ZALCJHB 168
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Matlala v G4S Cash Solutions (Pty) Ltd (JS165/2016) [2024] ZALCJHB 168 (15 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT
REPORTABLE
CASE
NO: JS165/2016
In
the matter between:
MATLALA,
JERRY
Applicant
and
G4S
CASH SOLUTIONS (PTY) LTD
Respondent
Heard:
29 February 2024
Judgment:
15 April 2024
Summary:
Employee unfairly dismissed by employer. Court orders reinstatement.
Employer refuses to accept employee’s tender
of services.
Employee pursues a contractual claim in terms of section 77(3) of the
BCEA. Employee’s recourse though is contempt
proceedings.
Action dismissed.
JUDGMENT
NORTON
AJ
Introduction
1.
Mr Matlala was employed by G4S Cash Solutions (Pty) Ltd (“G4S”)
as a security officer. He
was dismissed on 21 December 2010 following
allegations of misconduct. Mr Matlala earned R7 500 per month at
the time of his
dismissal. Litigation ensued and Mr Matlala with the
support of the South African Transport and Allied Workers Union
(“SATAWU”),
referred an unfair dismissal dispute to the
National Bargaining Council for the Road Freight and Logistics
Industry (the “Bargaining
Council”). Mr Matlala
succeeded, and on 11 June 2011 the Bargaining Council ordered his
reinstatement to the date of dismissal.
2.
As is the usual pattern the employer took the arbitration award
on review to the Labour Court.
This time the employer succeeded and
the dispute went back to the Bargaining Council to be heard before a
different commissioner.
3.
At the second arbitration, Commissioner Tlhotlhalemaje (as he was
then), under the auspices of the Bargaining
Council found the
dismissal to be unfair and ordered reinstatement to the date of
dismissal. Mr Matlala’s attorneys wrote
to the employer to say
that he would be reporting for duty on 30 April 2013. G4S replied
that he was not to return as they were
approaching the Labour Court
to review and set aside the award.
4.
Contrary to the previous occasion the employer’s review
application was dismissed. Undeterred the
employer approached Baloyi
AJ for leave to appeal, but that too was dismissed.
5.
The employer has persistently refused to accept Mr Matlala’s
tender of services. On the 5 April
2016 he instituted a claim for
payment of his arrear salary from May 2013 to March 2016, amounting
to R262 500,00 plus interest.
6.
Some eight
years later, on 29 February 2024, the dispute was ventilated before
me in a trial.
[1]
Both parties
were legally represented.
Mr
Matlala’s claim
7.
Mr Matlala brought his claim in terms of section 77(3) of the Basic
Conditions of Employment Act, 1997
(the “BCEA”) for
breach of his employment contract.
8.
Mr Matlala claims his arrear wages for May 2013 to April 2014:
R90 000,00; from May 2014 to
April 2015: R90 000,00 and
from May 2015 to March 2016: R82 500,00. (In total R262 500,00)
plus interest.
9.
The logic of the claim commencing from May 2013 (and not the
dismissal date of December 2010) appears
to be that in April 2013,
the second award was handed down in Mr Matlala’s favour (and
upheld on review by the Labour Court),
and once again his tender of
service was refused. The logic of the end of the claim date being
March 2016, appears to be that that
was the month the Statement of
Claim was signed. Mr Matlala did not seek to expand the duration of
his claim, despite the length
of the litigation which ensued between
the parties.
The
trial
10.
The trial was of short duration, just 2 – 3 hours.
11.
Mr Matlala gave evidence at his trial and explained the background to
the dispute and the quantification of the claim.
12.
In cross examination he conceded that he was currently working at a
company called Wispeco Aluminium (Pty) Ltd (“Wispeco”)
as
a machine operator. He said he started working there in 2013 as a
casual and became a permanent employee in November 2014. He
said his
salary varied from month to month depending on the shifts he worked.
He was reluctant to reveal what he earned on average,
but eventually
agreed that he earned approximately R11 540,00 a month.
13.
The employer’s attorney Mr Crafford put to him that he had
mitigated the loss of his arrear salary in it’s entirety.
Mr
Matlala did not give a clear response.
14.
After Mr Matlala gave evidence, he closed his case and the employer
called Izanne Matthysen who was the G4S Compensation and
Benefits
officer. She had access to payroll records and Mr Matlala’s
security screening information. She confirmed that Mr
Matlala had
been employed by Wispeco since 2013. Mr Matlala’s attorney, Mr
Mabaso elected not to cross examine her.
Legal
issues
15.
Mr Mabaso raised two issues in his Heads of Argument:
15.1.
The employer did not amend it’s Statement of Response to
include the defence that Mr Matlala
had worked at Wispeco - and had
therefore mitigated his damages entirely - and therefore this defence
is inadmissible.
15.2.
The reinstatement order revived the contract of employment and Mr
Matlala, is entitled to payment
of his arrear wages, as he tendered
his services, but the tender was refused.
16.
Mr Crafford raised two issues in his Heads of Argument:
16.1.
Mr Matlala had entirely mitigated his loss of earnings from G4S and
was not entitled to the
quantum of the claim.
16.2.
Mr Matlala is not entitled to the remuneration claimed because he
wasn’t reinstated by
the employer; and
17.
Although approached from different angles by the parties there are in
essence two issues before me:
17.1.
The status of the employer’s pleadings and the defence of
mitigation; and
17.2.
The reinstatement order, Mr Matlala’s recourse and the cogency
of his claim.
The
status of the employer’s pleadings and the defence of
mitigation
18.
On 6 February 2020, the Honourable Justice Phehane postponed the
trial, which was due to commence that day in order for the
employer
to amend it’s Statement of Response and to enable the parties
to discuss settlement. On the same day, Mr Crafford
wrote to Mr
Mabaso explaining (amongst other matters) that,
“
it has come to
our attention that your client has been employed by Wispeco Aluminium
(Pty) Ltd as a machine operator from 2013 to
date hereof. His current
remuneration to our understanding excluding overtime benefits and
bonuses is R11 540.00, well in
excess of that he was earning at
G4S, and therefore he has mitigated his alleged damages in total
.”
This letter formed part
of the employer’s bundle served and filed on 7 February 2020.
There could be no doubt what the employer’s
defence to Mr
Matlala’s claim would entail.
19.
The employer never amended it’s pleadings. I understood during
the trial from Mr Mabaso that Mr Crafford was required
to do so, to
introduce the defence of the Wispeco employment. Mr Mabaso argued
that the employer’s original defence in 2016
was simply that
the employer was awaiting the outcome of the review. Mr Crafford
argued that it wasn’t necessary to amend
his pleadings.
20.
In paragraph 11 of the Statement of Claim the employee’s
pleading reads,
“
The Company has
failed and or refused to pay the employee the arrear salaries …
(amounting to
) R262 500.00 plus interest
…”.
21.
The employer responds at paragraph 16 (with respect to paragraph 11)
as follows,
“
The content of
this paragraph is denied and the Applicant is put to the proof
thereof. The Respondent denies that he is indebted
to the Applicant
in the amount of R262 500,00or any amount at all
.”
22.
Mr Mabaso,
concludes on this point in His Heads of Argument with, “…
the
defence should be disregarded, and the defence that should be
considered is the one contained in the Statement of Response
.”
[2]
23.
It is true that Mr Mabaso could reasonably have anticipated the
employer’s defence, but it was also quite reasonable for
him to
expect his opponent to comply with the Labour Court rules. It is
inexplicable why Mr Crafford did not amend his Statement
of Response,
noting particularly that Justice Phehane had ordered him to do so,
and the postponement was allowed for that purpose.
24.
The Labour
Court rules require a respondent to set out “
a
clear and concise statement of material facts in chronological
order”
,
as well as a “
a
clear and concise statement of the legal issues that arise from the
material facts
…”
[3]
The Statement of Response was simply a bare denial, which does not
square with the requirement of setting out the material facts
(of Mr
Matlala’s employment with Wispeco) and legal issues (such as
mitigation) which arise from those facts
25.
In
Banking
Insurance Finance & Assurance Workers Union on behalf of Tsotetsi
v Old Mutual Insurance Ltd
[4]
the Honourable Justice Prinsloo on the issue of pleadings (and pre
trial minutes) writes, “
It
is trite that this court and the parties are bound by the
pleadings…and this court cannot and should not go beyond the
issues it is required to determine
.”
Justice Prinsloo then refers to Jacob & Goldrein for emphasis as
follows,
“
As the
parties are adversaries, it is left to each of them to formulate his
case in his own way, subject to the basis rules of pleadings…For
the sake of certainty and finality, each party is bound by his own
pleadings and cannot be allowed to raise a different or fresh
case
without due amendment properly made. Each party thus knows the case
he has to meet and cannot be taken by surprise at the
trial. The
Court itself is as much bound by the pleadings of the parties as they
are themselves. It is not part of the duty or
function of the Court
to enter upon any enquiry into the case before it other than to
adjudicate upon the specific matters in dispute
which the parties
themselves have raised by their pleadings
…”
[5]
26.
Noting the peremptory stand regarding strict adherence to pleadings
as set out in jurisprudence and the requirements of Rule
6 in the
Labour Court Rules, I am inclined to ignore the evidence pertaining
to Mr Matlala’s employment with Wispeco during
the period
applicable to his claim for arrear wages. Mr Crafford did not amend
his pleadings as he should have, and therefore the
employer should
not enjoy an undue benefit in this regard. That disposes of the first
issue. I now turn to the second.
The
reinstatement order, Mr Matlala’s recourse and the cogency of
his claim.
27.
It is common cause that the arbitrator ordered reinstatement, that Mr
Matlala tendered his services, and that G4S turned him
away. The
question that arises is whether G4S is obligated to remunerate Mr
Matlala for his lost wages from the date of G4S’s
refusal of
his tender of service? “Yes” says Mr Mabaso. “No”
says Mr Crafford. We examine the weight of
their differing views
below.
28.
Mr Mabaso
relies on
Coca
Cola v Van Wyk
[6]
,
a 2015 LAC decision in which the court found that an employee whose
dismissal was assessed to be unfair by the CCMA was entitled
to
institute a contractual claim from the date of the award which
ordered reinstatement (September 2004), to the date of implementation
of that award (February 2009), and thereafter, once quantified, to
execute by way of a writ.
[7]
29.
The court held that:
[16] The effect of a
reinstatement order, therefore, is to revive the contract of
employment which was terminated by a dismissal.
On the date on which
the reinstatement order is made, the commissioner may order that the
reinstatement be effective from the date
of the order or
retrospectively from any date not earlier than the date of
dismissal... This begs the question, what remedy, if
any, does the
employee have to claim the money due to him/her for the period
between the date of the award and the actual implementation
thereof.
[17] The money paid to
an unfairly dismissed employee consequent to a retrospective
reinstatement order is not compensation. Compensation
and backpay may
only be granted in the alternative and are mutually exclusive. The
backpay ordered by the commissioner can therefore
only refer to the
period between the date of dismissal and the date of the order and
does not entitle an employee, without more,
to remuneration between
the date of the award and the actual date of the implementation. The
Labour Relations Act 66 of 1995 (LRA)
does not cater for such relief.
[18] 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.
[19] Since the LRA
does not cater for relief between the date of the award and the date
of implementation, how then should a reinstated
employee recover that
money if he tendered his services during that period….
[24] … if the
employee, after the reinstatement order and during the time that the
employer exercises its review and appeal
remedies to exhaustion,
tenders his/her labour he/she does so in terms of the employment
contract. He/she is therefore entitled
to payment in terms of the
contract of employment. The claim is therefore a contractual one,
wherein the employee would have to
set out sufficient facts to
justify the right or entitlement to judicial redress. The employee
would inter alia have to prove that
the contract of employment is
extant; that he/she tendered his/her labour in terms thereof; and
that the employer refuses or is
unwilling to pay him/her in terms of
that contract...
30.
The nub of the
Coca Cola
case, may be summarised as follows:
An employee has a contractual claim for wages owing to him / her
arising from a reinstatement
order - which revives the contract
of employment - calculated from the date of the order until the time
the employer (usually
reluctantly after failed review and appeal
proceedings) accepts the employee’s tender of service.
31.
Mr Mabaso
argues that the view expressed in
Coca
Cola
finds support in
Mobile
Telephone Networks (Pty) Ltd v Pillay
.
[8]
(In that case the LAC found that employees transferred by way of a
section 197 were entitled to their salaries from the date of
transfer
– December 2010 – to April 2015 when MTN finally agreed
to accept the employees into their service, despite
years of
litigation and legal objection.)
32.
The authority’s cited by the Applicant both have factual
scenarios in which the employees contracts of employment are
deemed
to continue. In
Coca Cola
the case involved reinstatement
following an unfair dismissal, and in MTN the employees transferred
seamlessly in the context of
a section 197 from the old employer to
the new employer.
33.
The
situation in the case before this court though is materially
distinguishable in that the employer G4S never accepted Mr Matlala
back into employment despite an order of reinstatement. The effect of
this factual scenario is that Mr Matlala’s remedy is
not to
pursue a breach of contract claim in terms of section 77(3) of the
BCEA, but to pursue a contempt of court application.
The relevant
case authority in this regard is
Kubeka
& others v Ni-Da Transport (Pty) Ltd
.
[9]
We discuss this case in some detail below.
34.
SATAWU members were dismissed in 2008 after a strike. The dismissal
was found to be procedurally and substantively unfair and
the
Honourable Judge Gush ordered their reinstatement. The employer
sought leave to appeal to the LAC, and when that was unsuccessful
they petition the LAC, which followed a similar fate. The employer
then petitioned the SCA and finally lodged an application for
leave
to appeal to the Constitutional Court. Both applications were
dismissed. Gush J’s order became enforceable when the
appeals
process was exhausted in November 2014.
35.
The employees then referred a claim under section 77(3) of the BCEA
for arrear wages. The matter was heard in the Labour Court
before the
Honourable Whitcher in May 2017. The employees were unsuccessful and
appealed to the LAC. Murphy AJA writing for that
court states:
[10]
In a considered
judgement, the Labour Court dismissed the appellants claim on the
grounds that they had followed the wrong legal
process to obtain
redress for the failure of the respondent to comply with its
obligation to reinstate them. It held that, when
the ruling of the
SCA in effect exhausted all appeal options on 18 November 2014, the
appellants ought to have launched contempt
proceedings seeking
retrospective reinstatement rather than contractual claim for arrear
wages in terms of s 77(3) of the BCEA.
In reaching its decision, the
Labour Court applied the reasoning of the constitutional court in
National Union of Metalworkers
SA on behalf of Fohlisa & Others v
Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd
(Hendor). It concluded,
in paragraph 8 of the judgement:
‘
Backpay is only
contractually owing upon the full restoration of the employment
contract. This required more than a tender of services
by the
unfairly dismissed employees. The employer should also have accepted
those employees back into its employ. If the employer
failed to do
so, the correct legal path was to have forced it to restore the
contract of employment by means of contempt proceedings…
the
judgement ordering reinstatement does not in and of itself reinstate
the contract of employment; rather; it is an order directing
the
employer to accept those services. If the employer fails to do so,
the remedy is to bring contempt proceedings to compel the
employer to
do so.’
[13] The respondent,
relying on the decision of the Constitutional Court in Hendor,
contends that a reinstatement order does not
restore the contract of
employment. It is only restored when, pursuant to the reinstatement
order, the employees return to work,
tender their services and the
employer accepts the tender. This construction, it argues, is
confirmed by the wording of s 193(1)(a)
of the Labour Relations Act
(the LRA) which provides that if the Labour Court or an arbitrator
appointed in terms of the LRA finds
that a dismissal is unfair, the
court or the arbitrator may ‘order the employer to reinstate
the employee’ from any
date not earlier than the date of
dismissal. This wording,.. makes it clear that the order of the court
does not reinstate an employee.
It is the agreement of the employer
to accept the tender of services that restores the contract, not the
order of the court.
[14] …There can
be no legal basis for any contractual claim for arrear wages until
such a time as the contract is restored
by the agreement of the
employer to accept the tender of the employees in respect of future
services. Rights to backpay flowing
from the reinstatement order can
only arise once the contract is restored. Prior to the employer
agreeing to restore the contract
pursuant to an order to do so, there
is no contract in existence and thus no juridical basis for a claim
for arrear wages.
[31] While the judges
of the Constitutional Court in Hendor disagreed about the nature of
the debt arising from a reinstatement
order and the reason for
non-prescription, they were unanimous about the governing principle
that the contracts of employment of
unfairly dismissed employees are
terminated by a dismissal and revive only when they tender their
services pursuant to a reinstatement
order and the tender is accepted
by the employer. The judges also agreed that a reinstatement order is
an order ad fuctum praestandum
– an order to do something (as
opposed to an order ad pecuniam solvendam, an order to pay something)
which must be enforced
through contempt proceedings.
[35] The decision of
the Constitutional Court in Hendor therefore leaves little doubt that
a reinstatement order does not restore
the contract of employment and
reinstate the unfairly dismissed employees. Rather, it is a court
order directing the employees
to tender their services and the
employer to accept that tender. If the employee fails to tender his
or her services or the employer
refuses to accept the tender, there
is no restoration of the employment contract. If the employer fails
to accept the tender of
services in accordance with the terms of the
order, the employee’s remedy is to bring contempt proceedings
to compel the
employer to accept the tender of services and thereby
to implement the court order.
36.
The nub of the
Kubeka
and
Hendor
decisions may be
summarised as follows: After an unfair dismissal, in which the
employees are reinstated by virtue of a judgment
and court order,
those employees have a contempt claim against their employer if the
employer refuses to accept them back into
employment. The court order
does not in and of itself revive the contract of employment; that
contract may only be revived if the
employees tender their services,
and the employer accepts their tender. Expressed plainly, if an
employer accepts the tender
of service, but refuses to pay the
employee from the date of the reinstatement order to the date of the
employer’s acceptance
of service then the employee has a
contractual claim envisaged in section 77(3) of the BCEA. If the
employer refuses to accept
the employee back into service, then the
employee’s recourse is contempt proceedings.
Discussion
and analysis
37.
Mr Matlala has claimed R262 500.00 plus interest from G4S for
breach of contract by refusing to accept him back into employment
despite a court order of reinstatement.
38.
G4S has two defences to the claim: Firstly that Mr Matlala has fully
mitigated this loss by way of his employment with another
employer
being Wispeco. Secondly that, in any event, Mr Matlala has followed
the wrong legal route to enforce his claim. The route
of a
contractual claim by virtue of section 77(3) of the BCEA only applies
in situations in which the employer has accepted the
employee back
into employment and the contract of employment revives as indicated
in the
Coca Cola
matter. This is not the factual situation
before the court, because G4S never accepted Mr Matlala back into
service and the analysis
arising from the
Kubeka
and
Hendor
cases apply. In short Mr Matlala should have proceeded by way of
contempt proceedings and not by way of a section 77(3) claim to
enforce the order of reinstatement.
39.
I have already found that G4S may not rely on the mitigation defence
of Wispeco because the employer never amended their Statement
of
Response to cater for such a defence.
40.
The employer’s defence regarding the correct legal channel to
enforce the reinstatement order does though succeed, as
Mr Matlala
followed a contractual claim, when he should have followed contempt
processes.
41.
Accordingly, I make the following order:
Order
42.
The Applicant’s action is dismissed.
43.
There is no order as to costs.
D
Norton
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: Mr Mabaso
Mabaso
Inc. Attorneys
For
the Respondent: Mr Crafford
Crafford
Attorneys
[1]
During that time the Labour Court (on 23 December 2016) issued a
directive under Justice Prinsloo that the review was to be finalised
before the trial could begin. Thereafter in September 2017 Baloyi AJ
dismissed the employer’s review application. A year
later in
September 2018 he refused the employer’s leave to appeal. On 2
October 2020 the trial was postponed
sine
die
at
the employer’s initiative and with payment of R20 000
wasted costs. One of the purposes of the postponement was
to enable
the employer to amend his pleadings. In September 2022, Mr Mabaso
the employee’s legal representative requested
re-enrolment on
the trial roll. The matter was enrolled for trial on 29 February
2024.
[2]
Heads
of Argument at paragraph 23
[3]
Refer to Rule 6 (1)9b) read with rule 6(3)(b)
[4]
(2022) 43 ILJ 1369 (LC)
[5]
Paragraph 4
[6]
(2015)
36 ILJ 2013 (LAC)
[7]
For
clarity, the relevant dates are as follows: Mr Van Wyk, the employee
was dismissed for incapacity in June 2003. He referred
an unfair
dismissal dispute to the CCMA. He was successful and the CCMA
ordered reinstatement (with backpay to the date of dismissal
of an
amount of R33 507.00). The CCMA’s arbitration award was
made in August 2004. The employer proceeded to take
the award on
review, which they subsequently lost, as did an application for
leave to appeal, and a petition to the LAC. These
processes, which
brought the employer no relief came to an end in July 2008. In
February 2009 the Registrar issued a writ for
Van Wyk’s salary
for the period from September 2004 – February 2009, amounting
to R164, 489.00. In March 2009 the
employer reinstated Van Wyk.
[8]
(2019)
40 ILJ 2011 (LAC)
[9]
(2021) 42 ILJ 499 (LAC)