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[2015] ZALAC 114
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Coca-Cola SABCO (Pty) Limited v Van Wyk (JA11/2013) [2015] ZALAC 114 (5 May 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA11/2013
In
the matter between:
COCA
COLA SABCO (PTY) LIMITED
Appellant
and
HAROLD
VAN WYK
Respondent
Heard:
18
November 2014
Delivered:
05 May 2015
Summary:
Reinstatement award – writ of execution calculated for the
period between the date of the award and the implementation
of the
award – Labour Court holding that quantification for payment
for that period may be done by way of affidavit before
the registrar
– Appeal - period between the date of the award and the
implementation of the award not covered by the LRA
-
reinstatement
award
covering
only the period between the date of dismissal and the date of the
order and not entitling an employee to remuneration between
the date
of the award and the actual date of implementation
–
employee
seeking payment for that period having a contractual claim against
employer. Employer becoming a judgment debtor only after
adjudication
of the contractual claim. Appeal upheld – paragraph 2 of the
Labour Court’s judgment deleted.
Coram:
Musi JA, Murphy
et
Kathree-Setiloane AJJA
JUDGMENT
MUSI
JA
[1]
This is an unopposed appeal against the judgment of the Labour Court
(Van Niekerk J).
[2]
The respondent was employed by the appellant since 1996. During
September 2001, whilst still employed by the appellant, he was
seriously, but not permanently, injured in a motor vehicle collision.
On 2 January 2002, he returned to work. During June 2003,
he was
dismissed for incapacity due to ill health.
[3]
He referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA). Conciliation failed
and he referred the dispute for arbitration. On 5 August 2004, a
commissioner, acting under the auspices of the CCMA, found that
the
respondent’s dismissal was procedurally fair but substantively
unfair.
[4]
The commissioner issued the following award:
‘
1.
The dismissal of the Applicant was substantively unfair and
procedurally fair.
2.
The Respondent is ordered to re–instate the Applicant
retrospectively without any loss of benefits to his former position
and on terms that are no less favourable prior to the dismissal.
3.
The Respondent is further ordered to pay the Applicant arrears salary
in the amount of R33 507-10 calculated at R703-00
per week X
4.333X11 months.
4.
Payment of the above amount to be paid on or before the 1
st
of September 2004.
5.
There is no order as to costs.’
[5]
The appellant was not satisfied with the outcome and launched a
review application against the commissioner’s award. The
review
application was dismissed with costs on 16 November 2007. On 11 March
2008, an application for leave to appeal suffered
the same fate.
[6]
The appellant petitioned the Judge President. On 31 July 2008, the
Labour Appeal Court refused the appellant’s petition
for leave
to appeal.
[7]
On 19 February 2009, the registrar of the Labour Court issued a writ
of execution against the appellant’s movable property.
After
protracted negotiations, the respondent was reinstated on 2 March
2009. The relevant parts of the writ read as follows:
'and
to cause to be realised of such movable goods by public auction the
sum of:
1)
R33 507-10 (Thirty three
thousand five hundred and seven rand ten cents) awarded as
Compensation to the Applicant in terms of the
arbitration award dated
5 August 2004 confirmed under Labour Court Case No: JR2166/04 on 16
November 2007 attached to this writ
marked Annexure “
A”
2)
R164 489.34 (One hundred and
sixty four thousand four hundred and eighty nine rand thirty four
cents) (outstanding salary calculated
at R703-00 per week x 4.333 x
54 months since 1
st
of September 2004) plus interest. See Equity Aviation Services
(Pty) Ltd v Commission for Conciliation Mediation and Arbitration
and
others (CCT88/07) 2008 ZCAA 16.
3)
Interest on R33 507.10 at the rate of 15.5% per annum (monthly
compounded) calculated from 5 August 2004 to date of final
payment,
obtained and recovered by judgment of the Labour Court dated 11
th
March 2008 in the case mentioned in the preceding paragraph, plus
R387, 60 for the taxed costs and charges incurred in issuing
this
writ Attached to the writ is the court order dated 11
th
March 2008 under Labour Court Case No. JR2166/04 marked Annexure
“
B”.
’
[8]
The appellant approached the Labour Court with an application to set
aside the writ of execution.
[9]
Paragraphs 1 and 3 of the writ were not contested in the court
a
quo
. The appellant only took issue with paragraph 2 thereof.
[10]
The court
a quo
carefully analysed the award of the
commissioner and correctly concluded that:
‘
Despite
the inelegant and possibly ambiguous terms of his award, it had the
effect of reinstating the first respondent with retrospective
effect,
on conditions not less favourable than those that pertained prior to
dismissal, save that in regard to his salary, and
in the exercise of
the commissioner’s discretion, the applicant was obliged only
to pay the third respondent the amount that
he would have earned in
the preceding 11 months, i.e. R33 507. 10. This is not an award
of compensation, whatever labels the
first respondent may have
affixed to it in paragraph 1 of the writ.’
[11]
The court
a quo
however went further and held that “an
employer’s liability for remuneration post reinstatement falls
within the scope
of the award of reinstatement and being a judgment
ad pecunian solvendam
it can be enforced by way of a writ of execution.” The
court
a quo
then offered a practical solution to the problem and said the
following:
‘
Where
a judgment for payment of monies that are not quantified in the
judgment itself but are capable of being quantified without
difficulty, it is incumbent on a judgment creditor to prove the
nature and extent of the judgment debtor’s liability, for
example, by way of affidavit.’
[12]
The court
a quo
concluded that paragraph 2 of the writ of
execution was not properly proved. According to the court
a quo
,
the quantification of paragraph 2 should have been done before the
registrar by way of affidavit. The court
a quo
issued the
following order:
‘
1.
The writ of execution issued on 19 February 2009 is varied by the
deletion of paragraph 2 thereof.
2.
The first respondent is given leave to apply for the issuing of a
fresh writ, on affidavit, in which the first respondent quantifies
the applicant’s liability to the first respondent for wages
payable consequent on the order of reinstatement.
3.
There is no order as to costs.’
[13]
This appeal is directed against paragraph 2 of the court
a quo
’s
order. Mr Grobbler, on behalf of the appellant, argued that the court
a quo
erred in finding that an award for reinstatement
“required the payment for the full period up to and including
the date of
compliance”. He submitted that awards for
reinstatement cannot extend to a date beyond the date of the award.
He further
submitted that awards for reinstatement cannot serve as a
basis for a common law contractual entitlement to automatic payment
of
remuneration that would have been payable had the employee not
been unfairly dismissed.
[14]
The issues which we are called upon to decide are, firstly, whether
an award of reinstatement automatically entitles an employee
in whose
favour such award was made to amounts post the date of the award
until the implementation date or whether the claim in
respect of the
amounts subsequent to the date of the award should be claimed
separately and secondly whether such amounts can be
claimed by way of
issuing a writ of execution accompanied by an affidavit setting out
the amount of the claim.
[15]
In
Equity
Aviation Services (Pty) Ltd v CCMA and Others,
[1]
the effect of a reinstatement order was explained as follows:
‘
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. As the language of
section 193(1)(a) indicates, the extent
of retrospectivity is
dependent upon the exercise of a discretion by the court or
arbitrator. The only limitation in this regard
is that the
reinstatement cannot be fixed at a date earlier than the actual date
of the dismissal. The court or arbitrator may
thus decide the date
from which the reinstatement will run, but may not order
reinstatement from a date earlier than the date of
dismissal. The
ordinary meaning of the word “reinstate” means that the
reinstatement will not run a date from after
the arbitration award.
Ordinarily then, if a Commissioner of the CCMA order the
reinstatement of an employee that reinstatement
will operate from the
date of the award of the CCMA, unless the Commissioner decides to
render the reinstatement retrospective.
The fact that the dismissed
employee has been without income during the period since his or her
dismissal must, among other things,
be taken into account in the
exercise of the discretion, given that the employee’s having
been without income for that period
was a direct result of the
employer’s conduct in dismissing him or her unfairly.’
[2]
[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. Importantly, for purposes of this matter,
the commissioner
may not order that the reinstatement will start from a date after the
issuing of the arbitration award. 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 back-pay may only be granted in the alternative and are mutually
exclusive.
[3]
The back-pay
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 implementation.
The Labour
Relations Act does not cater for such relief.
[18]
Ordinarily an employer that complies with an order of retrospective
reinstatement and back pay would not only pay the back
pay 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?
[20]
According to the court
a
quo,
such
money may be recovered by simply quantifying it and filing an
affidavit with the registrar. In
National
Union of Metal Workers of South Africa and Others v Hendor Mining
Suppliers, a Division of Marchalk Beleggings Pty Ltd,
[4]
the
learned acting judge was also of the view that the reinstatement
order is the cause of action on which the judgment debt is
claimed.
She further said the following:
‘
[20]
It is apparent, in citing the dicta in the
Equity
Aviation
matter, that the
Constitutional Court in the
Billiton
matter reinforce the notion that the reinstatement order arises from
the confines of the Labour Relations Act and is reinforced
in terms
of an order of court. To the extent that the employer or company
appeals that decision, it does so with the risk that
the order of
reinstatement continues pending a reversal, if any, of that order by
a higher court…
[23]
In other words, the possibility of paying additional back pay,
pursuant to an appeal process to one or more of the higher courts,
is
a risk inherent in the process. The company’s argument in this
court - that the prospective part of the Labour Court order
commencing from the period after 16 April 2007 and terminating on 28
September 2009 is subject to a properly pleaded contractual
claim…is
not only odd but perverse.’
[21]
It seems to me that the court
a quo
and the learned acting
judge in
Hendor Mining Suppliers
conflated the reinstatement
order and the contractual duty to pay an employee for work done.
[22]
The reinstatement order - as stated above - only serves to revive the
contract of employment. The rights and obligations of
the parties
would therefore, as in the beginning, again be governed by the
contract of employment.
[23]
In
Johannesburg
Municipality v Ơ Sullivan,
[5]
it was said that:
‘
In
other words, so long as the employee is bound to devote his whole
time and attention to the council’s service and is consequently
not free, when there is no work for him to do, to dispose of his
labour elsewhere, so long is the council bound to pay him his
weekly
wage.’
[6]
[24]
Therefore 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. She/he 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 she/he tendered his/her labour in terms thereof and
that the employer
refuses or is unwilling to pay him/her in terms of
that contract. The employer on the other hand would have all the
contractual
defences at her/his disposal.
[25]
The court
a
quo
was, in my view, incorrect in its conclusion that “awards of
reinstatement, by their very nature, require the payment for
the full
period up to and including the date of compliance.”
[7]
All that an award for reinstatement does is to revive the contract of
employment.
[26]
The wrong reasoning in relation to the nature of a reinstatement
order probably led the court
a quo
to the conclusion that the
quantification of the outstanding money between the date of the order
and the implementation date of
the order may be done by way of
affidavit before the registrar. Such procedure, although practical,
may have far-reaching and unfair
consequences. The most obvious being
firstly that the employer’s right to defend himself/herself, by
invoking contractual
defences would be negated. Secondly it would
give a reinstatement order a characteristic that it was never
intended to have i.e.
reviving the contract and setting out the
entitlement of the employee to damages after the date of the order.
A reinstatement
award/order cannot extend to a date beyond the date
of the order nor can it serve to form the basis of a common law
contractual
entitlement.
[27]
In
De
Crespigny v De Crespigny,
[8]
Holmes J (as he then was) said the following about execution:
‘
The
civil administration of justice provides machinery
inter
alia
for the enforcement of rights. It provides, amongst other thing, for
litigation, judgment, and execution. As execution is a process
for
enforcing judgments, it seems to me axiomatic that it is only
available when the claim or
lis
has been judicially resolved. And it seems to me clear that a
lis
has not been judicially resolved if the amount payable under the
judgment can only be ascertained after a further problem of law
has
been decided. It is not within the province of the plaintiff to
decide such problems. In such a case, failing agreement between
the
parties, a plaintiff's remedy, at any rate in the Supreme Court,
would, I think, be to apply for a definition of his rights
under the
judgment. Whether this should be done by way of an application for a
declaratur
,
or in the course of applying for leave to execute, I need not
decide.’
[9]
[28]
When
there is a delay in the implementation of the reinstatement award and
the employer refuses to pay an employee money that may
be due between
the period of the award and the implementation thereof, the
lis
between them has not been judicially resolved. It is only after a
contractual claim in the civil courts or under section
77 of the
Basic Conditions of Employment Act has been instituted and pronounced
upon that it can be said that the employer is a
judgment debtor
against whom a writ may be issued.
[10]
The order of reinstatement is not a judgment dealing with the
consequent damages for the breach of the contract.
[29]
The risk that an employer takes relating to the accumulated financial
burden, caused by delays in the review and appeal process,
has
nothing to do with the cause of action. The risk to the employer
remains and the rewards to the employee would also be intact
if the
claim is prosecuted properly and timeously.
[30]
In summary, a reinstatement award does not cover the period between
the award and its implementation. Should an employer refuse
to pay an
employee for the said period then the employee has a contractual
claim - which is a totally different cause of action
- against the
employer.
[31]
In so far as the views expressed in
Hendor Mining Suppliers
are inconsistent with the views expressed in this judgment;
Hendor
Mining Suppliers
is wrong.
[32]
I, therefore, make the following order:
a)
The appeal is upheld.
b)
Paragraph 2 of the court
a
quo’
s judgment is
deleted.
c)
There is no order as to costs.
Musi
JA
Murphy
and Kathree-Setiloane AJJA agreed with Musi JA
APPEARANCES:
FOR
THE APPELLANT:
Adv Grobbler
Instructed
by: Kramer Weihmann Joubert INC
FOR
THE RESPONDENT:
No appearances
[1]
2009 (1) SA 390
(CC).
[2]
At para 36.
[3]
Equity
Aviation
at
para 42.
[4]
[2014] JOL 32068
(LC).
[5]
1923 AD 201.
[6]
At 206.
[7]
Para 11 of the
judgment of the court
a
quo
.
[8]
1959 (1) SA 149
(N).
[9]
At 150 F-G.
[10]
Section 77 of the
BCEA reads as follows:
“
77
Jurisdiction of Labour Court
(1) Subject to the
Constitution and the jurisdiction of the Labour Appeal Court, and
except where this Act provides otherwise,
the Labour Court has
exclusive jurisdiction in respect of all matters in terms of this
Act, except in respect of an offence specified
in sections 43, 44,
46, 48, 90 and 92.
(2) …
(3) The Labour Court has
concurrent jurisdiction with the civil courts to hear and determine
any matter concerning a contract
of employment, irrespective of
whether any basic condition of employment constitutes a term of that
contract…”