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[2018] ZALAC 7
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Ilembe Outsourcing and Recruitment CC and Others v Nosango (DA10/2015) [2018] ZALAC 7; [2018] 7 BLLR 650 (LAC) (19 April 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not reportable
Case no:
DA10/2015
In the matter
between:
ILEMBE
OUTSOURCING AND RECRUITMENT CC
First appellant
LOUIS MARTIN
PHEIFFER
Second appellant
HANDSOME
MPILOYENKOSI
MZIMELA
Third appellant
and
MONWABISI
HOWARD
NOSANGO
Respondent
Heard:
22 March 2018
Delivered:
19 April 2018
Summary
:
Respondent’s suspension from duty found unfair at arbitration
with company ordered to uplift the suspension and reinstate
respondent with arrear wages. Respondent offered alternative position
at a lower salary, which the respondent refused. After the
arbitration award was made an order of court respondent launched a
contempt application. Cele J directed compliance with the arbitration
award and ordered the reinstatement of the respondent at the same
site. In the event of non-compliance, the Court was to be approached
to find that the second and third respondent be committed to prison
for 15 days. On appeal: found that appellants had not reinstated
respondent into his employment in accordance with the terms of the
arbitration award, as made an order of court. Order of Cele
J
substituted. The second and third appellants as the natural person
members of the first appellant close corporation found to
be in
contempt of court with the committal order suspended pending
compliance with the order to reinstate respondent and pay him
12
months back pay. Appellants ordered to pay the costs of the appeal
jointly and severally.
Coram: Musi
JA, Hlophe and Savage AJJA
Judgment
SAVAGE AJA
Introduction
[1]
This
appeal, with the leave of the Court
a
quo
,
is against the judgment of the Labour Court (Cele J) in a contempt
application brought by the respondent, Mr Monwabisi Howard
Nosango.
In his application, he sought that the appellants be found to be in
contempt of court; that their arrest be authorised
in order that they
be brought to court; that they be committed to jail for a period of
15 days from the date of the final order;
that they thereafter be
brought to court again to show cause why a further period of
committal should not be authorised; and that
the appellants pay the
costs of the application jointly and severally.
[2]
The
respondent was employed as a lasher by the first appellant, Ilembe
Outsourcing and Recruitment CC, from 1 March 2009. On 4 May
2012, he
was suspended from duty, apparently after having been involved in an
altercation with employees affiliated to different
trade unions.
Aggrieved with his suspension, the respondent referred an unfair
labour practice dispute to the Commission for Conciliation
Mediation
and Arbitration (CCMA) for determination. On 22 April 2013, following
the arbitration of the dispute, which proceeded
in default, the first
appellant was ‘…
directed
to uplift the suspension of the applicant and reinstate him in his
employment…
’,
with arrear wages to be paid to the respondent in the sum of
R25 781,35 within seven (7) days of the date of receipt
of the
arbitration award.
[3]
On
2 May 2013, the respondent tendered his services in accordance with
the terms of the arbitration award but was informed by the
first
appellant’s operational manager, Mr Wilson Mfanakayise Ngema,
that there was no work for him. The first appellant thereafter
brought an application to rescind the arbitration award. On 2 July
2013, the rescission application was refused on the basis that
the
first appellant had not offered an intelligible explanation for its
default and that the prospects of success were poor since
no attempt
was made to advise the respondent of the outcome of investigations
into allegations of misconduct raised against him
or summon him to
attend a disciplinary hearing.
[4]
On
4 June 2014, Gush J made the arbitration award an order of the Labour
Court in terms of s158(1)(c) of the Labour Relations Act
66 of 1995
(LRA). After this, at the instance of the respondent, the Sheriff
attached certain goods of the first appellant, which
led the first
appellant to pay the monetary amount due to the respondent in terms
of the arbitration award in three instalments.
[5]
From
January 2014, various unsuccessful attempts were made to resolve the
matter. After there had still not been compliance with
the terms of
the arbitration award, in September 2014, the respondent pursued a
contempt application. That application was opposed
by the appellants,
with an answering affidavit was deposed to by Mr Ngema.
[6]
In
his affidavit, Mr Ngema disputed that the appellants were in contempt
of court and stated that the appellants had “
duly
complied
”
or complied “
in
so far as it is possible”
with the order. Mr Ngema recognised that the respondent was not
dismissed from his employment and expressed the view therefore
that
the order of reinstatement made by the arbitrator was not
appropriate. He noted that since the first appellant’s business
is that of labour outsourcing, like other employees, the respondent
had been employed by way of a fixed term contract. The fixed
term
contract annexed to the answering affidavit was signed by the
respondent but no expiry date had been inserted into the contract.
[7]
According
to Mr Ngema, the respondent was suspended from his position at Durban
harbour following incidents in which other employees
had been
prohibited from going to work, which had escalated into a hostile
situation between two trade unions. Apparently, as a
result of this,
Mr Ngema stated that he was concerned about the respondent’s
safety and recommended his placement at a different
site, being ABI
Coca-Cola in Phoenix, but at a reduced salary. The respondent refused
to sign the contract to work in that position
although, according to
Mr Ngema, each employee employed by the first appellant knows that
“
in
terms of the provisions of their employment,
[the
first appellant]
is
entitled to place them at any site where their services are
required
”.
[8]
Thereafter,
apparently in a further attempt to resolve the matter, the respondent
was made another offer, this time to be placed
at a different site at
the Durban harbour from where he had worked but with no salary
reduction. He was requested to report for
work on 27 August 2014.
When he did not do so, a letter signed by Mr M H Mzimela, the third
appellant, was delivered to the respondent
the same day. The letter,
at the foot of which the names of the second and third appellants
were recorded as the two members of
the first appellant, stated:
‘
Further
to our conversation with your legal representative we place on record
that we have offered you alternate employment at a
site where you
will not be required to catch two taxi’s to reach work and
thereby incurring more costs. The same rate and
terms will apply. You
are therefore instructed to report to site ILEMBE offices 28/08/14 at
07.30am and will be taken to the site
ZMS LOGISTICS, thereafter to
commence work
.’
[9]
The
respondent did not report for work on 28 August 2014 and launched the
contempt application against the first, second and third
appellants.
Mr Ngema stated that from the facts, it was apparent that the
appellants had not acted
mala
fide,
but that they had sought to protect the welfare of the respondent
whose life was threatened by other employees.
Judgment of
the Labour Court
[10]
Although
no replying affidavit was filed by the respondent when the matter
came before the Labour Court, Cele J viewed with suspicion
the
appellants’ contention that the respondent risked exposure to a
dangerous situation were he to continue with his employment
at the
site from which he had been suspended. This was so since in the
correspondence exchanged between the parties from January
2014 there
was no reference made to any such danger. The judge stated that “
I
can only infer from all of this that the respondent was very much
mala fide in its behaviour”
since there had not been compliance with the arbitration award over
an extended period. In addition, it was found that there was
no bar
on the respondent being placed back into his employment at the site
he had been employed in that the appellants could later
raise the
existence of any such alleged danger with him. The Court had regard
to the fact that the respondent was required to execute
against the
first appellant’s movables in order to secure payment of the
monetary sum owing to him and that, faced with further
non-compliance, was forced to approach the Labour Court for a
contempt order. Consequently, on 23 March 2015 in an
ex
tempore
judgment, an order was made by the Labour Court –
‘…
directing
the respondent to take into its employ the applicant and to give him
the same site as had been given to him before he
was suspended where
he can work under similar conditions as appear in the arbitration
award and to pay him the outstanding amount
of salary up to the date
when he starts working and to continue doing so. Secondly, the
employee, the applicant must tender his
services within four days of
today. Finally, in the event that there is non-compliance with the
directive of this Court, the Court
will be approached on notice given
to the respondent and the Court will therefore issue an injunction or
a directive that the second
and third respondent be committed to
prison for 15 days each if there is no compliance.
There
is no order as to costs.
’
Discussion
[11]
Civil
contempt is the wilful and
mala
fide
refusal
or failure to comply with an order of court.
[1]
In
Fakie
NO v CCII Systems (Pty) Ltd,
[2]
it
was held that when a committal to prison for civil contempt is
sought, the criminal standard of proof applies, while the civil
standard applies when an application is made for a declarator of
contempt without imprisonment and a mandatory order.
[3]
The applicant for a committal order must establish (a) the order; (b)
service or notice of the order; (c) non-compliance with the
terms of
the order and (d) wilfulness and
mala
fides
,
beyond reasonable doubt. But, once the applicant has proved (a), (b)
and (c), the respondent bears an evidentiary burden in relation
to
(d).
[4]
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether his or her non-compliance was
wilful
and
mala
fide
,
the applicant would have proved contempt beyond a reasonable
doubt.
[5]
[12]
There
is no dispute that by the time the matter came before Cele J there
had been partial compliance with the terms of the arbitration
award
insofar as the monetary amount owing to the respondent in terms of
the award had been paid to him. What is notable
however is that
the appellants had not complied with the order to pay the monetary
amount in a lump sum within seven days of the
arbitration award but
elected to pay the amount due not in one instalment but rather in
three separate instalments beyond the seven
days ordered.
Furthermore, the offer to deploy the respondent at a different site,
first at a reduced salary and then apparently
at the same salary, did
not amount to compliance with the order that the respondent’s
suspension be uplifted and he be reinstated
into his employment. This
is so since that order intended that the respondent resumes his
duties with the first appellant through
the restoration of his
employment by being placed back into the position previously held by
him and not employed under a new contract
of employment. Neither his
contract of employment nor the order made permitted employment in a
different position or at a reduced
salary unless this had been agreed
between the parties.
[13]
Since
the offer of alternative employment made to the respondent was not
accepted by him, the appellants were required to comply
with the
terms of the order and place the respondent back into the position he
held before his suspension. This did not occur and
neither the second
nor third appellants provided a cogent or acceptable explanation as
to why they did not comply. The suggestion
that the appellants had
adopted a benevolent approach to the upliftment of the suspension by
offering alternative employment so
as protect the respondent from
union rivalry was simply not borne out by the facts, with no
indication why it was necessary to
remove the respondent from the
workplace as opposed to other employees. The period of time which has
elapsed since the order was
made provided an extended opportunity to
the appellants to comply with the order. Yet, the second and third
appellants failed to
discharge the evidentiary burden resting upon
them and advance evidence or provide a valid explanation for their
failure to comply
with the order. As a consequence, they failed to
show that their non-compliance was not wilful and
mala
fide
.
[14]
The
order of Cele J required compliance with the arbitration award and
failing such compliance, stated that “
the
Court will be approached on notice given to the respondent and the
Court will therefore issue an injunction or a directive that
the
second and third respondent be committed to prison for 15 days each
if there is no compliance”.
The appellants took issue with the fact that the Court was to be
approached on notice to “
the
respondent”
and not to “
the
second and third respondents
”
(the second and third appellants), who would face the consequences of
any contempt finding. Furthermore, while the Labour
Court found “
that
the respondent was very much mala fide in its behaviour
",
the appellants contended that no finding of
mala
fides
was made against the second and third appellants when a contempt
order cannot be made against a close corporation, but only against
its members or other individuals.
[15]
It
is so that the order of the Labour Court is not a model of clarity.
In its current form, it cannot stand and must be substituted
with an
appropriate order. Having regard to the merits of the matter, it is
apparent that the second and third appellants did not
discharge the
evidentiary burden resting upon them to show that as the two natural
persons who are members of the first appellant
close corporation,
their non-compliance with the terms of the arbitration award was not
wilful and
mala
fide
.
They relied on Mr Ngema’s opposition to the application in
which he recognised that the respondent had not been dismissed.
As
such, restoration of the employment of the respondent in the position
he had previously held was clearly, even on the appellants’
own
version, required. No acceptable reason was advanced as to why this
did not occur. It follows that the respondent succeeded
in proving
contempt of the court order against the second and third appellants
beyond a reasonable doubt.
[16]
Given
the lack of evidence that the respondent took appropriate steps to
mitigate his losses, fairness dictates that the back pay
payable to
him be limited to a period of 12 months.
[17]
With
the parties engaged in an ongoing employment relationship, there is
no reason to interfere with the decision of the Labour
Court not to
order costs in the contempt application. As to the appeal however,
the appeal would have been unnecessary had the
appellants complied
with the terms of the order. There is, therefore, no reason in law or
fairness as to why the appellants should
not bear the costs of the
appeal even in circumstances in which the matter has technically had
some success.
Order
[18]
In
the result, an order is made in the following terms:
1.
The
appeal succeeds with costs, such costs to be paid by the appellants
jointly and severally the one paying the other to be absolved.
2.
The
order of Cele J is set aside and substituted as follows:
‘
1.
The first, second and third respondents are found in breach of the
order of Gush J
made on 4 June 2014 and the second and third
respondents as natural persons are found to be in contempt of such
order.
2.
The second and third respondents are to be committed to imprisonment
for a period
of 15 days for contempt of court.
3.
The order in paragraph 2 above is suspended for a period of 12 months
on the
following conditions:
3.1.
that the first appellant reinstates the
respondent into his employment at the same workplace he was
engaged
at the time of suspension within ten (10) days of receipt of this
order;
3.2.
that the first appellant pays to the
respondent 12 months back pay at the rate that he received on
date of
his suspension within ten (10) days of receipt of this order.
4.
There is no order as to costs
.’
___________________
Savage AJA
Musi JA and
Hlophe AJA agree.
APPEARANCES:
FOR
THE APPELLANTS:
Adv. A P Van Der
Westhuizen
Instructed by
Brimelow DE Oliveira
Ekerold Inc
FOR
THE RESPONDENT:
Mr M P Nonyongo
Instructed by
M.
P. Nonyongo Attorneys.
[1]
Fakie
NO v CCII Systems (Pty)
Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)
at para 9 (
Fakie
).
[2]
Ibid
at para 19.
[3]
At
para 42.
[4]
Fakie op
cit.
at
para 42.
[5]
Fakie
op cit. at
paras
22-24.