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[2012] ZALCJHB 161
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Modikwe v Staff Dynamix Primeserve (J2797/07) [2012] ZALCJHB 161 (13 December 2012)
Not reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case
no: J2797/07
In the matter between:
MODIKWE, ANDREW RANANE
Applicant
and
STAFF DYNAMIX PRIMESERVE
Respondent
Heard
:
2 November 2102
Delivered
:
13 December2012
JUDGMENT
BHOOLA J
Introduction
[1] The applicant seeks an order in the following terms :
The respondent is in contempt
of the arbitration award made under the auspices of the CCMA under
case number GAPT2766-07 dated
the 4
th
May 2007 that has
been made an order of court under case number J2797/07 on the 19
th
February 2009.
The respondent is ordered to
reinstate the applicant in the position as merchandiser, or a
similar position at the current market
related salary that applies
on the applicant’s date of reinstatement.
The respondent is ordered to
pay the applicant an amount equal to the salary he would have earned
between the 1
st
of July 2007 and the date of
reinstatement taking into account all the adjustments and increases
the applicant would have been
entitled to.
[2] At the hearing of this matter the applicant’s counsel,
appearing on a
pro-bono
basis, abandoned the relief sought in
prayer 2. It is not disputed that the applicant is too ill to return
to work.
Background facts
[3] The applicant was employed in 2004 by the respondent, a labour
broker, and placed at various branches of Builders’ Warehouse
in Pretoria. On 11 September 2006 while he was working at the
Builders’ Warehouse Zambesi branch as a merchandiser earning
a
monthly salary of R2 115.00, he was suspended without pay. He
made enquiries on 22 February 2007 as to when his suspension
would be
lifted. He was unaware of the reason for the suspension. With the
assistance of his trade union, ICUSA, he referred a
dispute to the
CCMA and a default arbitration award was issued as follows :
“
1. The
suspension of the applicant was unfair in terms of the Labour
Relations Act. The Applicant was able to prove the existence
of an
unfair labour practice.
2. The respondent, Staff
Dynamix, is ordered to reinstate the applicant, Mr A Modikwe, to his
previous position of merchandiser
on 1 June 2007. The applicant must
report to Staff Dynamix at 8am on 1 June 2007.
3. The respondent is also
ordered to pay the applicant, Mr A Modikwe, for the period of his
suspension which amounts to 7 months
back pay being R14 805.00
(7 x R2 115.00).
4. Said must be paid on or
before 1 June 2007.
5. There is no order as to costs
in the matter”.
Analysis
[4] The applicant alleges that before he could return to work the
respondent approached the CCMA with an application for rescission.
In
2008 the application was dismissed. In February 2009 he brought an
application for the arbitration award to be made an order
of court.
During March 2009 ICUSA sent a copy of the order to the respondent,
and meetings were scheduled for 8 April and thereafter
14 April but
which did not take place. On 21 April 2009 the respondent offered to
pay him an amount of R7000.00 and undertook to
make attempts to find
him a position similar to the one he was in prior to his suspension
since his position was no longer available.
On 6 May 2009 the
respondent gave an undertaking to pay him R7000.00, with the balance
payable within six months and to find him
alternative employment as
soon as possible. In June 2009 he was informed by ICUSA that the
respondent had found him an alternative
position at Builders’
Warehouse Fairie Glen branch in Pretoria where he was to report on 1
July 2009. Upon his arrival he
was informed that he would be employed
as a general worker not a merchandiser, and would only be paid R10.95
per hour instead of
the R11.75 per hour that he had earned as a
Merchandiser. The respondent refused to confirm whether his
appointment was permanent.
He informed the respondent that he was to
be reinstated as a merchandiser at the original rate. He was advised
that if that was
his attitude he should return to court. He informed
his union and was advised that he should await further instructions.
ICUSA
informed him on 25 July 2009 that the respondent had a position
available for him at Builders’ Warehouse Zambesi branch, and
when he got there he raised the same concerns he had expressed when
he reported for work to Fairie Glen. He again contacted ICUSA.
He
admits that he had rejected the respondent’s offers of
employment but submits that the offer was to employ him in a lower
position at a lesser rate. He insists that he is entitled to
reinstatement as a merchandiser at the rate he was earning at the
time. The union thereafter ceased to represent him as he could not
afford to pay his dues. He has not been able to secure alternative
employment despite his best efforts.
[5] It is clear from the applicant’s own admissions that the
respondent is not in contempt. It has sought to accommodate
him and
repeated its offer at the hearing of this matter. Insofar as his
counsel sought to suggest that it might be appropriate
to order that
the respondent should pay him for the period from the date of the
award till the date of its offer i.e. from 1 June
2007 to 6 May 2009,
this relief is in my view not competent in that there is a dispute of
fact as to whether he tendered his services
in compliance with the
award. As the respondent’s counsel submitted the applicant does
not make this averment in his pleadings
and his version in the
replying affidavit and the founding affidavit is inherently
contradictory in that he states that he was
unable to tender his
services since the respondent had applied for rescission, and that he
did tender services but was turned away.
No further facts are
provided as to the circumstances in which his tender to work was
rejected and the respondent disputes that
this is factually
correct.The respondent’s counsel submitted that the correct
remedy is for him to report to work, which
he has on his own version
refused to do. The applicant’s counsel argued that it is common
cause that the first tender of
his services was made on 1 July 2007,
and that the respondent‘s failure to comply with the award
raises an inference that
they are in wilful default and have acted
mala fide
. In this regard counsel relied on
Consolidated
Fish Distributors v Zive
1968(2) SA 517 and argued that this
court should make the same inference.
[6] In these circumstances I am unable to find that the respondent is
in contempt as it has made numerous attempts to comply with
the
order. The applicant is entitled to pursue a contractual claim
related to the back pay which he claims is due to him. It is
not
appropriate for this court to fashion a remedy in these circumstance.
The parties were urged to settle the matter and it appeared
that
although some progress was made the applicant rejected the offer.
This is unfortunately to his own detriment.
Order
[7] Therefore, I make the following order :
The application is dismissed with no order as to costs.
_______________________
BHOOLA J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
E Liebenberg
Instructed by Macrobert
Inc.,Pretoria.
RESPONDENT:
M A Lennox
Instructed by Cliffe
Dekker Hofmeyr Inc, Johannesburg.