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[2016] ZALCJHB 68
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South African Post Office Limited v Soman NO and Others (JR1368/12) [2016] ZALCJHB 68 (25 February 2016)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR1368/12
In the matter between:
SOUTH AFRICAN POST OFFICE
LIMITED
Applicant
and
M SOMAN
N.O
First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
NESHUNZHI R
B
Third Respondent
Heard: 25 November 2015
Judgment: 25 Novemeber 2015
Edited: 25 February 2016
EX-TEMPORE JUDGMENT
CELE J
:
[1] This is an application brought in
terms of
section 145(2)
of the
Labour Relations Act 66 of 1995
where
the applicant seeks to be granted an order which appears in the
appended notice of motion and it reads thus:
‘
1.
That
the arbitration award of 30 March 2012 by the first respondent given
under case number GAJB32240/11 of the second respondent
in terms of
which the applicant was ordered to pay to the third respondent an
amount of R532 500 be reviewed and set aside.
2.
That the court substitutes the said award with an order that:
a)
The dismissal of the applicant by the respondent was procedurally
unfair;
b)
There is no relief granted to the applicant.
Alternatively
to a) and b):
c)
The dismissal of the third respondent by the applicant was
substantively and
procedurally unfair.
d.
The applicant is ordered to reinstate the applicant on the same terms
and conditions
applicable as at the date of dismissal on 27 October
2011.
e.
The applicant is not obliged to utilise the services of, or provide
any work
to the third respondent for the period of reinstatement
which would be an equivalent to the period he would have served from
28
October 2011 until 31 May 2012.’[sic]
[2] The application is opposed by the
third respondent in whose favour the award was issued. It
remains common cause between
the parties that the third respondent
was an employee of the applicant as a senior manager, he was charged
with an act of misconduct
related to sexual harassment and his junior
staff members had to come and testify at the hearing.
[3] He was acquitted and at the time
of the internal disciplinary hearing he had been placed on suspension
from 2010. The
acquittal of the third respondent presented a
complication in the employees of the applicant in the sense that
these junior employees
had to continue the relationship of employment
with him when he was their senior. The applicant realised that there
was this problem
and when it was decided to communicate the decision
of the acquittal to the junior staff. A meeting was convened and a
psychologist
was called to counsel the staff. However, after
the acquittal of the respondent, he was not reinstated to his
position, he
was kept on suspension until the employment was
terminated by the applicant on 28 August 2011 and at that time the
applicant decided
to continue to pay his salaries until 31 May 2012.
[4] The third respondent had been on a
fixed term contract of employment, it was initially five years and it
was extended thereafter
for three years and thereafter I think for a
short period but it would have ended on 31 May 2012. The third
respondent felt
aggrieved by this termination of employment which he
classified as a dismissal. He referred an unfair dismissal dispute
for conciliation
and when conciliation could not resolve it, he
referred it to arbitration.
[5] The first respondent was appointed
to arbitrate this dispute. A lot of facts were basically common
cause and what was
therefore to be decided essentially was whether or
not an employer who pays a salary to an employee is obliged to give
employment
or to give work to the employee that is the main principle
involved in this matter.
[6] This is so, because as I have
indicated, the third respondent continued to get his salary and that
salary would have taken him
through to the end of the fixed term
period. The second respondent having listened to the evidence
decided to compensate
the third respondent and I think it was an
amount equal to six months compensation.
[7] The applicant takes issue with the
approach in the computation of compensation, making out a case that
this was a misdirection
on the part of the commissioner in that the
commissioner should have realised that there was only two months left
for this contract
to end and if there was any kind of compensation it
would have been limited at most to the two months period of time.
[8] Secondly, that the third
respondent had not testified and not given any evidence and therefore
there was no rationale or basis
on which any kind of compensation
could be determined on such evidence. Therefore the
compensation was merely based on speculation
on what kind of
increment there was likely to be in the salary of the third
respondent.
[9] The third
respondent opposes this application and today Mr Moshoana, appearing
for the third respondent, has brought to my attention
the important
decision in the case of
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
[1]
It
is appropriate in this case, paragraphs 21 to 23 to the extent
relevant read:
[21]
Where a dismissed employee does not seek reinstatement or
re-employment or where reinstatement
or re-employment is not an
appropriate remedy as provided for in
s193(2)
of the LRA, or where
only compensatory relief is sought for a claim of unfair dismissal or
an automatically unfair dismissal, then
compensation sought and
ordered in terms of the LRA is limited in terms of
s194.
The limit on
compensation for a dismissal found to be automatically unfair is what
the dismissed employee would have earned over
a period of 24 months.
However, before one sets out how to calculate what the appropriate
compensation is, it is important to consider
what is understood by
compensation under the LRA. As a starting point, compensation under
the LRA must not be confused or
conflated
with
compensation as understood in the laws of contracts or delict. As
pointed out in
Trotman
and Another v Edwick
,
[2]
‘
A
litigant who sues on contract sues to have his bargain or its
equivalent in money or in money and kind. The litigant who sues
on
delict sues to recover the loss which he had sustained because of the
wrongful conduct of another, in other words that the amount
by which
his patrimony had been diminished by such conduct should be restored
to him.’
[3]
[22]
The compensation that an employee, who has been unfairly dismissed or
subjected to unfair labour
practice, may be awarded is not aimed at
making good the patrimonial loss that s/he has suffered.
[4]
The concept of loss or patrimonial loss may play a role to evince the
impact of the wrong upon the employee and thus assists towards
the
determination of appropriate compensation, but compensation under the
LRA is a statutory compensation and must not to be confused
with a
claim for damages under the common law, or a claim for breach of
contract or a claim in delict. Hence, there is no need
for an
employee to prove any loss when seeking compensatory relief under the
LRA.
[23]
Compensatory relief in terms of the LRA is not strictly speaking a
payment for the loss of a
job or the unfair labour practice but in
fact a monetary relief for the injured feeling and humiliation that
the employee suffered
at the hands of the employer. Put differently,
it is a payment for the impairment of the employee’s dignity.
This monetary
relief is referred to as a
solatium
[5]
and it constitutes a solace to provide satisfaction to an employee
whose constitutionally protected right to fair labour practice
has
been violated.
[6]
The
solatium
must be seen as a monetary offering or pacifier to satisfy the hurt
feeling of the employee while at the same time penalising
[7]
the employer. It is not however a token amount hence the need for it
to be “just and equitable” and to this end salary
is used
as one of the tools to determine what is “just and equitable”.
[10] This judgment
indicates to me that the reliance on a salary when compensation is
arrived at is a complex matter. It is merely
a guide but one should
not base a review merely because of how a salary has been used as
means of compensation and the complexity
involved in the computation
of compensation is clearly indicated in paragraph 24 of this
judgment.
[11] In my view, notwithstanding the
fact that the third respondent did not testify at the arbitration,
the commissioner was still
entitled to find a means of compensating
the employer, the third respondent who had been embarrassed in the
manner that he had
been dismissed. The fact that his remaining
part of the contract was only two months is not much of a relevant
consideration.
[12] I am not of the view that no
commissioner could have compensated the third respondent to the
extent that the second respondent
did. Accordingly it has not been
shown to me that the decision reached by the second respondent in
compensating the third respondent,
is visited by any defect.
[13] I therefore make the following
order:
14.1 The review application is
dismissed.
14.2 The applicant
is to pay the costs. .
___________________
CELE, J
Judge of the Labour
Court of South Africa
Appearances
:
For the Applicant:
Adv. EJ Van Rooyen-Steenkamp, instructed by Adams and Adams
For the Respondent:
Mr Moshoana of Mohlaba Moshoana Inc.
[1]
[
2015]
11 BLLR 1081 (LAC).
[2]
1951 (1) SA
443 (A).
[3]
At 449 B-C.
[4]
An employee
who has been subjected to an unfair labour practice or unfairly
dismissed and who has immediately found other better
employment
suffers no loss but may still be entitled to compensation under the
LRA.
[5]
This was
first raised in
Johnson
and Johnson (Pty) Ltd v CWIU
(1999)
20 ILJ 89 (LAC) with regard to procedurally unfair dismissals.
[6]
The LRA and the EEA in matter such as this give effect to the fair
labour practice right entrenched in the Constitution of the
Republic
of South Africa Act 108 of 1996.
[7]
We do not need to enter into the debate on whether or not
solatium
contains a penal element suffice to say that the monetary prejudice
the employee suffers must equate to some form of a punitive
element
but not a penalty in the context of criminal and criminal procedural
laws. Compare S Vettori “The Role of Human
Dignity in the
Assessment of Fair Compensation for Unfair Dismissals”
PER/PELJ 2012 (15)4 102/231-123/231 when he says
“
The
cap on compensation for automatically unfair dismissal is double
that of “ordinary dismissal”, namely 24 months’
salary as opposed to 12 months’ salary. Perhaps this could be
construed as an intention on the part of the legislature
to
introduce a punitive element in the amount of compensation awarded
for automatically unfair dismissals since these reasons
for
dismissal seem to be morally reprehensible and repulsive to our
sense of justice.”
At 109/231.