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[2017] ZALCJHB 73
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Michael and Another v Phakisa Technical Service (Pty) Ltd and Another (JS282/14, JS280/14) [2017] ZALCJHB 73 (7 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS282/14
JS208/14
In
the matter between:
ZITHA
BONGANI MICHAEL
PHUMZILE
MLENZANA
First
Applicant
Second
Applicant
and
PHAKISA TECHNICAL
SERVICE (PTY) LTD
CHRISTO PIERRE
NOLTE
Heard:
12 August 2016
Delivered:
07 March 2017
First Respondent
Second Respondent
JUDGMENT
TLHOTLHALEMAJE
J
[1]
By
agreement between the parties, the matters under the two above case
numbers were consolidated during these proceedings. The applicants
in
both matters seek the same relief from the same employer. The
disputes emanate from similar facts, and the parties are represented
by the same set of legal representatives in both matters.
[2]
The
first and second applicants seek an order that the respondents be
found to be in contempt of orders obtained from this Court
on
24 February 2016 and 27 October 2015
respectively. Under case number JS282/14, Golden AJ on
24 February 2016
had found that the dismissal of the first
applicant, Mr Bongani Michael Zitha (Mr Zitha) was procedurally and
substantively unfair.
The first respondent, being in default, was
ordered
to
reinstate the applicant with immediate effect on the same terms and
conditions applicable prior to his dismissal
.
[3]
Under
case number JS208/14, Steenkamp J found also in the absence of the
respondents that the dismissal of the second applicant
Mr Phumzile
Mlenzana (Mr Mlenzana) was procedurally and substantively unfair, and
the first respondent was ordered to— “
reinstate
the applicant from 2 November 2015 on the same terms and
conditions governing his employment prior to his dismissal”.
[4]
The
above-mentioned orders were issued in circumstances where the first
respondent had not opposed the applicants’ statements
of claim
following from what they had deemed to have been the unfair
termination of their contracts of employment. It was further
common
cause that the first respondent is a Temporary Employment Service
(TES) employer, and its business is to place temporary
employees with
its clients. One of those clients is a company known as Wekeba, where
Mr Zitha and Mr Mlenzana were placed prior
to the termination of
their services.
[5]
It
was common cause that both the above court orders were served on the
first respondent and flowing from that, Mr Zitha and Mr
Mlenzana had
presented themselves for reinstatement, Mr Zitha was sent home on the
basis that there was no alternative post available
for him after
Wekeba had restructured, and that he would be contacted soon once
clarity was obtained on his position.
[6]
In
respect of Mr Mlenzana, at a meeting held on 13 November 2015,
the first respondent’s position was that there were
no
vacancies at Wekeba where he could be placed. An alternative position
was offered to him to perform garden duties whilst a suitable
position was still to be found, but he had declined it. He was
nevertheless paid his remuneration. On 23 February 2016,
Mr Mlenzana approached the Court by way of
ex-parte
proceedings.
On 11 March 2016, a
rule
nisi
was issued in terms of which the respondents were to appear in Court
on 20 May 2016 to show cause why they should not
be found
to be in contempt of the court order issued on 25 October 2015.
It was then removed from the roll by Molahlehi
J
since it had not been properly enrolled.
[7]
On
12 April 2016, Mr Zitha similarly approached the Court by way of
ex-parte
proceedings. The matter was set-down for a hearing on 13 May 2016
and was postponed
sine
die
after it became opposed.
[8]
In
his answering affidavit, Mr Louis Strydom Froneman, the first
respondent’s counsel in
casu
,
and who also acts as its Head of Legal Services, confirmed various
discussions, meetings and correspondence exchanged between
the
parties, and in particular, the applicants’ attorneys of
record. The nub of the respondents’ defence is that in
view of
the restructuring that took place at Wekeba, Mr Zitha and Mr Mlenzana
could not be placed back at that site, and were thus
offered
alternative positions at other sites which they had rejected. It was
only after they had persistently refused to report
for duty at the
alternative sites that their remuneration was stopped.
[9]
It
was further common cause that on 15 April 2016, Mr Zitha
and Mr Mlenzana were given copies of contracts of employment
and
further informed to report for duty on 18 April 2016 at a
site in Jetpark. They had nonetheless refused to sign the
contracts
without first discussing the matter with their attorneys. Their
attorney’s response on 18 April 2016
was that for
full compliance with the court order, they had to be reinstated at
his original site, Wekaba and in the same positions
they had occupied
prior to the dismissals.
[10]
On
20 April 2016, the respondents forwarded an e-mail to the applicants’
attorney, advising that the applicants had not reported
for duty as
instructed via ‘sms’, and that action would be taken for
their failure to report for duty as instructed.
Another e-mail
followed in which the respondents advised the applicant’s
attorneys that their salaries would be stopped as
they had failed to
report for duty as instructed.
[11]
It
was submitted on behalf of the respondents that they had complied
with the court order as the applicants were reinstated without
their
terms and conditions of employment being altered; that the applicants
could not be accommodated at Wekeba as work had declined
at that
site, which had resulted in other employees being reduced on that
site. It was further contended that the placement at
another site in
terms of the new contract did not affect the applicants’
original terms and conditions of employment; and
that it was part of
the employees’ contract that they could be transferred to any
available site, which transfer they had
not argued was unreasonable.
[12]
In
his replying affidavit, Mr Zitha averred that the salary that he had
received whilst the respondents looked for another position
was less
than the current applicable rate, and that the receipt of a salary on
its own did not imply that he had been restored
to the position he
had occupied prior to his dismissal. He denied that he had failed to
report for duty, and that efforts to employ
him were contrary to the
court order, as his terms and conditions were changed, and that the
respondents’ attitude in view
of the contract of employment
presented to him was that he was to start on a clean slate, ignoring
the fact that he had been in
the respondent’s employ since
January 2008. He had pointed out that the respondent sought to secure
alternative employment
for him on different terms and conditions at
the level of Grinder Operator in Jetpark with the commencement date
as 18 April 2016,
and these terms and conditions were not
in compliance with the court order.
[13]
The
principles applicable to contempt proceedings are well-known. Thus,
the
following
elements need to be established on a balance of probabilities viz,
(a) there must be order in existence; (b) the order
must have been
duly served on, or brought to the notice of, the respondent party;
(c) there must have been non-compliance with
the order; and (d) the
non-compliance must have been wilful or
mala
fide.
[1]
In
Fakie
NO v CCII Systems (Pty) Ltd,
[2]
Cameron JA (as he then was) summarised the applicable principles as
follows:
“
To
sum up:
a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders, and survives constitutional
scrutiny in the form of a motion court application adapted to
constitutional requirements;
b)
The
respondent in such proceedings is not an ‘accused person’,
but is entitled to analogous protections as are appropriate
to motion
proceedings.
c)
In
particular, the applicant must prove the requisites of contempt (the
order; service or notice; non-compliance; and wilfulness
and mala
fides) beyond reasonable doubt.
d)
But,
once the applicant had proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in
relation
to wilfulness and mala fides: Should the respondent fail to advance
evidence that establishes a reasonable doubt as to
whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
e)
A
declarator and other appropriate remedies remain available to a civil
applicant on proof of a balance of probabilities.”
[14]
In
this case, it was not in dispute that there was a court order that
was properly brought to the attention of the respondents.
It was
further common cause that the respondents had made attempts to
reinstate the applicants,
albeit
at different sites and different positions. Central to this dispute,
however, is whether the applicants were reinstated as required
by the
respective orders, it further being the applicants’ contentions
that reinstatement as per the court orders ought to
have been in line
with the principles set out in
Equity
Aviation Services (Pty) Ltd v CCMA and Others,
[3]
in the sense that the applicants were to be placed back at Wekeba,
and paid retrospectively from the date of their dismissals.
[15]
As
to whether the respondents have complied with the court orders, or
whether they had wilfully failed to comply with those orders
needs to
be established within the context of a variety of factors, including
the contents of the orders themselves. The starting
point is that it
was not contested that the first respondent was a TES, meaning that
its placement of its employees at the clients’
sites depended
on availability of work at the sites.
[16]
A
second factor is that the order in respect of Mr Zitha was that he
was to be
reinstated
with immediate effect on the same terms and conditions applicable
prior to his dismissal.
In
respect of Mr Mlenzana, he was to be “
reinstated
from 2 November 2015 on the same terms and conditions
governing his employment prior to his dismissal”.
In both orders, Steenkamp J and Golden AJ had not exercised
a discretion within the meaning of section 193(1)(a) of the
Labour
Relations Act
[4]
to order that
the reinstatement be retrospective.
[17]
On
the facts, and particularly in view of the respondents’
intention and willingness to reinstate the applicants
albeit
at different sites, it cannot be said that there was
mala
fides
or wilful intention on their part not to comply with the court order.
Accordingly, there is merit in the respondents’ contention
that
that the orders of this reinstatement were not retrospective, and
were merely to place Mr Zitha back in its employ, on
the same
terms and conditions applicable to his employment, whilst Mr
Mlenzana’s reinstatement was to be effective from 2 November
2015.
[18]
There
is further merit in the respondents’ contention that in the
light of the undisputed fact that Wekeba had undergone restructuring,
and that the applicants could not be placed back at that site,
despite willingness and clear intention to reinstate on the same
terms and conditions as ordered by the court, there was impossibility
of performance, as the applicants could not be placed back
at Wekeba.
[19]
It
is trite that the defence of impossibility though readily available,
will not avail where the impossibility is as a result of
the
respondent’s fault.
[5]
In
this case however, the impossibility cannot in any manner be
attributable to the respondents’ fault. On the contrary,
genuine attempts were made to place the applicants at different
sites, which placement would not have affected their other terms
and
conditions.
[20]
Given
the nature of the first respondent’s business, and further in
view of Wekeba not being in a position to take back the
applicants,
the only reasonable option available was to place them at another
site, as long as this would not have impacted on
their other
conditions of service, particularly pertaining to remuneration and
other benefits. I did not understand the applicants’
case to be
that alternative placement would have resulted in their other terms
and conditions being degraded. On the contrary,
for the applicants to
have simply insisted on reinstatement at Wekeba when they were
informed that positions at that site were
no longer available was
indeed unreasonable in the extreme.
[21]
It
further needs to be pointed out that contrary to allegations of the
respondents having acted
mala
fide
,
despite not being in a position to place the applicants immediately,
they had with clear intention to comply with the court orders,
offered them alternative placing at different sites, and had
immediately after they had presented themselves for reinstatement,
paid them their remuneration whilst looking for alternative placing.
The respondents had correctly stopped paying them their salary
as
they had unreasonably refused to take up alternative positions. The
conduct of the respondents in the circumstances can hardly
be
construed as
mala
fide
.
[22]
Having
had regard to the circumstances and the facts of this case, I am
satisfied that there is no basis in law or fact, upon which
a finding
can be made that the first and second respondents were in contempt of
the orders of this Court dated 24 February 2016
and 27
October 2015 respectively. On the contrary, it is found that the
applicants had rebuffed any attempts made by the respondents
to
reinstate them in compliance with those court orders.
[23]
It
is understandable that the applicants could have acted in the manner
they did upon legal advice, which was based on an incorrect
interpretation or different understanding of the provisions of
section 193 of the LRA as elucidated in
Equity
Aviation
.
In the light of this consideration, and the fact that as at the
hearing of this matter, the respondents were still willing, and
intended to reinstate the applicants,
albeit
in different positions or at different sites, it is my view that a
finding that the respondents were not in contempt should not
in any
event prejudice the applicants’ prospects of employment on
account of their different understanding of the court orders.
Consequently, the court orders issued on 24 February
2016
and 27 October 2015 stand, and ought to be given effect to, with due
consideration to the constraints faced by the first respondent,
and
in particular, to place the applicants back at Wekeba. I have further
had regard to considerations of law and fairness, and
conclude that a
cost order is not warranted in this case.
Order
[24]
Accordingly,
the following order is made:
1.
The
first and second respondents are found not to have been in contempt
of the court orders issued by this Court on 24 February 2016
and 27 October 2015 under case numbers
JS282/14
and JS208/14.
2.
The
rule
nisi
issued on 11 March 2016 under case number JS208/14 is discharged.
3.
The
first and second applicants are to report for duty at the first
respondent’s premises and to be reinstated in accordance
with
the court orders as mentioned above within 14 days of the date of
this order.
4.
The
first and second applicants shall however not be entitled to any
remuneration between 20 April 2016 and the date upon which
they
report at the first respondent’s premises in compliance with
(3) above.
5.
There
is no order as to costs.
__________________
E Tlhotlhalemaje
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant:
Mr. FP
Phamba of Sineke (WW) Attorneys
For
the Respondents:
Adv. L S Froneman
Instructed
by:
Erasmus Attorneys
[1]
Pheko and
Others v Ekurhuleni Metropolitan Municipality
2015
(6) BCLR 711
(CC);
2015 (5) SA 600
(CC) at para 32.
[2]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 42.
[3]
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
[2008] 12 BLLR 1129
(CC);
2009 (2) BCLR 111
(CC); (2008) 29
ILJ 2507 (CC) at para 36 where Nkabinde J held that—
“
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.”
(Footnotes omitted.)
[4]
66 of 1995. Section 193(1)(a)
provides:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal
is unfair, the Court or the arbitrator may—
(a)
order the employer to re-instate the employee from any date not
earlier than the
date of dismissal.”
[5]
See
R
v Close Settlement Corp Ltd
1922
AD 294
at 300.