About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 458
|
|
Solidarity obo Parkinson v Damelin (Pty) Ltd (JS72/17) [2018] ZALCJHB 458 (7 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JS72/17
In
the matter between
:
SOLIDARITY
OBO SW PARKINSON
Applicant
and
DAMELIN
(PTY) LTD
Respondent
Heard:
29 May 2018
Delivered:
07 June 2018
Summary:
Back-pay is an obligation that flows from the order of
reinstatement – the employee’s tender of
his or her
services is inconsequential.
JUDGMENT
Nkutha-Nkontwana
J.
Background
[1]
In this matter the applicant (Solidarity) is suing the respondent
(Damelin)
by way of a stated case for a back-pay in the amount of
R420 000.00 consequent to an order reinstating its member, Mr
Parkinson.
Damelin had dismissed Mr Parkinson on 15 May 2012.
Solidarity unsuccessfully challenged his dismissal at the Commission
for Conciliation,
Mediation and Arbitration (CCMA). The commissioner,
Mr Sithole, found that his dismissal was procedurally and
substantively fair.
[2]
Solidarity launched the review proceedings and succeeded. In a
judgement
delivered on 2 December 2014, this Court, per Bleazard AJ,
reviewed and set aside the award, replacing it with an order
reinstating
Mr Parkinson retrospective to 1 January 2014. Damelin
appealed the judgment but was unsuccessful. The Labour Appeal Court,
in judgment
delivered on 10 January 2017, dismissed the appeal with
costs.
[3]
I pause to allude to the fact that Mr Parkinson secured employment
with
his current employer on 21 August 2014. Soon after receiving the
judgment by Bleazard AJ, Solidarity addressed a letter to Damelin,
through its attorneys, proposing a discussion on compensation instead
of reinstatement. Damelin was seemingly not indulgent; instead,
it
instituted the appeal proceedings.
[4]
On 17 January 2017, Damelin’s attorneys addressed a letter to
Solidarity
stating the following:
‘
We
refer to the above matter and note the judgment handed down by the
Labour Appeal Court on 10 January 2017.
We
note further that your client has not tendered his services in terms
of the judgment rendered by Bleazard AJ in the Labour Court.
We
are instructed that your Client is to tender his service and report
for duty at the Damelin, Pretoria City Campus (“Pretoria
Campus”) at approximately 08h00 on 19 January 2017. To the
extent that your Client may incur travel costs in travelling to
Pretoria campus as opposed to Boksburg Campus, such reasonable travel
costs shall be paid by our C, subject to proof of such cots
being
presented by your Client and an agreement being reached.
We
are further instructed that your Client’s failure to tender his
service and report for duty as directed herein shall result
in the
appropriate action been taken by our Client. Our Client’s
rights remain strictly reserved in this regard.’
[5]
On 19 January 2017, Mr Parkinson presented himself at the Pretoria
Campus
and tendered his resignation with immediate effect. In his
letter of resignation dated 18 January 2017, he states the following
reasons:
‘
The
judgment/ruling did not state that my reinstatement was to be with
immediate effect, specifically since it is known by all parties
that
I currently have employment, yet Damelin has insisted through their
attorney, Mr Moodley, that I report to the Pretoria Campus
today 19
January. This insistence is thus contrary to labour law whereby I
cannot have 2 permanent employers and they have refused
to allow time
to be afforded an opportunity to resign my current employment, or
discuss the terms of my reinstatement.
In
addition, Damelin made no formal offer or remuneration and/or
benefits for my reinstatement nor have they confirmed in what
capacity is my reinstatement. At no time have any employment forms
been presented which would be required by law, for purposes of
payment of taxes, insurances or medical aid. Damelin can surely not
expect that my terms, conditions, salary and benefits are to
remain
the same as they were before my dismissal in 2012, as it was those
same terms and conditions of employment that led us to
the 5 year
process which led to the Labour appeals courts. It would also be a
ridiculous assumption of anyone, for a person to
take up any
employment without any of these being in the first instance
discussed, especially after such a long period and in particular
now
that my salary package is more than double with my current employer,
to what was being paid by Damelin 5 years ago.
These
current actions by Damelin are not a positive way in which to try to
restart any employer/employee relationship and tantamount
to
constructive dismissal.’
[6]
Damelin responded to Mr Parkinson’s resignation letter the same
day, stating the following:
‘
You caused a
letter dated 18 January 2017 to be delivered to the Company this
morning and at approximately 08h56.
We are advised that Ryan
Frayster (“Frayster”) was running late because of traffic
but contacted you telephonically.
We are also advised that Frayster
requested that you wait for ten (10) minutes for him to arrive but
you left the Pretoria Campus
before his arrival without allowing the
Company the opportunity of meeting with you to discuss your
reinstatement.
Your letter has been
handed to us for review and a response. The date of the letter (being
18 January 2017) suggest that it was
prepared in advance. And on fact
before you were required to tender your services and report for duty
this morning which deprived
the Company of the opportunity to meet
with you.
We deem it necessary to
point out that the request for you to tender your services and report
for duty was to ensure that the Company
complied with the judgment of
the Labour Court (“the judgement”) and more particularly
in light of your failure to
tender your services and report for duty
despite having sufficient time to do so.
We deny that the request
to tender your services and report for duty is contrary to labour law
in any way. Kindly therefore note
that your current employment status
and the terms and conditions of such employment does not involve the
Company in any way, manner
or form and we wish to stress that the
Company was merely ensuring that it complied with the judgment.
The effect of the
judgment was that your contract of employment was revived and you
were to be placed in the same position you occupied
before your
dismissal and on the same terms and conditions. The Company made
various arrangements I this regard and even went as
far as tendering
payment for travel costs occasioned by your travel to the Pretoria
Campus as opposed to Boksburg Campus.
It is unfortunate that
you allege that you did not have sufficient time to resign or discuss
your reinstatement with the Company
when such request was ever made
by you to the Company.
Furthermore, and as
mentioned above, you left Pretoria Campus shortly after delivering
the letter and without allowing management
of the Company to meet
with you regarding your reinstatement. The intention of the Company
was to meet with you this morning to
discuss all matters relating to
your reinstatement, which would have included reinstating you to the
position of General manager,
addressing other pertinent matters and
finalising all outstanding administration.
In fact, you had
discussed with both the Academic Manager and Sales Manager wherein
you informed them that you would be their boss
as you were the new
General manager and expressed surprise when they informed you that
they were well aware of this and in fact
had been awaiting for you to
arrive to take up the position since yesterday the 18
th
of
January 201[7] as all staff had in fact been informed of your
imminent arrival. Ryan Frayster had been sent from Durban to the
Pretoria Campus with the specific purpose of ensuring that there was
a smooth transition and that you would have engaged with him
on your
duties, functions, responsibilities, etc. You however chose not to
wait for such interaction and wanted to leave prior
to 9:00 am and
insisted that your resignation be acknowledged by us.
The company had therefore
proceeded lawfully in compliance with labour legislation and due
regard to the order appearing in the
judgment. Any allegation/s that
the actions of the Company is/are tantamount to a constructive
dismissal is/are therefore devoid
of merit, frivolous and denied for
reasons appearing herein.
Your resignation with
immediate effect is noted and accepted by the company and we wish you
well in your future endeavours.’
[7]
The crisp issue for determination is whether Mr Parkinson is entitled
to back-pay and ancillary to that is the question whether he tendered
his services for the purposes of reinstatement.
Legal
principles
[8]
Section 193
of the Labour Regulations Act
[1]
(‘LRA’) provides that:
‘
(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 reinstate the employee from any
date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either
in the work in
which the employee was employed before the dismissal or in other
reasonably suitable work on any terms and from
any date not earlier
than the date of dismissal; or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate
or re-employ the employee unless -
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are
such that a
continued employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer
to reinstate or
re-employ the employee; or
(d)
the dismissal is unfair only because the employer did
not follow a
fair procedure.’
[9]
Both
parties accept the principles explicated in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[2]
where the Constitutional Court reaffirmed reinstatement as ‘the
primary statutory remedy in unfair dismissal disputes…aimed
at
placing an employee in the position he or she would have been but for
the unfair dismissal… by restoring the employment
contract…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.’
[10]
The Constitutional Court stated further that:
‘…
the sum of
money paid to an unfairly dismissed employee subsequent to an order
of reinstatement with retrospective effect is not
compensation as
contemplated in section 193(1)(c) or section 194. The remedies in
section 193(1)(a) are thus in the alternative
and mutually
exclusive.’
Clearly, reinstatement
denotes a restoration of the
status quo ante
. In essence, the
contract of employment gets resuscitated on the same terms and
conditions as existed prior to dismissal.
[11]
Pertinent
in the present case is the issue of the retrospectivity of the order
of reinstatement, normally known as ‘back-pay’,
a
separate discretion that must be exercised by the arbitrator or the
judge when deciding to award reinstatement.
[3]
As mentioned above, the order of reinstatement resuscitates the
contract of employment and it follows that any amount that was
payable to the employee in terms of that contract of employment would
become due and payable on that ground alone.
[4]
The Court or an arbitrator may order reinstatement with limited
retrospectivity and the limited back-pay would still become due
as
per the terms of the employment contract, notwithstanding.
[12]
In
National
Union of Metalworkers of South Africa obo Fohlisa and Others v Hendor
Mining Supplies (A Division of Marschalk Beleggings
(Pty)
Limited),
[5]
the
Constitutional Court delivered two judgments dealing with whether the
order of retrospective reinstatement is a judgement debt
in terms of
the Prescription Act
[6]
and
whether a claim for back-pay for the period not mentioned in the
order but occasioned due to a judicial process of appeal is
also part
of the judgement debt. The first judgment does not distinguish
between the two periods and it was held that both were
part of the
judgment debt. Conversely, the second judgement found that the two
periods are effectively different but conceded that,
when it comes to
the first period, the right to back-pay flows from the judgement
debt.
[13]
The first judgment, per Madlanga J, stated that:
‘
[36]
The obligation that existed was to reinstate.
Equity
Aviation
tells us that "'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".
Surely,
that must mean the obligation to reinstate is not about only allowing
employees to return to work. It is also about paying
their
remuneration.
This -
rolled in one - is the nature of the obligation. The obligation
comprises two prongs which are bound inextricably and are
thus not
mutually exclusive. That is why, like the very obligation to
reinstate, the duty to retrospectively fulfil contractual
obligations
(eg payment of remuneration) flows directly from the order and is a
judgment debt
.’
[7]
(Emphasis added)
[14]
Whilst in the second judgment, per Zondo J, pertinently stated that:
‘
[126]
Would the second and further applicants have been entitled, by
virtue of paragraph (a) of Cele AJ's order, to payment of any
remuneration
for the three months after Cele AJ's order? Quite
obviously, the answer would be: No. They would not have been entitled
to remuneration
for that period. Part of the reason for that is that
paragraph (a) of Cele AJ's order did not say anything about payment
of any
remuneration.
It did not say that Hendor had to pay the
second and further applicants on condition they reported for duty nor
did it say that
they had to be paid any money whatsoever. It only
ordered Hendor to put the second and further applicants into the
positions they
had occupied at the time of dismissal and on the same
terms and conditions of employment.
The reason why it said nothing
about payment of remuneration for any period after 23 April 2007 is
that the statute is based on
an appreciation that, what would happen
after the reinstatement order had been made would be governed by the
contract of employment
because, once the employer had reinstated the
employee, the contract would be restored.
[127]
Another question is: would the second and further applicants have
been entitled to payment of their remuneration for the first period
if they had not reported for duty or tendered their services for any
period, for example three months, after Cele AJ had made his
order on
16 April 2007? The answer is: Yes, they would have been entitled.
This would be so despite the fact that, for three months
after the
Labour Court would have granted the order, they would not have
reported for duty or tendered their services
.
[128]
The next obvious question is: why is the answer to the first question
in the negative but the one to the
second question in the
affirmative? The two different answers to this question reveal that,
indeed, there is a big difference between
the first period and the
second period. The answer to this question is this: in regard to the
first period, there is an order of
Court and, in respect of the
second period, there is no order of Court.
The second and further
applicants' entitlement to payment of their remuneration for the
first period is not dependent upon or subject
to them reporting for
duty. The reason why the failure of the second and further applicants
to report for duty after Cele AJ's
order had been made would
disentitle them from payment of remuneration for that period is this.
During that period the employment
relationship is meant to be
governed by the contracts of employment after the restoration thereof
upon the reinstatement of the
employees and in terms of the basic
principles of contract
.
[129]
If
an employee does not report for duty or does not tender his or
services, he or she is not entitled to payment of wages. No work,
no
pay. In respect of the first period, the second and further
applicants would be entitled to payment of their arrear wages even
if
they resigned a day after they had been reinstated whereas they would
not be paid anything under paragraph (a) of Cele AJ's
order in
respect of the second period if they did not want to go back to
Hendor's employ and, therefore, rejected reinstatement.
All that
any one of the second and further applicants needs to show in order
to qualify for payment of remuneration in respect of
the first period
is that he or she was one of the applicants referred to in the order.
However, when it comes to the second period,
different considerations
apply
.
[8]
(Emphasis added)
[15]
Turning to the present case, Solidarity is claiming Mr Parkinson’s
back-pay for the
period from 1 January 2014 to 2 December 2014
consequent to his reinstatement as ordered by Bleazard AJ. Damelin
argued that he
is not entitled to any remuneration because he failed
to tender his services for the purpose of reinstatement. Mr Nel,
counsel
for Damelin, submitted that both
Hendor
judgments
require a tender of service by the employee in order to accrue a
right to back pay. I disagree.
[16]
In both
Hendor
judgments, the Constitutional Court explicitly
stated, in line with
Equity Aviation
tenets, that inherent in
the obligation to reinstate is the duty to retrospectively fulfil the
contractual obligation, including
back-pay flowing directly from the
order, referred to as the first period in the second judgement.
According to both judgements,
that obligation stands, notwithstanding
the fact that the employee failed to report for duty or tender his or
her services in accordance
with the order. To underscore this point,
the second judgment went further to state that, in respect of the
first period covered
by the order, the employee ‘…would
be entitled to payment of their arrear wages even if they resigned a
day after
they had been reinstated…’
[17]
Clearly, Damelin misconstrued the
Hendor
judgments. By
reinstating Mr Parkinson, Damelin resuscitated the employment
contract and effectively placed him at par with all
its employees. Mr
Parkinson, like any other employee, duly exercised his right to
resign and, in so doing, terminated the contract
of employment. In
fact, on the strength of the
Hendor
judgments, the handing in
of the resignation letter in person was a mere courtesy. Mr Parkinson
could have served it in any other
manner or, better still, just
absconded without a trace.
[18]
To my mind, therefore, whether Mr Parkinson did in actual fact tender
his services is inconsequential.
Mr Parkinson’s resignation
tender and the subsequent acceptance by Damelin evidently attest to
the fact that reinstatement
did take place. What is now outstanding,
as correctly argued by Solidarity, is the back-pay flowing precisely
from Mr Parkinson’s
reinstatement. As such, Damelin’s
argument that Mr Parkinson is not entitled to back-pay since he is
earning a better salary
in his current employment is devoid of merit.
Conclusion
[19]
In short, Mr Parkinson is entitled to back-pay for the period from 1
January 2014 to 2
December 2014 as per the order by Bleazard AJ. In
essence, he is entitled to a back-pay that is equivalent to 11
months’
remuneration computed from R35 000.00 which was
his monthly remuneration at the time of his dismissal. The total
amount due
to him is
R385 000.00
(35 000 x 11
months). This amount excludes all the lawful deductions as per the
contract of employment.
[20]
Both parties did not pursue costs. As such, I am not inclined to make
an order as to costs.
[21]
In the circumstances, I make the following order:
Order
1.
Mr Parkinson is entitled to back-pay for the period from 1 January
2014 to 2
December 2014.
2.
The total back-pay due to Mr Parkinson is R385 000.00.
3.
There is no order as to costs.
_____________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Ms N Ras
Solidarity Official
For
the Respondent:
Advocate AJ Nel
Briefed
by:
Jason Moodley Attorneys
[1]
Act 66 of 1995, as amended.
[2]
[2008] ZACC 16
;
[2008] 12 BLLR 1129
(CC);
2009 (1) SA 390
(CC);
(2008) 29 ILJ 2507 (CC);
2009 (2) BCLR 111
(CC) at para 36.
[3]
Supra.
[4]
Republican
Press (Pty) Ltd v Chemical Energy Paper Printing Wood and Allied
Workers Union and Others
2008
(1) SA 404
(SCA);
[2007] 11 BLLR 1001
(SCA);
Kroukam
v SA Airlink (Pty) Ltd
(2005)
26
ILJ
2153
(LAC);
[2005] 12 BLLR 1172
(LAC).
[5]
[2017] JOL 38189 (CC).
[6]
Act 68 of 1969.
[7]
Supra
n 5 at para 36.
[8]
Supra
n 5 at para 126 – 129.