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[2018] ZALCJHB 244
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Bopape v Mintek SOC Ltd (J660/16) [2018] ZALCJHB 244; [2018] 10 BLLR 1007 (LC) (10 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: J 660/16
In
the matter between:
BOPAPE,
RESHOKETSWE
DESIREE
Applicant
and
MINTEK
SOC
LTD
Respondent
Heard:
01 November 2017
Delivered:
10 July 2018
JUDGMENT
MAHOSI.J
Introduction
[1]
This
is an opposed application
in
terms of section 158(1)(C) of the Labour Relations
Act
[1]
(LRA), to make an arbitration award issued by commissioner Katlholo
Wabile (commissioner) under the auspices of the Commission
for
Conciliation, Mediation and Arbitration (CCMA) under case number
GAJB485-11 an order of court.
[2]
Prior to outlining the applicant’s case in detail and
considering the issues which gave rise to the claim, it is necessary
to summarise the facts which form relevant background to the dispute
between the parties.
Material
background facts
[3]
The respondent employed the applicant from 1 June 2008 as the General
Manager: Corporate Services. Following a disciplinary
enquiry, the
applicant was dismissed on 13 December 2010. Dissatisfied with the
respondent’s decision to dismiss her, the
applicant referred a
dispute to the CCMA. Following an unsuccessful bid at conciliation,
the dispute was referred to arbitration.
[4]
At the end of the arbitration, the commissioner issued an arbitration
award in terms of which he found that the dismissal of
the applicant
was substantively unfair. The commissioner ordered the respondent to
reinstate the applicant.
[5]
The respondent subsequently
instituted an application under case number JR1819/11 for an order to
review and set aside the arbitration
award. However, the said
application was dismissed by this Court. The respondent further
instituted an application for leave to
appeal which was also
dismissed.
[6]
The Respondent reinstated the applicant into its employ on or about 1
December 2014. The applicant was paid an amount of R5
787 901.00
(Five million seven hundred and eighty-seven thousand nine hundred
and one rand only) as back pay. The respondent submitted
that the
payment of the back pay was done under protest and with an express
reservation of its rights. On 19 June 2016, the respondent
launched
an application in the Gauteng Local Division of the High Court
against the applicant in which it sought the applicant
to disclose
her source of income between the period of her dismissal and her
reinstatement pursuant to the arbitration award. The
applicant
tendered her resignation on or about 16 July 2015 and referred an
alleged constructive dismissal to the CCMA which is
still pending. On
15 September 2017, the High Court application was dismissed with
costs.
[7]
The applicant submits that the amount the respondent was required to
pay her as back pay amounted to R7 127 809.00 (seven million
one
hundred and twenty-seven thousand eight hundred and nine rand). The
applicant is of the view that when the respondent paid
her an amount
of R5 787 901.00, it partially complied with the arbitration award.
According to the applicant, the remaining amount
as at February 2016
is R1 339 908.00 (one million three hundred and thirty-nine thousand
nine hundred and eights rands).
[8]
The respondent submitted that the applicant’s claim for the
remuneration that she would have earned after the date of
her
reinstatement cannot be the subject matter of a section 158(1)(c)
application as it did not flow from the arbitration award.
According
to the respondent, the applicant’s claim is a contractual claim
which claim she would have been entitled to had
she tendered her
services after the date of her reinstatement and having sought an
order from this Court for such an amount to
be paid.
Applicable
law and analysis
[9]
Central to the issues in this matter is whether the claim for the
period between
the
date of the award and the actual date of implementation
is
covered by reinstatement. The principles governing the legal effect
of the reinstatement order are found in the judgment of
Coca-Cola
Sabco (Pty) Ltd v Van Wyk
[2]
where
the Labour Appeal Court (LAC) succinctly stated as follows:
‘
[17]
The money paid to an unfairly dismissed employee consequent to a
retrospective reinstatement order is not compensation. Compensation
and back-pay may only be granted in the alternative and are mutually
exclusive.
T
he
back-pay ordered by the commissioner can therefore only refer to the
period between the date of dismissal and the date of the
order and
does not entitle an employee, without more, to remuneration between
the date of the award and the actual date of implementation.
The
Labour Relations Act does not cater for such relief.’
[10]
The LAC further held as follows:
‘
[28]
When there is a delay in the implementation of the reinstatement
award and the employer refuses to pay an employee money that
may be
due between the period of the award and the implementation thereof,
the
lis
between
them has not been judicially resolved. It is only after a contractual
claim in the civil courts or under section 77
of the Basic Conditions
of Employment Act has been instituted and pronounced upon that it can
be said that the employer is a judgment
debtor against whom a writ
may be issued
.
The
order of reinstatement is not a judgment dealing with the consequent
damages for the breach of the contract.
[29] The risk
that an employer takes relating to the accumulated financial burden,
caused by delays in the review and appeal process,
has nothing to do
with the cause of action. The risk to the employer remains and the
rewards to the employee would also be intact
if the claim is
prosecuted properly and timeously.
[30] In summary,
a reinstatement award does not cover the period between the award and
its implementation. Should an employer refuse
to pay an employee for
the said period then the employee has a contractual claim - which is
a totally different cause of action
- against the employer.’
[11]
The respondent referred this Court to the judgment of
NUMSA
obo Fohlisa and Others v Hendor Mining Suppliers (a division of
Marschalk Beleggings (Pty) Ltd
[3]
to support its argument that the payment of remuneration which was
allegedly earned after the date of reinstatement of the applicant
is
not a claim which flows from the arbitration award. In the said
judgment, the Constitutional Court stated as follows:
‘
If
the second and further applicants kept their part of the bargain,
they would be entitled to remuneration. If they did not
keep
their part of the bargain, they would not be entitled to
remuneration. Therefore, if there was a dispute on whether they
were entitled to remuneration for any day or number of days during
the second period that would be a contractual dispute. Their
claim would be a contractual claim. The debt that they would be
seeking to enforce would be a contractual debt – and
not a
judgment debt whereas in regard to the first period it was simply a
case of seeking to enforce an existing court order...’
[12]
It is trite that a reinstatement order only serves to revive the
contract of employment and an employee who tenders his or
her
service, while the employee is exercising its review and appeal
remedies to exhaustion, does so in terms of the employment
contract.
[13]
In this case, it is not in dispute that the applicant’s claim
is for remuneration earned after the date of reinstatement.
This
period is clearly not covered by reinstatement. In paying the
applicant the amount of
R5 787 901.00, the
respondent
complied with the
arbitration award. Therefore, the applicant has failed to show that
the arbitration award was partially complied
with. As such, the
applicant failed to make out a case for an order to make the
arbitration award an order of this Court.
[14]
There is, therefore, no reason for this Court to grant the applicant
an order which would enable her to have a writ of execution
issued
against the respondent. The respondent can be said to be a judgment
debtor against whom a writ may be issued
only
after a contractual claim in the civil courts or under section 77 of
the Basic Conditions of Employment Act
[4]
(BCEA) has been instituted and pronounced.
[15]
I have had regard to the issue of costs and
taking
into account the requirements of law and equity, I believe this is a
matter in which there should be no order as to costs.
[16]
In the circumstances, I make the following order
Order
1.
The applicant’s application is dismissed.
2.
There is no order as to costs.
______________________
D
Mahosi
Judge
of the Labour Court
Appearances
For
the applicant: Mr M.M Bill of Motsoeneng Bill Attorneys
For
the respondent Advocate MJ Van As
Instructed
by: Webber Wentzel Attorneys
[1]
Act 66 of 1995 as amended.
[2]
[2015] 8 BLLR 774 (LAC).
[3]
2017 (7) BCLR 851
(CC) at para 131.
[4]
Act
75 of 1997.