About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 28
|
|
SAMWU obo Malatsi v Gert Sibande District Municipality (J92/17) [2019] ZALCJHB 28 (28 February 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: J92/17
In
the matter between:
SAMWU
obo ALPHEUS MALATSI
Applicant
and
GERT
SIBANDE DISTRICT MUNICIPALITY
Respondent
Heard:
17 JULY 2018
Delivered:
28 FEBRUARY 2019
JUDGMENT
PIENAAR,
AJ
Introduction
[1]
This is an application in which the Applicant seeks an order for the
payment
of arrear salaries from 26 August 2013, (the date on which he
was reinstated in terms of an arbitration award) up to 17 October
2016 (the date on which he was actually reinstated by the
Respondent).
Background
[2]
The relevant facts are canvassed in the papers, and I need not deal
with
them in any detail here insofar as they are largely a matter of
common cause. It is sufficient to record for present purposes that
on
1 August 2013, the South African Local Government Bargaining Council
handed down an arbitration award in terms of which the
Commissioner
found that the Applicant's dismissal was procedurally and
substantively unfair and reinstated the Applicant.
[3]
In this regard, the Commissioner further, ordered that:
"[37]
The Applicant must report for duty on the 26
th
August 2013.
[38]
The respondent must not pay the applicant
his arrear wages from the date of dismissal up to the date
of
reinstatement and same must be treated as a period of unpaid
suspension."
[4]
It is common cause that the Respondent did not reinstate the
Applicant
and the aforementioned arbitration award was taken on
review by the Respondent. The review application was filed on 26
September
2013. It is significant to note that in the review
application, the Respondent (Applicant in the review application)
included in
its Notice of Motion, a prayer that the arbitration award
be stayed pending this Court's decision on the review application.
[5]
The Applicant alleged in its papers that he was "
not allowed
back to work as the Respondent informed me that they filed a Review
Application
." The review application was dismissed with
costs in terms of a court order dated 2 June 2016.
[6]
The Applicant submits that he reported for work on 04 July 2016 and
was
prevented from working (he was refused access and municipal
security was called to remove him from the premises).
[7]
The
Respondent brought an application for leave to appeal against the
Judgment of the Labour Court dismissing the review application
however, the Respondent withdrew the application for leave to appeal
sometime in October 2016
[1]
.
[8]
The
Applicant instructed his attorney to address correspondence to the
Respondent
[2]
however same was
not attached to the Founding Affidavit and was only subsequently
attached to the replying affidavit.
[9]
In terms of
the said correspondence
[3]
,
dated 14 October 2016, the Applicant's attorneys set out as follows:
9.1
The Applicant had reported for duty on 4 July 2016 and was prevented
from taking
up his position,
9.2
The Respondent must comply with the arbitration award,
9.3
The Applicant would return to work; and
9.4
The Respondent must pay his wages from the 26 August 2013 up until
Monday, 17
October 2016.
[10]
On 13 October 2016, the Respondent addressed correspondence to the
Applicant in terms of
which, in summary, stated that the Applicant
had to report to the office of the Municipal Manager on 17 October
2016 at 07h30 and
that it would not pay his arrear salaries from the
date of dismissal up to the date of reinstatement (which it deemed to
be 17
October 2016) and that same would be treated as a period of
unpaid suspension.
[11]
The Applicant submits that the date of reinstatement as per the
arbitration award is 26th
August 2013. As he tendered his services he
is entitled to his arrear salaries from 26 August 2013 until 17
October 2016 and not
only from 17
October 2016 as the Respondent alleged.
[12]
The Applicant therefore claimed an amount of R 813 762-78. In
anticipation of the Respondent's
stance in the matter, the Applicant
pleaded in his founding affidavit that in the event of this Court
finding that part of his
claim has prescribed for that period, he is
prepared to abandon the amount of R 107 074-05.
[13]
The Respondent opposed the Applicant's claim and submitted that the
date of reinstatement
was 17 October 2016 as this was the date upon
which the Respondent withdrew its application for leave to appeal
against the judgment
of the Labour Court dismissing the review
application. Therefore, the Respondent submitted that it is only
liable to pay the Applicant
his arrear salary from 17 October 2016
and not from the date he was ordered to report for duty in terms of
the arbitration award.
[14]
The Respondent in addition, relied upon additional reasons for
refusing to pay the Applicant's
arrear salaries prior to 17 October
2016 as it maintained that the Applicant
"never tendered his
service to the Respondent and was not bound to devote his whole time
and attention to Council's service
as he had been dismissed the
Respondent is not obliged to remunerate the Applicant
retrospectively."
[15]
The Respondent in its Heads of Argument, submitted that the claim for
arrear salaries is
a contractual claim and since no contractual claim
has been instituted by the Applicant he is not entitled to payment of
same.
[16]
It is significant that the Respondent did not plea prescription in
its answering affidavit.
However, it is the Applicant who raises
prescription in his founding affidavit and Heads of Argument.
[17]
Both sides
relied on the judgment of the Labour Appeal Court (LAC) in
Coca
Cola Sabco (Pty) Limited v Van Wyk
[4]
but for different reasons.
[18]
The judgment in
Coca Cola Sabco
supra is authority for the
proposition that if an employee, after the reinstatement order and
during the time that the employer
exercises its review and appeal
remedies to exhaustion, tenders their labour they do so in terms of
the employment contract. The
employee is therefore entitled to
payment in terms of the contract of employment. The claim is
therefore a contractual one, wherein
the employee would have to set
out sufficient facts to justify the right or entitlement to judicial
redress. The employee would
inter alia
; have to prove that the
contract of employment is extant; that they tendered their labour in
terms thereof and that the employer
refuses or is unwilling to pay
them in terms of that contract. The employer on the other hand would
have all the contractual defences
at their disposal.
[19]
In the LAC
decision of
South
African Football Association v Mangope
[5]
,
the employee sued SAFA in the Labour Court by way of application
proceedings for damages and an order declaring the appellant’s
decision to terminate his contract of employment unlawful and in
breach of contract. The LAC found that application proceedings
to
bring such claims were permissible provided that there were no
disputes of fact which had to be resolved through
oral
evidence.
[20]
I am satisfied that there are no material factual disputes between
the parties that require
the leading of oral evidence and that the
Applicant is permitted to bring his claim for arrear salaries (which
is indeed a contractual
claim) via motion proceedings.
[21]
If an arbitration award of reinstatement is made, but reinstatement
is delayed, the employee
will still be entitled to his salary if he
tendered his services in the period of delay.
[22]
In this
regard, the Applicant firstly alleges in his Founding Affidavit
[6]
that despite the arbitration award ordering him to report for duty on
26 August 2013, he was not allowed back to work as the Respondent
informed him that it filed a review application. In its opposing
affidavit the Respondent admits this.
[7]
[23]
In any event, as I have mentioned above, the Respondent's Notice of
Motion in the review
application specifically included a prayer that
enforcement of the award be stayed pending the determination of the
review application.
[24]
The Respondent subsequently in its affidavit maintained that the
Applicant, during this
period, did not tender his services as he
"was
not bound to devote his whole time and attention to Council's service
as he had been dismissed the Respondent is not obliged
to remunerate
him retrospectively."
I find this assertion by the
Respondent to be wrong in law.
[25]
In any event, the Respondent's representative conceded in argument
that Applicant's conduct
amounted to a tender of services.
[26]
In
Sampson
v South African Post Office
SOC
Ltd
[8]
,
the Honourable Whitcher J found that the failure to tender services
after being reinstated or after an order of specific performance,
can
have very serious legal consequences for an employee. However, the
employer in that matter demonstrated an attitude towards
the
arbitration award that was plain. It disputed the
award and sought to review same. The employer therefore,
regarded the
legal position to be that the employee was still dismissed and
consequently would not have accepted a tender of services.
[27]
The aforementioned judgment is apposite to the facts of this matter
where the Respondent,
by its conduct in taking the arbitration award
on review (and including a prayer in its Notice of Motion that the
arbitration award
be stayed) regarded the Applicant as dismissed and
in fact, the basis upon which it seeks to resist the claim for arrear
salaries
is that it regarded the Applicant status during the period
of the review application as being a dismissed employee.
[28]
As the Applicant did tender his services as required by law he is
entitled to his salary
for the period between 26 August 2013 and 17th
October 2016.
[29]
Regarding prescription of all or a part of the Applicant's claim, the
parity of votes in
Myathaza v Johannesburg Metropolitan Bus
Services (SOC) Limited t/a Metrobus
(Myathaza) led to none of the
judgments securing a majority. But, on either approach, that of
Jafta J and Zondo J, or that
of Froneman J, the Applicant's
arbitration award ordering his reinstatement, has on the facts before
me not prescribed.
[30]
According to this judgment, in dealing with claims for arrear
salaries, prescription on
such claims begins to run from the date on
which the review application was dismissed, as the dismissal of the
review application
meant that the arbitration award was upheld.
[31]
In the present matter prescription started running from 2 June 2016,
i.e. the date on which
the review application was dismissed. As this
application was lodged on 27 January 2017, it meant that only a part
of the claim
has prescribed, as was correctly submitted by the
Applicant.
[32]
It is common cause that the Applicant earned an amount of R21 414-81
per month
gross salary at the time of his dismissal.
[33]
I accordingly make the following order:
Order
1.
The Respondent is ordered to pay the arrear salary to the Applicant
in the amount of R 706 688-73 plus interest within 14 days of this
order, which amount is calculated as follows:
1.1
R813 762-78 i.e. 38 months (August 2013-October 2016) x R 21 414-81
(monthly
salary) minus R107 074-05 (the prescribed amount).
2.
The Respondent to pay the costs.
H.
Pienaar
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate TM Malatji
Instructed
by:
Maenetja Attorneys
For
the First Respondent: Advocate E Sithole
Instructed
by:
TMN Kgomo &
Associates Incorporated
[1]
The date of launching and withdrawal of the Application for Leave to
Appeal does not appear from the
papers.
[2]
Which was referred to as being contained in an Annexure "AM3"
[3]
"AM3"
[4]
(2015) 36 ILJ 2013 (LAC).
[5]
(2013) 34 ILJ 311 (LAC).
[6]
Paragraph 4.3 on pg 6 of the Indexed Pleadings.
[7]
Paragraph 6 on pg 35 of the Indexed Pleadings.
[8]
(2017) 38 ILJ 2368 (LC).