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[2025] ZALCCT 90
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Echalar Fishing (Pty) Ltd v Bennet NO and Others (C45/23) [2025] ZALCCT 90 (29 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no:C45/23
Not
reportable
In
the matter between:
ECHALAR
FISHING (PTY) LTD
Applicant
and
CM
BENNET N.O
First
Respondent
THE
COMMISSION FOR
CONCILIATION
AND ARBITRATION
Second
Respondent
UWAWU
obo AKWENYE & 35
OTHERS
Third
Respondent
Date
of Hearing:
27 June 2025
Date
of Judgment:
29 September 2025
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 30 September
2025.
JUDGMENT
BARTHUS
AJ
Introduction
[1]
The Applicant seeks to review and set aside the First Respondent’s
(“Commissioner”) award handed down
under the auspices of
the Second Respondent. The Applicant proved that the review
application was launched timeously and therefore,
there is no need to
deal with the Third Respondent’s assertion that the review
application was launched late.
The
Facts
[2]
The Commissioner awarded the retrospective wage increase to the Third
Respondent’s members, who were dismissed before
the
announcement of the retrospective increase, on grounds of equity.
[3]
The Third Respondent’s members were dismissed for misconduct in
August 2022.
[4] After their
dismissal and on 02 September 2022, the Minister announced an
increase for workers in the Applicant’s
industry and that these
increases were for the period 1 July 2021 to 30 June 2022.
[5]
The Applicant paid the retrospective increases to its (current)
employees.
[6]
The Third Respondent’s members, who are dismissed former
employees, referred a dispute to the Commission for Conciliation
Mediation and Arbitration (“CCMA”) in terms of section
73A of the Basic Conditions of Employment Act (“BCEA”),
claiming the retrospective increases which fell within the period of
their employment.
[7]
The Third Respondent's representative argued that the “
had
it not been for dismissal
” principle should be applied to
the Third Respondent’s members, and the arbitration award
should stand. The Applicant
argued that when the Third Respondent was
dismissed all rights and obligations under the employment contract
had ceased to exist
and therefore the Third Respondent was not
entitled to the backdated increase.
[8]
The Applicant’s review challenge is based on the way the
arbitration was conducted in that the parties made submissions,
but
no evidence was led. The Applicant contends that the manner in which
the arbitration was conducted led to an incorrect finding
of law.
Analysis
[9]
In terms of Section 73A of the BCEA “(1) …
any
employee or worker, as defined in Section 1 of the National Minimum
Wage Act, 2018, may refer a dispute to the CCMA concerning
the
failure to pay any amount owing to that employee or worker in terms
of this Act, the National Minimum Wage Act, 2018, a contract
of
employment, a sectoral determination, or a collective agreement.”
[10]
An employee
or a worker can lodge a claim against their employer whilst they are
still employed, or after termination of employment,
provided that the
claim has not prescribed
[1]
.
[11]
In the present matter, the Commissioner was seized with determining
whether the Third Respondent’s members were
entitled to claim
backdated wage increases as former employees.
[12]
At the arbitration hearing, the Applicant’s representative
submitted that the backdated increases were implemented
by the
Applicant. The only issue the Commissioner was seized with was
whether the Third Respondent’s members, as former employees,
were entitled to the retrospective increases since they were still
employed as at 1 July 2021 to 30 June 2022. The Commissioner
correctly identified the issue he was seized with determining.
[13]
The Applicant’s representative at the arbitration, Ms Van
Rooyen, did not, on the face of the record of proceedings,
attempt to
call witnesses but explained to the Commissioner how the increases
were calculated and implemented. The Applicant does
not explain which
witness(es) it would have called and to what end. Indeed, it is
inconceivable what further evidence could have
been led to rebuff the
claim to backdated increases, and it is not disputed that the
Applicant implemented the backdated increases.
[14]
Whilst the Commissioner cites equity as the reason for his decision
to award the backpay, it is in fact the law that
undergirds the
decision. The BCEA protects the right to claim backdated increases
and does not distinguish between former employees
and dismissed
former employees. The CCMA and this Court are forums of law and
equity, and the argument that a finding cannot be
based on equity is,
thus, illogical.
[15]
The review is based on the contention that the Commissioner committed
an error of law. The Applicant could not sustain
such a proposition
since the law dictates that the Third Respondent’s members are
entitled to the backdated increases applicable
from 1 July 2021 to 30
June 2022.
Accordingly,
the following order is made:
[1] The review
application is dismissed.
[2] There is no
order as to costs.
Barthus
AJ
Acting
Judge of the Labour Court of South Africa
Representatives:
For
the Applicant:
Arend Posthuma
Instructed
by:
Snyman Attorneys
For
the Third Respondent: Chuene Tumelo Ramabu
Instructed
by:
Ramabu Attorneys
[1]
In Ademulegun v Monothendre (Pty) Ltd t/a GFT Group Fiveways
Superspar
[2024] JOL 63624
(LC), the applicant instituted action
against his former employer for unpaid remuneration – such as
underpayment of wages,
non-payment of overtime, and family
responsibility leave – over a period of 8 years. The employer
raised a special plea
that some of the claims had prescribed. In
considering the matter, the court observed that a debt becomes due
when the debtor
is obliged to make payment; therefore, each month
constituted a new and separate debt. The court upheld the special
plea in part
as it found that the applicant’s claims that
arose more than three years before the claim was initially
instituted had
prescribed. This demonstrates that a former employee
is not precluded from pursuing a claim under s73A of the BCEA,
provided
that the threshold requirements are met.