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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 124/2020

In the matter between:

JB MARKS MUNICIPALITY	Applicant
And
SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL	First Respondent
COMMISSIONER D. SMITH N.O.	Second Respondent
RAMAUTLWA SIMON TAUNYANE	Third Respondent

Considered on the papers

Delivered:   This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 28 November 2023

 

JUDGMENT

 

TLHOTLHALEMAJE, J

Introduction:

[1] The sole issue for determination in this matter relates to the quantum of back-pay, if any, claimed to be due and payable to the third respondent by the applicant (Municipality). The enquiry results from the third respondent’s reinstatement in terms of an arbitration award issued in his favour by the second respondent (Arbitrator), and subsequent to that award being made an order of Court upon an unsuccessful attempt by the Municipality to have it reviewed and set aside.

[2] The pertinent background facts are fairly common cause. The Municipality, through its Executive Mayor, terminated the fixed term contract of the third respondent on 06 September 2019, having issued a notice in that regard on 01 August 2019. Following a referral of an alleged unfair dismissal dispute to the SALGBC by the third respondent, the matter came before the Arbitrator who had on 11 December 2019, issued an award to the effect that his dismissal was unfair. The Arbitrator ordered the Municipality to reinstate the third respondent on the same terms and conditions that existed prior to his dismissal by no later than 6 January 2020, and to further pay to him, back-pay in the amount of R81 168.00 by no later than 6 January 2020.

[3] Following a review application launched by the Municipality which the third respondent had opposed, the parties had at the hearing of the matter on 4 May 2022 before the Court, agreed that the arbitration award should be made an order of Court. To the extent that the parties could not agree on the quantum of back-pay in terms of the award, the Court in making the award its order, directed the parties to submit written representations in that regard, which would be considered in Chambers together with any order as to costs.

[4] Timelines for the filing of submissions were agreed to and complied with by the respective parties. For reasons that cannot be explained, the submissions were recently brought to my attention, and the Court can only apologise to the parties for the inconvenience caused by the delays in delivering this judgment.

The dispute and the submissions:

[5] The third respondent in his submissions correctly pointed out that the issue for determination by this Court goes to its jurisdiction. The enquiry is whether the Court can issue a declaratory order compelling the Municipality to pay to the third respondent, any amounts in the form of salary or remuneration for the period after the award was obtained and up to its implementation following that award being made an order of Court, or whether any of the other amounts post the award ought to be claimed separately.

[6] The third respondent contends that the Court ought to assume jurisdiction and thus grant a declaratory order, as he is entitled to arrear payments for the period that he could not render his services as a result of the review application which had suspended the award. He contends that he is entitled to such payments in circumstances where he had had initially tendered his services on 6 January 2020, and since the Municipality refused to accept his tender on the basis of having launched its review application. He however submitted that after 23 November 2020, he had commenced employment with another employer, and any computation of the quantum due to him must take that period into account, inclusive of his request to shift the implementation of the reinstatement by a month after the award was made an order of Court.

[7] In support for his contentions, the third respondent sought to rely on Hendor[1] for the proposition that his reinstatement (which is now common cause), effectively restored his contract of employment by operation of the law, and thus compelled the Municipality to comply with its obligations under the award, which is to remunerate him for the period he could not render his services whilst the Municipality pursued the review application.

[8] In resisting payments of any amounts in respect of the period that they are claimed by the third respondent, the applicant placed reliance on Coca Cola Sabco (Pty) Limited v Van Wyk[2] for the proposition that the LRA did not cater for any remuneration due to an employee between the date of an award and the actual date of implementation of that award, and further that the date of implementation of the award in this case as per the Court order, had no bearing on the payment of any amounts due and payable to the third respondent for the period he was not rendering any services.

The legal approach and evaluation:

[9] The question of whether and if so how, an employee who was unable to enjoy the benefits of a favourable arbitration award of reinstatement may be entitled to any form of remuneration upon the implementation of that award has been the subject of numerous authorities. In addressing the issue, the legal position as set out by the LAC in Coca Cola is as follows;  

(i) Any amounts paid to an unfairly dismissed employee consequent to a retrospective reinstatement order is not compensation, and an order of back-pay by a 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. This is so in that the Labour Relations Act does not cater for such relief[3].

(ii) 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[4].

(iii)   If the employee, after the reinstatement order and during the time that the employer exercises its review and appeal remedies to exhaustion, tenders his service, he does so in terms of the employment contract, and 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 he tendered his service in terms thereof and that the employer refuses or is unwilling to pay him in terms of that contract. The employer on the other hand would have all the contractual defences at its disposal[5].

(iv)   An award of reinstatement therefore does not require the payment for the full period up to and including the date of compliance in that all that it does is to revive the contract of employment. Thus, 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[6]

[10] Against the above principles and in applying these to the facts of this case, and further to the extent that the third respondent has since been reinstated arising from the arbitration award which was confirmed by the Court, it is thus concluded that the effect of a reinstatement award as confirmed by this Court was to merely revive the arbitration award, and thus the contract of employment between the Municipality and the third respondent. Such an order, however, did not go beyond more than requiring the employment relationship to resume[7].

[11] Flowing from the Court order, the rights, and obligations of the parties insofar as any other issue outside the scope of the arbitration award, are now since the reinstatement, governed by the restored contract of employment. This means that to the extent that the third respondent seeks payments arising from his inability to render his services immediately after the award was obtained, he would ordinarily have a contractual claim, which is a totally different cause of action against the Municipality. As stated in Coca Cola^[8], since the third respondent’s claim is a contractual, he will be required to set out sufficient facts to justify the right or entitlement to the alleged remuneration. Effectively, such a claim is incapable of adjudication by this Court within the context of a review application which was before this Court under section 145 of the LRA.

[12] To this end, it follows that to the extent that the third respondent sought a declaratory order that he was entitled to remuneration between post the arbitration award and its implementation, this Court lacks jurisdiction to make such an order. The proper legal approach therefore would have been to invoke the provisions of section 77 of the Basic Conditions of Employment Act.

[13] Further having had regard to the facts and circumstances of this case, it is my view that the requirements of law and fairness dictate that each party be burdened with its own costs.

[14] Accordingly, the following order is made:

Order:

1. The Court lacks jurisdiction under the present case number, to make any declaratory order in regards to salary or remuneration allegedly due and payable to the third respondent arising from the implementation of the arbitration award dated 11 December 2019.

2. Each party is to pay its own costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

 

REPRESENTATION:

For the Applicant: Leepile Attorneys Incorporated

For the Third Respondent: MB Modumaela Attorneys

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