Gomba v CCMA and Others (C410/2014) [2017] ZALCCT 33 (2 August 2017)

Gomba v CCMA and Others (C410/2014) [2017] ZALCCT 33 (2 August 2017)

The court held that Twinsaver Holdings (Pty) Ltd, as the new employer following a section 197 transfer, is bound by the reinstatement order made against the old employer, Nampak Tissue (Pty) Ltd. The retrospective effect of the reinstatement order means that the applicant's employment is deemed to have continued up to and beyond the date of transfer, thereby obliging Twinsaver to reinstate him. The payment of back pay by Nampak did not compromise the applicant's right to reinstatement, nor did the offer of alternative employment at Bevcan, which the applicant did not accept. The court found that there are live proceedings and that joinder of Twinsaver is necessary to give effect to the...

Citation
[2017] ZALCCT 33
Parties
Applicant: Vukile Gomba; Respondent: CCMA; Respondent: Commissioner K Kleinot; Respondent: Nampak Tissue (Pty) Ltd; Respondent: Twinsaver Holdings (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
2 August 2017
Case Number
C410/2014
Procedural Posture
Joinder Application / Application for Joinder and Enforcement of Reinstatement Order
Outcome
Application for joinder granted; Twinsaver Holdings (Pty) Ltd ordered to comply with reinstatement order.
Judges
Steenkamp
Legal Topics
Section 197 Transfer, Joinder of Parties, Retrospective Reinstatement, Arbitration Award Enforcement
Labour Law Civil Procedure Section 197 Transfer Joinder of Parties Retrospective Reinstatement Arbitration Award Enforcement

Case Brief

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Parties

Vukile Gomba

Applicant

CCMA

Respondent

Commissioner K Kleinot

Respondent

Nampak Tissue (Pty) Ltd

Respondent

Twinsaver Holdings (Pty) Ltd

Respondent

Procedural Posture

Joinder Application / Application for Joinder and Enforcement of Reinstatement Order

Legal Issues

  1. 1 Whether Twinsaver Holdings (Pty) Ltd, as the new employer, is bound by the reinstatement order made against the old employer under section 197 of the LRA.
  2. 2 Whether the applicant compromised his claim by accepting back pay or an alternative position.
  3. 3 Whether there are live proceedings justifying joinder of Twinsaver.

Ratio Decidendi

The court held that Twinsaver Holdings (Pty) Ltd, as the new employer following a section 197 transfer, is bound by the reinstatement order made against the old employer, Nampak Tissue (Pty) Ltd. The retrospective effect of the reinstatement order means that the applicant's employment is deemed to have continued up to and beyond the date of transfer, thereby obliging Twinsaver to reinstate him. The payment of back pay by Nampak did not compromise the applicant's right to reinstatement, nor did the offer of alternative employment at Bevcan, which the applicant did not accept. The court found that there are live proceedings and that joinder of Twinsaver is necessary to give effect to the...

Court Disposition

Application for joinder granted; Twinsaver Holdings (Pty) Ltd ordered to comply with reinstatement order.

Orders

  • Twinsaver Holdings (Pty) Ltd is joined as the fourth respondent in this application.
  • Twinsaver Holdings (Pty) Ltd is ordered to comply with the order of this Court (Rabkin-Naicker J) of 20 August 2015 under this case number by no later than 18 August 2017.