Maroveke v Talane N.O. and Others (CCT 187/20) [2021] ZACC 20; (2021) 42 ILJ 1871 (CC); [2021] 9 BLLR 851 (CC); 2021 (10) BCLR 1120 (CC) (6 July 2021)

Maroveke v Talane N.O. and Others (CCT 187/20) [2021] ZACC 20; (2021) 42 ILJ 1871 (CC); [2021] 9 BLLR 851 (CC); 2021 (10) BCLR 1120 (CC) (6 July 2021)

The Constitutional Court found that the Labour Court erred in quantifying back pay based on incorrect salary figures and failing to consider the difference in earnings between the applicant's previous and new employment. The correct approach is to restore the applicant to the position he would have been in but for the dismissal, which requires compensating him for the actual loss suffered. The applicant was unemployed for two months and then earned less at Gold Fields than at Fermel (Pty) Limited. The Court held that the applicant is entitled to two months' back pay at his previous salary and compensation for the difference in earnings for the subsequent ten months. The Labour Court's...

Citation
[2021] ZACC 20
Parties
Applicant: Nesu Maroveke; Respondent: Sipho Talane N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Fermel (Pty) Limited
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
6 July 2021
Case Number
CCT 187/20
Procedural Posture
Leave to Appeal / Constitutional Court Appeal From Labour Appeal Court Refusal of Leave
Outcome
Leave to appeal granted; appeal upheld in part; Labour Court's order set aside and substituted; each party to pay its own costs.
Judges
Mogoeng, Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Pillay, Theron, Tshiqi
Legal Topics
Unfair Dismissal, Back Pay Quantification, Retrospective Reinstatement, Compensation Calculation
Labour Law Civil Procedure Unfair Dismissal Back Pay Quantification Retrospective Reinstatement Compensation Calculation

Case Brief

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Parties

Nesu Maroveke

Applicant

Sipho Talane N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Fermel (Pty) Limited

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Appeal From Labour Appeal Court Refusal of Leave

Legal Issues

  1. 1 Whether the subsequent securing of employment by a dismissed employee precludes full back pay from dismissal to reinstatement award.
  2. 2 Whether the Labour Court had sufficient information to determine appropriate back pay.
  3. 3 Whether the Labour Court erred in quantifying back pay based on incorrect salary figures.

Ratio Decidendi

The Constitutional Court found that the Labour Court erred in quantifying back pay based on incorrect salary figures and failing to consider the difference in earnings between the applicant's previous and new employment. The correct approach is to restore the applicant to the position he would have been in but for the dismissal, which requires compensating him for the actual loss suffered. The applicant was unemployed for two months and then earned less at Gold Fields than at Fermel (Pty) Limited. The Court held that the applicant is entitled to two months' back pay at his previous salary and compensation for the difference in earnings for the subsequent ten months. The Labour Court's...

Court Disposition

Leave to appeal granted; appeal upheld in part; Labour Court's order set aside and substituted; each party to pay its own costs.

Orders

  • Leave to appeal is granted.
  • The appeal is upheld to the extent that paragraph 3 of the order of the Labour Court is set aside and substituted with: 'Fermel (Pty) Limited must pay Mr Nesu Maroveke an amount of R146 767.20 within 15 days from the date of this order.'