NUMSA obo Tsotetsi and Others v TMS Group Industrial Services (Pty) Ltd and Another (J 683/2022) [2023] ZALCJHB 113 (20 April 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 683/2022

In the matter between:

NUMSA obo TSOTETSI, M AND 17 OTHERS Applicant And TMS GROUP INDUSTRIAL SERVICES (PTY) LTD First Respondent DAVID MADISA Second Respondent

Heard: 19 April 2023

Delivered: 20 April 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 20 April 2023.)

JUDGMENT

VAN NIEKERK, J

[1] On 19 January 2017, the union and 17 of its members entered into a settlement agreement with the first respondent after the referral of the dispute to the CCMA. In terms of the agreement, each of the individual members was to be paid an amount of R 2500 and to report for duty on 1 March 2017. The settlement agreement provides further that in the event that some of the applicants are not able to be accommodated, they would be offered ‘one level down positions’ and if they found those unacceptable, they ‘will have to wait for any posts available on their level’. Finally, the agreement provides that in the event that positions ‘avail themselves at Arnot, Hendrina or Camben the applicants who will have accepted lower positions and those who did not will be the first to be hired in those positions’.

[2] The applicants contend that the individual applicants reported for duty on 1 March 2017 at the Arnot PowerStation where they were told that there was no job for them. On 11 May 2017, the settlement agreement was made an award in terms of section 142A. The applicants contend further that the first respondent has failed to comply with the terms of the award and that the respondents should thus be held in contempt of court.

[3] The respondent has filed an answering affidavit in which it avers that approximately 10 of the 17 individual applicants reported for duty on 1 March 2017, but that they could not be reinstated at the time as there were no available positions at their level. The respondent avers further that the individual applicants accepted this explanation, and as and when positions became available, it reinstated those employees who had continued to tender their services. The respondents have provided details of each of the 16 persons who either did not report for duty (and who on further inquiry, were found to have commenced employment with a different employer) or who were reinstated in terms of the settlement agreement. In respect of the latter category, payslips have been annexed to the answering affidavit establishing the fact of reinstatement. The schedule provided also records the date on which the services of the affected employees were terminated following reinstatement. The termination in each case was occasioned by the operational requirements of the first respondent and in particular, the reduction of work by its major client, Eskom. In the circumstances, the respondent submits that it has complied with the terms of the settlement agreement and that the facts disclose no wilful or mala fide intent to disregard the terms of the settlement agreement.

[4] The nature of the present proceedings is such that the well-known Plascon Evans rule is applicable, in terms of which unless the answering affidavit contains averments that are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers, I must accept the respondents’ version. In the present instance, I am satisfied, given the terms of the answering affidavit and the annexures attached in the form of payslips, that the material facts are those disclosed by the respondents. The replying affidavit simply reiterates the applicants’ denial that the individual applicants were reinstated. To the extent that the applicants appear to suggest that the individual applicants were re-employed on fixed terms, that has not been sustained by any reference to available documents nor is it correct, as appears to be suggested, that the settlement agreement precluded the first respondent from terminating employment of any of the individual applicants subsequent to reinstatement for any reason that is lawful and fair.

[5] In short, the applicants have failed to establish any breach by the first respondent of the settlement agreement. The application to hold the respondents in contempt thus stands to be dismissed. Finally, insofar as costs are concerned, for the purposes and requirements of the law and fairness are best met by each party bearing its own costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Union official For the respondents: Ms S Lancaster, Lancaster Kungoane Attorneys