Sello v Phakisa Corporate Services (Pty) Ltd (J1242/19) [2021] ZALCJHB 184 (2 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J1412/19

In the matter between:

MARY

MANGAKA SELLO

Applicant

and

PHAKISA CORPORATE SERVICES (PTY) LTD Respondent

Heard: 6 July 2021

Date Delivered: 2 August 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 2 August 2021.)

Summary: Application to make arbitration award an order of court in terms of section 158 (1) (c) of the Labour Relations Act, 1995.

JUDGMENT

RAPHULU, AJ

Introduction

[1] This is an application to make a settlement agreement concluded by the parties at the Commission for Conciliation Mediation and Arbitration (CCMA) on 6 March 2018 under case number GATW1855-18 an order of this Court.

[2] The Applicant also seeks an order that the Respondent re-employ her to the position as at the time of her dismissal with effect from 7 March 2018. The Applicant further seeks an order that the Respondent pay all the Applicant’s lost salaries from 7 March 2018 to date of her actual re-employment, together with interest on the lost salary tempore morae to date of payment within 14 days from the date of the order.

[3] The Applicant further seeks an order that the Respondent is to pay the costs of this application on an attorney and own client scale.

Analysis

[4] In terms of the settlement agreement concluded between the parties in 2018, the Applicant was to report for duty at the Respondent at 07h00 on 7 March 2018 at 8 Eddison Street in Pretoria West.

[5] The Applicant contends that she duly complied with her obligations but was however turned away by the Respondent on the basis that she did not have the necessary work permit, despite the fact that she had in her possession her Lesotho Special Permit entitling her to work in the Republic of South Africa. The Applicant further contends that on 10 April 2019 her attorneys addressed an email to the Respondent demanding compliance with the settlement agreement, and that such email attached the Applicant’s Lesotho Special permit, however that the Respondent disregarded the email and did not respond let alone acknowledge its receipt.

[6] The Respondent contends in its notice of opposition that the Applicant did report for work as per the settlement agreement, but that she could not supply a valid South African identity document or work permit which would allow her to be legally employed and was requested to supply valid documentation before she could be employed but as at the date of the notice of opposition, had failed to do so, and thus could not be employed as the Respondent is prohibited from employing a foreign national prior to such foreign national producing a valid work permit.

[7] It is accordingly in dispute whether the Applicant had valid papers to work in the country when she reported for duty on 7 March 2018.

[8] It is however not disputed anywhere by the Respondent and was not disputed at the hearing of this matter that the Applicant’s Lesotho Special Permit was emailed to the Respondent on 10 April 2019. The Respondent does not offer an explanation as to why it still did not adhere to the settlement agreement as at that date. Accordingly, at least from 10 April 2019 there was absolutely no reason for the Respondent not to adhere to the settlement agreement.

[9] In the time period from 10 April 2019 the Respondent could have adhered to the settlement agreement at any time from that date until the parties had to ultimately appear before this Court Had the Respondent adhered to the settlement agreement after the work permit was sent by email, then there would not have been a need for the current proceedings, and the costs associated with the current proceedings.

[10] Based on the above, the following order is made:

Order

1. The settlement agreement concluded by the parties at the Commission for Conciliation Mediation and Arbitration on 6 March 2018 under case number GATW1855-18 is made an order of this Court.

2. The Respondent is to re-employ the Applicant to the position as at the time of her dismissal, or if that position no longer exists, a similar or equivalent position.

3. The Respondent is to pay the Applicant’s lost salaries from 10 April 2019 to the date of her actual re-employment, together with interest on the lost salary tempore morae to date of payment within 30 (thirty) days from the date of this order.

4. The Respondent is to pay the costs of this application.

L. Raphulu

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Fezile Sithole

Instructed by:

For the Respondent: Thabo Segaliso