Solidarity obo Graham v Northam Platinum Ltd (JR262/14) [2016] ZALCJHB 482 (5 May 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no JR 262/14

In the matter between

SOLIDARITY OBO G GRAHAM Applicant And

NORTHAM PLATINUM LTD First Respondent

Heard: 25 April 2016

Judgment delivered: 5 May 2016

JUDGMENT

VAN

NIEKERK J

[1] This is an application first to make an arbitration award an order of this court.

[2] The award in question was issued on 25 March 2013. The remedial portion of the award reads as follows:

[43] I find that the applicant’s dismissal was substantively and procedurally unfair.

[44] I order the respondent to reinstate the applicant to his former position and on the same terms and conditions that prevailed prior to the dismissal;

[45] I order the respondent to pay the applicant the sum of R 701 481-00 (SEVEN HUNDRED AND ONE THOUSAND FOUR HUNDRED AND EIGHT ONE RAND) been back pay from June 2012 to April 2013 at the rate of R R637 771-00 (sic);

[47] I order the respondent to pay the applicant the sum of back pay paragraph [46] above on or before 2 May 2013.

[3] Consequent on the award, the respondent reinstated Graham (the employee on whose behalf Solidarity acts and the beneficiary of the award) with effect from 2 May 2013 and paid him the amount of R 701 481. The respondent contends that in the circumstances, it has fully complied with the arbitration award and that it is accordingly inappropriate for this court to make the award an order of court.

[4] The applicant contends that the respondent has not fully complied with the terms of the arbitration award. It complains that Graham was not reinstated on the same terms and conditions that prevailed prior to his dismissal. In particular, the applicant contends that Graham accrued annual leave between the date of his dismissal (22 May 2012) and the date of his reinstatement, being 2 May 2013. A payslip annexed to the demand initially made of the respondent reflects an entitlement of 42 days leave per annum, with 2.53 days having been accrued during the month of May 2013. The applicant demanded that an additional 42 days (being annual leave accrued between the date of dismissal of the date of reinstatement) be credited to Graham.

[5] The purpose of s 158 (1) (c) is to bring to bear the power of enforcement invested in this court, which the CCMA does not itself enjoy (see Kolobe v Proxenos (Sophia’s Restaurant) [2000] 11 BLLR 1291 (LC)). It is a discretionary remedy and is generally not available where there has been compliance with the award that is sought to be made an order of court. Indeed, it is incumbent on an applicant in a matter such as the present to satisfy the court that

the respondent has failed or refused to comply with the award (see Maleka v National Sorghum Breweries [1999] 5 BLLR 495 (LC)).

[6] In his award, the commissioner had recorded in paragraph [5] that Graham earned R 63 771 per month. The amount of back pay awarded in terms of paragraph [46] of the award represents the equivalent of 11 months remuneration, i.e. what Graham would have earned from June 2012 to April 2013 (the rate of R 637771-00 referred to by the commissioner is clearly an error). Given that Graham was dismissed on 22 May 2012, the commissioner’s award is not one that is truly retrospective. In other words, it is not an award that reinstates Graham into the respondent’s employ with effect from the date of dismissal, without loss of benefit, on the same terms and conditions of employment. This is entirely competent – s 193 (1) (a) of the Labour Relations Act leaves the nature and extent of the retrospectivity of any reinstatement order to the discretion of the commissioner. If the commissioner had intended fully to restore the contract of employment with effect from the date of dismissal with no loss of benefits, the award would have been worded rather differently. On the face of it, what the award provides is that Graham was to resume duties on 2 May 2013, with a sum of back pay calculated on the basis of his loss of remuneration between the first day of the month following his dismissal and the date on which he was required to resume duty.

[7] The terms of the award do not entitle Graham to be credited with the number of days annual leave that he would have accrued had he not been dismissed. The respondent has accordingly fully complied with the terms of the award and there is no basis on which the award should be made an order of this court.

I make the following order:

1. The application is dismissed.

m

ANDRÉ

VAN NIEKERK

JUDGE

OF THE LABOUR COURT

APPEARANCES

For the applicant: Union official (fax 012 664 4300; mynie@solidariteit.co.za)

For the respondent: Adv R Beaton SC, instructed by Van Zyl Le Roux Attorneys (086 771 8667; michelle@vzlr.co.za)