ISSUE

When an arbitration award ordering reinstatement is taken on review it may take several months or years for the review to be decided.  In the event that the Court reviewing such an award finds that the award should stand, the question arises whether the employee, in whose favour the order was made, is entitled to payment of his/her remuneration for the period between the date on which the arbitration award was made and the court order ruled on the review. Or, would the employee only be entitled to back-pay for the period between the date of dismissal and the granting of the arbitration award?

SUMMARY

An order made by the Labour Court in a review application of an award which reinstates an employee only serves to revive the contract of employment.  It does not cover the period between the date on which the arbitration award was issued and its implementation after the review proceedings. Should the employer refuse to pay an employee for this interim period, then the employee has a contractual claim against the employer, which claim must be enforced by way of action proceedings in the appropriate forum. In order to prove such claim an employee will have to prove that he/she tendered his/her services and prove the damages claimed.

COURT’S DECISION

In Coca Cola Sabco (Pty) Ltd v Van Wyk [2015] 8 BLLR 774 (LAC), the Respondent, Van Wyk, had been an employee of Coca Cola. Van Wyk was dismissed for incapacity due to ill health during June 2003. Van Wyk referred an unfair dismissal dispute to the CCMA for arbitration. On 5 August 2004 the Commissioner found that Van Wyk’s dismissal was substantively unfair and ordered that he be reinstated. Coca Cola took the award on review to Labour Court (“LC“).  It failed in its bid to review the award. Coco Cola’s application for leave to appeal to the Labour Appeal Court (“LAC“) was also subsequently dismissed. Van Wyk was eventually reinstated on 2 March 2009.

Prior to Coca Cola complying with the arbitration award, the Registrar of the Labour Court issued a writ of execution against Coca Cola. In terms of the writ, Coca Cola was held liable for, among others, the outstanding salary payments from the date of the arbitration order of reinstatement (being 1 September 2004) to the date on which the order was complied with by Coca Cola, being 19 February 2009, some 54 months later. Coca Cola approached the LC to have the writ set aside, objecting to it being held liable for the remuneration payable to Van Wyk for the entire period between the issuing of the arbitration award and the review decision of the Labour Court.

The LC held that Coca Cola was liable for the remuneration Van Wyk would have earned from the date of his dismissal to the date of the arbitration award. The LC held that “an employer’s liability for remuneration post reinstatement falls within the scope of the award of reinstatement” and as it is a judgment ordering the payment of a sum of money, it can be enforced by way of writ of execution. Where a judgment orders the payment of monies which are not quantified but are capable of being quantified without difficultly, the court held that the party in whose favour the judgment was granted must simply prove the extent of the monies owed, for example by way of affidavit.

The LAC held that the LC was correct in its finding that an employer is liable for the remuneration as from the date of dismissal to the date of the arbitration award. However, the LAC found that the LC was incorrect in its approach to monies owed from the date of the arbitration award to the date with which it the employer complied with such an award.

The LAC held that a reinstatement order simply revives the contract of employment which was terminated by dismissal. On the date that the reinstatement order is made, the Commissioner may order that the reinstatement be effective from the date of the order or from any earlier date subsequent to the date of dismissal but prior to the date of the order. Importantly, a Commissioner may not order that reinstatement commence at a date subsequent to the date of issuing of the arbitration award. If an arbitration award of reinstatement is made, but reinstatement is delayed, the employee will only be entitled to his salary if he tendered his services in the period of delay. An employee’s claim for salary during this period is not a claim that falls under the Labour Relations Act 66 of 1995, but is rather a contractual claim.

In order to enforce such a claim, i.e. for remuneration from the date of the arbitration award to the eventual date of implementation of the award, the employee would have to prove that the contract of employment was in existence during this period, that he/she had tendered his/her labour and that the employer had refused or was otherwise unwilling to remunerate the employee in terms of the contract of employment. Van Wyk therefore had to institute and prove a contractual claim before he would become entitled to the remuneration he would have received between the date of the arbitration award and the date he was eventually reinstated.

IMPORTANCE OF THIS CASE

An employee who is successful in his/her claim for reinstatement following dismissal is entitled to be paid for the time between the granting of the arbitrations order of reinstatement and the date of the actual implementation of the arbitration order if the employee tendered his / her services and has proven his damages during that period. Should the employer fail to pay the employee for such time, the employee is not automatically entitled to such remuneration. However, he / she may launch action proceedings by virtue of a breach of contract. In such circumstances the employer may insist that the employee prove his / her damages.

Written by Jacques Van Wyk, Director, Andre van Heerden, Associate and Brittany Feldman, Candidate Attorney, Werksmans Attorneys