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Article 74/2022

How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC); [2021] 4 BLLR 652 (LAC), interpret the first judgment of Madlanga J and the second judgment of Zondo J in National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (2017) 28 SALLR 2 (CC); (2017) 38 ILJ 1560 (CC), so dealing, inter alia, with the implementation of an award or order?

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The first judgment of Madlanga J, in Hendor Mining Supplies, entailed the following:

  • there is no distinction to be made from date of the award/order to the date of implementation – the entire period is covered by the award/order
  • if reinstatement is ordered, the employer is ordered to put the employee back into same job or position he occupied prior to dismissal, on the same terms (and covers the period from the date of reinstatement to the date of the reinstatement order actually taking place)
  • the consequences of the resurrection of the employment relationship are the following reciprocal duties:
  • the employer must permit the employee to work and pay accordingly; and
  • the employee must report for duty
  • the effect of an appeal/review is that it suspends the reciprocal duties as set out above
  • the outcome of the appeal or review is that ex tunc (from the beginning) duties become fully operational and executable and the award/order of reinstatement covers the entire period
  • each of the above reciprocal duties constitute separate judgment debts
  • in terms of s11(a)(ii) of the Prescription Act 68 of 1969, each duty expires after 30 years
  • the order is enforceable as an order ad factum praestandum (to do something) by means of contempt proceedings

The second judgment of Zondo J, in Hendor Mining Supplies, entailed the following:

  • the first period runs from the date of dismissal to the date of the award/order ordering reinstatement and entails the following:
  • it is a judgment debt
  • enforcement is achieved in that the employer is ordered to reinstate employees in the same or not less favourable positions as occupied prior to their dismissal
  • contempt of court proceedings are to be utilised for non-compliance
  • a writ of execution is to be ordered and payment is not dependent on the employee tendering work
  • in terms of s11(a)(ii) of the Prescription Act, it constitutes a debt and expires after 30 years;
  • the second period runs from the date of the labour court order until the date that the employer reinstates the employees, and the following principles govern such period:
  • Coca-Cola Sabco (Pty) Ltd v Van Wyk (2015) 36 ILJ 213 (LAC); (2014) 25 SALLR 103 (LAC) is correctly decided – entailing that the LRA does not cater for a remedy in this regard and it is a contractual claim
  • enforcement is to take place by means of the civil courts or the labour court in terms of s77(3) of the BCEA
  • the employees so dismissed are required to tender their services
  • s11(d) of the Prescription Act applies – entailing that the order expires after three years (however, prescription runs not from the outcome of the appeal proceedings, etc, but from the period when reinstatement takes place

Apart from the above disagreement, the judges were in agreement about the following:

  • the contracts of employment of unfairly dismissed employees are terminated by dismissal
  • they are only revived when the employees tender services pursuant to a reinstatement order
  • their tender is to be accepted by the employer
  • the reinstatement order is an order ad factum praestandum (an order to do something) as opposed to an order ad pecuniam solvendam (order to pay something) enforced through contempt proceedings
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