Fidelity Fund Security Services v Ngqola

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Coppin JA and Savage AJA and BR Tokota AJA
• Judgment Date: 07 April 2022
• Docket Number: JA 61/21
• Hearing Date: 17 March 2022
• Court: Labour Appeal Court
• Citation: 2022 JDR 1996 (LAC)

Tokota AJA:

Introduction:

[1]

The respondent approached the Labour Court in terms of section 77(1) and 77(3) of the Basic Conditions of Employment Act No. 75 of 1997 (the Act) seeking an order directing the appellant to pay her arrear salary from the date of her dismissal to the date of her reinstatement, as ordered by the arbitrator at the Commission for Conciliation, Mediation and Arbitration (CCMA). She was successful in her application. With leave of the Court a quo (Snyman AJ) the appellant is appealing against the whole of the judgment and order of the Labour Court.

Factual background:

2022 JDR 1996 p2

Tokota AJA

[2]

The respondent was employed by the appellant as a security officer since 2 February 2011. Not long after the respondent was appointed, the appellant was not happy with her work performance. During July 2011, the respondent was reprimanded for poor work performance. On 15 August 2011, a letter was addressed to her informing her that since there was no change in her poor work performance, it was decided that she be transferred to Robertsville, Guarding Division and was offered a lower salary than that which she was earning. She was advised that should she decline the offer her contract of employment would be terminated and her last date of working shift would be 31 August 2011.

[3]

The respondent did not report at the new station and she was then dismissed effective from 31 August 2011. She then referred a dispute of unfair dismissal to the CCMA for conciliation on 14 September 2011. When the conciliation failed, the matter was referred to arbitration which was set down for 9 March 2012. The arbitrator found that the dismissal was both procedurally and substantively unfair. He ordered the appellant to reinstate the respondent. The appellant was further ordered to pay the respondent an amount of R31 470.11 being the arrear salary calculated from the date of dismissal to date of her reinstatement (which would have been 26 March 2012 in accordance with the award). The award was made on 18 March 2012 and the respondent was directed to report for duty on 26 March 2012

[4]

In April 2012, the respondent reported for duty at her place of employment where she met the HR Manager, one Mr Martin Keevy, who informed her that she was not allowed to resume work because they were taking the award on review. He offered her a settlement of R20 000, but she rejected the offer.

[5]

On 12 June 2012, the respondent brought an application in the Labour Court seeking an order to make the award an order of Court in terms of section 158(1)(c) of the Labour Relations Act, No 66 of 1995 (the LRA). Although the appellant filed a notice to oppose that application, no answering affidavit was filed and the matter proceeded on an unopposed basis. The arbitration award was duly made an order of Court on 17 October 2012.

2022 JDR 1996 p3

Tokota AJA

[6]

On 19 September 2013, after a period of about 12 months since the arbitration award was made an order of Court, the appellant filed an application to review and set it aside.

[7]

On 17 September 2013, on the strength of the award that had been made an order of Court, the respondent had obtained a writ of execution against the appellant which was served by the Sheriff on the appellant on 30 September 2013. Consequently, the appellant paid the arrear salary specified by the arbitrator in the award, namely, R31 470.11.

[8]

On 23 July 2014, the respondent brought an application in the Labour Court seeking an order dismissing the application for review in terms of Rule 11 of the Rules of the Labour Court, but that application was not pursued any further.

[9]

With regard to the review application - there was an issue of an incomplete record. The parties met and finalised the reconstruction of the record in January 2015. Despite the finalisation of...