Unfairly dismissed workers have been denied their back pay, despite the highest court in SA ratifying the order that it should be paid. And all because they subsequently followed the wrong legal process in taking their former employer to task

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EVEN the judge was uncomfortable about the decision she had to make in the case of Kubeka v Ni-Da Transport. And who could blame her? It is not often that judges are compelled to find in favour of the side that should not win, but this was one such case – and it clearly rankled.

Mhlupheki Kubeka was one of about 100 employees sacked by Ni-Da after they went on strike during 2008. Labour court judge David Gush subsequently found the dismissals substantively and procedurally unfair and ordered the workers reinstated with backpay.

The company then approached one higher court after the other hoping to reverse the decision. Finally, however, even the constitutional court threw out Ni-Da’s challenge. At this point the original reinstatement and backpay order, as ordered by Gush some years before, was “live” again.

But here’s the thing: though the employer succeeded in none of its appeals, when the workers went back to court to ask for an order that the company now hand over their backpay – they lost.

Surely that was not possible? Labour court judge Benita Whitcher, who heard this second case, seemed as amazed as any reader by the conclusion she had reached.

“How,” she asked, and “by what intricacy of fact or quirk of law, could it be that (the workers) end up receiving nothing” in the application before her “when an unappealable order of reinstatement … made in their favour … was meant to have placed them in the same position they would have been in but for their employer’s original unlawful action?”

The simple answer is that when the string of unsuccessful appeals by the company came to an end and the workers went back to court for their backpay they followed the wrong legal process.

They brought a claim for backpay instead of launching a contempt of court application against the employer for not following the Gush order. A relatively recent decision by the constitutional court has made clear that a reinstatement order in a case like this amounts to an order “to do something”, rather than “to pay something”. And the correct way to enforce such an order is via contempt proceedings.

The original order that they should get backpay was not “an obligation to pay them backpay in isolation”. It was linked to an order of reinstatement. Only if the company took them back would backpay become owing. And if the company refused to take them back, the correct procedure was to challenge that refusal to obey the court order by way of a contempt application.

True, the workers were “entitled” to their backpay but, said the judge, “(t)o my mind, there is simply no way of getting round it. (They) used the wrong process to obtain the relief they sought.”

Whitcher found that the workers had tendered their services to the company within the time period stipulated by the Gush judgment. But the manager refused to accept them and the company then initiated its appeals. If, at the end of the appeal process, the company had acted in terms of its revived obligation to reinstate the workers in line with the Gush order, it should have contacted the union and invited the workers back.

But that did not happen and then the workers did not follow the correct procedure to get their money. Whitcher added that while “a fairly abstract point of law” favoured the employer, “(o)verall morality, I fear, does not.”

But perhaps there is a way forward for the disappointed workers. Surely their lawyers will investigate returning to court for a contempt order against management? And given the employer’s behaviour thus far, would it be too much to hope that success would lead to a costs order against them?

* Financial Mail, 14 February 2019