Whether an employer may be held in contempt for failing to effect back pay for reinstated employees
Case:
Association Mineworkers and Construction Union obo the AMCU Members v T.W. Civils and Earthmoving (PTY) Ltd and Another (J 1066/2020) [2022] ZALCJHB 223 (8 August 2022).
Background:
In this case, the trade union sought to hold the employer and its directors in contempt of court for their alleged failure to comply with an order issued by the Court on 21 October 2020 and in particular for failing to back pay the employees for the 30-day period, after reinstatement.
Counsel for the employer submitted that in respect of any back pay owing to the individual applicants, the order is not to be one ad factum praestandum. He relied on National Union of Metalworkers of South Africa obo Fohlisa and others v Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd) [2017] ZACC 9, where the Labour Appeal Court held that an order of reinstatement did not include an order quantifying the arrear wages payable for the entire period.
The Constitutional Court reversed this finding in two judgments which came to the same conclusion but for different reasons. Judge Zondo, held that the claim fell into two distinct categories; first, the one before the reinstatement order and the other, being the period after the reinstatement order. He stated that the claim relating to the first, was a judgment debt, the claim in relation to the second period was a contractual debt.
This judgement was further upheld by the Labour Appeal Court in Kubheka and others v Ni- Da Transport (Pty) Ltd [2021] 4 BLLR 352 (LAC) where the court held that “the actual reinstatement of employees resulted in the restoration of their contracts of employment, and that any claim to wages in those circumstances was a contractual debt to be dealt with in terms of the principles of the law of contract”.
Conclusion:
It is thus not competent for the applicants to seek to hold the respondents in contempt. As such, the court concluded that the employer’s obligation in terms of the court order was to reinstate the individual employees for a period of at least 30 days, and that failing to pay any money owing during this period cannot be enforced with a contempt application.
