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Employers have been warned that defying a CCMA judgement can cost millions.
In a recent Johannesburg Labour Court case, a director at a Spar in Johannesburg was fined R1 million for contempt of Court after refusing to reinstate an unfairly dismissed worker.
“The worker had won an arbitration award ordering his reinstatement. However, despite the arbitration award being enforced as if it were an order of the Labour Court in terms of section 143 of the Labour Relations Act, Spar failed to rehire him,” said Tertius Wessels, Legal Director at Strata-g Labour Solutions.
“This blatant disregard for the law prompted the worker’s union, ECCAWUSA, to file a contempt application against Spar and the employer.”
The Labour Court found the employer personally liable for the contempt, remarking that employers generally treat arbitration awards with respect. The Court also criticised Spar for trying to advance technical arguments in court” to avoid complying with the order.
The Court said that there are four elements that are necessary for a contempt order:
- Existence of the order: The arbitration award ordering the employee’s reinstatement was clear and valid.
- Service of the order: Spar acknowledged receiving the order, and the employer’s email address was included in the communication.
- Non-compliance with the order: Despite the order, the employee was not reinstated.
- Wilful and mala fide non-compliance: The Court found the employer’s actions to be deliberate and in bad faith.
Although the employer’s lawyer tried to argue that the application failed to address how the order was served, the Court said that this defence was technical and flimsy, with additional evidence showing that the employer, as the responsible director, was aware of the order via an email sent to Spar.
In addition, the Court said that the employer’s refusal to reinstate the employee was driven by “harassment” and “fatigued and flimsy reasons.” This behaviour and the attempts to delay compliance via technicalities were deemed enough for a significant penalty.
Wessels said that the R1 million fine serves as a strong deterrent against future contempt cases, with the Court also ruling that the employee had to be reinstated within 30 days.
“This case has important implications for both employers and employees. It sends a clear message to employers that ignoring court orders will not be tolerated and could result in severe financial penalties. For employees, it reinforces the principle that they have recourse to legal mechanisms to address unfair treatment,” he added.
“Beyond the legal implications, the case also highlights the human cost of unfair dismissal. The employee was deprived of his job and livelihood, and it took significant legal effort to secure his reinstatement. This underscores the importance of fair labour practices and the need for employers to treat their employees with dignity and respect.”
Read: South Africa’s 2023 in review – the good and the bad
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