The Commission for Conciliation, Mediation and Arbitration (CCMA) granted 8 arbitration awards against an owner of various Spar stores in favour of employees to pay R11 935 478.00 within 14 days.
The reason for the award includes employees not being issued with a contract of employment, illegal deductions, pay for work on Sundays and public holidays, hiring of illegal foreign nationals, leave not granted according to the Basic Conditions of Employment Act and excessive working hours without overtime compensation.
What does such an award mean for the employer?
Section 143 (1) of the Labour Relations Act (LRA) states: “An arbitration award issued by a commissioner is final and binding, and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued unless it is an advisory award.”
If an employer fails to comply with such an arbitration award, section 143 (4) of the LRA states: “If a party fails to comply with an arbitration award…that orders the performance of an act, other than the payment of an amount of money, any other party to the award may, without further order, enforce it by way of contempt proceedings instituted in the Labour Court.”
Case study – Ntombela v Herridge Hire & Haul CC
In the matter of Ntombela v Herridge Hire & Haul CC & another (1999) 20 ILJ 901 (LC) the Labour Court dealt with non-compliance in terms of performance and ordered compliance finding the employer guilty of contempt.
In doing so, the court considered the matter as follows:
“The next question is, is Mr Herridge in willful and mala fide disobedience of the order? Having received the order and have had the opportunity to verify it to find out what it meant, he was in a position to obey it. It is quite clear that he regarded the award as ridiculous and its incorporation in the court order as not being something which should be complied with because it conflicts with his views on what the law should be. He does not believe that someone should be reinstated if they were in employment at the date the arbitration award was granted. There is clearly a refusal to reinstate Mr Ntombela in his employment with the CC. In my opinion, on all the facts before me, Mr Herridge is guilty of contempt of this court.”
The legal side
Section 143 of the Act further dictates that where an award for payment of money had been certified – “orders the payment of an amount of money may be enforced by execution against the property of the employer party by the Sheriff of the court in the Magisterial district where the employer party resides or conducts business.”
A rescission application will stay in the certification process until the rescission application has been determined. A review application brought by the other party will not stay the certification of the award. Certification will be stayed only where the other party has brought an application to the Labour Court, and the Labour Court has granted an order in accordance with section 145 (3) of the LRA staying the enforcement of the award pending a review application.
What can you, as an employer, do to avoid being hit by such an arbitration award? Invictus can assist your business in complying with all HR and labour legislation. Contact Invictus today at 0861 737 263 for a complete business audit.