A labour broker or TES failed to contest unfair dismissal proceedings and was ordered to reinstate two employees who had been placed at a certain workplace. But work was no longer available at that workplace so they were paid pending placement at alternative workplaces. They were unwilling to go to another workplace and payments were stopped. The LC accepted that placement by a TES depended on the availability of work. They applied to the LC to have the broker ‘convicted’ of contempt of court. The LC considered the meaning of reinstatement in the context of ‘labour brokering’ and held the employer was not in contempt. The employer was ordered to ‘reinstate’ or place them at other workplaces and no order was made in respect of costs.
Zitha v Phakisa Technical Service (Pty) Ltd (JS282/14, JS280/14) [2017] ZALCJHB 73 (7 March 2017) per E Tlhotlhalemaje J.
Excerpts without footnotes
[15] As to whether the respondents have complied with the court orders, or whether they had wilfully failed to comply with those orders needs to be established within the context of a variety of factors, including the contents of the orders themselves. The starting point is that it was not contested that the first respondent was a TES, meaning that its placement of its employees at the clients’ sites depended on availability of work at the sites.
[16] A second factor is that the order in respect of Mr Zitha was that he was to be reinstated with immediate effect on the same terms and conditions applicable prior to his dismissal. In respect of Mr Mlenzana, he was to be “reinstated from 2 November 2015 on the same terms and conditions governing his employment prior to his dismissal”. In both orders, Steenkamp J and Golden AJ had not exercised a discretion within the meaning of section 193(1)(a) of the Labour Relations Act[1] to order that the reinstatement be retrospective.
[17] On the facts, and particularly in view of the respondents’ intention and willingness to reinstate the applicants albeit at different sites, it cannot be said that there was mala fides or wilful intention on their part not to comply with the court order. Accordingly, there is merit in the respondents’ contention that that the orders of this reinstatement were not retrospective, and were merely to place Mr Zitha back in its employ, on the same terms and conditions applicable to his employment, whilst Mr Mlenzana’s reinstatement was to be effective from 2 November 2015.
[18] There is further merit in the respondents’ contention that in the light of the undisputed fact that Wekeba had undergone restructuring, and that the applicants could not be placed back at that site, despite willingness and clear intention to reinstate on the same terms and conditions as ordered by the court, there was impossibility of performance, as the applicants could not be placed back at Wekeba.
[19] It is trite that the defence of impossibility though readily available, will not avail where the impossibility is as a result of the respondent’s fault.[2] In this case however, the impossibility cannot in any manner be attributable to the respondents’ fault. On the contrary, genuine attempts were made to place the applicants at different sites, which placement would not have affected their other terms and conditions.
[20] Given the nature of the first respondent’s business, and further in view of Wekeba not being in a position to take back the applicants, the only reasonable option available was to place them at another site, as long as this would not have impacted on their other conditions of service, particularly pertaining to remuneration and other benefits. I did not understand the applicants’ case to be that alternative placement would have resulted in their other terms and conditions being degraded. On the contrary, for the applicants to have simply insisted on reinstatement at Wekeba when they were informed that positions at that site were no longer available was indeed unreasonable in the extreme.
[21] It further needs to be pointed out that contrary to allegations of the respondents having acted mala fide, despite not being in a position to place the applicants immediately, they had with clear intention to comply with the court orders, offered them alternative placing at different sites, and had immediately after they had presented themselves for reinstatement, paid them their remuneration whilst looking for alternative placing. The respondents had correctly stopped paying them their salary as they had unreasonably refused to take up alternative positions. The conduct of the respondents in the circumstances can hardly be construed as mala fide.
[22] Having had regard to the circumstances and the facts of this case, I am satisfied that there is no basis in law or fact, upon which a finding can be made that the first and second respondents were in contempt of the orders of this Court dated 24 February 2016 and 27 October 2015 respectively. On the contrary, it is found that the applicants had rebuffed any attempts made by the respondents to reinstate them in compliance with those court orders.
[23] It is understandable that the applicants could have acted in the manner they did upon legal advice, which was based on an incorrect interpretation or different understanding of the provisions of section 193 of the LRA as elucidated in Equity Aviation. In the light of this consideration, and the fact that as at the hearing of this matter, the respondents were still willing, and intended to reinstate the applicants, albeit in different positions or at different sites, it is my view that a finding that the respondents were not in contempt should not in any event prejudice the applicants’ prospects of employment on account of their different understanding of the court orders. Consequently, the court orders issued on 24 February 2016 and 27 October 2015 stand, and ought to be given effect to, with due consideration to the constraints faced by the first respondent, and in particular, to place the applicants back at Wekeba. I have further had regard to considerations of law and fairness, and conclude that a cost order is not warranted in this case.