South Africa: Labour Court Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: Labour Court >> 1997 >> [1997] ZALC 14

| Noteup | LawCite

Phefo and Another v Costeen Brickworks (Pty) Ltd (J443/97) [1997] ZALC 14 (12 December 1997)

Download original files

PDF format

RTF format


IN THE LABOUR COURT OF SOUTH AFRICA

CASE NO J443/97

In the matter between :


ABRAM AND ELSIE PHEFO Applicants

and

CONSTEEN BRICKWORKS (PTY) LTD Respondent


CONSTITUTION OF THE COURT

THE HONOURABLE JUDGE D MLAMBO

For the applicants

MR S MOYO of

SAEUB

For the respondent

MR M WRIGHT of

CONSTEEN BRICKWORKS (PTY) LTD


PLACE AND DATE OF PROCEEDINGS : Arbour Square, Braamfontein

Date of hearing 12 December 1997

Date of judgment 12 December 1997

Date of amended reasons 5 March 1998


  1. This is an application in terms of Section 158(1)(c) of the Labour Relations Act. The applicants seek to have what they term an arbitration award, made an order of the Court. The document relied on as an award is headed "Agreement of Settlement" and is signed by MR P S MOYO who also appears today representing the applicants. It is also signed by MR WRIGHT who also appears for the respondent in these proceedings.


  1. The Court was concerned that the document does not appear to be an award but rather an agreement of settlement. In chambers both parties representatives were able to demonstrate that a conciliation as defined in Section 135 of the Act took place and that thereafter a certificate that the dispute remained unresolved was issued. Thereafter the applicants referred the dispute for arbitration. MR SEEDAT was the commissioner appointed in terms of Section 136 to arbitrate the dispute. Both parties indicate that some discussions were held in which the commissioner was involved and that these discussions culminated in the agreement of settlement which they both deemed to be ARBITRATOR SEEDAT's award.


  1. Section 138 (3) authorises a commissioner appointed in terms of section 136 to suspend arbitration proceedings in which he is involved and to attempt to resolve the dispute through conciliation. It appears that that is what happened in this case.


  1. The applicants allege that after this document was signed they experienced a problem with the Respondent. They allege that the respondent has failed to comply with the “arbitration award”, as they call it. Both applicants were paid out what they were entitled to in terms of the agreement of settlement. They were reinstated as general workers in the brickyard. It is not disputed that before ABRAM PHEFO was dismissed he was working as a gardener, and had nothing to do with bricks. ELSIE PHEFO was working, at the time of her dismissal, in the kitchen and also had nothing to do with bricks.


  1. The case made out by MR MOYO is that whilst it is correct that the applicants were paid and reinstated in terms of the agreement, the respondent has not complied fully with the agreement of settlement in that it has not provided continuous employment. Mr Moyo argued that MR PHEFO has health problems in performing the work in the brickyard. It is argued on behalf of ELSIE PHEFO that she could not continue working in the brickyard as she has a small baby to look after and that she could not afford to employ a child-minder who would demand the same pay as she was earning. It appears that before she was dismissed whilst she was working in the kitchen, she was able to go to work with her young child, hence she was able to work.


  1. The respondent on the other hand, represented by MR WRIGHT, opposes the relief sought by the applicants, the basis of opposition is that the respondent has complied with the agreement of settlement, compliance in the sense of paying the back-pay as well as reinstating both applicants. It is the respondent's case that after both applicants were reinstated a number of things happened which culminated in both applicants staying away from work without being dismissed. Thus as far as the respondent is concerned it complied with the agreement of settlement and that if something else happened which the applicants have cause to complain about they should prosecute a fresh dispute.


  1. I am of the view that the key to resolving the present matter is the proper interpretation of the agreement

of settlement the parties entered into. The agreement of settlement states in the first paragraph:

"The employer party agrees to reinstate both the first employee party and the second employee party in the position of general workers in the brickyard of the employer party on terms and conditions not less favourable than those which existed at the time of their dismissal."


MR WRIGHT seeks to make a distinction in the sense that the term "general workers" as appears in the agreement meant that both applicants had to work in the brickyard with bricks. Whilst that might be so it is only one side of the coin, the other side is what interpretation does one give to the phrase "on terms and conditions no less favourable than those which existed at the time of their dismissal".


  1. I am of the view that this paragraph cannot be given a piecemeal interpretation, it must be viewed holistically and if one looks at the phrase "on terms and conditions no less favourable than those which existed at the time of the dismissal" one is looking at a picture that was in existence when the dismissal took place. The picture at the time of dismissal is that of ABRAM PHEFO, the first applicant, working in the garden and PHEFO ELSIE working in the kitchen and earning the salaries they were earning at the time. Furthermore as clarified in argument both applicants were employed as general workers irrespective of the fact that they were both assigned to the garden and kitchen respectively.


  1. It is therefore my view that that being the case the respondent was enjoined to reinstate both applicants in exactly the positions they were when they were dismissed. This accords with the agreement of settlement. Because they were reinstated in the brickyard and not in their previous positions there was no proper compliance with the agreement of settlement. This Court has power in terms of section 158(1)(c) to make an award and an agreement of settlement an order of court . Under normal circumstances this Court would be disinclined to make an agreement of settlement an order of court if it has been fully complied with. As already stated the respondent has not fully complied with the agreement in casu.


10.Therefore the order I make is:


1. The agreement of settlement reached under the auspices of the CCMA on the 4th April 1997 is hereby made an Order of Court.


2. The two applicants are reinstated in exactly the same positions they were before they were dismissed, that is in the garden and kitchen respectively .


3. The respondent is ordered to comply with this order forthwith.


4. There is no order as to costs.





HONOURABLE JUDGE D MLAMBO

5