---

HELD AT JOHANNESBURG

Case number: J515/2006

In the matter between:

NGOBENI, CHARLES Applicant

and

CEO: MPUMALANGA PARKS BOARD Respondent

___________________________________________________

JUDGEMENT

___________________________________________________

NGALWANA AJ

Introduction

[1] This is an application for an order committing the Mpumalanga Parks Board’s Chief Executive Officer (“the respondent”) to 90 (ninety) days’ imprisonment (or such other term of imprisonment as this court may consider appropriate) for his failure to comply with a certified award of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) under case number MP5551/2003 dated 30 March 2004. The award was certified under section 143(3) of the Labour Relations Act, 66 of 1995 (“the Act”) on 14 April 2005

[2] The commissioner had ordered the Mpumalanga Parks Board to re-instate the applicant in the same or similar position, and to pay him an amount of R165 000 within 14 days of the award. The amount apparently represented underpayment of the applicant’s salary following his alleged demotion from level D5 to level D4.

Facts in brief

[3] The applicant’s employment with the Mpumalanga Parks Board commenced in October 1996. During 2002 (counsel for the respondent alleges it was long before the award of 30 March 2004) the Mpumalanga Parks Board embarked on a restructuring exercise the result of which was, among other things, the phasing out of level D5 at which the applicant’s position was graded. This left level D4 as the next best thing and the applicant’s position was then regraded to D4.

[4] This news was communicated to the applicant by letter dated 18 November 2002 informing him that the salary he was then receiving (R317 364) was “above the total cost to company as per the [new] grading of your position”, and that the HR sub-committee would soon negotiate his new total cost to company with him. The applicant considered this a demotion and referred an unfair labour practice dispute to the CCMA.

[5] It would seem that the Mpumalanga Parks Board proceeded to remunerate the applicant according to this new unilateral grading because after it was ordered to pay R165 000 to the applicant representing the difference between the grade D5 salary, on the one hand, and the grade D4 salary on the other, it complied with that award. It did not, however, comply with the award that it re-instate the applicant to D5, citing impossibility of doing so owing to the non-existence of the grade.

The respondent’s case

[6] The respondent (now the Chief Executive in these proceedings) says the Mpumalanga Parks Board complied with the award “to the extent that it is possible to do so”. What he means by this is that the Mpumalanga Parks Board paid the applicant R165 000 as the award ordered (on 25 November 2005 apparently on pain of a writ of execution), but that it could not re-instate him to a D5 grade position because it does not exist.

[7] The Mpumalanga Parks Board’s Acting General Manager for Corporate Services submits that the applicant “is presently paid a salary which accords with a job grading of D5”.

The applicant’s case

[8] The applicant’s answer in reply is that since the D5 graded position carries with it a higher salary and better benefits, all he wants (in light of the argument that D5 no longer exists as a grade) is to be given the salary and benefits of a D5 graded position “even if the [respondent] is not to place me in a specific [grade D5] position”. This is a clear indication that he disputes that averment that he is currently in any event on a D5 grading salary package.

The court’s finding

[9] I am in respectful agreement with the applicant. It is not open to the Mpumalanga Parks Board simply to ignore an arbitration award simply because it considers itself unable to comply with it.

[10] The Mpumalanga Parks Board apparently endeavoured to have the award rescinded and was unsuccessful. It now falls on it to comply with the award in its entirety. There would be absolute chaos in labour relations if employers could simply ignore binding orders for whatever reason. The law makes provision for instances where a party feels aggrieved by an award and the Mpumalanga Parks Board apparently did invoke one such provision albeit unsuccessfully. It cannot now say, “Well, I cannot comply with the award anyway and so I will not do it”. In any event, even if the grade D5 position no longer exists (the unilateral discontinuation of which is what led to the unfair labour practice referral to begin with), it is clear that the applicant’s grief arises from the Mpumalanga Parks Board’s unilateral reduction of his salary and benefits following the re-grading of his position from D5 to D4. For that reason, the award is not incapable of compliance.

[11] On behalf of the respondent (now the Chief Executive) it has been submitted that this court does not have the competence to commit him to prison. One of the reasons advanced is that the Chief Executive was not cited as a party in the arbitration proceedings and so (by implication) the award was not made against him. That is indeed what the Labour Appeal Court has found in Minister of Health and Another v Bruckner (2007) 28 ILJ 612 (LAC) at paragraph [46]. What the applicant should have done is seek a mandatory interdict compelling the Chief Executive to give effect to the award before seeking to have him committed to prison for failing to comply with the award. As things now stand, no order was made that the Chief Executive re-instate the applicant and so, stricto sensu, he is not in contempt. The award was sought and made against the Mpumalanga Parks Board. It was submitted in argument that the current Chief Executive was appointed in June 2006, over two years after the award.

[12] While mindful of all these procedural difficulties facing the applicant in this case, I am nevertheless satisfied that sufficient averments have been made justifying an order that the current Chief Executive, who is the party cited in these proceedings as respondent, comply with the award on pain of a contempt finding resulting in imprisonment. But since he is not currently in contempt by reason of the award not having been made against him, I can order neither his imprisonment – whether with immediate effect or suspended – nor that he bears the costs of these proceedings. Since the Mpumalanga Parks Board is itself not cited as a party in these proceedings, I cannot order that it pays the costs of these proceedings either. That, I’m afraid, is of the applicant’s own making or that of his representatives. Perhaps this is something his lawyers should take into account when considering their fees.

[13] In the result,

[a] the respondent Chief Executive is ordered to make such arrangements as are necessary to re-instate the applicant to his former grade D5 position with all the powers, benefits, rights and obligations attendant thereupon within 30 days of this order;

[b] if the respondent Chief Executive should fail to comply with the order in paragraph [a] above, then the applicant will be free to approach this court for the committal of the respondent Chief Executive to prison for contempt;

[c] no order as to costs is made.

____________________

Ngalwana AJ

For the applicant: Mr GJ Scheepers

Instructed by: De Oliviera Serrao Attorneys

For the respondent: Mr AP Laka

Instructed by: Mculu Incorporated

Date of hearing: 07 June 2007

Date of judgment: 15 June 2007

---