THE FACTS
Sylvia Tevhelani from Tembisa was employed as a security guard and was dismissed in January 2017.
She referred the dismissal to the CCMA and in May 2017 obtained a default arbitration award which stated that she had to be reinstated and paid her salary for the months she was unemployed.
She got the order certified and took it to the sheriff for attachment.
Only after the sheriff attended to the company premises, did the company reinstate her even though they previously didn’t want to and had indicated that they were in the process of applying for a rescission of the CCMA award.
The sheriff didn’t attach, citing that the applicant had been reinstated.
The rescission application was dismissed in March 2018 and the company, which had still not paid her as per the award, told her to withdraw the matter and tell the sheriff to no longer attach.
Sylvia refused to do this and added that since then she hadn’t been allocated any shifts and was therefore not receiving a salary since they were paid per hours worked.
She asked SunDefender what she had to do.
WHAT I DID
The complaint was sent to one of the labour legal advisors at SCORPION LEGAL PROTECTION
SOLUTION
According to labour law, the reinstatement should be on the same terms and conditions. This means the reader should be placed in the same working conditions/position as she was prior to her dismissal.
In this case there are two issues that need to be addressed.
On the first issue of the employer’s failure to pay the reader for the months she was unemployed, she has to get the sheriff to attach and remove property from the employer to be sold at an auction to raise the amount stipulated in the award.
The sheriff cannot refuse to attach on the basis that reader has been reinstated as reinstatement was one part of the award but there back payment is stipulated in the award as well.
The employer should pay reader for those months failing which sheriff needs to attach and remove property to raise that amount.
The second issue relates to the employer’s failure to reinstate her on the same terms and conditions.
The reader was reinstated but her shift hours were reduced because she refused to withdraw her claim.
The reader can refer matter to Labour Court for enforcement of an award.
The award would be made an order of court and non-compliance on the part of the employer may carry more severe consequences.
It is not necessary for our reader to institute a new unfair labour practice charge based on reduction or change of working hours.
As long as she can prove that this is related to the dismissal case in that she refused to withdraw execution and that has resulted in her being targeted.
If she had been a client of SCORPION LEGAL PROTECTION, their attorneys would assist in having the application to the Labour Court instituted and having the Sheriff act in accordance with the Award.
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