The complexities surrounding employees’ allegations of non-compliance with arbitration awards by employers, particularly in proving contempt of court.

The complexities surrounding employees’ allegations of non-compliance with arbitration awards by employers, particularly in proving contempt of court.

In AMCU & Members v YEYE Enterprises and others, case number J431/2023, dated 23 November 2023, accessible at https://mabasoinc.co.za/sitepad-data/uploads/2024/07/Judgment-in-re-AMCU-Members-vs-YEYE-Enterprises-Others-J431.pdf

The individual employees were employed by Yeye Enterprises (our client) and based at our client’s site (Eskom). The individual employees decided to engage in an unprotected strike; therefore, Eskom issued a letter to our client indicating that such individual employees were in breach of a service agreement between the parties, so the individual employees were to be removed from the site.

Later, our client disciplined the individual employees and dismissed them. Aggrieved by this outcome, the individual employees declared an unfair dismissal dispute at the CCMA wherein the dispute was not resolved during conciliation and a Commissioner was appointed to arbitrate the dispute. The outcome of the arbitration was that our client should reinstate the individual employees, which means they should be taken back to Eskom, where they were based.

Generally, for a party to succeed in a contempt application, the following elements have to be proved, by evidence:

That there is an arbitration award issued against the employer.

The employer is aware of the arbitration award, and

It has not complied with the terms of the said arbitration award.

Such failure has no valid reason.

[24] In consideration of the afore-going, I am of the view that the respondents’ non-compliance with the order is not wilful or mala fide. They made attempts to have the individual applicants render services at the site, but access was denied by Eskom. Thereafter, and in consideration of the applicants’ legal rights arising from their contracts or applicable legislation upon reinstatement, the respondents had engagements with the applicants to propose terminating their services and to pay them one week’s remuneration, which proposal was rejected. Consequently, their services were terminated. I find that the essence of the email of 29 September 2022, although not eloquently drafted, is that the individual applicants’ contracts of employment have been terminated as reinstatement at the Duvha site is impracticable given Eskom’s stance contained in its letter of 22 October 2021 denying the applicants access to the site, which stance is reiterated unequivocally in Eskom’s letter dated 19 September 2022 and the first respondent is warned that failure to adhere to Eskom’s terms would result in the immediate termination of its contract with Eskom.

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