Arbitrators often award compensation, or reinstate an employee retrospectively. This means that the employer must pay the employee his salary/wages from the date of dismissal until the date on which he is to be reinstated.
The CCMA’s functions do not, however, include the enforcement of its awards.
While that is the end of the arbitration, it might be the beginning of a different journey for the employee, and could become a nightmare for the employer if the latter refuses to pay the compensation or to reinstate the employee retrospectively.
The immediate question that arises is what the employee can do to enforce the award?
The answer is that he can make use of the mechanism provided in section 143(3) of the Labour Relations Act. In terms of this section the employee can have the arbitration award certified by the director (or his delegate) of the CCMA. Thereafter, the employee can approach the registrar at the Labour Court for a writ of execution which he then takes to the sheriff. The sheriff, in turn, has the power to go to the employer’s premises in order to make a list of the employer’s movable assets. These assets may then be attached and sold during a public auction to pay the amount due to the employee.
In the matter of Levine v Wienand and Others (C362/2018) [2018] ZALCCT 23 (29 June 2018), the Labour Court dealt with a matter where a company by the name of Osmosis, was directed by the arbitrator to pay an erstwhile employee, Wienand, an amount of R183 233.29.
The facts before the court were quite simple. Levine paid the money when the sheriff came calling because he didn’t want the sheriff to enter his home, but then went to the Labour Court to try and get the money paid back. He sought an order from the court that the sheriff had behaved unlawfully, that he, Levine, was forced to pay the money on behalf of a third party being the company, and wanted the court to prevent the sheriff from paying the money over to Wienand.
The employer originally used his home address as his business address. Although Levine had in the interim changed his business address, the change was only to take effect on 1 May 2018. Therefore, the sheriff argued that he was entitled to make a list of the movable assets in the house, as it was still the company’s address.
The judgment reads as follows at paragraph [6]:
The deputy sheriff (Stander) arrived at the private residence of the applicant on April 29, 2018 in the early morning, duly empowered to attach goods owned by Osmosis in respect of an arbitration award in favour of Wienand. He explained that, as is the norm, he needed to compile an inventory of sufficient goods to secure the judgment debt and that such goods, although attached, would not be removed from the premises at that stage.
Levine was having none of it, wouldn’t let the sheriff enter his home, and instead paid the amount out of private bank account. Once paid, he wanted it back, arguing that he made the payment on behalf of the company under duress.
The court did not accept Levine’s submission that he did not pay the money over voluntarily. It also did not accept that the sheriff was acting unlawfully or illegitimately by having arrived to make a list of the movable assets in the house, given that Levine’s residential address was also the registered address of Osmosis.
In the circumstances the court held that it could not issue an order sought by Levine.
Levine not only lost this application – the court further instructed him to pay the costs incurred by Wienand and, on a more punitive scale, the sheriff’s costs on an attorney- own client scale.
The importance of this Judgment
When an employer is directed in an arbitration award to make payment to an employee, he should do so unless he takes arbitration award on review. Failing to do so simply means that he opens himself or the company up to steps that an employee can take in terms of section 143 (3).
In the end it might cost the employer much more than the amount that was initially due.
It also sends a warning to the employer who uses his home address as his business address and then fails to pay his debts.
