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Spar director fined R1 million after refusing numerous times to reinstate an employee

| Legislation

By: Brenda Masilela - IOL

The Johannesburg Labour Court has fined Spar director R1 million after he refused on more than one occasion to reinstate a worker who was unfairly dismissed.

Magnus Loubser, a director at Spar in Polofields Crossing, Midrand, was held in contempt of court after failing to reinstate Kelvin Moyo.

Moyo was dismissed and he went to the Commission for Conciliation, Mediation, and Arbitration (CCMA) to file a complaint of unfair dismissal.

The CCMA concluded that it was unfair. The commissioner ordered Spar to reinstate Moyo on March 9, 2022.

On the mentioned date, Moyo tendered his services, but Spar refused to reinstate him.

Moyo went back to the CCMA and commenced a certification process.

Despite repeated requests directed to Loubser, Spar continuously refused to comply with the certified arbitration award.

A union official of the Entertaining Catering Commercial Allied Workers Union of South Africa (ECCAWUSA) informed Loubser that they would take the matter further should he fail to comply with the certified arbitration award. He ignored the union.

In court, Judge GN Moshoana said this case epitomises and gives credence to the statement that employers generally treat arbitration awards with disdain and utter contempt.

Judge Moshoana said instead of legally challenging the order, Spar and Loubser channelled their entire energy into opposing the application on what the court considers to be flimsy technical grounds.

According to the judge, among the flimsy reasons why Loubster did not ensure that the order was complied with was that he only became aware of Moyo’s arbitration award when he was served with the contempt order application on October 3, 2022.

“This version is at odds with the undisputed version that on March 9, 2022, the arbitration award was brought to his attention,” said the judge.

Furthermore, judge Moshoana said Loubster’s argument that the involved human resources officer (HR) was aware of the issue and later resigned was flimsy and unconvincing to explain the admitted non-compliance.

The court held that Loubser, as the director, bears the responsibility to ensure that Spar, as a legal entity, complies. The suggestion that the HR officer carried the responsibility is feeble and unacceptable.

As a result, the judge said Loubster was guilty of contempt of court for his conduct in continuously failing to ensure that Spar complies with the arbitration award.

Loubser was imposed with a fine of R1 million, which is wholly suspended on condition that he reinstate Moyo within 30 days.

The judge also ordered Spar and Loubster to pay the costs of the application.

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