Fighting back against an Unfair Dismissal

Our Client was unfairly dismissed by her Employer on 15 October 2013 following a disciplinary hearing. Our Firm referred the matter to the CCMA for Conciliation on 31 November 2013 and thereafter Arbitration on 12 December 2013. The Arbitration was held over several days. Our Firm succeeded in obtaining an Arbitration Award in favour of our Client, the Applicant. The Commissioner found that the dismissal, although procedurally fair was substantively unfair. The Commissioner awarded our Client back pay to be calculated from date of dismissal until the date of the Award. This equated to R210 986.29. Our Client was also reinstated as part of the Award. The Employer failed to reinstate our Client and chose to rather take the matter on Review to the Labour Court. The Labour Court on 13 July 2017 upheld the Arbitration Award and made an Order for the Employer to pay our Client her back pay, in terms of the Arbitration Award and Court Order, this being as from 15 October 2013, the date of dismissal.

The Employer thereafter went even further to take the Labour Court’s Order on Appeal but on 13 December 2017 its Application for Leave to Appeal was dismissed with costs.

The Employer failed to abide by the Court Order and so we had a Warrant of Execution (Writ) issued in the amount of R976 752.24 for her back-pay and R217 120.08 for the interest thereon. This totaled R1 193 872.32. The Employer had to obtain a tax directive before paying our Client due to it being a lump sum payment. We received the payment on the Writ on behalf of our Client from the Sheriff, less tax and Sheriff’s costs on 8 May 2018, in the amount of R719 000. The Employer initially had SARS include the interest portion as part of the calculation for the tax directive which is incorrect. We have now succeeded in getting the Employer to correct this and pay our Client the difference of R90 000 which she received on 1 June 2018.

Important to note; the Employer paid our Client only after the Sheriff attended at their premises to attach and remove goods to satisfy the total value of the Writ. Our Client has since also been reinstated and her salary and benefit values adjusted to the relevant amounts today.

We are attending to have our Client’s legal costs taxed by the Taxing Master at the Labour Court which the Employer will have to pay to our Client as well, once finalised.

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