A senior Department of Public Works and Infrastructure (DPWI) official has failed in her bid to have Minister Dean Macpherson declared in contempt of court, for failing to comply with a R4.32 million arbitration award.

Instead, the Labour Court in Gqeberha ordered the matter to be remitted back to the General Public Service Sector Bargaining Council (GPSSBC) to vary its arbitration award handed down in August 2023, by couching it in clear and unambiguous terms.

Nomzingisi Tukela, the DPWI’s OR Tambo, Eastern Cape (Mthatha) regional manager, was fired in 2019 following complaints about the region’s deteriorating performance.

Tukela then hauled the department to the GPSSBC to challenge the fairness of her dismissal.

In August 2023, GPSSBC arbitrator Mbulelo Safa issued an arbitration award declaring her dismissal procedurally and substantively unfair and ordering the department to reinstate her in her previous position, which was at the level of chief director, with the same terms and conditions that prevailed before she was fired.

The DPWI was also ordered to pay Tukela more than R4.32m in back pay within 30 days.

The unclear and ambiguous part of the award stated that “given the passage of time from the date of dismissal of the applicant (Tukela) it may not be practical to place her in her original position in Mthatha”.

It ordered the DPWI minister determine where she will be placed and provide her with three places to choose from before the date of the reinstatement.

The award was brought to Macpherson’s attention but he denied being in wilful and mala fide (bad faith) non-compliance with the award.

Macpherson insisted that the award was complied with as the department provided Tukela with three positions to choose from but she rejected them.

Tukela wanted to be reinstated back to her old position but Macpherson indicated that the post had been filled.

The minister also feared that employees in the Mthatha regional office and Cosatu affiliate, the National Education, Health and Allied Workers’ Union, had lodged complaints of abuse of power and victimisation against Tukela and would oppose her return.

Tukela approached the Labour Court to challenge Macpherson’s refusal to place her in the Mthatha office, arguing that the law does not preclude her reinstatement to a position that the department has already filled.

Labour Court Judge Zolashe Lallie found that Macpherson had complied with the award, further stating that the different interpretations of the unclear and ambiguous part of the award was a manifestation of its ambiguity.

In her ruling last week, Judge Lallie said any relief granted by an arbitrator in terms of the Labour Relations Act must be clear and inform each party in unequivocal terms of the steps it needs to take in complying with it.

“The clarity plays a crucial role in the determination of compliance with an award. A decision on a contempt of court application has serious ramifications for both parties. Its correctness which depends, inter alia, on the clarity of the award cannot be overlooked,” the judge stated.

She added that part of the award was ambiguous and there is a need to have the ambiguity elucidated.

The only person who can clear the ambiguity is the arbitrator who arbitrated the dispute and issued the award, according to Judge Lallie.

“The appropriate order in the circumstances is to remove the matter from the roll and remit the matter to the GPSSBC for the arbitrator to vary the award by couching paragraph 270 of the arbitration award in clear and unequivocal terms,” reads the judgment.

loyiso.sidimba@inl.co.za

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