CARMEL RICKARD: The law can be an ass
Unfairly dismissed workers have been denied their back pay because they followed the wrong legal process in taking their former employer to task
Even the judge was uncomfortable about the decision she had to make in the case of Kubeka vs Ni-Da Transport. And who could blame her? It is not often that judges are compelled to find in favour of the side that should not win, but this was one such case — and it clearly rankled. Mhlupheki Kubeka was one of about 100 employees sacked by Ni-Da after they went on strike in 2008. Labour court judge David Gush found the dismissals substantively and procedurally unfair and ordered the workers reinstated with back pay. The company then approached one higher court after another, hoping to have the decision reversed. However, even the Constitutional Court threw out Ni-Da’s challenge. At that point, the original reinstatement and back-pay order directed by Gush some years before was "live" again. But here’s the thing: though the employer succeeded in none of its appeals, when the workers went back to court to ask for an order that the company hand over their back pay, they lost. Surely that ...
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