Jean Ludick v Vodacom (Proprietary) Limited

Ludick was dismissed by Vodacom on 24 August 2018. On 18 June 2019, a CCMA arbitrator (Commissioner Sue Wright) found the dismissal to be substantively unfair and awarded reinstatement with six months' backpay (R512,114.76). The arbitrator ordered reinstatement "on 1 July 2019" rather than retrospectively. This created uncertainty as Vodacom interpreted the award to mean Ludick was reinstated only from 1 July 2019 without retrospective effect, refusing to allocate accrued leave, pro rata annual increase and bonus for the six-month backpay period. Ludick argued the wording was ambiguous and did not reflect the arbitrator's clear intention that his reinstatement be retrospective for six months. He applied to vary the award under section 144(b) of the LRA. On 14 November 2019, the arbitrator declined to vary the award, holding she was being asked to interpret the award and had no jurisdiction to do so. Ludick then launched this review application.

• Whether the arbitrator's award was ambiguous regarding the retrospective nature of reinstatement
• Whether an award of backpay is inextricably linked to retrospective reinstatement
• Whether the arbitrator had jurisdiction under section 144(b) of the LRA to vary the award to clarify ambiguity or obvious error
• Whether the arbitrator misdirected herself in declining to vary the award on the basis that she was being asked to interpret rather than clarify an ambiguity
• The relationship between reinstatement and backpay in unfair dismissal remedies

The ruling issued on 14 November 2019 declining to vary the award was reviewed and set aside. The original award of 18 June 2019 was varied by substituting paragraphs 103 and 105 to clearly reflect retrospective reinstatement to a date six months prior to the award. Each party was ordered to pay their own costs given the ongoing employment relationship and the bona fide dispute arising from the wording of the relief.

An award of backpay is inextricably linked to retrospective reinstatement and can only be awarded if retrospective reinstatement is ordered. Backpay is not a separate or additional form of relief from reinstatement. Section 193(1)(a) of the LRA only provides for reinstatement from a date not earlier than the date of dismissal and does not make provision for a separate award of backpay. When an arbitrator awards backpay, this necessarily implies retrospective reinstatement for the period covered by the backpay. An arbitrator has jurisdiction under section 144(b) of the LRA to vary an award where there is ambiguity or uncertainty in the wording of the relief that does not give effect to the arbitrator's true intention, without altering the sense and substance of the award. An arbitrator misdirects herself if she declines to exercise this jurisdiction on the basis that she is being asked to interpret rather than clarify an obvious ambiguity or error in expressing the relief ordered.

The court noted that on the question of costs, given the ongoing employment relationship and the bona fide dispute between the parties about interpretation of the award arising from the wording of the relief, a cost award would be inappropriate as a matter of law and fairness. The court also referenced the general principle from Ekurhuleni Metropolitan Municipality v Spies that once a court has handed down final judgment it becomes functus officio, but recognized exceptions including where a court may clarify its judgment if the meaning remains obscure or ambiguous to give effect to its true intention, provided it does not alter the sense and substance of the judgment.

This case clarifies important principles regarding the relationship between reinstatement and backpay in unfair dismissal awards. It establishes that backpay is not a form of relief additional to or separate from reinstatement, but is inextricably linked to retrospective reinstatement. The judgment provides guidance on when section 144(b) of the LRA should be invoked to clarify ambiguity in awards, and clarifies that arbitrators have jurisdiction to vary awards where the wording creates uncertainty and does not give effect to the arbitrator's true intention, even where parties dispute interpretation. It also demonstrates the limited circumstances in which the functus officio doctrine applies and when courts can clarify judgments/awards to give effect to their true intention without altering their sense and substance.