Labour Law cases decided in the South African Courts (Highlights and updated 1997 to March 2018)
Arbitration awards, CCMA, Private arbitration.
Arbitration awards
Reason for dismissal, - Adjudicator not entitled off his own bat to decide that the employer ought to have relied on a different lawful ground for dismissal and then evaluate the fairness of the dismissal as if the employer had chosen that alternative justification, rather than to evaluate the fairness of the dismissal with reference to the actual ground relied on by the employer.
JR 248/2011
Farmers Meat Supply v Mgwenya NO and Others
Not signing award befor issuing.
The court held that the statutory requirements for a final award had not been met and the commissioner was accordingly not functus officio on the issue of the retrospective application of the award. When he sent the email, did not intend to issue an award as he said that he was about to issue the award.
electronic signature was without merit as there had not been compliance with s 13 of the Electronic Communications and Transactions Act 25 of 2002.
DA7/2012) [2014] ZALAC 5
SAMWU v South African Local Government Association and Others
automatically unfair dismissal as envisaged by s 187(1)(c) of the LRA in that the purpose of the dismissal was to compel him to accept the contract of employment
the respondent imposed a restrictions or require him to pay the insurance excess amount should the vehicle be damaged in a collision. ignored the ultimatum and refused to sign the contract.
It was unreasonable for the appellant to refuse to accept the respondents offer of employment on the basis of the terms as set out in the contract of employment, was necessary for the respondents business requirements
(JA63/11) [2014] ZALAC 6
Solidarity obo Wehncke v Surf4cars (Pty) Ltd
CCMA
Biased
In the present matter the commissioner had, despite the fact that both parties were legally represented, descended into the arena in a manner that gave rise to a suspicion of bias. The commissioner had elicited evidence from witnesses which he deemed would be beneficial to the employers case and he had cross examined the applicant and his witness in such a manner that he adduced evidence beneficial to the employer. The employee had in these circumstances been deprived of a fair hearing.
(JR297/2009) [2014] ZALCJHB 76
Jansen v CCMA and Others
Biased
in our law the existence of a reasonable suspicion of bias satisfies the test; and an apprehension of a real likelihood that the decision maker will be biased is not a prerequisite for disqualification.
JR1516/07
South African Revenue Services v CCMA & Others
Biased
Other case law sited
BTR Industries SA (Pty) Ltd & Others v Metal & Allied Workers Union & Another 1992 (3) SA 673 (A)
Biased*
balance of probabilities that a reasonable, objective and informed person in the position of the employer would apprehend that the commissioner had not brought an impartial mind to bear on the adjudication of the dispute, and, secondly, that the apprehension of the employer was based on reasonable grounds
JA46/07
Mapurunyane v CCMA & Others
Biased
BTR Industries
Consultation
For Arbitration need valid conciliation
J2411/98
Giofranco Hairstylists
Compensation
Where offer was made to reinstate may deprive employee of compensation
JA61/99
Mkhonto v Ford
Commissioner
Duty to explain the arbitration processes
J3304/98
Coin Security v Machago
Referral form
Signature
Any validly authorised person mya sign, not labour consultant
J487/99
NUMSA v CCMA
Certificate
when to challenge the validity
made timeously when certificate was issued and not when effects of valid decision given
DA25/99
Fidility Guards Holdings v Epstein
Bargaining Council enforcing collective agreement against non-parties sama as to parties
DA1015/99
Kem-Lin Fashions v Brunton
PAJA not applicable on CCMA Arbitrations
P88/01
Volkswagen v Brand
Conciliation
Tender made at conciliation included in deciding award; conciliation confidential
J1500/99
Mda v CCMA
Award
be based on gross salary not nett salary
J1500/99
Mda v CCMA
Procedure
Commissioner considered plea of guilty at disciplinary hearing where the arbitration was de novo hearing
C694/99
CEPPWAWU v CCMA
Arbitration
a settlement agreement was reached; without a substantive application to set aside the agreement the employer was not obliged to attend a hearing and the hearing had been irregularly set down.
JR1530/04
Jet Master (Pty) Ltd v Centre for Dispute Resolution, Metal and Engineering Industry Bargaining Council; Commissioner Kleinot; Commissioner Mphaphuli; National Canvas Union Of SA & Shortbridge, VR
Certificate
jurisdiction; employee status
if a certificate of outcome was not issued, arbitration remained mandatory if 30 days had expired since the CCMA received the referral, and if the employee required this. Specific reference was made to De Vries v Lionel Murray Schwormstedt & Louw ((2001) 22 ILJ 1150 (LC); the fact that a Commissioner had declined to issue a certificate because he/she was of the view that the referring party was not an employee, was of no consequence to the arbitrator who could consider the question afresh.
JR 2343/05
Seeff Residential Properties v Commissioner N Mbhele N.O.; CCMA & Smith, DN
Certificate
jurisdiction; condonation; Fidelity Guards Holdings (Pty) Ltd v Epstein N.O. & Others ((2000) 21 ILJ 2382 (LAC)
JR 2343/05
Seeff Residential Properties v Commissioner N Mbhele N.O.; CCMA & Smith, DN
Referral to court without referring dispute to CCMA
the employee ought to have referred his dispute to the CCMA as nothing had precluded him declaring a dispute under Chapter VIII of the LRA. Held therefore, that in part his statement of claim had not disclosed a cause of action.(NEWU v CCMA & Others ((2003) 24 ILJ 2335 (LC) & NAPTOSA & Others v Minister of Education, WC & Others (2001 (2) SA 112 (C)/(2001) 22 ILJ 889 (C))
JS 239/04
Mathews, T v GlaxoSmithKline SA (Pty) Ltd
Award interest
once liability for mora interest was established then the creditor was entitled to it as of right and a Court had no discretion to reduce or refuse such an award. However, the Court held that the amount of the award was illiquid and the interest would, i.t.o. the Prescribed Rate of Interest Act, have had to be determined by the arbitrator. Noted that s 143(2) of the LRA provided that unless the arbitrator directed that no interest accrue on the award, the interest would be carried at the same rate as that of a judgment debt.
J 1307/04
Top, G v Top Reizen cc
Legal Representation
not irregular for commissioner to allow legal representation for individual where employer party represented by employer organisation
JR1246/2003
Bezuidenhout v Johnston N.O. & others
certificate
dismissal first had to be referred to conciliation before it could be referred for adjudication, the court confirmed that this was a necessary jurisdictional fact to be proved before the matter may be referred to the Labour Court under section 189A of the Act. In this regard the court referred to the decisions in NUMSA v Driveline Technologies (Pty) Ltd and Another 2000 21 ILJ 142 (LAC); Fidelity Guards Holdings (Pty) Ltd v Epstein NO and others (2000) 21 ILJ 2382 (LAC) and NUMSA v SA Five Engineering (2005) 1 BLLR 53 (LC).
JS792/04
Catering Pleasure & Foods Workers Union v National Brands Ltd
Sanction
[Now decided by the Constitutional Court] SCA in Rustenburg Platinum Mines Ltd v CCMA & Others [2006] 11 BLLR 1021 that commissioners do not enjoy a discretion with regard to sanction, but merely the duty of determining whether the employers sanction was fair. The court in the current matter interpreted the SCA decision to mean that the employers discretion to decide on sanction has now been extended so wide that in essence all the commissioner can do at best is to observe and note the sanction imposed by the employer. The court suggested, however, that the approach in the LAC decision of Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 is preferable. It was held in that matter that a commissioner can interfere if the sanction is so egregious that it shocks and alarms the court. It was also held in that case that the reasonable employer test does not form part of our law.
JR315/06
Rustenburg Platinum Mines v CCMA & Others
rescission
Shoprite Checkers case on the basis that it relates to a situation where there was proper service but the defaulting party claimed not to have been aware of the hearing because the notice of set down never reached it.
JR2896/05
SADTU v CCMA & Others
Arbitration; first stage was to determine whether the employees dismissal was fair
D994/09
Toyota SA Motors (Pty) Ltd v Lewis and Others
Postponement
tardiness in giving instructions to its attorneys, question of prejudice to both parties.
balance the prejudice to the employee in having the hearing of his dispute delayed, against the prejudice to the employer arising from the denial of the opportunity to ventilate its case
could have been remedied by an appropriate costs order; has to be more stringent than that of the courts.
JR1959/06
Nestle (Pty) Ltd v CCMA & Others
commissioner
giving legal advice inducing party to settle; acted outside mandate
JR3038/07
Anglo Platinum Limited v CCMA & Others
referral
After termination may approach CCMA
C657/09
Moloto v City of Cape Town
Certificate characterization of dispute
Court not bound by it
C354/11
Pienaar v Stellenbosch University and Another
arbitration; Jurisdictional point
Where a jurisdictional point had been raised at conciliation, the commissioner was compelled to deal with the issue and to make a ruling (which was subject to review by this court). Where a jurisdictional point was not, however, raised at conciliation, the arbitrating commissioner had to entertain this point despite the fact that a certificate had been issued.
had refused to entertain a jurisdictional point raised for the first time
JR592/05
Avgold Target Division v CCMA & Others
Certificate
Conciliation; Issuing of certificate constitutes administrative action in terms of s 1 of PAJA, Act 3 of 2000; Remains valid until set aside
J507/07
Vodacom (Pty) Ltd & Another v Communication Workers Union & Others
Functus officio
mean that there would be two administrative decisions in conflict with each other, and such a situation is undesirable. Thus the doctrine finds application in CCMA rulings.
JR1777/06
Rawu obo L Ngweletsana v PT Operational Services (Pty) Ltd & Others
Award
Exceeded powers
Procedural unfairness; not raised
reinstatement in subordinate position; no evidence canvassed
C1147/2010
SA Post Office Ltd v CCMA and Others
Compensation
second stage of the arbitration would proceed to determine the appropriate relief
D994/09
Toyota SA Motors (Pty) Ltd v Lewis and Others
Postponement
Case law sited
Insurance & Banking Staff Association & others v SA Mutual Life Assurance Society (2000) 21 ILJ 386 (LC).
(1) The trial judge has a F discretion whether an application for postponement should be granted or refused. (2) That discretion must at all times be exercised judicially. (3) The trial judge must reach a decision after properly directing his or her attention to all relevant facts and principles. (4) An application for postponement must be made timeously as soon as the circumstances which might justify an application become known to the applicant. However, in cases where fundamental fairness and justice justify a postponement, the G court may in an appropriate case allow an application for postponement even though the application was not timeously made. (5) The application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled. (6) The court must H consider whether any prejudice caused by a postponement to the adversary of the applicant can fairly be compensated by an appropriate order of costs or any other ancillary mechanism. (7) The court must weigh the prejudice which will be caused to the respondent if the postponement is granted against the prejudice which will be caused to the applicant if it is not granted. (8) Where the applicant has not made the application I timeously or is otherwise to blame with respect to the procedure which it has followed, but justice nevertheless justifies a postponement in the particular circumstances of the case, the court in its discretion might allow the postponement but direct the applicant to pay the wasted costs of the respondent. The applicant may even be directed to pay the costs of the adversary before the applicant is allowed to proceed with the action or J defense, as the case may be.
J5507/01
JN Supermarket CC t/a Riverside Spar v Collins & Others
Conciliation certificate
While the Commissioner at conciliation makes no finding on the merits of a dispute, he or she (sic) is entitled to ensure: (1) that the dispute before him is one over which he has jurisdiction; (2) the right parties are before him. If either of the above instances are answered in the negative, he must expressly refuse to issue a certificate. The refusal to issue a certificate would imply that the party raising the dispute will not be able to pursue the next procedural step in the dispute resolution process. This is the right way to handle the matter. The purpose of conciliation, therefore, is not only an attempt to try and resolve a dispute, but where the wrong parties are before the Commissioner, the matter should be brought to an end there
C698/01
Moore & Others v Telkom SA Ltd & Others
Conciliation
Jurisdiction
is obliged to consider jurisdiction at conciliation; Commissioner may have to hear oral evidence
J4304/00
Sapekoe Tea Estates (Pty) Ltd v Maake NO & Others
Referral date
Dispute referred prior to date of dismissal
there was no dispute that a dismissal had occurred
CA8/01
Halgang Properties CC v Western Cape Workers Association
amendment of the date of dismissal on the referral form
itself merely a procedural step of the type habitually allowed by courts and which caused the employer no prejudice. Noted that no formal application for amendment had been sought but held: Given the technical nature of the error it can be condoned
CA8/01
Halgang Properties CC v Western Cape Workers Association
Postponement
A postponement is not a matter of right; it is an indulgence granted by the Court to a litigant in the exercise of a judicial discretion. This is the position with the Commissioners as well. [21] The Commissioner dismissed the application for a postponement on the basis that there had been previous postponements requested by the [employee]. It was also rejected on the basis that there was no agreement to have the matter postponed. Noted further that decisions to refuse a postponement at the CCMA should be even less open to interference than other discretionary powers of the CCMA because of the busyness of the CCMA. Held that in the circumstances the refusal of the postponement was not irregular
D950/01
Vorster v CCMA & Others
Compensation award
failure of the Commissioner to motivate the amount of compensation she awarded to the employees was a reviewable irregularity
JR806/01
Knightwatch Security (Pty) Ltd v Mbileni NO & Others
Date when time period for filing of referral commences
Once a certificate is completed and signed by the Commissioner, three distinct steps are followed: the issuing, service and filing of the certificate. The issuing of the certificate does not include its service, filing or stamping. It is the act which simply makes available the signed certificate to the party entitled to receive it [12] Whether the certificate is made available before or after it is filed in the CCMA, is immaterial. The issuing of the certificate immediately after the conciliation is efficient. To require the further steps of filing and stamping the certificate as prerequisites for issuing it could result in delay and costs for the CCMA and the parties.
JR822/01
Mould v Roopa NO & Others
Conciliation
a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner
J6145/00
SABC v CCMA & Others
Conciliation
a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner
Benicon Earthworks & Mining Services (Edms) Bpk v Jacobs NO & others (1994) 15 ILJ 801 (LAC)
J6145/00
SABC v CCMA & Others
Conciliation
a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner
Flexware (Pty) Ltd v CCMA & others (1998) 19 ILJ 1149 (LC)
J6145/00
SABC v CCMA & Others
Conciliation
a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner
Etschmaier v CCMA & others (1999) 20 ILJ 144 (LC
J6145/00
SABC v CCMA & Others
Conciliation
case dealt with a decision to condone a late referral to the CCMA, the power for which vests with the conciliating Commissioner and cannot be reconsidered by the arbitrating commissioner
Distinguished the decision in Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others (2000) 21 ILJ 2382 (LAC)
SABC v CCMA & Others
Conciliation
[W]here a party brings a review application before this Court after the conciliation phase and before the arbitration phase, it is open to this Court, in appropriate circumstances, to dismiss the application on the basis that it has been prematurely brought. Whether a review application should be dismissed on such a basis depends inter alia on whether there is any realistic possibility that the facts which may be disclosed during the arbitration phase may affect the outcome of the review
J6145/00
SABC v CCMA & Others
Conciliation
[W]here a party brings a review application before this Court after the conciliation phase and before the arbitration phase, it is open to this Court, in appropriate circumstances, to dismiss the application on the basis that it has been prematurely brought. Whether a review application should be dismissed on such a basis depends inter alia on whether there is any realistic possibility that the facts which may be disclosed during the arbitration phase may affect the outcome of the review
Richards Bay Iron supra and Avroy Shlain Cosmetics (Pty) Ltd v Kok & another (1998) 19 ILJ 336 (LC)
J6145/00
SABC v CCMA & Others
Postponement
it would have been prudent of the [employer] to attend on that day and explain its difficulties instead of trying to obtain a postponement by letter and simply not attending then (sic) the postponement was not granted. The [employer] did so at its own peril
JR1177/01
Anderson Transport (Pty) Ltd v Maqhina & Others
Certificate: Formulation of dispute
Noted that the certificate described the dispute as unfair dismissal, whereas the dispute referred by the employee to the LC related to dismissal for operational requirements.
an arbitrator is not bound by the description of the dispute given by the conciliator, particularly its legal characterisation, and must ascertain the real nature of the dispute
JS506/01
Gersbach v Cellvec Electronics
Conciliation; Biased
the CCMAs advisory role is limited to this function and that of giving advisory awards. Held: The rationale underpinning these provisions, is that Commissioners should not give advice or make recommendations that result in them being or being seen to be partial. Held further: Even if a Commissioner is invited by a party to give advice, such an invitation should be resisted
Commissioner who puts herself in such a situation would have great difficulty in acting with honesty, integrity and impartiality. Ethically, it is therefore untenable. [28] Giving advice is also counter-productive to the objectives of conciliation. A party who is advised that she has a good case is unlikely to settle. One who is advised that he has a bad case is likely to capitulate, as happened in this case. Concluded that the Commissioner ought not have made the statements she did
D719/02
Kasipersad v CCMA & Others
Jurisdiction
If the CCMA had no jurisdiction to arbitrate because [Pienaar] was not an employee it also had no jurisdiction to conciliate and its purported action is on (sic) no relevance once the jurisdictional point is taken before a forum that has power to decide the issue and is found to be good
JR562/02
AVBOB Mutual Assurance Society v CCMA & Others
Certificate
certificate has both an evidentiary value, as proof of the facts contained in it, and a jurisdictional value, as its issue confers jurisdiction on the CCMA and LC to arbitrate or adjudicate the dispute
Rejected the suggestion that a certificate issued after an unreasonable period should be considered null and void
P502/02
SAPPI Timber Industries (Pty) Ltd t/a Boskor Sawmill v CCMA & Others
Referral date
I am not persuaded by the argument that the referral date for arbitration is the date upon which a respondent receives the referral papers together with the condonation application in the event of late referral. In my view, the Rules are clear in this regard. They do not call for any interpretation. The referral date (for arbitration) is the date when the referral papers, with or without a condonation application, are properly filed with the CCMA or the relevant bargaining council, as the case may be
D828/02
Department of Finance v CCMA & Others
Legal Representation
[t]here are no rational reasons to deny a right to legal representation to an employee or his or her employer in arbitrations about dismissals allegedly occasioned by operational requirements, and not where the conduct or capacity of the employee is concerned.
, the inconsistent or irrational regulation does not infringe a particular constitutional right, it does not permit the conclusion that because one section of the LRA, which is out of step with a more expanded or generous right that s140(1) is invalid in terms of our Constitution
J2953/00
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & Others
Biased
Arbitrator conferring privately with one party during proceedings; the presence of the other unless the absent party has consented to such communication in his absence
CA12/02
Best Boland Motors CC v Dispute Resolution Centre & Others
procedure
committed an irregularity by depriving the parties of an opportunity to submit closing arguments despite requests to do so
D577/03
SA Fibre Yarn Rugs Ltd v CCMA; Commissioner MM Govender & Shezi, Philemon Jabulani
Conciliation
if he had been dissatisfied with the attempt at conciliation and he had disputed the validity of the certificate, he ought to have taken the CCMA on review in order to have the certificate set aside
C463/04
GIWUSA obo Heyneke PG v Klein Karoo Kooperasie Bpk
Award
Compensation
where the dismissal was both procedurally and substantively unfair, the Court and the arbitrator were not entitled to exercise discretion against the award of compensation and that the award of compensation was therefore not reviewable
the arbitrator had discretion to charge fees if the dismissal was procedurally unfair and held that the award was justifiable and must stand
JR328/01
Group 6 Security Services (Pty) Ltd; Masters, A v Moletsane, R N.O.;CCMA & Weller, D
Certificate
referral outside 30 days
the time limit had obviously not been complied with and no valid certificate could have been issued without the granting of condonation as stated in Gianfranco Hairstylists v Howard & Others ((2000 (21) ILJ 361 (LC)
certificate of non-outcome was set aside
JR381/02
Schalk & Rina Brandt CC t/a Alfa Matte v Molotsi, M N.O.; CCMA & SACCAWU obo Mohlakoana
Jurisdiction
the employer had not convinced the Court that it fell outside the scope of the SALGBC and the rule nisi was discharged.
J130/06
Johannesburg City Parks v SA Municipal Workers Union & Mafanya, SC & Others
Legal Representation
there was a duty on the Commissioner to establish whether Mr Dixon was entitled to act on their behalf as set out in Vidar Rubber products (Pty) Ltd v CCMA & Others (1998) 19 ILJ 1275
Held therefore that the proceedings were null and void, as he had a lack of locus standi.
JR2605/05
Vac Air Technology (Pty) Ltd v The Metal & Engineering Industries Bargaining Council; Shaer, M & Meissner, K
Arbitration proceedings
Commissioner cannot award absolution
JR161/07
Minister of Safety and Security v Madisha & Others
Certificate of outcome; R31
Commissioners entry on certificate
serving as guidance; cannot be determinative of the true nature of the dispute
JR435/08
Lesedi Local Municipality v SAMWU & Others
Certificate of outcome
2 certificates issued
First certificate remains valid
JR435/08
Lesedi Local Municipality v SAMWU & Others
Jurisdiction
Arbitration; Where conciliating commissioner has made a ruling in respect of jurisdiction arbitrating commissioner cannot validly revisit the same point
J68/08
EOH Abantu (Pty) Ltd v CCMA & Others
nature of the dispute or the forum in which it should be determined are of no legal significance or consequence
certificate issued by the commissioner had no legal significance beyond stating
JR2006/08
Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others
Commissioner powers
commissioner is entitled, despite a finding of guilt, to determine whether or not dismissal was an appropriate sanction in the circumstances,
legal representation when jurisdictional issue raised
JR596/09
Shell SA Energy (Pty) Limited v National Bargaining Council for Chemical Industry & Others
Arbitration; Postponement
Commissioner erroneously finding that applicant had to be present at hearing of application for postponement by employer; Absence not willful; reasonable prospects of success
C709/06
Martin v CCMA & Others
Conciliation
Failure to arrive
Party not precluded from referring dispute for arbitration or adjudication
JA62/05
Premier Gauteng & Another v Ramabulana N.O & Others
Procedure
withdrew the dispute, the fact that a matter was withdrawn did not necessarily constitute a bar to reinstituting proceedings. The withdrawal was equivalent to a grant of absolution from the instance and it therefore remained open to the applicant to reinstitute proceedings as the merits of the claim had not been adjudged.
JR3307/09
Shibogde v Minister of Safety and Security and Others
Referral
constituted a fatal defect which deprived the CCMA or a bargaining council of jurisdiction to hear a dispute.
JR3248/10
Shibogde v Minister of Safety and Security and Others
Rulings, he functus officio doctrine applied to CCMA commissioners. They could therefore only revisit their decisions to the extent that it was permitted by the provisions of s 144 of the LRA.
JA7/11
PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana
Conciliation, Jurisdiction, Employment relationship, Evidence, could be properly determined by adducing viva voce evidence, unless both parties were agreed that such a determination could be made on the basis of documentary evidence only.
JA42/10
Shell SA Energy (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others
Bargaining Council, Jurisdiction
general worker, t his duties did not fall within the jurisdiction.
JS1150/09
SA Transport and Allied Workers Union and Another v Three Flames Investments CC
Reinstated, but asked for compensation, reviewable
C887/2011
Lithotech Africa Mail Cape v Statutory Council for the Printing, Newspaper and Packaging Industries and Others
Functus officio, CCMA, only applies to final decisions
JR 2582/07
MEC, Tourism, Economic and Environmental Affairs v Moeko and Others
Rescission, outside 14 days, no condonation, erroneous, An error could not refer to the merits; it had to refer to the process of making the award, as the arbitrator had found, award had been erroneously made.
C 161/12
BHP Billiton Hotazel Manganese Mines (Pty) Ltd v CCMA and Others
Certificate, not conferring jurisdiction. s no more than a document issued by a commissioner stating that a dispute remained unresolved.
JR 2996/10
City of Johannesburg v South African Local Government Bargaining Council and Others
CCMA Jurisdiction, Single employee, Meaning of s 191(12) of LRA, Other employee had accepted alternative employment and therefore her employment had terminated by mutual agreement leaving a single employee, having jurisdiction.
JR 17/12
Latinsky & Co v Mooi NO and Others
Procedure, referral withdrawn, if claim withdrawn before a decision taken on the merits, claim can be reinstituted.
P 32/12
Lemley v CCMA and Others
Conciliation
The court held that conciliation was a prerequisite for the Labour Court to entertain a dispute before it: if the dispute had not been conciliated, the court had no jurisdiction. Counsel for the applicants conceded that the employees had been dismissed on 21 January 2013 but the dispute that was referred to the CCMA was a dispute as to whether the employees had been unfairly dismissed on 8 January 2013.
(C592/13) [2014] ZALCCT 33
Sambo and Others v Steytler Boerdery
Nature of dispute
Rule 15 of the Rules for the Conduct of Proceedings before the CCMA that provided that the nature of the dispute had to be identified as described in the referral document or as identified by the commissioner during the conciliation process.
It went without saying that in order to attempt to conciliate the dispute it was necessary for a commissioner to determine the nature of the dispute and this would not be possible if a conciliation commissioner was precluded from enquiring into the nature of the dispute because the referral of the dispute did not accurately describe the dispute with precision. In the present matter it was abundantly clear that during the course of the conciliation the dispute that had been referred to conciliation was determined to be a dispute based on unfair discrimination that warranted referral to the Labour Court.
(1107/2011) [2014] ZALCJHB 228
CMI Business Enterprises CC v September and Others
Jurisdiction.
CCMA and bargaining councils creatures of statute and not having any jurisdiction to dismiss claims on basis of unreasonable delay.
(JR1702/12) [2014] ZALCJHB 310
Public Servants Association of South Africa v Nsibanyoni and Others
Certificate
All it dit is to record that a dispute was referred and that that dispute remained unresolved. There was simply no need to challenge the validity of the certificate by way of review as a prerequisite to being able to challenge the protected nature of a strike.
(D448/2014) [2014] ZALCD 36
Newcastle Local Municipality v SAMWU and Others
CCMA/Bargaining Council: Jurisdiction
Jhb City Parks did not fall outside the scope of the SALGBC (SA Local Government Bargaining Council). Further that they were covered by the collective agreement entered into by the parties and that they had not provided sufficient facts to substantiate the CCMAs jurisdiction over the matter. The actual demarcation dispute to determine the jurisdiction of the SALGBC had not yet been heard in the CCMA.
J130/06
Johannesburg City Parks v SA Municipal Workers Union & Mafanya, SC & Others
Withdrawal of a withdrawal of a dipute
J1074/13, JR1155/13
Letlatsa v Air Chefs (Pty) Ltd (J1074/13, JR1155/13) [2015] ZALCJHB 338 (5 October 2015)
16] In the light of the consistent approach of this court, which I have no reason to divert from, a withdrawal of a dispute at the CCMA can be withdrawn, and it is always open to a party to file a fresh referral, subject to specific defences that may be raised by respondent party, including election, a waiver, a final determination of a dispute and/or questions of prejudice. Prejudice may have to be addressed within the context of an application for condonation where so required.
South African Municipal Workers Union and Others v Zenzeleni Cleaning and Transport Services CC and Others JR852/13) [2015] ZALCJHB 47 (23 February 2015) at para [15]
Certificate
JR1751/14
Cinqplast Plastop (Pty) Ltd v Dunn N.O. and Others (JR1751/14) [2016] ZALCJHB 78 (25 January 2016)
Bombardier Transportation (Pty) Ltd v Mtiya[2010] 8 BLLR 840(LC)
a certificate of outcome is no more than a document issued by commissioner stating that on a particular date, a dispute referred to the CCMA for conciliation remain unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMAs jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Jurisdiction is not granted or afforded by a CCMA a commissioner issuing a certificate of outcome. Jurisdiction either exists as a fact or it does not.
Jurisdiction
Monare v South African Tourism and Others [2016] 2 BLLR 115 (LAC)
Territorial Jurisdiction
For the CCMA not having jurisdiction, there must be a divorce and/or separateness between the employers undertaking outside of South Africa where the employee was employed and the employers undertaking in South Africa.The employee (albeit a South Africa citizen) had been recruited overseas; his employment contract had been concluded overseas; he performed his services overseas, committed the misconduct overseas and was dismissed overseas.
Decision repealed: Court in Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC) (Astral): that a primary consideration in determining the territorial application of the Labour Relations Act (the LRA), is the locality of the undertaking carried out by the company in which the employee was employed and accordingly that if an employees work is carried on inside South Africa, the CCMA would then have jurisdiction
Biased
In light of the above facts, I find that, objectively speaking, the employee, as an informed litigant, reasonably perceived or reasonably apprehended bias on the part of the Commissioner.
the Commissioner sought to send a clear message to the third respondents representative that the case of the third respondent was incomplete and that it was not strategic to close the case without calling another witness. In doing so, he advanced and advantaged the case of the third respondent.
Sasol Infrastructure v Safafe and Others(2015) 36ILJ655 (LAC) at para 61.
Inconsistency
JR535/13
SATAWU obo Kgwele v Commission for Conciliation, Mediation and Arbitration and Others (JR535/13) [2016] ZALCJHB 29 (3 February 2016)
misconceived facts and failed to apply his mind to the principle governing inconsistency in disciplinary matters: allegation of inconsistency were charged with negligent and reckless driving; they were not dismissed for that but were given final written warning; the above that the employees whose cases were relied upon by the employee in his claim of inconsistency were all charged with the same offence as his, namely, negligence and reckless driving. They were found guilty but not dismissed because of various mitigating factors.
NUM and Another v Amcoal Colliery t/a Arnot Colliery and Another [2000] 8 BLLR 869 (LAC) at para 19.
The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence.
Certificate: Late referral, no condonation
JR2413/11
Department of Education, North West Province v Education Labour Relations Council ('ELRC') and Others (JR2413/11) [2016] ZALCJHB 61 (23 February 2016)
It is trite law that a bargaining council or the CCMA does not have jurisdiction to conciliate or arbitrate a dispute unless a dispute has been referred timeously in terms of s 191(1)[2], failing which the party referring the dispute has obtained condonation in terms of s 191(2) of the LRA[3]. In this case no condonation was obtained.
ultravires the powers of the second respondent.
Certificate
JS940/13
Mbele and Others v Chainpack (Pty) Ltd and Others (JS940/13) [2016] ZALCJHB 191; (2016) 37 ILJ 2107 (LC) (5 April 2016)
Strautmann v Silver Meadows Trading 99 CC (Pty) Ltd t/a Mugg and Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at paras 8.
A certificate of outcome requires only that the commissioner states that, as at a particular date, the dispute referred to the CCMA remains unresolved. I am aware that Form 7.12 provides for a classification of the dispute and an indication as to what further rights of recourse might be open to an applicant should the dispute remain unresolved. But any classification that is made or indication that is given as to which forum or courses of action might be open to an applicant wishing to pursue a dispute has no legal significance other than to certify that on a particular date a particular dispute referred to the CCMA for conciliation remained unresolved. Any other views expressed by a commissioner, even if cast in directory language, amount to little more than gratuitous advice. InNational Union of Metal Workers of SA and Others v Driveline Technologies (Pty) Ltd and Another(2000) 21ILJ142 (LAC), Zondo AJP (as he then was) held:A commissioner who conciliates a dispute is not called upon to adjudicate or arbitrate such dispute. He might take one or another view on certain aspects of the dispute but, for his purposes, whether the dismissal is due to operational requirements or to misconduct or incapacity, does not affect his jurisdiction. It is also not, for example, the conciliating commissioner to whom the Act gives the power to refer a dismissal dispute to the Labour Court. That right is given to the dismissed employee. (See s191 (5) (b)). If the employee, and not the conciliating commissioner, has the right to refer the dispute to the Labour Court, why then should the employee be bound by the commissioners description of the dispute? I am aware that the Driveline case concerned a retrenchment dispute referred to this court in which the referring party sought to upgrade to a dispute concerning an automatically unfair dismissal. In that sense, no matter what the nature of the dispute, it was always going to be adjudicated by this court. The present dispute, of course, concerns a dismissal dispute that the applicant contends is arbitrable but which the commissioner obviously regarded as justiciable. But I dont think that this distinction affects the principle. The principle is that a referring party is not bound by a commissioners classification of a dispute or any directive as to its destiny. If this were not so and if some legal significance were to be attached to a commissioners categorisation of a dispute in a certificate of outcome, then by electing the forum in which the dispute is to be determined, the commissioner denies the referring party the freedom to pursue her rights as she deems fit. Certificates of outcome are issued at the conclusion of the conciliation phase more often perhaps than not in circumstances where no evidence would have been led as to the nature of the dispute. The conciliating commissioner is not always well placed to make judgments, based as they would be only on the say-so of one or both parties during conciliation, as to what the true nature of the dispute might be. Even less, for the reasons stated above, should those judgments be binding on a referring party. (Emphasis supplied).
Judge Van Niekerk posited further in this judgment that when a commissioner completes Form 7.12 and categorises the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked CCMA arbitration, Labour Court None or Strike/Lockout amount to a ruling on which of those courses of action must be pursued by a referring party. Consistent with the principle established in theDrivelinecase, it is not for commissioners, by means of certificates of outcome or otherwise, to dictate to litigants either how they should frame the disputes that they might wish to pursue or which forum they are obliged to approach to have those disputes determined.
Dispute characterisation
DA1/2015
Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)
section 24.In the result, the arbitrator misdirected himself by not determining objectively the true dispute and had he done so he would have found that the true dispute was one contemplated bysection 186(2)(b)of the LRA, and, in consequence, startlingly out of time, requiring an application for condonation.
test for reasonable apprehension of bias
CA10/15
Satani v Department of Education, Western Cape and Others (CA10/15) [2016] ZALAC 38; (2016) 37 ILJ 2298 (LAC) (13 June 2016)
not premised on whether the representative objected to the process. Test an objective one which is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the commissioner has not brought an impartial mind to bear in the adjudication of the dispute.
CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 ((CC); (2008) 29 ILJ 2461 (CC); 2009(9) BCLR 1 (CC)
64.Consistent with the objectives of the LRA, commissioners are required to deal with the substantial merits of the dispute with the minimum of legal formalities. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter-claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to conduct the arbitration in a manner that the commissioner considers appropriate. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do
County Fair Foods (Pty) LTD v Theron NO and Others(2000) 21 ILJ 2649 (LC
7The basic standards of proper conduct for an arbitrator are to be found in the principles of natural justice, and in particular the obligation to afford the parties a fair and unbiased hearing. (See Baxter Administrative Law at 536). These principles have been reinforced by the constitutional imperatives regarding fair administrative action. (See Carephone (Pty) Ltd v Marcus NO (1998) 19 ILJ 1425 (LAC) at 1431I-1432A.) The core requirements of natural justice are the need to hear both sides (audi alteram partem) and the impartiality of the decision-maker (nemo iudex in sua causa). (See Baxter (supra) at 536.). 8. It follows from the above principles that a Commissioner must conduct the proceedings before him in a fair, consistent and even-handed manner. This means that he must not assist, or be seen to assist, one party to the detriment of the other. Therefore, even though a Commissioner has the power to conduct arbitration proceedings in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly under the provisions of section 138(1) of the Act, this does not give him the power to depart from the principles of natural justice. Thus, further, although it clearly lies within the Commissioners powers to decide whether to adopt an inquisitorial or adversarial mode of fact finding, once this decision has been made it ought to be consistently applied to both parties.
[16] Where an arbitrator adopts an inquisitorial approach, he/she does not have the right to abandon the well-established rules of natural justice. The rules of natural justice are instruments that commissioners should have in their mind when adopting an inquisitive approach. The rules of natural justice dictate that parties be afforded a fair and unbiased hearing, which consists of hearing both sides in an impartial manner. This rule finds expression in the audi alteram partem which is concerned with affording parties an opportunity to participate in the decision that will affect them. The participation of parties in proceedings not only improves the quality and rationality of the decision but also enhances the legitimacy of the decision. The audi alteram partem rule implies equal participation of parties during the proceedings. He/she must hear both sides; act impartially and consistently to both parties irrespective of the approach adopted
Innovation Maven (Pty) LTD v CCMA and Others (2016) 37 ILJ 465 (LC)
[17]In the present instance, in my view, and after a careful perusal of the record, the commissioners conduct was such that she overstepped the mark. It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings, but read as a whole, the transcribed record reflects that the commissioner failed to respect the roles of the parties respective representatives and assumed to herself the role of leading evidence and conducting cross-examination.
Award
JA68/15
Solidarity obo Smook v Department of Transport Roads and Public Works (JA68/15) [2016] ZALAC 42; (2016) 37 (ILJ) 2626 (LAC); [2016] 12 BLLR 1201 (LAC) (15 June 2016)
requirement of signing award is directory and not peremptory.
Writ of execution
J1807/15, J1706/15, JA94/2015
CCMA v MBS Transport CC and Others, CCMA v Bheka Management Services (Pty) Ltd and Others (J1807/15, J1706/15, JA94/2015) [2016] ZALAC 34; [2016] 10 BLLR 999 (LAC); (2016) 37 ILJ 2793 (LAC) (28 June 2016)
interpretation of section 143 does not justify practice that registrar of the Labour Court should issue writ of execution once monetary awards are certified by the CCMAs director they are executed as if they were orders of the Magistrates Court.
[25] The legislature decided, as I will demonstrate below, to make certified CCMA awards enforceable in terms of section 143 without the need to go to the Labour Court. The procedure created by section 143 makes it easier, inexpensive, effective and accessible for a person to enforce a certified arbitration award.
[30] Therefore, section 143(1) read with section 143(3) means that when an arbitration award is certified by the Director, it may be enforced as if it were an order of the Labour Court in respect to which a writ has been issued. We must therefore not only assume that it is an order of the Labour Court but also assume that a writ has been issued in respect of that order.... The certified award is therefore the writ.
referral for conciliation: new employer sect 197
JA40/2015
Temba Big Save CC v Kunyuza and Others (JA40/2015) [2016] ZALAC 36; [2016] 10 BLLR 1016 (LAC); (2016) 37 (ILJ) 2633 (LAC) (28 June 2016)
in the context of an alleged s197 transfer,there is no need to refer the new employer to conciliation - the new employer takes the place of the old employer in all materialrespects Labour Court correct in joining the employer
Commisioner powers
JR 1099/13
South African Municipali Workers Union and Another v Ngaka Modiri Molema District and Others (JR 1099/13) [2016] ZALCJHB 257; (2016) 37 ILJ 2430 (LC) (7 July 2016)
commissioner (not having) license to craft a charge that will justify a dismissal.
SAB Ltd v CCMA and Others (2012) 33 ILJ 2945 (LC) at para 26.
In my view, the commissioners view can best be summarised thus: The employer decides to dismiss. The commissioner conducts an arbitration de novo. In the light of the totality of circumstances, established by the evidence at arbitration the commissioner must then decide whether the decision to dismiss was fair. In doing so, it is the commissioners own sense of fairness that must prevail. There can be no deference to the employer.(My own underlining)
Wasteman Group v SAMWU and Others [2012] 8 BLLR 778 (LAC) at 781D.
The Commissioner is required to come toan independent decisionas to whether the employers decision was fair in the circumstances, these circumstances being established bythe factual matrix confronting the commissioner.
Fidelity Cash Management Service v CCMA and Others [2008] 29 ILJ 964 (LAC) at para 32.
It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal. The exception to this general rule is where at the time of dismissal the employer gave a particular reason as the reason for dismissal in order to hide the true reason such as union membership. In such a case the court or tribunal dealing with the matter can decide the fairness or validity of the dismissal not on the basis of the reason that the employer gave for the dismissal but on the basis of the true reason for dismissal.
Absa Brokers (Pty) Ltd v Moshoana NO and Others [2005 10 BLLR 939 (LAC) at para 37.
However, since he was not charged with allegations of making a false declaration in clause 16 and since this was not the reason for his dismissal; the declaration cannot be taken into account for the purpose of the determination of the fairness or otherwise of the dismissal. The substantive fairness or otherwise of the employees dismissal must be assessed with reference to the reason for which he was dismissed.
Palluci Home Depot (Pty) Ltd v Herskowitz and others Case CA21/13 delivered 12 December 2014.
Also, as alluded to earlier, the Commissioner failed to apply his mind to the fact that the charge of screaming and shouting at Lambrecht could not on the facts (evidence) and the law be interpreted as insubordination in light of established authority, which requires the presence of a wilful and serious challenge to, or defiance of, the authority of the employer to found a charge of insubordination or gross insubordinationThe Commissioner did not appreciate the difference, nor did he apply the relevant legal principles The Commissioner, in the current matter, made material errors in fact and law by failing to apply his mind to the distinction on the facts and the law between insubordination, and insolence in determining whether the first respondent had committed the offence of gross insubordination upon which the appellant based its decision to dismiss her. The Commissioner furthermore, in my view, misconstrued the true nature of the enquiry and his mandate in connection therewith by making a determination on aspects of the charges, which neither the chairman of the disciplinary hearing nor the appellant relied upon, at the time of the first respondents dismissal
Dikobe v Mouton N.O. and Others Case number (JA45/2015) [2016] ZALAC 30 (15 June 2016).
In argument on appeal, an allusion was made to certain written rules about not taking bribes, behaving honestly, not consuming the employers stock and not being in possession of the employers property, which plainly the appellant must have known. However, as he was not charged with any of these felonies, reference to them is irrelevant
Toyota SA Motors (Pty) Ltd v CCMA and Others [2016] 37 ILJ 313 (CC)
124 If a commissioner does not decide whether the employee was guilty of the misconduct for which he was dismissed, he acts contrary to the requirements of s 138(1) of the LRA.125 When an arbitrator fails, as the commissioner did, to decide whether the employee was guilty of the misconduct for which the employer had dismissed him, the arbitrator or commissioner, like the magistrate in Goldfields Investment case who failed to carry out an instruction of the Ordinance, fails to carry out a statutory instruction... This constitutes both a gross irregularity in the proceedings as well as misconduct justifying that the award be reviewed and set aside.130 It must be remembered that it is the employer who bears the onus to prove that a dismissal is fair. If an arbitrator does not determine whether the employee was guilty of misconduct, the employer has no chance of showing that the dismissal is fair. In a particular case an arbitrator may find that the employee was guilty of misconduct for which he was dismissed but still finds that, nevertheless, dismissal was an unfair sanction. That this happen does not, however mean an arbitrator may fairly determine such a dismissal dispute without determining whether or not the employee was guilty of misconduct.
functus officiodoctrine
JR3004/2010
Mbuli and Others v Department of Home Affairs and Others (JR3004/2010) [2016] ZALCJHB 280 (21 July 2016)
refusing the postponement, the commissioner effectively revisited his decision that the matter should not be set down until a minute is signed
PT Operational Services (Pty) Ltd v Retail and Allied Workers Union obo Ngweletsana
[23] It is now settled that commissioners conducting arbitrations under the auspices of the CCMA are performing an administrative function. Although commissioners perform an administrative function such function includes adjudicative functions.[24] Pretorius explains the functus officio doctrine as follows:The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter. This rule applies with particular force, but not only, in circumstances where the exercise of such adjudicative or decision-making powers has the effect of determining a persons legal rights or of conferring rights or benefits of a legally cognizable nature on a person. The result is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker. However, this is not an absolute rule. The instrument from which the decision-maker derives his adjudicative powers may empower him to interfere with his own decision. Furthermore, it is permitted to make variations necessary to explain ambiguities or to correct errors of expression in an order, or to deal with accessory matters which were inadvertently overlooked when the order was made, or to correct costs orders made without having heard argument on costs. This list of exceptions might not be exhaustive and a court might have discretionary power to vary its orders in other cases. However, this power is exercised very sparingly, for public policy demands that the principle of finality in litigation should generally be preserved rather than eroded.The same considerations that require finality for the decisions of courts of law apply to the decisions of administrative authorities. Consequently, the functus officio doctrine applies in administrative law as it does in relation to curial proceedings. In elementary terms, the effect of the functus officio doctrine in administrative law is that an administrative agency which has finally performed all its statutory functions or duties in relation to a particular matter subject to its decision-making jurisdiction has exhausted its powers and has discharged its mandate in relation to that matter. Consequently, such an agency is without further authority as far as that matter is concerned because its duties and functions have been fully accomplished. Thus, an administrative agency which is functus officio is unable to retract or change its own earlier decision, unless it is authorised by its enabling legislation to do so.[42] Thereafter the court stated as follows:[28] In my view the Court a quo was correct in its conclusion that the functus officio doctrine applies to CCMA commissioners. They may therefore only revisit their decisions to the extent that it is permitted by the provisions of section 144 of the LRA. They may not do so whenever they like but may do so if the jurisdictional facts in section 144 are present. They may also do so when they have performed an allied function but not yet performed the power or duty bestowed on them by the legislature. (Own underlining)
commissioner could revisit his earlier rulings because they were not final in nature
Jurisdiction: section 10(6)(aA) of EEA
JR738/16
Famous Brands Management Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR738/16) [2016] ZALCJHB 290; [2016] 12 BLLR 1217 (LC); (2016) 37 ILJ 2857 (LC) (29 July 2016)
Applicant is entitled to pursue a review on a jurisdictional point despite the existence of the recently added section 10(8) of the EEA, namely, that a person effected by an award made by a CCMA commissioner may appeal against that award to this Court. In any event, the test would be the similar.
more than one person earning below the determined income threshold (can) pursue an unfair discrimination case based on equal pay for equal work in an arbitration before the CCMA.
item 4(3), not informed of right to refer matter to CCMA
JR1374/11
Zungo v Mantshule and Others (JR1374/11) [2016] ZALCJHB 291 (29 July 2016)
Employee informed of right to appeal dismissal but not reminded of right to refer matter to CCMA, there can be no automatic right to condonation if there has been such a failure. although item 4(3) may not constitute a substantive provision of our law, it is not entirely meaningless
Unfair suspension, not awardng compensation
JR1871/14
matu obo Senkhane v Emfuleni Local Municipality and Others (JR1871/14) [2016] ZALCJHB 296 (29 July 2016)
In my view, if the arbitrator had taken these factors into account, the arbitrator would, on the probabilities, have come to a different result, that is, that compensation is appropriate in the circumstances of this case. This is because these factors were materially relevant to the decision and carried a lot of weight. In these circumstances, the decision of the arbitrator not to award compensation isprima facieunreasonable.
: (i) the respondent had a legal duty to set the suspension aside once three months had elapsed and this duty was not dependent on a demand from the union; (ii) the respondent kept the employee on suspension for 17 months, knowing full well that it had no justification for same; (iii) the suspension adversely affected the dignity of the employee; and (iv) the respondent ought to be penalised to deter further comparable offending conduct.
No notice of conciliation to Employer
JS542/16
Association of Mineworkers and Construction Union and Others v Tshipi E Entle Manganese Mining (Pty) Ltd (JS542/16) [2016] ZALCJHB 375 (20 September 2016)
The issue in that case pertained to whether there was actual service of the referral dispute on one of the alleged employer parties. The issue however in this case is whether there was substantial compliance with the provisions of section 191 (3) read together with those of Rules 5 and 6 of the CCMA Rules.As compared toIntervalvewhere there was no service of the referral at all on the one party, it is my view that in this case, there was substantial compliance.
Compenstion
JR2899/2012
Super Squad Labour Brokers v Sehunane N.O. and Others (JR2899/2012) [2016] ZALCJHB 399 (14 October 2016)
Ferodo (Pty) Ltd v De Ruiter (Ferodo) (1993) 14 ILJ 974 (LAC).
the factors that need to be taken into account in assessing the quantum of compensation to an employee was summarised.
Postponement: refusal
JR2899/2012
Super Squad Labour Brokers v Sehunane N.O. and Others (JR2899/2012) [2016] ZALCJHB 399 (14 October 2016)
nothing precluded the Commissioner from directing the Applicant to pay the employees wasted costs occasioned by a postponement. This would also apply in a situation where the Applicant has not made an application for a postponement timeously or is otherwise to blame with respect to procedure not being followed (but where justice nonetheless justified such a postponement in the particular circumstances of the case, asin casu). [46] The refusal of the postponement undoubtedly prejudiced the Applicant. This prejudice was so significant that it effectively deprived the Applicant of presenting its case for consideration prior to the award being made. This in itself renders the refusal of the postponement application by the Commissioner grossly irregular.
Fundi Projects and Distributors (Pty) Ltd v CCMA and Others(2006) 27 ILJ 1136 (LC) at paras 12 13.
Referral to conciliation
JS945/2011
Marule v Fidelity Supercare Cleaning (Pty) Ltd (JS945/2011) [2016] ZALCJHB 542 (28 November 2016)
Referral for conciliation is indispensable
National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and others(2015) 36 ILJ 363 (CC),
[34] Where no certificate has been issued because there was, for example, no conciliation meeting, but a period of 30 days from the date when the council received the referral has elapsed, the statute conspicuously does not provide that the expiry of the 30 day period is sufficient proof that an attempt was made to conciliate the dispute. It is, in my view, in that situation that the Labour Court may, in terms of section 157 (4) (a), refuse to determine the dispute. This provision cannot assist in a case where the dispute was not even referred to conciliation. Section 157 (4) (a) underlines the importance the LRA places upon the need for attempts to be made to try and resolve the dispute through conciliation before resorting to other methods of resolution. [40] Referral for conciliation is indispensable. It is a precondition to the Labour Courts jurisdiction over unfair dismissal disputes.
sanction
JR1676/14
L A Crushers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1676/14) [2017] ZALCJHB 80 (8 March 2017)
An arbitrator has no powers to determine the sanction afresh.
His duty is to determine whether the sanction imposed by the employer is a fair one or not. In doing so he applies his own sense of fairness and need not defer to the employer. An arbitrator who interferes with the sanction of dismissal in the circumstances where there is no basis to conclude that the sanction is unfair commits a reviewable irregularity and does not act in accordance with the Labour Relations Act 66 of 1995. His award is bound to be unreasonable and reviewable in accordance with the Sidumo test.
Quest Flexible Staffing Solutions (Pty) Ltd v Abram Legoabe [2014] ZALAC 55; [2015] 2 BLLR 105 (LAC).
In Sidumo, the Constitutional Court held that a Commissioner is not empowered to establish afresh what the appropriate sanction is, but rather to decide whether the employers decision to dismiss is fair. In making this determination, the commissioner should not defer to the decision of the employer but should weigh up all the relevant factors, including the importance of the rule that has been breached, the reason the employer imposed the sanction of dismissal, the harm caused by the employees conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of the dismissal on the employee, and the employees service record. These factors are, however not considered by the Constitutional Court to be an exhaustive list. Hence other relevant factors that may warrant consideration in assessing the fairness of a sanction include the seriousness of the misconduct, the effect of such conduct on the continuation of the employment relationship, the nature of the job and the circumstances of the infringement.. . .In addition, the appellant regarded seriously disrespectful conduct, of the nature committed by the respondent, as an offence that warranted dismissal on the first occasion. Its code of conduct provides as much. In failing or refusing to demonstrate any acceptance of wrongdoing or remorse, the respondent rendered the continued employment relationship with the appellant intolerable and undermined the applicability of corrective or progressive discipline.
Dismissing the individual applicant: Matrix
JR755/14
PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)
[37]Therefore, in terms ofSidumo,what the second respondent had to do was to determine if the third respondent as employer in dismissing the individual applicant acted fairly, and in doing so had to consider the totality of circumstances with reference to all the factors referred to above, as established by the factual matrix before the second respondent as a whole.
Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 94.
In terms of the Sidumo judgment, the commissioner must (a) take into account the totality of circumstances (para 78);(b) consider the importance of the rule that had been breached (para 78);(c) consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal (para 78);(d) consider ''the harm caused by the employee's conduct (para 78);(e) consider ''whether additional training and instruction may result in the employee not repeating the misconduct;(f) consider ''the effect of dismissal on the employee (para 78);(g) consider the employee's service record.The Constitutional Court emphasized that this is not an exhaustive list. The commissioner would also have to consider the Code of Good Practice: Dismissal and the relevant provisions of any applicable statute including the Act.
Vodacom (Pty) Ltd v Byrne NO and Others (2012) 33 ILJ 2705 (LC) at para 9.
the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction
Wasteman Group v SA Municipal Workers Union and Others (2012) 33 ILJ 2054 (LAC) at 2057G-I.
The commissioner is required to come to an independent decision as to whether the employer'sdecision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner.
Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others (2010) 31 ILJ 2475 (LC) at para 19.
Various components must be placed in the scales: an objective analysis of the particular facts of the case; adequate regard to the applicable statutory and policy framework; and adequate regard to the pertinent jurisprudence as developed by the courts. Only then can a value judgment, properly so called as a comparative balancing of competing factors, be made by the commissioner, producing as an end result an impartial answer to the central question whether or not the dismissal was fair. Reaching a value judgment in relation to competing factors will in many cases be fairly straightforward but in others it may be helpful to conduct the comparison process with reference to a common question, being how the factor relates to the relevant features of the employer's operational requirements. A proper assessment of those requirements underlies the determination of what is fair and at the same time provides an objective framework for a value to be placed on one factor and another.
Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008) 29 ILJ 2189 (LAC) at para 8. See also Pack 'n Stack v Khawula NO and Others (2016) 37 ILJ 2807 (LAC) at paras 19 20.
Although a commissioner is required to give brief reasons for his or her award in a dismissal dispute, he or she can be expected to include in his or her brief reasons those matters or factors which he or she took into account which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide. While it is reasonable to expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal significance or relevance to the issues at hand, his or her omission in his or her reasons of a matter of great significance or relevance to one or more of such issues can give rise to an inference that he or she did not take such matter or factor into account.
Sanction: Taking a leaf out of the book of the judgment in Mediterranean Textile Mills, I decide that back pay should be limited to 12(twelve) months salary.
JR755/14
PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)
Equity Aviation Services Ltd v Commission for Conciliation, Mediation and Arbitration and Others
The legislative structure for the resolution of unfair dismissal disputes is clear and coherently crafted. The LRA allows for any of the three remedies set out in s 193(1) to be granted to an unfairly dismissed employee. Reinstatement or re-employment remains the legislatively preferred remedy so as to restore the employee to the employment relationship. They safeguard the employee's security of employment. Either of the two remedies may be granted except in the specified circumstances set out in s 193(2) in which case compensation in terms of s 193(1)(c)may be ordered, the amount of which depends on the nature of the dismissal.
SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others
The correct approach to adopt when the dismissal has been found to be unfair, is first to consider the provisions of s 193(1) and then s 193(2) to determine which of the three remedies reinstatement, re-employment or compensation may be granted. This is buttressed by these remarks by Zondo J[62]:Once the Labour Court or an arbitrator has found a dismissal unfair, it or he is obliged to consider which one of the remedies listed in s 193(1) is appropriate, having regard to the meaning of s 193(2). Considering both the provisions of s 193(1) and s 193(2) is important because one cannot adopt the attitude that dismissal is unfair, therefore, reinstatement must be ordered. The Labour Court or an arbitrator should carefully consider the options of remedies in s 193(1) as well as the effect of the provisions of s 193(2) before deciding on an appropriate remedy. A failure to have regard to the provisions of s 193(1) and (2) may lead to the court or arbitrator granting an award of reinstatement in a case in which that remedy is precluded by s 193(2).
[88] ...reinstatement is the primary remedy for a substantively unfair dismissal, and must follow a finding of unfair dismissal, unless it can be shown by the employer or be apparent from the evidence that one of the special circumstances in Section 193(2) exist.
Boxer Superstores (Pty) Ltd v Zuma and Others
Reinstatement is in effect, the default position.
[89] ...Section 193(2)(b) employment relationship intolerability, and Section 193(2)(c) reasonable practicability.
Mediterranean Textile Mills
at the conclusion of each case it remains the responsibility of the court or the arbitrator to determine whether or not, on the evidentiary material properly presented and in the light of theEquity Aviationprinciple, it can be said that the reinstatement order is justified. In other words, even in a situation such as the present, where no specific evidence was canvassed or submissions made during the trial on the issue of the non-reinstatable conditions, the court or the arbitrator is not only entitled but, in my view, is obliged to take into account any factor which in the opinion of the court or the arbitrator is relevant in the determination of whether or not such conditions exist.
Xstrata
An employer wishing to avoid reinstatement must satisfy the arbitrator that one of the exceptions to reinstatement applies, in this case to show that it would not be practicable. The employer should lead evidence concerning relief in anticipation of a finding that a dismissal might be ruled unfair.
Eskom Holdings Ltd v Fipaza and Others
The enquiry that determines the issue of whether or not reinstatement should be ordered has as its focal point the underlying notion of fairness between both the employer and the employee which 'ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment'
[90] ...what could constitute reasonably practicable as contemplated by Section 193(2)(c)
Xstrata
The object of s 193(2)(c)of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the employee's job no longer exists, or the employer is facing liquidation, relocation or the like. The term 'not reasonably practicable' in s 193(2)(c)does not equate with 'practical', as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile. An employee's length of service, the delay in the arbitration and alleged untested shortcomings in capacity are not normally relevant to the question of practicability. ... If the exceptions to the remedy of reinstatement do not apply, the Labour Court and arbitrators only have a discretion with regard to the extent to which reinstatement should be made retrospective.
[90] ...the employee had not worked for the employer for a considerable period of time as a relevant factor in coming to the conclusion that reinstatement was not reasonably practicable.
Republican Press (Pty) Ltd v CEPPWAWU and Others[70]
... While the Act requires an order for reinstatement or re-employment generally to be made a court or an arbitrator may decline to make such an order where it is "not reasonably practicable" for the employer to take the worker back in employment. Whether that will be so will naturally depend on the particular circumstances, but in many cases the impracticability of resuming the relationship of employment will increase with the passage of time
Eskom Holdings
Postponement: Formal
JR822/15, JR769/15, JR974/15
Impala Platinum Refineries Limited v National Union of Mineworkers obo Retselisitsoe and Others (JR822/15, JR769/15, JR974/15) [2017] ZALCJHB 150; [2017] 10 BLLR 1032 (LC) (10 May 2017)
[29] Contrary to the first respondents contention, in my view it would have been unreasonable in the circumstances to expect the applicant to make a formal application for a postponement as contemplated in Rule 23 of the CCMA Rules, for the applicant did not consider it necessary to do so. This Court has held that mere non-compliance with the rule relating to postponements is not adequate reason for declining an application for a postponement.
NF Die Casting (Pty) Ltd v Metal and Engineering Bargaining Council and Others [2002] BLLR 560 (LC) at [23] and [25]
Insurance andBanking Staff Association and Others v SA Mutual Life Assurance Society(2000) 21 ILJ 386 (LC)
[32] It follows that the commissioner should have considered, inter alia:32.1 whether it was in the interest of justice and fairness that the postponement be granted or refused;32.2 what prejudice was likely to be suffered by either party should the postponement be granted or refused;32.3 whether such prejudice could be cured by an appropriate costs order; and32.4 whether the application was bona fine or a mere tactical manoeuvre.
Petzer v Independent Broadcasting Authority (2000) 5 LLD 409 (LC) at 410, Massstores (Pty) Ltd t/a Builders Warehouse v CCMA and Others [2006] 6 BLLR 577 (LC) Keerom Casa Hotel v Heinrichs and Another [1999] 1 BLLR 27 (LC)
certificate
J949/17
South African Airways (Soc) Ltd v South African Cabin Crew Association and Others (J949/17) [2017] ZALCJHB 158 (10 May 2017)
Vodacom (Pty) Ltd v Communication Workers Union (2010) 31 ILJ 2060 (LAC) at para 11.
In this particular case,itiscommon cause that there wasacollective agreement which applied. Accordingly whatever certificate may have been produced and may have been shown to the employer, the certificate cannot override the clearly stated limitation upon theright to strikeascontained in s65(1)(a). In short,acertificate can in no way trump the clear provisions of the limitation. For this reason, the courtaquo erred in its approach to the law. It should not have held that the certificate issued in terms of s 64 provided an unqualified and unlimited 'passport' to the employees to strike, no matterthe provisions of s65(1)(a),asIhave outlined them.
Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at para 9
When a commissioner completes form 7.12 and categorizes the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked "CCMA arbitration", "Labour Court" "None" or "Strike/Lockout" amount to a ruling on which of those courses of action must be pursued by a referring party.
Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (2010) 31 ILJ 2065 (LC) at para 14. See also Mbele and Others v Chainpack (Pty) Ltd and Others (2016) 37 ILJ 2107 (LC) at paras 31 32; Cook4life CC v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC) at paras 8 9.
a certificate of outcome is no more than a document issued by a commissioner stating that, on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA's jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued.
Helderberg International Importers (Pty) Ltd v McGahey NO and Others (2015) 36 ILJ 1586 (LAC) at para 11.
I align myself with the conclusions reached in the Bombardier judgment, as have a number of other decisions in this court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be.
jurisdiction: Discrimination
the CCMA cannot decline jurisdiction over disputes simply because partieswould like to pursue their matters in thiscourt
CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC)at para 66
In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that the parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration ...The dispute between the parties may only emerge once all the evidence is in
Hospersa obo Tshambi v Department of Health, KwaZulu-Natal [2016] 7 BLLR 649 (LAC) at para 16
was held that there is an obligation on Commissioners to determine the true dispute between the parties, to establish the relevant facts, to construe the category of dispute correctly, and to make an objective finding about what is the dispute to be determined. This exercise might appear onerous, but it is however necessary in order to prevent instances where disputes end up in this Court when they should have been arbitrated.
Equally so, this court is enjoined to ascertain the true nature of the dispute between the parties[25], and it does not necessarily have to rely on how the parties have pleaded their cases.
National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ 305 (CC) at para 52
It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute, a court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications. It is also important to bear in mind that parties may modify their demands in the course of discussing the dispute or during the conciliation process. All of this must be taken into consideration in ascertaining the true nature of the dispute.
jurisdiction: Absconded
JR1365/1
Msibi and Others v CCMA and Others (JR1365/13) [2017] ZALCJHB 245 (22 June 2017)
[2] On review, Wilken AJ found that the evidence before the Commissioner indicated that the applicants had in fact been dismissed because the company was of the view that the applicants had absconded. He found that the Commissioner had obviously failed to investigate these facts and deal with the real issue before him, namely a dismissal for misconduct and whether it had been a fair dismissal.
SABC v CCMA and Others (2002) 8 BLLR 693 (LAC).
was heldthat desertion necessarily entails the employees intention no longer to return to work and that the employer would have to establish this intention in a fair process. I would addthat mere absence and unexplained absence is not conclusive proof of an unequivocal intention not to return. Employees must be called upon to show cause why the employer should not treat their absence as an intention not to return to work. Up to the point when the intention not to return is established the absent employees are simply absent without leave.
Hearing de novo
JR1052/13
Passenger Rail Agency of South Africa (PRASA) v Commission for Conciliation Mediation and Arbitration and Others (JR1052/13) [2017] ZALCJHB 287 (4 August 2017)
The fact that the commuter did not give evidence at the internal disciplinary hearing was entirely irrelevant. It is certainly not a basis on which to reject the evidence of all of the applicants witnesses, or to call their credibility into question. On this basis alone, the arbitrators award stands to be reviewed and set aside.
postponement
JR1870/14
Wade Walker (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1870/14) [2017] ZALCJHB 296; (2017) 38 ILJ 2842 (LC) (8 August 2017)
This being the test for reasonableness set inSidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28ILJ2405 (CC) at para 110.
he acted unreasonably in refusing the postponement. In relation to the latter, in circumstances where the matter was heard little more than a month after the employees dismissal, where the employee agreed to a postponement, and where, in the circumstances, the balance of prejudice overwhelmingly favoured the grant of a postponement, a reasonable commissioner would not have refused the postponement
Disciplinary enquiry: section 188A
J492/201
Msagala v Transnet Soc Ltd and Others (J492/2017) [2017] ZALCJHB 370; (2018) 39 ILJ 259 (LC); [2018] 2 BLLR 193 (LC) (9 October 2017)
[7] What is this formulation suggests is that an agreement concluded in terms of s188A is one that abandons any workplace disciplinary process in favour of an arbitration hearing which would ordinarily have been conducted post dismissal by the employer. An arbitrator appointed in terms of the section must consider the evidence presented and decide what sanction, if any, is to be issued against the employee.Of some significance use the fact that the arbitrator is subject provisions of s 138, and he or she enjoys all the powers conferred on commissioners in those provisions of s 142 referred to in s 188A (7). The arbitrator is not bound by the employers disciplinary code and procedure, nor obliged to give effect to it either in terms of the prescribed process all any recommended or prescribed penalties. The arbitrator must decide on a balance of probabilities without the misconduct alleged was committed, and if so, exercise a value judgement as to an appropriate sanction. That judgement is reviewable in terms of s 145. All of these provisions indicate that the arbitrator does not sit as the employers agent or representative he or she is expected to discharge a statutory function by the exercise of statutory powers subject to the statutory criteria of fairness.
Stated case
JR2134/15
Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR2134/15) [2017] ZALCJHB 400; (2018) 39 ILJ 248 (LC) (17 October 2017)
Hillside Aluminium (Pty) Ltd v Mathuse & others (2016) 37 ILJ 2082 (LC), in which Prinsloo J held that the acceptance of documents as constituting evidence at arbitration is an extraordinary scenario and requires an explicit and clear agreement between the parties,[7] and that the reliance on documents as constituting evidence in the absence of such an agreement constitutes a reviewable irregularity.[8] In the present matter, the commissioner went wrong in precisely this manner.
SA Social Security Agency v National Education Health & Allied Workers Union on behalf of Punzi & Others (2015) 36 ILJ 2345 (LC), in which Rabkin-Naicker J found that she could not comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence.[9] In setting aside the award, the court went on to find:
[8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed.
Arends & others v SA Local Government Bargaining Council & others (2015) 36 ILJ 1200 (LAC)
[15] When parties desire to proceed without oral evidence in the form of a special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. Alternatively, without such a statement, the question put is in danger of being abstract or academic. Where a question of legal interpretation is submitted to an arbitrator, the parties must set out in the stated case a factual substratum which shows what has arisen and how it has arisen. The stated case must set out agreed facts, not assumptions. The purpose of the rule is to enable a case to be determined without the necessity of hearing the evidence. An oral stated case predicated upon poorly ventilated and potentially unshared assumptions as to the facts defeats the purpose of the requirements of a stated case and, as this case shows, will lead to problematic results.[16] Rule 20(1) of the Rules for the Conduct of Proceedings before the CCMA (which might be followed in proceedings before bargaining councils) allows for a pre-arbitration conference at which the parties must attempt to reach consensus inter alia on the agreed facts, the issues to be decided, the precise relief claimed and the discovery and status of documentary evidence. The parties in this case did not engage in a proper pre-arbitration process with the aim of agreeing a stated case. Although the CCMA Rules do not include provisions equivalent to the provisions of rule 33(1) and (2) of the Rules of the High Court, parties who prefer to proceed by way of a stated case at the CCMA or before a bargaining council, in my view, should follow their prescriptions. These rules provide that the parties to any dispute may, after the institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the court. Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered paragraphs. The parties must annex to the statement copies of documents necessary to enable the court to decide upon such questions.[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case. An arbitrator faced with a request to determine a special case where the facts are inadequately stated should decline to accede to the request. In this instance, the arbitrator did not do that.
PSA v Minister of Correctional Service [2017] 4 BLLR 371 (LAC), in which Musi JA quoted the entire passage from Arends set out above for the sake of emphasis and to focus arbitrators attention on best practice.[10] In the result, the LAC upheld this courts decision to set aside the award which determined an interpretation dispute based on a stated case, which did not contain an agreed factual matrix. As Musi JA put it, the commissioner could not apply his mind properly to the issue before him without a factual substratum, and [h]e should have refused to deal with the matter without an agreed set of facts.[11]
[27] In the present matter, the commissioner also went wrong in precisely the manner contemplated in SA Social Security Agency, Arends and PSA. In circumstances where the parties decided to proceed without oral evidence, the commissioner ought to have ensured that a stated case was concluded, which ought to have set out, inter alia, the agreed facts and incorporated documents on an agreed basis. Heads of argument based on the stated case could then have been submitted. As found in Arends, by failing to follow this process -
[19] [t]he enquiry was undertaken in the wrong manner with the result that the appellants were denied their right to have their case fully and fairly determined. The principal cause of that denial or failure was the inept manner in which the case was put before the arbitrator. Be that as it may, the undertaking of the enquiry in the wrong or in an unfair manner by an arbitrator is an irregularity in the conduct of the proceedings reviewable in terms of s 145 of the LRA as suffused by the constitutional right to administrative action that is lawful and procedurally fair.
[28] ...the commissioner did not place himself in a position to fully and fairly resolve the dispute, and thereby deprived the department of its right to procedurally fair administrative action (a patent gross irregularity), which gives rise to a review irrespective of the merits of the outcome of the award.
compensation: procedural unfairness
JR541/14
Old Mutual Life Assurance Company South Africa Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR541/14) [2017] ZALCJHB 381 (19 October 2017)
[78] On procedural fairness, having found that the commissioners finding in this regard was beyond reproach, I am of the view that a compensation of three months salary is just and equitable, having considered that Dr Mathoma was dismissed for serious charges (gross negligence and dishonesty) and the extent of the procedural defect (mitigation and perception of biasness)
compensation: nature of award
JR06/16
Road Traffic Management Corporation v Commission for Conciliation, Mediation and Arbitration and Others (JR06/16) [2017] ZALCJHB 386; (2018) 39 ILJ 887 (LC) (19 October 2017)
"29] The remaining case is nothing but a suggestion that compensation of ten months is too much. Whether the amount of compensation awarded is unacceptable to the Applicant is irrelevant as the true enquiry is whether the arbitrator exercised her discretion judicially.[30] It is trite that the courts should not too readily interfere with the quantum of compensation where the quantum was determined by the exercising of a discretion. However, in cases where the discretion was not exercised judicially or where it was exercised capriciously or biased or based on the wrong principle or approach or not for a substantial reason, the court may interfere.[31] In the application before this Court the Applicant did not make a single averment to the effect that the arbitrator acted capriciously, or upon the wrong principle, or with bias, or that the arbitrator adopted an incorrect approach. All that is evident from the application before me is the Applicants unhappiness that it was ordered to pay ten months remuneration as compensation."
Fouldien and others v House of Trucks (Pty) Ltd (2002) 23 ILJ 2259 (LC) at para 16.
The right to compensation is a contingent right which rests on the finding regarding the substantive and procedural fairness of a dismissal. It is a discretionary remedy, although it is hedged by limitations on the quantum which can be ordered. It is, of course, a discretion which must be exercised judicially.'
Dr DC Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC)
The importance if the distinction between a discretion that is exercised in terms of section 193(1)(c) and a discretion that is exercised in terms of section 194(1) is how the reviewing court will consider the matter. When the discretion that is challenged is a discretion such as the one exercised in terms of section 194(1) the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether or not the decision maker adopted an incorrect approach.
MEC for Environmental Affairs and Development Planning v Clairisons CC 2013 (6) SA 235 (SCA) paras 18 and 20.
When the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.. The law remains, as we see it, that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere.
29] The remaining case is nothing but a suggestion that compensation of ten months is too much. Whether the amount of compensation awarded is unacceptable to the Applicant is irrelevant as the true enquiry is whether the arbitrator exercised her discretion judicially.[30] It is trite that the courts should not too readily interfere with the quantum of compensation where the quantum was determined by the exercising of a discretion. However, in cases where the discretion was not exercised judicially or where it was exercised capriciously or biased or based on the wrong principle or approach or not for a substantial reason, the court may interfere.[31] In the application before this Court the Applicant did not make a single averment to the effect that the arbitrator acted capriciously, or upon the wrong principle, or with bias, or that the arbitrator adopted an incorrect approach. All that is evident from the application before me is the Applicants unhappiness that it was ordered to pay ten months remuneration as compensation.
reinstatement
JR667/201
Ziqubu v Commission for Conciliation, Mediation and Arbitration and Others (JR667/2012) [2017] ZALCJHB 505 (25 October 2017)
The commissioner found that the employees dismissal was substantively unfair as there were no fair reasons for dismissal but relied on same unproven charges to refuse reinstatement. The facts of the case did not trigger section 193(a-d) and the commissioner thus did not have a discretion not to reinstate. [43] In conclusion, the commissioners reasons as contained in the award for the refusal to reinstate the Applicant is thus a decision a reasonable commissioner could not have arrived at.
Equity Aviation Services Pty Ltd v Commission for Conciliation, Mediation and Arbitration and Others 2009 (2) BCLR 111 (CC) at para 36.
The ordinary meaning of the word reinstate is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers employment by restoring the employment contract. Differently put, if the employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal
National Health and Allied Workers Union (NEHAWU) v University of Cape Town and Others 2003 (2) BCLR 154 (CC).
18] It is axiomatic from section 193 of the LRA and the Equity Aviation and NEHAWU cases supra that reinstatement is the primary remedy in unfair dismissal disputes and is aimed to secure employment for an employee who suffered the brunt of unfair dismissal.
Maepe v Commission for Conciliation, Mediation and Arbitration and Another [2008] ZALAC 2; (2008) 8 BLLR 723 (LAC) at par.13
Section 193(2) of the Act obliges-it uses the word must- the Labour Court or an arbitrator must order the employer to reinstate or re-employ the employee whose dismissal he had found to be unfair for lack of a fair reason or whose dismissal he had found to be automatically unfair, unless one or more of the situations set out in Section 193(2)(a)-(d) applies(14) The situation envisaged in par (b) is where the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable. It is possible that in so far as the giving of false evidence under oath may have occurred in the disciplinary inquiry before the dismissal, it could be said that it is one of the circumstances surrounding the dismissal, particularly where it was one of the factors that were taken into account in making the decision to dismiss(16) What I have just said in the preceding paragraph means that if a case falls under one or other of the situations listed in section 19392) (a)-(d), it is not competent for the Labour Court or an arbitrator to order reinstatement or re-employment. This is because section 193(2) makes provision as to when reinstatement or re-employment must be ordered and when it must not be ordered. In effect, it says that reinstatement or re-employment must be ordered in all cases except those listed in section 193(2)(a)-(d)
Sibeko v Xstata Coal South Africa and Others (JR2189/13) [2016] ZALCJHB 90; (2016) 37 ILJ 1230 (LC) (3 February 2016) at para 12.
Dealing first with section 193(2), it is clear from the Maepe judgment and more particularly paragraph (14) thereof, about when is permissible for a commissioner not to award reinstatement because the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable. As appears from that paragraph, the circumstances which can be taken into account are those which prevailed at the time of the dismissal and not thereafter.
David Themba v Mintroad Sawmills (Pty) Ltd [2015] 2 BLLR 174 (LC) at para 23.
When it comes to retrospectivity of reinstatement, this is however, a completely different issues. Reinstatement is not necessarily coupled with retrospectivity and is not a sine qua non of it. Retrospectivity of reinstatement is a separate discretion that must be exercised by the arbitrator or the judge when deciding to award reinstatement. Retrospectivity in simple terms relates to what is commonly known as back pay and constitutes what the arbitrator or judge expects an employer to pay the employee for the time the employee has been languishing without remuneration as a result of the employees unfair dismissal
compensation: procedural unfairness
JA16/16
South African Medical Association obo Pietz v Department of Health - Gauteng and Others (JA16/16) [2017] ZALAC 25; [2017] 9 BLLR 923 (LAC); (2017) 38 ILJ 2297 (LAC) (4 May 2017)
Kemp t/a Centralmed v Rawlins,
[22] I do not think that the provisions of s 193(1)(c) of the Act give the Labour Court or an arbitrator the kind of power which would enable it or him to grant or refuse an order of compensation on identical facts as it or he sees fit. In my view the ultimate question that the Labour Court or an arbitrator has to answer in order to determine whether compensation should or should not be granted is: which one of the two options would better meet the requirements of fairness having regard to all the circumstances of this case? If the court or arbitrator answers that the requirements of fairness, when regard is had to all of the circumstances, will be better met by denying the employee compensation, no order of payment of compensation should be made. If the court or arbitrator answers that the requirements of fairness will be better met by awarding the employee compensation, then compensation should be awarded. When that question is answered, the interests of both the employer and the employee must be taken into account together with all the relevant factors. In my view, where the court or an arbitrator decides the issue of whether or not to award the employee compensation, it does not exercise a true discretion or a narrow discretion. The determination of that question or issue requires the passing of a moral or value judgment. It is decided or determined on the basis of the conceptions of fairness because the court or arbitrator has to look at all the circumstances and say to itself or himself or herself as the case may be: What would be more in accordance with justice and fairness in this case? Would it be to award compensation or would it be to refuse to award compensation? It or he or she would then have to make the decision in accordance with its, his or her sense of which of the two options would better serve the requirements of justice and fairness. The Court proceeded as follows at 2696-2697 para 55: 'The importance of the distinction between a discretion that is exercised in terms of s 193(1)(c) and a discretion that is exercised in terms of s 194(1) is how the reviewing court will consider the matter. When the discretion that is challenged is a discretion such as the one exercised in terms of s 194(1) the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether the decision maker adopted an incorrect approach. When dealing with a discretion however such as provided in s 193(1)(c), the court must consider if the arbitrator or the Labour Court properly took into account all the factors and circumstances in coming to its decision and that the decision arrived at is justified. In essence therefore, a review of a discretion exercised in terms of s 193(1)(c) is essentially no different to an appeal because the reviewing court will be required to consider all the facts and circumstances which the arbitrator or the Labour Court had before it and then decide based on a proper evaluation of those facts and circumstances whether or not the decision was judicially a correct one. (My emphasis)
Kemp t/a Centralmed v Rawlins (supra)
76.1 Insofar as the dismissal is procedurally unfair, the nature and extent of the deviation from the procedural requirements; the less the employer's deviation from what was procedurally required, the greater the chances are that the court or arbitrator may justifiably refuse to award compensation; obviously, the more serious the employer's deviation from what was procedurally required, the stronger the case is for the awarding of compensation.76.2 Insofar as the reason for dismissal is misconduct, whether the employee was guilty or innocent of the misconduct; if he was guilty, whether such misconduct was in the circumstances of the case not sufficient to constitute a fair reason for the dismissal.76.3 The consequences to the parties if compensation is awarded and the consequences to the parties if compensation is not awarded. 76.4 The need for the courts, generally speaking, to provide a remedy where a wrong has been committed against a party to litigation but also the need to acknowledge that there are cases where no remedy should be provided despite a wrong having been committed even though these should not be frequent.
(b) The commissioners decision not to award compensation is reviewed and set aside;
bias on the part of the commissioner
JA53/16
Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16) [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC) (18 October 2017)
Satani v Department of Education, Western Cape and Others (2016) 37 ILJ 2298 (LAC) at 2311 para 36.
failure to object by a party or its legal representative cannot render an unfair process or conduct fair or acceptable. The test for bias is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias.[4] Mere apprehensiveness on the part of a litigant or even a strongly and honestly held anxiety would not be enough. The question to be answered is: what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude.[5]
Bernert V ABSA Bank Ltd 2011 (3) SA 92 (CC) at 114 para 75.
It is not in the interests of justice to permit a litigant, where that litigant has knowledge of all the facts upon which recusal is sought, to wait until an adverse judgment before raising the issue of recusal. Litigation must be brought to finality as speedily as possible. It is undesirable to cause parties to litigation to live with the uncertainty that, after the outcome of the case is known, there is a possibility that litigation may be commenced afresh, because of a late application for recusal which could and should have been brought earlier. To do otherwise would undermine the administration of justice.At 102 para 35 the Court held:[35] The presumption of impartiality and the double requirement of reasonableness underscore the formidable nature of the burden resting upon the litigant who alleges bias or its apprehension. The idea is not to permit a disgruntled litigant to successfully complain of bias simply because the judicial officer has ruled against him or her. Nor should litigants be encouraged to believe that, by seeking the disqualification of a judicial officer, they will have their case heard by another judicial officer who is likely to decide the case in their favour
compensation: fixed term
DA10/16
Jorgensen v I Kat Computing (Pty) Ltd and Others (DA10/16) [2017] ZALAC 70; [2018] 3 BLLR 254 (LAC); (2018) 39 ILJ 785 (LAC) (21 November 2017)
[23] The compensation awarded to the appellant overlooked the fact that the appellant was on a fixed term contract that had five months to run at the time of his dismissal. There was no cause to award compensation more than his actual loss of income. The award of compensation was not one that a reasonable commissioner would have made and to that extent the compensation should be reduced to an amount of R92 075 being 5 (five) times the difference between what the applicant earned and what he would have earned while employed by the respondent.
CCMA / Bargaining Council: jurisdiction vs Labour Court
JR1043/16
SAMWU obo Members v Protrans (Pty) Ltd (JR1043/16) [2017] ZALCJHB 218 (30 May 2017)
Mr Nguaza on behalf of the 1strespondent made the submission that the applicants in their referral alleged that the reason for the termination is that they participated in an unprotected strike and relying on the provisions of Section 191(1)(5)(b)(iii) he contended that such allegations are to be determined or dealt with by the Labour Court. Indeed that is correct however as the authorities had made it very clear that it is the duty of any administrator to determine the jurisdiction and it appears to me that what the Arbitrator did in this matter was simply to accept the allegation of the employees that they were dismissed for participating in an unprotected strike and actually ignored what appeared to be the true reason of the dismissal, being misconduct.
rescission
(JR1146/15
Senator International Logistics (Pty) Ltd v Raphela NO and Others (JR1146/15) [2018] ZALCJHB 68 (22 February 2018)
its non-attendance was based on abona fidebut mistaken belief that documentation submitted to the CCMA by e-mail would be taken into account by the commissioner and that it would be sufficient to have the employees referral dismissed.
MM Steel Construction CC v Steel Engineering and Allied Workers Union of SA and Others (1994) 1 5 ILJ 1310 (LAC) at 1311 I 132a
commissioner did not consider the second aspect of the test. On the prospect of success, he simply stated that he was satisfied with the award issued. There is no indication that he considered the applicants submissions on its prospects of success in the arbitration. As such, the commissioner failed to apply the test for good cause
Northern Province Local Government Association v CCMA and Other [2001] 5 BLLR 539 (LC) at 545
An application for the rescission of a default judgment must show good cause and prove that he at no time denounced his defense, and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must give a reasonable explanation for his default, his explanation must be madebona fideand he must show that he has abona fidedefense to the plaintiffs claims.
arbitration award has been certified in terms of section 143
J1007/15
Mlaudzi v Metro South Towing CC (J1007/15) [2017] ZALCJHB 37 (8 February 2017)
no need for section 158(1)(c) order; as this amounts to duplication and delay in enforcing the arbitration award; Both employer and employee are required to comply with the terms of an arbitration award.
SATAWU obo Phakathi v Ghekko Services SA (Pty) Ltd and Others (2011) 32 ILJ 1728 (LC). (Ghekko Services)
that section158(1)(c) applications are not a prerequisite for contempt proceedings.
certificate
JS641/16
Dinkelman v Fruit and Veg City Gauteng (Pty) Ltd t/a Foodlovers Market (JS641/16) [2018] ZALCJHB 141 (23 March 2018)
being common cause that the applicant was dismissed on 11February2016, I am satisfied that based on the contents of the referral form, and notwithstanding the fact that the certificate of outcome merely reflects an alleged unfair labour practice dispute having been referred, this Court has the requisite jurisdiction to adjudicate the alleged automatically unfair dismissal dispute as claimed in the applicants statement of claim.
Private arbitration
Test for review in Sidumo apply
JR3232/06
Vodacom (Pty) Ltd v Gildenhuys N.O. & Others
agreement if not less favorable to ee
JR1592/07
Carlbank Mining Contracts (Pty) Ltd v National Bargaining Council for the Road Freight Industry & Others
narrow approach
D3/07
SATAWU obo Mlotywa v Spoornet (Customer Service and Production Kwazulu-Natal Region) & Others
Other case law sited
narrow approach
Standard Bank of SA v Mosime and others (2008) 10 BLLR 1010 (LC),
D3/07
SATAWU obo Mlotywa v Spoornet (Customer Service and Production Kwazulu-Natal Region) & Others
Other case law sited
Telcordia Technologies v Telkom SA Ltd SCA 26/05
by agreeing to arbitration, the parties limit interference by courts to the ground of procedural irregularities set out in s 33 (1) of the Act. By necessary implication they waive the right to rely on any further ground of review, common law or otherwise. If they wish to extend the grounds, they may do so by agreement.
D3/07
SATAWU obo Mlotywa v Spoornet (Customer Service and Production Kwazulu-Natal Region) & Others
is consensual
Court slow to interfere
JS1298/09
Mmethi v DNM Investment CC t/a Bloemfontein Celtics Football Club
The test was a narrow one, based on the consensual basis upon which the parties sought to resolve their dispute by way of arbitration with limited statutory imposition on the process. The courts were, as a matter of principle, enjoined in considering reviews of private arbitrations to adhere to the principle of party autonomy, which required a high degree of deference to arbitral decisions and minimized the scope for intervention by the courts.
JR 1475/10
Mxalisa and Others v Dominion Uranium Joint and Another
Jurisdiction
Section 147: But once the CCMA made the election, the parties were bound by it.
(JA 68/13) [2015] ZALCJHB 2
Kgekwane v Department of Development Planning and Local Government, Gauteng
Jurisdiction
Referral premature. Dispute to CCMA while he was serving out his notice period.
(C02/2014) [2015] ZALCCT 2
Helderberg International Importers (Pty) Ltd v McGahey NO and Others
Jurisdiction
Thus, once a challenge to the CCMAs jurisdiction was raised, the commissioner was required to refer it to the appropriate CCMA official for a decision in terms of s 147 of the LRA.
(JA 119/13) [2015] ZALCJHB 5
Qibe v Joy Global Africa (Pty) Ltd
JR226/2016
Eskom: Rotek Industries Soc Ltd v Mans and Others (JR226/2016) [2017] ZALCJHB 321 (7 September 2017)
[39]As stated by the Court inTelcordia it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. Otherwise a review would lie in every case in which the decision depends upon a legal issue, and the distinction between procedure by appeal and procedure by review, so carefully drawn by statute and observed in practice, would largely disappear.
[22] The award sought to be reviewed in this instance is an award by a private arbitrator pursuant to an agreement between the parties containing an arbitration clause. As such, the legal principles applicable to review applications in terms of sections 145 and 158(1)(g) of the LRA, (as enunciated in Sidumo & another v Rustenburg Platinum Mines Ltd & others[11] and some of the other cases since Sidumo[12] do not find application in this review.
[24] Section 33(1) of the Arbitration Act reads as follows:(1) Where-(a) any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; or(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; or(c) an award has been improperly obtained,the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.
Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and another 2009 (4) SA 529 (CC).
Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.'
Labour Court jurisdiction
JA22/201
SAFPU and Others v Free State Stars Football Club (Pty) Ltd (JA22/2016) [2017] ZALAC 16; (2017) 38 ILJ 1111 (LAC) (21 February 2017)
dispute resolution forum onerous for employee who must pay fees unlike in the Labour and Labour Appeal Court; moreover employees would have the benefit of speedy resolution mechanisms of the LRA; matter requiring little evidence as impermissible to retrench fixed term employees; Labour Court more suitable than forum to hear the dispute
(a) The onus of satisfying the court that it should not exercise its discretion in favour of referring the matter to arbitration is on the party who instituted the legal proceedings (the appellants). See Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd[3] and Universiteit van Stellenbosch v J A Louw (Edms) Bpk.[4](b) The discretion of the court to refuse arbitration may only be exercised when a "very strong case" is made out. See The Rhodesian Railways Ltd v Mackintosh[5] and National Bargaining Council for the Road freight Industry and Another v Carl Bank mining Contracts (Pty) Ltd and Another[6]. It has also been said that "there should be 'compelling reasons' for refusing to hold a party to his contract to have a dispute resolved by arbitration". See Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd[7]. Lastly, it has been held that a court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement. See Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd relying on Bristol Corporation v John Aird & Co.[8]
reasonableness of the belief to one of the accuracy of the facts upon which the belief was based
JA90/15
Lou-Anndree v Afrox Oxygen Limited (JA90/15) [2018] ZALAC 4 (29 January 2018)
There is no ulterior motive; the appellant acted in good faith and reasonably believed that the information was substantively true. It then follows that the respondents contention that the appellant was dismissed for incompatibility is nothing short of fiction and the only probability is that the appellants dismissal was in retaliation for her disclosure of the irregularities in the re-grading process.
suffered occupational detriment. Her dismissal is therefore automatically unfair and, as such, she is awarded compensation equivalent to 18 months remuneration based on the gross salary she was earning at the time of her dismissal.