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[2007] ZASCA 121
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Republican Press (Pty) Ltd v CEPPWAWU and Others (218/06) [2007] ZASCA 121; 2008 (1) SA 404 (SCA); [2007] 11 BLLR 1001 (SCA); (2007) 28 ILJ 2503 (SCA) (27 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO
:
218/06
In the matter between :
REPUBLICAN
PRESS (PTY) LTD
.......................
Appellant
and
CEPPWAWU
& GUMEDE AND OTHERS
.......................
Respondent
____________________________________________________________________________
Before: FARLAM, NUGENT, JAFTA, MLAMBO & MAYA JJA
Heard: 15 AUGUST 2007
Delivered: 27 SEPTEMBER 2007
Summary: Appeal direct from Labour Court - competent when Labour
Appeal Court has declined to entertain appeal – reinstatement
of dismissed employee - retrospective effect not limited.
Neutral citation: This judgment may be referred
to as
Republican Press v CEPPWAWU
[2007] SCA 121 (RSA)
____________________________________________________________________________
J U D G M E N T
____________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The applicant (the company) wishes to appeal against
an order that was made by the Labour Court (Pillay J). In the
ordinary course
an appeal from a final judgment or order of the
Labour Court lies to the Labour Appeal Court, but only with the leave
of the Labour
Court or, where such leave is refused, with the leave
of the Labour Appeal Court.
1
In the present case leave to appeal to the Labour Appeal
Court was refused by both those courts. Hence the present
application, which
is for leave to appeal direct to this court. The
judges of this court who considered the petition referred it for oral
argument
2
with directions that the parties prepare to argue the
merits of the appeal if called upon to do so.
[2] The Rules of the Labour Appeal Court provide that a
petition for leave to appeal must be disposed of by three judges of
that court
designated by the Judge President (the decision of the
majority to be decisive).
3
In comparable circumstances (the context was ss 20(1)
and 21(1) of the Supreme Court Act 1959) it was held by this court in
S v Khoasasa
4
that the refusal of leave to appeal to a High Court by
designated judges of that court constitutes a final order of that
court. Similarly,
in my view, the refusal of leave to appeal by
designated judges of the Labour Appeal Court constitutes a final
order of that court.
The Labour Appeal Court having refused leave to
appeal the question that now arises is whether this court is
authorised to entertain
an appeal.
[3] That question is answered by the decision of this
court in
Numsa v Fry’s Metals (Pty)
Ltd.
5
It held that the Constitution confers final appeal
authority on this court in all matters, barring constitutional
matters, in which
appellate jurisdiction falls to be exercised.
6
That decision was made in the context of an order that
had been made by the Labour Appeal Court on appeal to it from the
Labour Court
but the principle that it articulated applies as much to
this case. There remains only an ancillary question, which is whether
the
appellate authority of this court falls to be exercised over the
orders that were made by the Labour Court, or whether it is instead
to be exercised over the order of the Labour Appeal Court refusing
leave to appeal (in which case the consequence of a successful
appeal
will be that the matter reverts to the Labour Appeal Court for it to
consider an appeal against the orders of the Labour Court
with the
possibility of a further appeal to this court).
[4] In
Khoasasa
the
appellant wished to appeal against the sentence that had been imposed
on him by a regional magistrate. At that time the
Criminal Procedure
Act 1977
, as amended by the
Criminal Procedure Amendment Act 1997
,
allowed an appeal to the High Court only with the leave of the lower
court or, if leave was refused by that court, with the leave
of the
relevant High Court.
7
Leave to appeal against the sentence was refused by both
the lower court and the High Court. This court held that it had no
authority
to entertain an appeal directly from the regional court,
but that it had authority to grant leave to appeal against the order
of
the High Court refusing leave to appeal. The effect was that a
person convicted by a regional court could not appeal to this court
unless an appeal to the High Court had failed (subject to the
necessary leave being granted).
8
[5] I do not think the same considerations apply in the
present case.
Khoasasa
(and
S v N
9
before it) was decided upon a construction of the
Supreme Court Act 1959. As pointed out in
Fry’s
Metals
, the appellate jurisdiction of this
court derives from the Constitution.
10
To the extent that the Supreme Court Act might have the
effect of imposing restrictions on the manner in which that
jurisdiction might
be exercised it does not purport to do so in
relation to matters emanating from the labour courts. While it might
lie within the
competence of this court, in the exercise of its power
to regulate its own process conferred by s 173 of the Constitution,
11
to direct that an appeal first be heard by the Labour
Appeal Court before it will be considered by this court (on the
assumption that
there are proper grounds for an appeal at all) I do
not think it is ‘in the interests of justice’ to do so.
12
The
Labour Relations Act 1995
exhorts expeditious
finality in labour disputes. That exhortation would be considerably
thwarted if the ordinary appeal process were
to be revisited after
the Labour Appeal Court has refused leave to appeal. Once the
ordinary appeal process has been exhausted by
the refusal by the
labour courts of leave to appeal in my view this court may and should
exercise its final appeal authority (subject,
of course, to the
applicant meeting the prerequisites for special leave to appeal to
this court that were laid down in
Fry’s
Metals
13
).
[6] This matter originates in a decision by the company
to retrench about 150 workers with effect from 6 September 1999.
Amongst those
selected for retrenchment were the 40 workers whose
claims are the subject of the present proceedings. (I will refer to
them as the
workers). The workers and their union (the first
respondent) contested the fairness of their dismissals in proceedings
that were
commenced in the Labour Court after an attempt at
conciliation had failed.
14
The matter came to trial some six years after the
workers were retrenched (the delay in bringing the matter to trial is
dealt with
later in this judgment). There was no dispute that the
company’s operational requirements justified the retrenchments.
The
only issues at the trial were whether the workers were selected
for dismissal in accordance with selection criteria that were fair
and objective (as required by s 189(7)(b) of the Act) and if not,
what relief should be granted. The learned judge held that the
workers were not selected for dismissal in accordance with fair and
objective criteria. She ordered that 28 of the workers be reinstated
with effect from 7 September 1999 (subject to the deduction from
their back-pay of an amount equivalent to two and a half years’
wages and of the notice and severance pay that they had received),
that seven of the workers be paid compensation in an amount
equivalent
to 12 months’ pay, and that compensation in the same
amount be paid to the estates of five of the workers who had
meanwhile
died.
[7] In argument before us it was correctly conceded by
counsel for the company that there were no special circumstances
justifying
an appeal against the finding of the Labour Court that the
workers were not selected for dismissal in accordance with fair and
objective
criteria. The orders for the payment of compensation were
also not contested. The company sought leave to appeal only against
the
order for reinstatement (paragraphs 2 and 3 of the order of the
Labour Court). The arguments that were advanced in that regard (to
which I will return later in this judgment) arise from the fact that
the order for reinstatement was made six years after the event.
[8] The procedures for resolving disputes concerning
unfair dismissal are designed to bring them to finality
expeditiously. In the
ordinary course such a dispute must be brought
before a conciliator within 30 days of the dismissal.
15
If the dispute remains unresolved after another 30 days
the employee may refer the dispute either to arbitration or to the
labour
court depending upon the nature of the dispute.
16
In some cases that are subject to arbitration the
arbitrator is required to commence the arbitration immediately after
it has been
certified that the dispute remains unresolved after
conciliation.
17
In all cases an arbitrator is obliged to determine the
dispute ‘fairly and quickly’ with the ‘minimum of
legal formalities’
18
and must deliver an award within 14 days of the
conclusion of the proceedings.
19
Cases that are referred to the Labour Court rather than
to arbitration are to be disposed of subject to its rules,
20
which similarly envisage the minimum of formality.
Proceedings are initiated by the filing of a statement of claim that
must be responded
to within ten days.
21
Not later than ten days thereafter the parties must hold
a pre-trial conference and a copy of the minute must be delivered
within
five days thereafter.
22
Once that has occurred, or the time for filing the
minute has expired, the registrar must send the file to a judge who
may direct
that the matter be enrolled for hearing or give directions
for the holding of a conference.
23
[9] It will be apparent that if an aggrieved worker (or
his or her union) acts with diligence and expedition disputes
concerning unfair
dismissal ought ordinarily to be capable of being
resolved by the Labour Court within about six months of the dismissal
(assuming
there are no systemic delays) and in the case of
arbitrations even earlier. It is convenient at this stage to set out
briefly why
it took six years in this case to resolve the dispute.
[10] Conciliation failed on 3 November 1999. The
statement of claim was filed only three months later on 14 February
2000 and the
response was filed seven days later. A pre-trial
conference was held on 22 March 2000 (17 days late) and the minute
was filed on
17 April 2000 (13 days late). On 26 May 2000 a judge of
the labour court to whom the matter had been allocated directed the
parties
to comply with certain pre-trial guidelines that are
apparently standard practice in the Labour Court. That direction
seems to have
been ignored. On 1 November 2000 a firm of attorneys
advised the company’s attorneys that it had been appointed to
act for
the union but two weeks later the attorneys advised that the
matter ‘has reverted to the union’. It seems that another
firm (Chennels Albertyn and Tanner) was then appointed by the union
but nothing further seems to have been done until a letter was
sent
to the union’s then attorneys by the registrar of the Labour
Court on 3 September 2001 directing them to index and paginate
the
file within 5 days failing which the matter would not be enrolled and
the file would be sent to the archives. The directive also
required a
bundle of any documents that were to be used at the trial to be filed
before the matter would be enrolled. (The parties
had agreed at the
pre-trial conference that the company would submit a bundle of
documents to the union within 14 days but evidently
nothing was done
in that regard.) The directive from the registrar prompted a letter
from the union’s attorneys to the company’s
attorneys and
on 8 November 2001 the company’s attorneys submitted its bundle
of documents. Apart from a perfunctory exchange
of correspondence
early the following year nothing further occurred for about two and a
half years. In December 2002 Chennels Albertyn
and Tanner closed down
but the union failed to retrieve its file because it had simply
forgotten about the matter. In May 2004, in
the course of
consultations concerning another matter involving the company and the
union, it became apparent to the union that the
present case had not
been attended to. The union’s present attorneys then put the
court file in order in accordance with the
registrar’s earlier
direction. On 27 September 2004 the Registrar advised the parties
that the matter had been enrolled for
hearing on 24 January 2005.
[11] A week before the trial was due to commence the
union applied for the discovery of documents (why it had not done so
earlier
is not explained) and the company filed what it called a
‘special plea’. In its plea the company alleged that it
had
been so prejudiced by the delay in prosecuting the matter that
the claim should be dismissed on that ground alone. The matter came
before Ngcamu J on the allocated date, who directed the respondents
to explain the delay by way of affidavit, and the matter was
postponed for that purpose. A lengthy explanation was filed on behalf
of the union, an answer was filed by the company, and the union
replied. On 24 May 2005 the Registrar gave notice that the trial had
again been enrolled for 5 September 2005.
[12] Various skirmishes then occurred in the course of
which Pillay J (who dealt with the matter with commendable
decisiveness and
expedition once she became seized of it) dismissed
the ‘special plea’, observing in the course of her
judgment that the
delay that had occurred ‘could be factored
into the evidence at the trial’. Her order dismissing the
‘special plea’
was initially sought to be appealed
against but the application for leave appeal against that order was
not pursued and I need say
no more about it. The trial commenced on
the allocated date and lasted four days. In a considered and reasoned
judgment that was
delivered by Pillay J a week later (on 13 September
2005) the learned judge granted the relief that I referred to
earlier.
[13] If the union (which was dominus litus) had
prosecuted the matter diligently in accordance with the Act and the
rules there is
no apparent reason why the matter should not have been
resolved by no later than about August 2000 (bearing in mind that on
the two
occasions that the matter was enrolled it was enrolled for a
date no more than four months hence) and even earlier if the union
had
not waited three months before filing its statement of claim. No
doubt some of the delay might have been attributable to the tardiness
of its former attorneys but instructing an attorney did not absolve
the union of responsibility for ensuring that the matter was
dealt
with promptly.
[14] In its petition the company raised two issues
arising from the delay. First, it contended that the reinstatement of
the 28 workers
after the lapse of a period of six years was wholly
inappropriate. It pointed out that, amongst other things, a number of
the jobs
concerned had since been outsourced, considerable business
restructuring had occurred, and there had subsequently been further
retrenchments.
(Evidence to that effect was similarly given during
the course of the trial.) Secondly, it contended that the order that
was made
by Pillay J is in conflict with the decision of the Labour
Appeal Court in
Chemical Workers’
Industrial Union v Latex Surgical Products (Pty) Ltd.
24
It is convenient to deal with that issue first.
[15]
Latex Surgical Products
similarly concerned the retrenchment of
workers. It was found by the Labour Appeal Court, amongst other
things (as the Labour Court
found in this case) that the affected
workers were not selected for dismissal in accordance with criteria
that were fair and objective.
25
As for the remedy the court considered it appropriate to
order reinstatement, but it held that in the case of ‘an
ordinary unfair
dismissal’ (by which was meant a dismissal that
is not automatically unfair as contemplated by s 187(1) of the Act)
26
it is ‘not competent to order retrospective
operation of a reinstatement order…which is in excess of 12
months’.
27
[16] That case was decided after the order in the
present case was made but before the petition to the Labour Appeal
Court for leave
to appeal was filed, which expressly relied upon that
decision.
28
It is curious in those circumstances that leave to
appeal was refused by the Labour Appeal Court because the order made
by Pillay
J is in conflict with the construction of the law that was
adopted by the Labour Appeal Court in
Latex
Surgical Products.
If
Latex
Surgical Products
was correctly decided on
that point then clearly the order made in this case cannot stand. But
even if
Latex Surgical Products
was
not correctly decided (with the result that it was legally competent
for the Labour Court to make the order that it made) the
further
question (which in my view is related to the first for reasons that I
will come to) is whether it was appropriate for a reinstatement
order
to be made so long after the dismissals occurred. In my view those
are both issues that have potential ramifications far beyond
the
immediate interests of the parties in this case and warrant this
court’s entertaining the appeal.
[17] The Act allows for any one of three remedies to be
granted to a worker who has been unfairly dismissed: the employer may
be ordered
to reinstate the worker, or the employer may be ordered to
re-employ the worker, or the employer may be ordered to pay
compensation.
29
The legislatively preferred remedy is the restoration of
the worker to employment either by reinstatement or by re-employment.
Either
of those remedies must be granted except in specified
circumstances,
30
in which case compensation may be ordered, but to a
maximum amount equivalent to 12 or 24 months’ remuneration
depending upon
the nature of the dismissal.
31
(In the present case the maximum would be 12 months’
remuneration, and I will deal with the matter with reference only to
a
case of that nature.)
[18] In
Latex Surgical Products
Zondo JP, adopting the reasoning of his
earlier minority opinion in
Kroukam,
32
pointed to the apparent anomaly that might arise if an
order for reinstatement were to be made more than 12 months after the
date
of dismissal. The effect would be that the employer would
ordinarily be liable to remunerate the worker for the period from
dismissal
until the order was made (more than 12 months) whereas had
an order for compensation been made the employer’s liability
would
have been limited to remuneration for 12 months.
33
Relying upon inferences that were sought to be drawn
from the background against which the Act was drafted it appears to
have been
the view of the learned Judge President that that could not
have been intended.
34
The learned Judge President also said that it was
arguable that the liability of an employer to recompense a worker for
lost back-pay
when an order for reinstatement is made can be
construed as compensation as envisaged by s 195 of the Act.
35
On those twin bases (as I understand the reasoning that
led to his conclusion) it was held that the Act must be construed so
that
an order for reinstatement could not be given ‘retrospective
operation’ for longer than 12 months.
36
[19] I respectfully disagree with that construction. I
do not think that the back-pay to which a worker ordinarily becomes
entitled
when an order for reinstatement is made is to be equated
with compensation (thus allowing for the limitation contained in s
194 to
be applied in relation to back-pay).
37
As pointed out by Davis AJA in
Kroukam,
38
(and I respectfully agree) an order of reinstatement
restores the former contract and any amount that was payable to the
worker under
that contract necessarily becomes due to the worker on
that ground alone. Perhaps a court (or an arbitrator) that makes such
an order
may also order that part of that remuneration shall not be
recoverable (I make no finding on that point) but I agree with Davis
AJA
that the remuneration becomes due under the terms of the contract
itself and does not constitute compensation as envisaged by s 194.
39
I can also see no proper reason to read into the Act the
limitation that is suggested in
Latex Surgical
Products.
I do not think it is permissible to
interpret a statute with reference to the supposed intention of
parties who had an interest in
its enactment and it would be most
undesirable to do so. The meaning of a statute is ordinarily to be
interpreted with reference
to the language in which it is expressed.
It is true that the language must be seen in its context, which
includes its background,
but the background must necessarily play a
limited role when the language is clear.
40
In the present case it is apparent from the statute that
it was carefully and meticulously crafted to create a coherent
structure
for resolving labour disputes and I can see no grounds for
assuming that the limitation that is now suggested was inadvertently
omitted
from section 194(1) but not omitted from the next section. I
might add that the very existence of two separate remedies
(reinstatement
and re-employment) to restore the worker to
employment, but by different means, might in itself suggest that it
is inherent in reinstatement,
as that word is used in the Act, that
the contract revives from the date of
dismissal (notwithstanding the apparent power to restore
it from a later date)
41
but it is not necessary to decide whether that is so. It
is sufficient to say that there are no proper grounds for inferring
that
the limitation suggested in
Latex
Surgical Products
was inadvertently omitted
and ought now to be read into the section.
[20] It follows that the order that was made by the
Labour Court was competent in law. But it does not follow that the
order was properly
made. The apparent anomaly referred to by the
Labour Appeal Court occurs only if an order restoring the worker to
employment is made
with effect from a date earlier than 12 months
from the date of the order. In my view it is most probable that the
draftsman of the
Act omitted to place any limitation on that term
simply because it was never anticipated that orders of that kind
might be made more
than 12 months after the dismissal occurred. I
have already pointed out that a hallmark of the Act in this regard is
its insistence
upon disputes concerning unfair dismissal being
resolved expeditiously. 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 into 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. In my view
the present case
illustrates the point.
[21] That retrenchments were justified was not in
dispute. The dispute was confined to the selection of those who were
to be dismissed.
Had a court made a finding immediately after the
dismissal had occurred that the workers concerned in this case were
unfairly chosen
and ordered their reinstatement the company would
have been entitled to revisit its selection process and select others
to dismiss
instead. In the ordinary course it will clearly be
progressively prejudicial with the passage of time for an order to be
made that
has that effect, both to the employer who must arrange its
affairs, and to other workers who are prone to being selected for
dismissal.
In the present case the problem is exacerbated by the fact
that by the time the Labour Court made its order there had been
further
retrenchments and some of the company’s operations had
been restructured.
[22] That is not to suggest that an order for
reinstatement or re-employment may not be made whenever there has
been delay, nor that
such an order may not be made more than 12
months after the dismissal. It means only that the remedies were
probably provided for
in the Act in the belief that they would be
applied soon after the dismissals had occurred, and that is a
material fact to be borne
in mind in assessing whether any alleged
impracticality of implementing such an order is reasonable or not. In
the present case the
passage of six years from the time the workers
were dismissed, all of which followed consequentially upon the
failure of the union
to pursue the claim expeditiously, was
sufficient in itself to find that it was not reasonably practicable
to reinstate or re-employ
the workers. In my view it was entirely
inappropriate for such an order to be granted. If the learned judge
exercised any discretion
in that regard at all (whether she did so is
not apparent from the judgment) in my view the order that she made is
the clearest indication
that she misdirected herself in doing so and
the order cannot stand. The only alternative remedy that is available
in the circumstances
is an order that the company compensate the
workers for their unfair dismissal. That must necessarily be limited
to 12 months’
remuneration and the company accepted that that
would be appropriate. The company also did not press for the costs of
this appeal.
[23] The following orders are made:
1. The application for leave to appeal against
paragraphs 2 and 3 of the order made by the Labour Court on 13
September 2005 is granted.
2. The appeal is upheld. Paragraphs 2 and 3 of that
order are set aside and the following order, which is to be
applicable to the
workers named in paragraph 2 mentioned above, is
substituted in their stead:
‘
The respondent is ordered to pay compensation to
each of the applicants equivalent to 12 months’ remuneration at
the rate of
remuneration applicable at the time of dismissal.’
________________________
R.W. NUGENT
JUDGE OF APPEAL
CONCUR
:
FARLAM JA)
JAFTA JA)
MLAMBO JA)
MAYA JA)
1
Sections
166
(1) and (2) of the
Labour Relations Act 1995
.
2
See
s 21(3)(c)(ii) of the Supreme Court Act 1959.
3
Rules
4(7) and (8) of the Rules Regulating the Conduct of the Proceedings
of the Labour Appeal Court promulgated under Government
Notice 1666
in Government Gazette 17495 of 14 October 1996 as amended.
4
2003
(1) SACR 123
(SCA).
5
2005
(5) SA 433
(SCA).
6
See
paras 16 and 32.
7
Section
309(1)(a) read with ss 309B(1) and 309C(1), as they then existed.
The relevant sections were subsequently declared to be
invalid by
the Constitutional Court in
S v Steyn
2001 (1) SACR 25
(CC).
8
Khoasasa
para 12. See, too,
S v N
1991 (2) SACR 10
(A) at p 16a-e.
9
Above.
10
Fry’s
Metals
para 23.
11
Fry’s
Metals
para 40.
12
Section
173 of the Constitution.
13
Fry’s
Metals
para 42.
14
Section
191(5)(b)(ii) of the Act.
15
Section
191(1)(b)(i) of the Act.
16
Section
191(5) of the Act.
17
Section
191(5A) of the Act.
18
Section
138(1) of the Act.
19
Section
138(7) of the Act.
20
Rules
for the Conduct of Proceedings in the Labour Court promulgated by
Government Notice 1665 in
Government Gazette 17495 of 14 October
1996.
21
Rule
6(3)(c).
22
Rules
6(4)(a) and (d).
23
Rule
6(5).
24
(2006)
27 ILJ 292 (LAC).
25
Para
97.
26
Para
112.
27
Para
116.
28
Latex
Surgical Products
was decided on 25 November 2005. The petition
to the Labour Appeal Court was filed on or after 30 November 2005
and the parties
were advised on 31 March 2006 that the petition had
been refused.
29
Section
193(1) of the Act.
30
‘193(2):
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless –
the employee does not wish to be reinstated or re-employed;
the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
it is not reasonably practical for the employer to reinstate or
re-employ the employee; or
the dismissal is unfair only because the employer did not follow a
fair procedure.’
31
Section
193(1) read with s 194.
32
Kroukam
v SA Airlink (Pty) Ltd
(2005) 26 ILJ 2153 (LAC). The
pronouncements on the issue in
Kroukam
were said in
Latex
Surgical Products
at para 113 to be obiter.
33
Kroukam
para 126 adopted in
Latex Surgical Products
para 114.
34
Kroukam
paras 124 and 125 adopted in
Latex Surgical Products
para
114.
35
Kroukam
para 123 adopted in
Latex Surgical Products
para 114.
36
Latex
Surgical Products
para 116.
37
Kroukam
para 123 adopted in
Latex Surgical Products
para 114.
38
Davis
AJA in
Kroukam
para 59.
39
Davis
AJA in
Kroukam
para 55.
40
Per
Schreiner JA in
Jaga v Dönges NO
;
Bhana v Dönges
NO
1950 (4) SA 653
(A) page 662H.
41
The
distinction was not drawn in the former Labour Relations Act 1956.
The ordinary modern meaning of ‘reinstatement’
is to
‘reinstall or re-establish (a person a person or thing
in
a place, station, condition
etc
) ; to restore to its proper
or original state (Shorter Oxford English Dictionary) cf
Consolidated Frame Cotton Corporation
but in the context of
the former Act. Contra Martin Brassey:
Commentary on the Labour
Relations Act
(Rev. Ser. 2 2006) A8-145; John Grogan:
Dismissal
Discrimination and Unfair Labour Practices
498-9; Clive Thompson
and Paul Benjamin:
South African Labour Law
Vol 1 (Service 47
2005) AA1-449, but in which the point is not fully considered.