CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 220/22
In the matter between:
REGENESYS MANAGEMENT (PTY)
LIMITED t/a REGENESYS Applicant
and
SIBONGILE CHARLOTTE ILUNGA First Respondent
MARIA ANTONIA OLIVEIRA DOS SANTOS Second Respondent
MAPASEKA PATIENCE NKODI Third Respondent
NOMPUMELELO MAHLANGU Fourth Respondent
and
In the matter between:
SIBONGILE CHARLOTTE ILUNGA First Applicant in cross-appeal
MARIA ANTONIA OLIVEIRA DOS SANTOS Second Applicant in cross-appeal
MAPASEKA PATIENCE NKODI Third Applicant in cross-appeal
NOMPUMELELO MAHLANGU Fourth Applicant in cross-appeal
SUSARA MARIA NORTJÉ Fifth Applicant in cross-appeal
BETH MANN Sixth Applicant in cross-appeal
STACEY-LEIGH CHALKLEN Seventh Applicant in cross-appeal
and
REGENESYS MANAGEMENT (PTY)
LIMITED t/a REGENESYS Respondent in cross-appeal
Neutral citation: Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and
Others [2024] ZACC 8
Coram: Zondo CJ, Maya DCJ, Kollapen J, Mathopo J, Rogers J,
Schippers AJ, Theron J, Tshiqi J and Van Zyl AJ
Judgments: Zondo CJ (majority): [1] to [242]
Rogers J (concurring): [243] to [263]
Heard on: 14 September 2023
Decided on: 21 May 2024
Summary: Employees’ posts declared redundant — inadequate
consultation — employees required to apply for own positions
unsuccessful — selection criteria — knowledge, skills and
behaviour — compensation under section 189A(13)(d) can be
standalone remedy — section 189A(18) does not exclude section
189A(13) jurisdiction of the Labour Court — reinstatement —
compensation.
ORDER
On appeal from the Labour Appeal Court of South Africa (hearing an appeal from the
Labour Court):
1. Leave to appeal and to cross-appeal is granted.
2. The appeal is dismissed with costs including the costs of two Counsel
where two Counsel were employed.
3. The cross-appeal is upheld with costs including the costs consequent
upon the employment of two Counsel where two Counsel were
employed.
4. Save in respect of the sixth and ninth respondents in the
Labour Appeal Court (Ms Wendy Mary Malleson and
Ms Ariadne David):
(a) the decision of the Labour Appeal Court that the Labour Court had
no jurisdiction to adjudicate disputes about the procedural fairness
of dismissals for operational requirements is set aside.
(b) the order of the Labour Appeal Court on costs in that Court is
hereby set aside and replaced with the following:
“The appellant is to pay the costs of the appeal including the costs of
two Counsel where two Counsel were employed.”
(c) the order of the Labour Appeal Court setting aside the order of the
Labour Court on costs is hereby set aside.
(d) the order of the Labour Court is reinstated.
JUDGMENT
ZONDO CJ (Maya DCJ, Kollapen J, Mathopo J, Schippers AJ, Theron J, Tshiqi J and
Van Zyl AJ concurring):
Introduction
[1] Before us are an application for leave to appeal, and, an application for leave to
cross-appeal, against certain orders of the Labour Appeal Court. The applicant in the
application for leave to appeal is Regenesys Management (Pty) Limited (Regenesys).
Regenesys operates as a private tertiary institution that provides certain courses
including degrees to students. The respondents in Regenesys’ application are
Ms Sibongile Charlotte Ilunga, first respondent, Dr Maria Antonia Oliveira Dos Santos,
second respondent, Ms Mapaseka Patience Nkodi, third respondent and
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Ms Nompumelelo Mahlangu, fourth respondent. The respondents are former
employees of Regenesys.
[2] Although I shall deal with the application for leave to cross-appeal later in this
judgment, it seems appropriate to specify at this stage who the applicants in the
application for leave to cross-appeal are. This is because, when I set out the factual
background to this matter shortly, that background will relate not only to the
respondents in the application for leave to appeal but also to the applicants in the
application for leave to cross-appeal.
[3] The applicants in the application for leave to cross-appeal are:
(a) Ms Sibongile Charlotte Ilunga, the first applicant;
(b) Dr Maria Antonia Oliveira Dos Santos, the second applicant;
(c) Ms Mapaseka Patience Nkodi, the third applicant;
(d) Ms Nompumelelo Mahlangu, the fourth applicant;
(e) Ms Susara Maria Nortjé, the fifth applicant;
(f) Ms Beth Mann, the sixth applicant; and,
(g) Ms Stacey-Leigh Chalklen, the seventh applicant.
The first, second, third and fourth applicants in the application for leave to cross-appeal
are the first, second, third and fourth respondents in Regenesys’ application for leave to
appeal. The fifth, sixth and seventh applicants in the application for leave to
cross-appeal are also former employees of Regenesys who were dismissed at more or
less the same time as the respondents in Regenesys’ application for leave to appeal. The
respondent in the application for leave to cross-appeal is Regenesys.
[4] If we grant Regenesys leave to appeal, its appeal will be against the dismissal by
the Labour Appeal Court of its appeal against the Labour Court’s conclusion that the
dismissals of certain employees were substantively unfair and the orders of
reinstatement granted by the Labour Court in favour of certain of the employees and the
order of a payment of a large amount of compensation to one of the employees whose
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dismissal it had found to be substantively unfair. If the cross-appeal applicants are
granted leave, their appeal will be against the decision of the Labour Appeal Court that,
in the light of section 189A(18)
1 of the Labour Relations Act2 (LRA), the Labour Court
has no jurisdiction to adjudicate a dispute about the procedural fairness of a dismissal
for operational requirements including one that is brought in the Labour Court by way
of an application in terms of section 189A(13) 3 of the LRA. They will also appeal
against the order of the Labour Appeal Court setting aside the amounts of compensation
awarded by the Labour Court to the employees whose dismissals it had found to have
been procedurally unfair. Wherever I refer to a section or subsection in this judgment
without mentioning the LRA, this will be a reference to a section or subsection of the
LRA.
[5] When I refer to the respondents in the application for leave to appeal only, I shall
refer to them simply as the appeal respondents. I shall refer to the applicants in the
application for leave to cross-appeal as the cross-appeal applicants. When I want to
refer to both the appeal respondents and the cross-appeal applicants, I shall refer to them
as such or as the “employees”.
1 Section 189A(18) of the Labour Relations Act reads:
“(18) The Labour Court may not adjudicate a dispute about the procedural fairness of a
dismissal based on the employer’s operational requirements in any dispute referred to
it in terms of section 191(5)(b)(ii).”
2 66 of 1995.
3 Section 189A(13) of the LRA reads:
“(13) If an employer does not comply with a fair procedure, a consulting party may approach
the Labour Court by way of an application for an order–
(a) compelling the employer to comply with a fair procedure;
(b) interdicting or restraining the employer from dismissing an employee prior to
complying with a fair procedure;
(c) directing the employer to reinstate an employee until it has complied with a
fair procedure;
(d) make an award of compensation, if an order in terms of paragraphs (a) to (c)
is not appropriate.”
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Factual background
[6] The judgment of the Labour Court is very comprehensive and sets out detailed
evidence heard by that Court. For that reason, I do not consider it necessary to set out
the background to this case in any great detail. I shall refer only to those facts that I
consider necessary for a proper understanding of this judgment and which are relevant,
given the issues before this Court.
[7] Regenesys called its staff to a meeting on 17 June 2015. At that meeting the staff
were informed that for some time Regenesys had been concerned about its revenue and
costs and had explored certain options to deal with its challenges about revenue and
costs. The management informed the staff that the options that had been considered
were a bank loan, embarking upon efforts to improve the efficiency of employees and
the management had not been given salary increases.
[8] The staff were also informed that there was a need for retrenchment as a result
of Regenesys’ financial position. The management told the staff that its wage bill made
up 43% of its expenses. The staff were informed that group meetings would be held
the following day to discuss the possibility of retrenchment. It is not clear that the staff
had much to say in response at this meeting. Maybe this should not be surprising
because it seems that Regenesys was simply informing them of what was going to
happen.
[9] On 18 June 2015 meetings took place between the management and the staff of
certain departments that Regenesys had identified as the affected departments. In those
meetings the management showed the staff a new structure of the organisation that it
had prepared with which it “proposed” to replace the then existing structure. In other
words, Regenesys had decided that it needed to restructure the organisation in order to
deal with its financial problem s. The employees were handed the proposed structure
and invited to make proposals or recommendations on the structure.
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[10] Only two staff members made proposals to the management. They were
Ms Nortjé and Ms Ilunga. One of the proposals made was that a facilitator from the
Commission for Conciliation, Mediation and Arbitration (CCMA) be secured to
facilitate the consultation. It is not clear whether Regenesys responded to this proposal
but no facilitation took place. The probabilities are that Regenesys either rejected it or
simply ignored it and went ahead with its plan of what it wanted to do. If it had accepted
it, but there was some other reason why in the end the facilitation did not take place,
Regenesys would have highlighted that such a facilitation did take place, especially
when it was accused of having dismissed the employees in a procedurally unfair
manner. It did not do so.
[11] On 22 June 2015 Regenesys gave the employees the final structure. That
structure reflected various vacant positions. Regenesys then invited the employees to
apply for positions to which they wanted to be appointed in the new structure of the
organisation. The employees were required to submit their applications by 13h00 on
the same day, namely, 23 June 2015. They were provided with abridged application
forms to complete and submit.
[12] The positions which the employees or at least some of the employees occupied
were included in the new structure as positions in respect of which applications had to
be made. The employees were told that the selection criterion for filling the positions
in the new structure was competence which was said to include knowledge, skills, and
behaviour. The employees applied for appointment to their respective positions and
other similar positions. On 24 June 2015 the employees were informed that their
applications were unsuccessful and that they were then being retrenched with effect
from 31 July 2015. They were informed that July would serve as their notice month.
However, Ms Wendy Mary Malleson, who was an applicant in the Labour Court but is
not part of the proceedings in this Court, fell sick on 23 June 2015 and was only
informed of her retrenchment on 29 June 2015. Ms Chalklen took a 2.5% salary cut in
order to avoid retrenchment.
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[13] On 5 August 2015 Ms Malleson was informed that her performance was not
commensurate with her salary. Ms Brownlee and Dr Law of the management of
Regenesys informed her that her job could be outsourced for R12 000 per month. This
was R40 000 less than her monthly salary. Ms Brownlee and Dr Law handed her a
separation agreement to sign. When she rejected the separation agreement, Regenesys
gave her a written notice in terms of section 189(3) 4 and dismissed her in a meeting
held on 17 August 2015. A notice in terms of section 189(3) tells the employee that the
employer contemplates his or her dismissal for operational requirements and invites the
employee to a consultation on the issues which are set out in the provision.
[14] Ms Mann was offered the position of Marketing Database Co-ordinator but she
rejected that offer. In her evidence Ms Brownlee testified that the reason for Ms Mann’s
retrenchment – when it was contemplated – was recorded by Regenesys as being that
Regenesys was implementing a new business model and organisational structure to
improve operational efficiencies and effectiveness. Ms Brownlee said that the reason
why the section 189(3) notices did not say that the retrenchment was due to Regenesys’
financial problems was that it did not want to alarm the external markets about its
financial position as that could have had dire consequences for it and could have scared
4 Section 189(3) reads:
“(3) The employer must issue a written notice inviting the other consulting party to consult
with it and disclose in writing all relevant information, including, but not limited to–
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals,
and the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which
they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take
effect; the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to
be dismissed;
(h) the possibility of the fu ture re -employment of the employees who are
dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for reasons based
on its operation requirements in the preceding 12 months.”
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off students. Regenesys stated that the employees, including the appeal respondents
and the cross -appeal applicants, were selected for retrenchment because they did not
meet the selection criteria of knowledge, skills and behaviour in respect of the positions
that they had applied for. Strangely, some of the positions to which at least some of the
appeal respondents and cross-appeal applicants were not appointed were the positions
that they occupied for some time before they were retrenched.
[15] After the employees had received their letters of dismissal and even before
31 July 2015 – which was the date from which the dismissals would take effect – the
employees referred to the CCMA for conciliation an unfair dism issal dispute in which
they contended that their dismissals were both procedurally and substantively unfair.
That dispute was conciliated by the CCMA on 13 August 2015 but the conciliation was
unsuccessful. The CCMA issued a certificate that the dispute remained unresolved.
The employees then referred that dispute to the Labour Court. From their affidavit in
the section 189A(13) application it seems that the dispute that they referred to the
Labour Court for adjudication in terms of section 191(5) concerned both the procedural
and substantive fairness of their dismissals. As will be seen below, on or about
8 September 2015 they applied in the Labour Court for the adjudication of their dispute
with Regenesys concerning the procedural fairness of their dismissals and asked for
temporary reinstatement or compensation. The dismissals took effect on 31 July 2015.
Labour Court
[16] As stated earlier, the appeal respondents and the cross-appeal applicants were
dismissed by Regenesys with effect from 31 July 2015 except one who was dismissed
some time in August 2015. As already stated, on or about 8 September 2015 the
appeal respondents and the cross-appeal applicants instituted an application in the
Labour Court in terms of section 189A(13) for an order reinstating them in Regenesys’
employment until Regenesys had complied with a fair procedure in terms of
section 189A(13)(c) or alternatively for the award of compensation in terms of
section 189A(13)(d).
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[17] The employees brought their section 189A(13) application as an
urgent application. The first prayer they sought in their notice of motion was
condonation for instituting the application outside the prescribed period of 30 days. The
second was “dispensing with the provisions of the rules relating to times and the manner
of service in dealing with this matter as one of urgency in terms of Rule 8 of the Rules”
of the Labour Court “should the Court upon case management so direct”. The
third prayer was: “Directing [Regenesys] to reinstate the [applicants] until such time as
it has complied with a fair procedure in terms of section 189A alternatively awarding
the applicants compensation in respect of procedurally unfair dismissals”. They also
asked that “those who oppose this application” be ordered to pay the costs thereof.
[18] In the founding affidavit filed in support of the section 189A(13)
application – which was deposed to by Ms Nortjé – the employees made this request to
the Labour Court:
“The applicants request that a Judge be appointed in terms of item 11.1
of the above Honourable Court ’s Practice Manual to undertake
management of this case and to ensure an expedited hearing of the
matter.” (Emphasis added.)
At some stage the Labour Court, through Gush J, consolidated both matters, namely the
one referred to the Labour Court in terms of section 191(5)(b)(ii) and the application
under section 189A(13). The Labour Court also condoned the employees’ late filing of
their section 189A(13) application. Gush J ordered that the two matters be adjudicated
together.
[19] In due course the two consolidated matters came before Prinsloo J for trial. The
Court found the dismissal of all the employees to have been procedurally unfair. It
found the dismissal of some of the employees to have been substantively unfair as well
and that of others to have been substantively fair. Those whose dismissals were found
to have been both substantively and procedurally unfair were—
(a) Ms Ilunga;
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(b) Dr Dos Santos;
(c) Ms Nkodi; and
(d) Ms Mahlangu.
Those whose dismissals were found to have been procedurally unfair only were—
(a) Ms Nortjé;
(b) Ms Mann;
(c) Ms Malleson;
(d) Ms Chalklen; and
(e) Ms Ariadne David (she, like Ms Malleson, was an applicant in the
Labour Court but is not a party in this Court).
Two of these, namely, Ms Malleson and Ms David, appeal against the decision of the
Labour Appeal Court setting aside the Labour Court’s order against Regenesys for the
the payment of compensation.
[20] The Labour Court ordered Regenesys to reinstate Ms Ilunga, Ms Nkodi and
Ms Mahlangu with effect from the dates of their respective dismissals. Although
Dr Dos Santos’ dismissal was found to have been both substantively and
procedurally unfair, the Labour Court did not order her reinstatement but ordered that
she be paid R766 378.08 which was the equivalent of 12 months’ remuneration
calculated at her rate of remuneration as at the date of dismissal. This was because, by
the time the Labour Court gave judgment in February 2020, Dr Dos Santos had already
reached her retirement age. Those in whose favour reinstatement orders were made
were ordered to repay the severance pay they had received on retrenchment. Regenesys
was given the right to effect a set-off in respect of what it had to pay the employees who
were to be reinstated and what the employee had to repay to the employer.
[21] The Labour Court awarded compensation to the cross-appeal applicants whose
dismissals it found to have been procedurally unfair only. Here are the amounts of
compensation that the Labour Court ordered in their favour:
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(a) Ms Nortjé: R429 999.96 (12 months’ remuneration)
(b) Ms Mann: R262 359.36 (12 months’ remuneration)
(c) Ms Malleson: R410 970.00 (12 months’ remuneration)
(d) Ms Chalklen: R312 000.00 (6 months’ remuneration)
(e) Ms David: R384 936.72 (12 months’ remuneration)
(f) Dr Dos Santos R766 378.08 (12 months’ remuneration)
The Labour Court ordered Regenesys to pay the appeal respondents’ and cross -appeal
applicants’ costs. It gave specific reasons as to why it was ordering Regenesys to pay
costs when the norm in labour matters is that no costs are awarded.
[22] The Labour Court dealt with the case of each one of the employees before it and
gave reasons why it found their dismissals to have been either substantively fair or
substantively unfair. It also gave reasons for its conclusion that the dismissal of all the
employees was procedurally unfair. It then made the orders it made as already indicated
above. I do not consider it necessary to record the reasons given by the Labour Court
for its conclusion that the dismissals of certain of the employees were
substantively unfair. I also do not record its reasons for its conclusions that the
dismissal of all the employees was procedurally unfair. This is because it is either
common cause or not seriously disputed that Regenesys did not comply with a fair
procedure in dismissing the employees. In any event, for both findings the
Labour Court gave detailed reasons in respect of each individual. Other than its reliance
on knowledge, skills and behaviour as the selection criteria that were used by
Regenesys, the Labour Court’s reasons for finding substantive unfairness are not
challenged.
Labour Appeal Court
[23] Regenesys applied for and was granted leave to appeal to the
Labour Appeal Court against certain orders of the Labour Court. Before the
Labour Appeal Court Regenesys challenged the conclusions reached by the
Labour Court that the dismissals of certain specified employees were substantively
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unfair and that it had jurisdiction to determine whether the dismissals of the employees
were procedurally unfair.
[24] In the Labour Appeal Court Regenesys contended that the skills, knowledge and
behaviour that Regenesys had said during the consultation process and in the trial were
the selection criteria that had been used were actually not selection criteria. In other
words, Regenesys was saying that, to the extent that the Labour Court made its decision
on the basis that skills, knowledge and behaviour were the selection criteria used, it was
wrong. Skills, knowledge and behaviour were, Regenesys argued, the criteria used
when the affected employees applied for positions in the new structure. Regenesys thus
distinguished between selection criteria for retrenchment and assessment criteria for
competition for new positions. Regenesys relied on the decision of the
Labour Appeal Court in Louw
5 in support of this contention.
[25] The Labour Appeal Court rejected Regenesys’ contention. It distinguished the
case of Louw. The Labour Appeal Court, therefore, rejected Regenesys’ contention that
the Labour Court had erred in concluding that the dismissals of certain of the employees
were substantively unfair. From the judgment of the Labour Appeal Court this seems
to have been the only point argued by Regenesys to challenge the conclusion of the
Labour Court on the substantive unfairness of the dismissals of some of the employees.
Accordingly, Regenesys’ appeal against the findings of the Labour Court that the
dismissals of certain of the employees were substantively unfair was dismissed.
[26] With regard to whether or not the Labour Court had jurisdiction to determine the
procedural fairness of the dismissals of the employees for operational requirements, the
Labour Appeal Court concluded on the basis of section 189A(18) that the Labour Court
had no jurisdiction to determine such an issue. It held that it was not competent for the
Labour Court to make the orders it made that were based on its conclusion that the
dismissals were procedurally unfair. In support of its conclusion in this regard the
5 South African Breweries (Pty) Ltd v Louw [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189
(LAC).
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Labour Appeal Court relied on this Court’s judgment in CC Steenkamp II.6 I shall deal
with this further later in this judgment.
[27] The Labour Appeal Court then made the following order:
“1. The appeal succeeds.
2. The orders of the Labour Court are set aside and replaced as
follows:
‘1. The dismissals of the second, third, fifth and seventh
applicants [Ms Ilunga, Dr Dos Santos, Ms Nkodi and
Ms Mahlangu respectively] are found to be
substantively unfair;
2. The responden t is to retrospectively reinstate the
second, fifth and seventh applicants, with effect from
the date of dismissal, into the same or similar positions
held by them at the time of their dismissal, with no loss
of benefits;
3. The second, fifth and seventh a pplicants are to repay
any amount received from the respondent as severance
pay, or set off any such amount paid to them by the
respondent in respect of severance pay against the back
pay due to them;
4. The respondent is within fourteen (14) days of this
order to pay to the third applicant [Dr Dos Santos]
compensation in the sum of R766 378.08, being
equivalent to 12 months’ remuneration calculated at
the rate of remuneration which applied on the date of
dismissal;
5. There is no order as to costs.’
3. The appeal against the order of the Labour Court dismissing
the appellant’s application to adduce further evidence is
dismissed.
4. There is no order as to costs.”
6 Steenkamp v Edcon Limited [2019] ZACC 17; 2019 (7) BCLR 826 (CC); [2019] 11 BLLR 1189 (CC) ; (2019)
40 ILJ 1731 (CC).
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It is necessary to make a few observations in regard to this order but the proper place to
make them is not now but later in this judgment.
In this Court
Jurisdiction
[28] As I have already stated earlier, Regenesys applies for leave to appeal against
the judgment and order of the Labour Appeal Court in terms of which that Court upheld
the conclusion of the Labour Court that the dismissals of some of the employees were
substantively unfair and ordered their reinstatement and payment of a large sum of
compensation to one of those employees. The cross-appeal applicants apply for leave
to cross-appeal against the conclusion of the Labour Appeal Court that the Labour Court
had no jurisdiction to determine the procedural fairness of the dismissals for
operational requirements of the employees in whose favour the Labour Court had made
a declaratory order on procedural fairness and ordered Regenes ys to pay them
compensation. The cross-appeal applicants also appeal against the
Labour Appeal Court’s reversal of the costs orders which the Labour Court made in
their favour.
[29] This matter relates to the interpretation and application of the LRA which is
legislation enacted to give effect to section 23 of the Bill of Rights. In terms of this
Court’s decision in NEHAWU
7 and a number of judgments which have since followed
that decision, such a matter raises a constitutional issue. For this reason, this Court has
jurisdiction to entertain this matter.
[30] Furthermore, if we grant the cross-appeal applicants leave to cross-appeal, the
cross-appeal will raise not only a question of the interpretation of the LRA but also a
question of law of general public importance that deserves to be considered by this
7 National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town [2002] ZACC 27;
2003 (2) BCLR 154 (CC); 2003 (3) SA 1 (CC).
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Court. That question is whether, given the provisions of section 189A(18), the
Labour Court has jurisdiction to determine disputes about the procedural unfairness of
dismissals of employees for operational requirements in general or the procedural
fairness of a dismissal of employees for operational requirements to which section 189A
applies and where such employees bring an application before the Labour Court in terms
of section 189A(13). The Labour Appeal Court held that the Labour Court did not have
jurisdiction to adjudicate the procedural fairness of a dismissal for operational
requirements. This decision meant that the Labour Court did not have jurisdiction to
adjudicate such matters even when they have been brought to the Labour Court by way
of an application in terms subsection (13). It based this conclusion on this Court’s
judgment in CC Steenkamp II.
[31] If the Labour Appeal Court’s interpretation is correct, it would mean that the
Labour Court’s jurisdiction to determine a dispute about the procedural fairness of a
dismissal for operational requirements is completely ousted irrespective of whether the
dispute was referred to the Labour Court in terms of section 191(5)(b)(ii) or
section 189A(13). This is so because in the present matter the Labour Appeal Court’s
decision that the Labour Court had no jurisdiction to adjudicate disputes about the
procedural fairness of dismissals for operational requirements is unqualified and was
used in the present case to preclude the adjudication of a subsection (13) application.
That interpretation may well be inconsistent with an employee’s fundamental right to
fair labour practices enshrined in section 23(1) 8 of the Constitution and section 349 of
the Constitution which guarantees every person the right to have their justiciable
disputes adjudicated by a court in a fair public hearing or, in an appropriate case, another
8 Section 23(1) of the Constitution reads:
“(1) Everyone has the right to fair labour practices.”
9 Section 34 reads:
“Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.”
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independent tribunal or forum. It may also be inconsistent with section 38 10 of the
Constitution.
[32] I, therefore, conclude that this Court has jurisdiction in respect of this matter.
Leave to appeal
[33] The next question is whether it is in the interests of justice to grant
leave to appeal and leave to cross-appeal. One of the arguments that Regenesys wishes
to advance – on appeal if it is granted leave to appeal – is that skills, knowledge and
behaviour which it had said at the trial were the selection criteria that it had used to
select the employees who were dismissed are not actually selection criteria as
contemplated in section 189(7). If this contention were to be upheld, this matter is likely
to affect the labour relations community in general and not just the parties before us.
Furthermore, the interpretation of section 189A(18) with regard to the jurisdiction of
the Labour Court to adjudicate disputes about the procedural fairness of dismissals for
operational requirements in general or those referred to the Labour Court in terms of
section 191(5)(b)(ii) or with regard to applications in terms of section 189 A(13) will
affect many workers and employers. With regard to the prospects of success, I am of
the opinion that, if leave to appeal and leave to cross-appeal, are granted, the appeal and
cross-appeal have reasonable prospects of success. The issues in this matter are very
important. It is in the interests of justice to grant both sides the leave each side seeks.
10 Section 38 of the Constitution reads:
“Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.”
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[34] Furthermore, this matter makes it necessary for this Court to examine the
correctness or accuracy of decisions of the Labour Court, Labour Appeal Court and this
Court which contain statements or have held that the Labour Court has no jurisdiction
to adjudicate disputes about the procedural fairness of dismissals for operational
requirements in general or those brought before the Labour Court in terms of
section 189A(13). There appears to be confusion about whether the Labour Court’s
general jurisdiction with regard to such disputes has been ousted by section 189A(18).
There are a number of cases in the Labour Appeal Court and this Court which contain
statements which either suggest that the Labour Court no longer has jurisdiction to
adjudicate disputes about the procedural fairness of dismissals for
operational requirements including those brought to the Labour Court in terms of
subsection (13) or that suggest that it no longer has jurisdiction to adjudicate disputes
about the procedural fairness of dismissals for operational requirements referred to the
Labour Court in terms of section 191(5)(b)(ii).
11 It is in the interests of justice that this
Court brings about clarity in this regard.
[35] It is in the interests of justice to grant both the leave to appeal and the leave to
cross-appeal.
Appeal
Substantive fairness
[36] The first issue that Regenesys raises on appeal is the Labour Court’s conclusion
that the dismissal of certain of the employees was substantively unfair which the
Labour Appeal Court refused to overturn. Regenesys contends that what the
Labour Court accepted as the selection criteria that were used to select the employees
11 Steenkamp v Edcon Ltd [2016] ZACC 1; 2016 (3) SA 251 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335
(CC); (2016) 37 ILJ 564 (CC) at paras 15-8; Edcon Ltd v Steenkamp [2017] ZALAC 81; [2018] 3 BLLR 230
(LAC); (2018) 39 ILJ 531 (LAC) at para 19 ; CC Steenkamp II above n 6 at paras 48 and 70; Solidarity obo
Members v Barloworld Equipment Southern Africa, unreported judgment of the Labour Court, Case No J950 and
913/20 (2 October 2020) at paras 7-13; Solidarity obo Members v Barloworld Equipment Southern Africa [2022]
ZACC 15; [2022] 9 BLLR 779 (CC); (2022) 43 ILJ 1757 (CC); 2023 (1) BCLR 51 (CC) at paras 65-8; Regenesys
Management (Pty) Ltd t/a Regenesys v Nortje [2022] ZALAC 96; (2022) 43 ILJ 2745 (LAC) at paras 15 and 17.
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who were dismissed were actually not the selection criteria. This was a reference to
skills, knowledge and behaviour which Regenesys had told the employees during its
interactions with them prior to their dismissals were the selection criteria that would be
used to fill the vacant positions. It was understood by all concerned that any employee
who was not appointed in one of the vacant positions would be dismissed for
operational requirements. Indeed, Regenesys’ case before the Labour Court was that
skills, knowledge and behaviour were the selection criteria it had used to select the
employees who were ultimately dismissed.
[37] The employees ran their trial on the basis that the selection criteria used to select
those to be dismissed for operational requirements were skills, knowledge and
behaviour. It was only in its appeal in the Labour Appeal Court that Regenesys
contended, for the first time, that skills, knowledge and behaviour were not the selection
criteria for retrenchment but the assessment criteria in the competitive process of
applying for positions in the new structure. It relied, for this submission, on the
judgment of the Labour Appeal Court in Louw . I am unable to find anything in Louw
which supports the submission that skills, knowledge and behaviour, in general, do not
or cannot constitute selection criteria or that in this case they were not used as selection
criteria.
[38] Regenesys seems to contend that the presence of the competitive process relating
to the filling of vacant positions between the declaration of the employees’ positions as
redundant and their ultimate dismissals after they had not been successful in their
applications for those vacancies means that they became disentitled to be selected
according to selection criteria that were fair and objective if the selection criteria had
not been agreed between the parties. I say this because, if skills, knowledge and
behaviour were not selection criteria, then the case must be decided on the basis that the
selection of the employees for retrenchment was not based on any known selection
criteria. Such a dismissal would be substantively unfair.
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[39] The answer to Regenesys’ contention is that the Court cannot rely on this
contention to assess the conclusion reached by the Labour Court on whether the
dismissal of some of the employees was substantively unfair because the trial was run
by both parties on the footing that skills, knowledge and behaviour were the
selection criteria that were used by Regenesys to select these employees for dismissal.
It would be extremely prejudicial to the employees to now decide the appeal on the
basis that the selection criteria were not skills, knowledge, and behaviour. In fact it will
be prejudicial to Regenesys itself. It does not seem prudent on Regenesys’ part to
advance this argument because, if accepted, it would result in a situation where
Regenesys would have no selection criteria to rely on for the selection of the employees
for dismissal. It would not have anything to rely on in the record as having been the
selection criteria that were used and that were disclosed to the employees prior to their
retrenchment. That would compound the unfairness of the dismissal, including at a
substantive level. In these circumstances, this contention cannot be entertained.
[40] Regenesys also contends that the Labour Court erred in rejecting its submission
that it (i.e. the Labour Court) wa s not entitled to entertain the employees’ contention
that it (i.e. Regenesys) applied the selection criteria unfairly. This contention is based
on the proposition that, although the pre- trial minute agreed to between the parties
reflected that this was one of the issues to be decided by the Court, the employees did
not subsequently amend their statement of claim to include this issue. Regenesys
submits that, in the absence of such an amendment, the Labour Court erred in
entertaining this point. According to Regenesys, on the pleadings the dismissed
employees were confined to a case that the selection criteria were unfair, not that they
were unfairly applied.
[41] There is a short answer to this contention. This is an appeal against a judgment
and order of the Labour Appeal Court. Therefore, there must be an order or finding or
failure to make a finding by the Labour Appeal Court which Regenesys submits was
erroneous. In order for Regenesys’ appeal against the judgment of the
Labour Appeal Court to succeed, Regenesys must show that the Labour Appeal Court
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erred in a certain respect. Regenesys cannot contend, and, this Court cannot conclude,
that the Labour Appeal Court erred in regard to a certain point or finding unless it was
required to consider that point or finding.
[42] If it was not part of R egenesys’ case before the Labour Appeal Court that the
Labour Appeal Court should consider or reassess a certain finding or point, the
Labour Appeal Court will not have erred if it did not deal with that point. In fact, if the
Labour Appeal Court considered a finding or point that was not in issue between the
parties in the Labour Appeal Court, any party adversely affected by its conclusion on
such point may legitimately complain. In fact it would even be a ground of appeal that
the Labour Appeal Court made an adverse finding on a point which was not in issue
between the parties.
[43] An exception to this would be a point of law because a court may raise a point
of law mero motu if the point does not need any new evidence to be led and if it would
not be unfair to one or both parties for the court to consider and take into account that
point of law. A reading of the judgment of the Labour Appeal Court does not reveal
that that Court ever dealt with this issue or with the Labour Court’s decision or
conclusion rejecting Regenesys’ contention in this regard. Indeed, a reading of
Regenesys’ notice of appeal to the Labour Appeal Court reveals that Regenesys did not
challenge the Labour Court’s conclusion or finding that the employees’ pleadings
covered the point that Regenesys had applied the selection criteria unfairly. That
explains why the judgment of the Labour Appeal Court did not deal with this issue.
[44] Can a party challenge in the second or further appeal court a finding or
conclusion adverse to it that was made by the court of first instance which it did not
challenge in the first appeal court? The answer is: When a party appeals to a second or
further appeal court, it appeals against a judgment or order or conclusion of the first
appeal court. It does not appeal against the judgment and order of the court of first
instance. Therefore, a finding or conclusion or order of the court of first instance that a
party did not appeal against or challenge in its appeal to the first appeal court cannot be
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appealed against or challenged by such a party in an appeal to a second or further
appeal court. In this case Regenesys applied to this Court for leave to appeal against
the judgment and order of the Labour Appeal Court and not against the judgment and
order of the Labour Court. It, therefore, cannot challenge in this Court a finding or
conclusion or order of the Labour Court that it did not include in its appeal to the
Labour Appeal Court. Therefore, its contention in this regard falls to be rejected.
[45] Regenesys also contends that the Labour Appeal Court erred in not setting aside
the orders of reinstatement that were made by the Labour Court pursuant to its
conclusion that the dismissals of certain of the appeal respondents and cross-appeal
applicants were substantively unfair. It submits that the Labour Appeal Court should
have set aside those orders. In support of this submission Regenesys referred to the fact
that the appeal respondents and the cross -appeal applicants had not given or led any
evidence including evidence about their personal circumstances. The Labour Court
gave comprehensive reasons why it found that the dismissals of certain of the employees
were substantively unfair. The Labour Appeal Court also concluded that there was no
proper basis advanced by Regenesys that would justify interfering with the
Labour Court’s conclusion in this regard. I agree that there were proper grounds for the
Labour Court to find that the dismissals were substantively unfair. I am here referring
to the dismissal of the employees that the Labour Court found to have been
substantively unfair.
[46] Regenesys also contended that, in granting orders of reinstatement in favour of
certain specified employees, the Labour Court had failed to have regard to the
provisions of section 193(2) and, for that reason, the orders of reinstatement that it made
should be set aside and the employees concerned should be awarded compensation.
This contention was advanced in the event that this Court was not persuaded to overturn
the Labour Court’s conclusions that the dismissals of certain employees were
substantively unfair. In support of its contention Regenesys quoted certain passages
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from the judgment of this Court in SARS12 and the Labour Appeal Court’s judgment in
Mediterranean Textile Mills (Pty) Ltd.13
[47] This contention cannot be entertained. There is no indication in the judgment of
the Labour Appeal Court that it was part of Regenesys’ appeal before that Court that
the Labour Court had erred in granting reinstatement to specified employees because it
failed to have regard to section 193(2). Indeed, a reading of the notice of appeal to the
Labour Appeal Court reveals that there was no appeal by Regenesys to the
Labour Appeal Court against the alleged failure of the Labour Court to have regard to
section 193(2). Regenesys may not appeal to this Court against a finding or conclusion
made by the Labour Court which it (i.e. Regenesys) did not challenge in its appeal to
the Labour Appeal Court.
[48] Furthermore, the orders that the reinstatement in each case be retrospective to
the date of dismissal of each employee in whose favour the finding of substantive
unfairness had been made was also justified because:
(a) there is no suggestion that the employees were responsible for any delay
in the finalisation of the matters; instead Regenesys had caused some long
delays;
(b) Regenesys had failed to engage in proper consultations which may have
avoided the dismissals of the appeal respondents and the cross-appeal
applicants and this litigation; and
(c) Regenesys had not been honest with the employees when it purported to
consult with them in that it did not inform them about the role of its
financial problems in the decision to restructure the organisation and to
retrench.
12 South African Revenue Services v Commission for Conciliation, Mediation and Arbitration [2016] ZACC 38;
[2017] 1 BLLR 8 (CC); 2017 (1) SA 549 (CC); (2017) 38 ILJ 97 (CC) at para 38.
13 Mediterranean Textile Mills (Pty) Ltd v SA Clothing & Textile Workers Union [2011] JOL 28117 (LAC); [2012]
2 BLLR 142 (LAC); (2012) 33 ILJ 160 (LAC) at para 30.
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[49] Regenesys also challenged on appeal the Labour Appeal Court’s failure or
refusal to interfere with the Labour Court’s award of compensation of 12 months’
remuneration to the second respondent, Dr Dos Santos. It contended that the
Labour Court or Labour Appeal Court had not had due regard to the following:
(a) Dr Dos Santos did not testify as to her personal circumstance.
(b) Dr Dos Santos did not seek clarity on the retrenchment process.
(c) Regenesys had a justifiable reason to embark upon a retrenchment exercise.
(d) Regenesys’ financial position and Dr Dos Santos’ conduct just prior to the
retrenchment.
The contention was in effect that, if the Labour Court had had due regard to the above
factors, Dr Dos Santos would not have been awarded the maximum compensation
permitted in law, namely 12 months’ remuneration.
[50] I shall deal with the question whether the Labour Court had jurisdiction to deal
with the procedural fairness or otherwise of the dismissal of the employees and the
power to order payment of compensation when I deal with the cross-appeal. However,
for purposes of dealing with Regenesys’ contention, I am able to say that, assuming that
the Labour Court had the requisite jurisdiction, it was justified in rejecting Regenesys’
contention in this regard once it accepted that the appeal respondents whose dismissals
it had found to have been substantively unfair had to be reinstated retrospectively from
the dates of their respective dismissals. Those appeal respondents were effectively
awarded back pay of over four years.
[51] Regenesys also submitted that the Labour Court should have granted it leave to
adduce the further evidence it applied for leave to adduce after it had closed its case
which the Labour Court had dismissed. Regenesys contended that the
Labour Appeal Court erred in upholding the decision of the La bour Court. The
Labour Appeal Court gave persuasive reasons as to why the Labour Court did not err in
dismissing Regenesys’ application to adduce further evidence. I agree with those
reasons. It is not necessary to repeat those reasons here. They can be found in the
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Labour Appeal Court’s judgment. Accordingly, Regenesys’ contention in this regard
falls to be rejected.
[52] The orders of reinstatement were justified because:
(a) the dismissals had been found to have been substantively unfair;
(b) reinstatement is the primary remedy for substantively unfair dismissal
unless the employer proves one or more of the exceptions listed in
section 193 of the LRA which Regenesys did not prove; and
(c) these were no-fault terminations in the sense that the employees were not
dismissed because they had done anything wrong. The employees were
dismissed at the end of July 2015 and the Labour Court handed down its
judgment on 19 June 2019.
There would have been no justification for the Labour Court to award Dr Dos Santos
compensation that was less than 12 months’ remuneration when her dismissal had been
found to have been substantively unfair where her colleagues whose dismissals had also
been found to have been substantively unfair were granted retrospective reinstatement
that effectively gave them four years’ backpay.
[53] In the circumstances Regenesys’ appeal falls to be dismissed. This is an
appropriate case in which a costs order should be made against Regenesys. The success
of the employees, the manner in which Regenesys handled the restructuring and the
retrenchment and the manner in which it failed to have a proper consultation with the
employees all justify an order of costs against it. Accordingly, the appeal is to be
dismissed with costs.
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The cross-appeal
Disputes about the procedural fairness of dismissals for operational
requirements
[54] In the present case the Labour Appeal Court upheld Regenesys’ appeal against
the conclusion of the Labour Court that the Labour Court had jurisdiction to adjudicate
a dispute about the procedural fairness of a dismissal for operational requirements. The
cross-appeal applicants cross-appeal against the decision of the Labour Appeal Court
that, given the provisions of section 189A(18) of the LRA, the Labour Court did not
have jurisdiction to adjudicate a dispute about the procedural fairness of a dismissal for
operational requirements.
[55] Once the Labour Appeal Court had concluded that the Labour Court did not have
such jurisdiction, it set aside the declaration that had been made by the Labour Court
that the dismissals of employees were procedurally unfair. It also set aside the
compensation orders that the Labour Court had made in favour of those employees
whose dismissals it had found to have been procedurally unfair only. The cross-appeal
applicants also cross- appeal against those orders. The Labour Appeal Court’s
conclusion that the Labour Court did not have jurisdiction to adjudicate the dispute
about the procedural fairness of a dismissal for operational requirements meant that the
Labour Court should have refused to adjudicate the cross-applicants’ application
brought in terms of section 189A(13).
[56] The issue for determination in the cross-appeal is whether, given the provisions
of section 189A(18), the Labour Court has jurisdiction to adjudicate a dispute about the
procedural fairness of a dismissal for operational requirements including one brought
to the Labour Court in terms of section 189A(13). Regenesys contends that the
Labour Court has no such jurisdiction because that jurisdiction has been ousted by
section 189A(18). The employees contend that the Labour Court does have jurisdiction
in respect of disputes about the procedural fairness of dismissals for operational
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requirements to which section 189A applies which are brought in the Labour Court by
way of applications in terms of section 189A(13).
[57] The determination of the issue in this cross -appeal requires a consideration of
section 189A(13), (18) and other provisions of the LRA. It is convenient to start with
the issue of the circumstances under which the orders under subsection (13) may be
granted. It is important to address right at the outset the question of the circumstances
in which section 189A applies. That is to be found in section 189A(1). This provision
reads:
“(1) This section applies to employers employing more than
50 employees if–
(a) the employer contemplates dismissing by reason of the
employer’s operational requirements, at least–
(i) 10 employees, if the employ er employs up to
200 employees;
(ii) 20 employees, if the employer employs more
than 200, but not more than 300, employees;
(iii) 30 employees, if the employer employs more
than 300, but not more than 400, employees.
(iv) 40 employees, if the employer empl oys more
than 400, but not more than 500, employees;
or
(v) 50 employees if the employer employs more
than 500 employees; or
(b) the number of employees that the employer
contemplates dismissing together with the number of
employees that have been dismissed by reason of the
employer’s operational requirements in the 12 months
prior to the employer issuing a notice in terms of
section 189(3), is equal to or exceeds the relevant
number specified in paragraph (a).”
[58] It is clear from this provision that section 189A applies to dismissals for
operational requirements by employers who employ more than 50 employees when they
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contemplate dismissing certain numbers of employees in their workforce for operational
requirements. As is the case with employers to which section 189A does not apply,
employers to whom section 189A applies are obliged to consult with employees or their
representatives if they contemplate such employees’ dismissals for operational
requirements. Section 189A(2) to (12) places various obligations on the employer and
employees which are aimed at enhancing or enriching the consultation process so as to
avoid or minimise mass retrenchments or disputes about mass retrenchments.
[59] Section 189A(13) then provides that, if an employer does not comply with a fair
procedure, a consulting party may approach the Labour Court for certain orders listed
therein. Subsection (13) reads:
“(13) If an employer does not comply with a fair procedure, a
consulting party may approach the Labour Court by way of an
application for an order–
(a) compelling the employer to comply with a fair
procedure;
(b) interdicting or restraining the employer from
dismissing an employee prior to complying with a fair
procedure;
(c) directing the employer to reinstate an employee until it
has complied with a fair procedure;
(d) make an award of compensation, if an order in terms
of paragraphs (a) to (c) is not appropriate.”
14
Interpretative approach
[60] The determination of the issues that are raised by the cross-appeal require an
interpretation of sections 189A(13), (14), (18) and 191(5)(b)(ii) of the LRA. It is,
therefore, important to bear in mind the correct approach to the interpretation not only
of legislation in general but also of the LRA in particular.
14 Section 189A(13) of the LRA.
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[61] Section 39(2) of the Constitution deals with the interpretation of legislation. It
reads:
“(2) When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill of
Rights.”
15
In Hyundai16 this Court explained the purport and objects of the Bill of Rights thus:
“[22] The purport and objects of the Constitution find expression in
section 1, which lays out the fundamental values which the Constitution
is designed to achieve. The Constitution requires that judicial officers
read legislation, where possible, in ways which give effect to its
fundamental values. Consistently with this, when the constitutionality
of legislation is in issue, they are under a duty to examine t he objects
and purport of an Act and to read the provisions of the legislation, so
far as is possible, in conformity with the Constitution.”17
[62] Section 3 of the LRA provides that anyone interpreting or applying the LRA
must do so with due regard to the purpose of the LRA, its primary objects, consistently
with the Constitution and in furtherance of section 23 of the Constitution. Section 23(1)
of the Constitution reads:
“Labour Relations
23. (1) Everyone has the right to fair labour practices.”
[63] The purpose of the LRA is to:
“[A]dvance economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary objects of
this Act, which are—
15 Section 39(2) of the Constitution.
16 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distri butors (Pty) Ltd: In re Hyundai
Motor Distributors (Pty) Ltd v Smit N.O. [2000] ZACC 12; 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC).
17 Id at para 22.
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(a) to give effect to and regulate the fundamental rights conferred
by section 23 of the Constitution of the Republic of
South Africa, 1996;
(b) to give effect to obligations incurred by the Republic as a
member state of the International Labour Organisation;
(c) to provide a framework within which employees and their trade
unions, employers and employers’ organisations can—
(i) collectively bargain to determine wages, terms and
conditions of employment and other matters of mutual
interest; and
(ii) formulate industrial policy; and
(d) to promote—
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision- making in the
workplace; and
(iv) the effective resolution of labour disputes.”
18
Among the above primary objects of the LRA, I emphasise the ones contained in
paragraphs (a) and (d)(iv). It is now settled that the correct approach to the
interpretation of the LRA is purposive interpretation.
Background to the right not to be dismissed unfairly under the LRA
[64] Prior to our constitutional democracy the courts of South Africa had developed
an extensive unfair labour practice jurisprudence since the establishment of the
Industrial Court of South Africa in the early 1980s. By the advent of democracy
in 1994, that Court, together with the old Labour Appeal Court which was established
in 1988 and, to some extent, the then Appellate Division of the
Supreme Court of South Africa, which is now the Supreme Court of Appeal, had built
upon and consolidated that jurisprudence.
18 Section 1 of the LRA.
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[65] That unfair labour practice jurisprudence was based effectively on a definition
of the phrase “unfair labour practice” in the Labour Relations Act 1956 19 as amended
(1956 LRA). In fact, that Act, as amended, effectively meant that the Industrial Court
had jurisdiction to determine disputes of alleged unfair labour practices between
employers and employees and to grant a remedy where it considered it appropriate to
do so. That right included the workers’ right not to be dismissed unfairly. In turn, that
right included a component that an employee had to be afforded an opportunity to be
heard (including the right to be consulted before any termination for operational
requirements) before he or she could be dismissed. That is the component that relates
to procedural fairness.
[66] One component of the right not to be dismissed unfairly is that there must be a
valid or fair reason before an employee may be dismissed. When, therefore, the
Constitution proclaimed in 1997 in section 23 that every worker was entitled to fair
labour practices, an element of that right included the right not to be dismissed unfairly
which in turn has two components, the one being every worker’s right not to be
dismissed without being afforded an opportunity to be heard and, the other being the
worker’s right not be dismissed without a fair reason. These two components of the
right not to be dismissed unfairly related, respectively, to procedural fairness and
substantive fairness of the right not to be dismissed unfairly.
[67] The LRA, a piece of legislation enacted to give effect to
section 23 of the Constitution, provides in section 185 f or a right not to be dismissed
unfairly and a right not to be subjected to an unfair labour practice. Section 187 of the
LRA describes when a dismissal is automatically unfair. Then section 188 deals with
dismissals other than those that are automatically unfair. It reads:
“188 Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if
the employer fails to prove—
(a) that the reason for dismissal is a fair reason—
19 28 of 1956.
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(i) related to the employe e’s conduct or
capacity; or
(ii) based on the employer’s operational
requirements; and
(b) that the dismissal was effected in accordance
with a fair procedure.”
[68] Section 193(1) deals with the remedies that a court or an arbitrator may grant in
a case where it has concluded that an employee’s right not to be dismissed unfairly has
been violated or infringed. The remedies include reinstatement, re -employment and
payment of compensation. Section 193(2) enjoins the Labour Court, or, an arbitrator,
to order the employer to reinstate the employee if it or he or she finds the dismissal to
have been without a fair reason – in other words, if the court or an arbitrator finds the
dismissal substantively unfair unless one of four exceptions provided for therein is
present. One of the exceptions is where the dismissal is unfair only because the
employer did not follow a fair procedure. In such a case reinstatement is not competent
and the only remedy is payment of compensation by the employer.
[69] Prior to the amendment that was brought about by the insertion of section 189A
into the LRA in 2002, the only adjudication of the procedural fairness of a dismissal
that could competently be undertaken by the Labour Court was the one provided for in
section 191(5). That was the case whether the only issue to be decided by the Court
was the procedural fairness or otherwise of a dismissal or both the procedural and the
substantive fairness of the dismissal. If its conclusion was that the dismissal was
procedurally unfair, it would generally award the employee compensation.
[70] Whereas in those cases where the Labour Court had found a dismissal to be
substantively unfair, it could be concerned about ordering reinstatement if a long time
had lapsed between the date of dismissal and the date of adjudication, no such concern
would arise in relation to ordering payment of compensation. If the Court, having found
that a dismissal was substantively unfair, felt reluctant to order the employee’s
reinstatement because of the long period that had passed since the dismissal, it would
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33
order payment of compensation. In other words, while there may be some concerns
with the ordering of the reinstatement of an employee or group of employees after the
lapse of a long time between the date of dismissal and the date of adjudication, there is
never such a concern with regard to an order for the payment of compensation.
[71] Both before 1994 and for many years after the LRA had come into operation
mass retrenchments were not subject to a legal regime that was different to the legal
regime applicable to individual dismissals. The law was the same for all employers of
different sizes and shapes. However, later, a special dispensation was enacted for large
scale employers by way of section 189A. The relevance of this history will become
apparent later.
Purpose, meaning and scope of section 189A(13)
[72] If an employer to which section 189A applies does not comply with a fair
procedure, employees may approach the Labour Court for one or other relief specified
in section 189A(13)(a), (b), (c) and (d). Section 189A(13) provides:
“If an employer does not comply with a fair procedure, a consulting
party may approach the Labour Court by way of application for an
order—
(a) compelling the employer to comply with a fair
procedure;
(b) interdicting or restraining the employer from
dismissing an employee prior to complying with a fair
procedure;
(c) directing the employer to reinstate an employee until it
has complied with a fair procedure;
(d) make an award of compensation, if an order in terms
of paragraphs (a) to (c) is not appropriate.”
[73] There is a common feature that the orders contemplated in paragraphs (a) to (c)
share. They all end with the phrase “with a fair procedure” but the provisions relating
to an order contemplated in paragraph (d) do not end with such a phrase. Another
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34
feature that is shared by paragraphs (a) to (c) is the word that precedes that phrase in
each of the first three paragraphs. It is the verb “comply” in different forms. In
paragraph (a) it is “to comply”, in paragraph (b) it is “complying” and in paragraph (c)
it is “complied”. Paragraph (d) does not have the verb “comply” in any form or shape.
[74] Why do paragraphs (a) to (c) share common features among themselves which
they do not share with paragraph (d)? The reason is that section 189A(13) has two
purposes. The one purpose, which may be called the primary purpose, relates to orders
contemplated in paragraphs (a) to (c) but does not relate to an order contemplated in
paragraph (d). The purpose of orders contemplated in paragraphs (a) to (c) is to ensure
that the employer complies with a fair procedure before it dismisses employees for
operational requirements finally. That is why the provisions of paragraphs (a) to (c)
end with the phrase “with a fair procedure” and why the verb “comply” appears in
different forms and shapes before that phrase in these paragraphs.
[75] The order contemplated in paragraph (a) is meant to be granted before or at the
start of or during the consultation process when there has been no dismissal as yet and
when there is no imminent dismissal. An order contemplated in paragraph (a) compels
the employer to comply with a fair procedure. An order contemplated in paragraph (b)
is one meant to be granted where the dismissal of an employee is imminent in
circumstances where the employer has not complied with a fair procedure. That order
would interdict or restrain the employer from dismissing the employee or employees
before it complies with a fair procedure. The order contemplated in paragraph (c)
applies when a dismissal has happened without compliance with a fair procedure when
it is still appropriate to reverse the dismissal and put the consultation process back on
track.
[76] An order contemplated in paragraph (c) may not be appropriate if a significant
time has lapsed between the date of dismissal and the date of adjudication. This is
because the reinstatement under paragraph (c) is not necessarily final. It is granted to
enable the employer’s compliance with a fair procedure. The outcome of the
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35
employer’s compliance with a fair procedure could be that the employees remain in the
employer’s employment or they could be dismissed after a fair procedure has been
followed. It is a temporary order. In fact, the order contemplated in paragraph (b) is
also a temporary order in that the employer is not permanently interdicted from
dismissing the employees but is interdicted until it complies with a fair procedure.
[77] The order contemplated in paragraph (d) is not temporary. It is final.
Paragraph (d) does not say that the payment of compensation by the employer must be
made until the employer has complied with a fair procedure. The order in paragraph (d)
is made on the acceptance that the employer has failed to comply with a fair procedure
and the employer is not given another chance to comply with a fair procedure. The
order contemplated in paragraph (d) is made to ensure two objectives, namely to hold
the employer accountable for its failure to comply with a fair procedure by ensuring that
there are consequences visited upon the employer for such unacceptable conduct and to
compensate the employee for the infringement by the employer of his or her right not
to be dismissed in a procedurally unfair manner.
[78] No two orders contemplated in paragraphs (a) to (d) may be granted together. If
an order contemplated in paragraph (b) is granted, there is no need for an order under
paragraph (a). An order under paragraph (c) cannot appropriately or competently be
granted together with an order contemplated in paragraph (b) because an order under
paragraph (b) can only be granted where a dismissal has not happened whereas an order
contemplated in paragraph (c) can only be granted when a dismissal has occurred.
Accordingly, it would be inappropriate to grant an order under paragraph (b) if a
dismissal has happened just as it would be inappropriate and incompetent for the
Labour Court to grant an order under paragraph (c) before the dismissal has happened.
Given the provisions of paragraph (d), an order under that paragraph can only be granted
when none of the orders contemplated in paragraphs (a) to (c) may be appropriately
granted.
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[79] Questions that arise are: When would it not be appropriate for the Labour Court
to grant an order contemplated in paragraph (a) or (b) or (c)? When would it be
appropriate for the Labour Court to grant an order contemplated in paragraph (d)? Each
case has to be decided on its own merits. Changes in the operations of the employer
may render it inappropriate for the Labour Court to grant an order under
paragraph (a) or (b) or (c). If employees whose retrenchment is contemplated resign
during the consultation process, an order contemplated in paragraph (a) would not be
appropriate.
[80] The passage of a long time between the date of dismissal of employees and the
date of adjudication may render it inappropriate for the Labour Court to grant an order
under paragraph (a) or (b) or (c) of subsection (13). W here the time that has lapsed
between the date of dismissal and the date of adjudication is so long that it cannot
reasonably be expected that the employer should resume the consultation process , it
would be inappropriate to grant an order under paragraph (a), (b) or (c). One cannot in
abstract say how long a period would have to be before it can be said to be too long.
However, a court needs to establish why it would not be appropriate to grant an order
contemplated in paragraph (a), (b) or (c) of subsection (13). The employer bears the
onus to place before the Court evidence that would show that the period in a particular
case is so long that it would be inappropriate for the Court to grant an order under
paragraph (a) or (b) or (c).
[81] There is nothing in the nature of the order contemplated in paragraph (d) nor in
the text of the paragraph that would support the proposition that, if the consultation
process can no longer be put back on track, an award of compensation as contemplated
in paragraph (d) would not be appropriate. In fact, it is quite the opposite. An
appropriate time for the Labour Court to make an order for the payment of
compensation as contemplated in paragraph (d) is when it would not be appropriate for
the Labour Court to make an order contemplated under paragraph (a) or (b) or (c).
Another situation where it would be inappropriate for the Labour Court to grant an order
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in terms of paragraph (a) or (b) or (c) of subsection (13) is when the consultation process
cannot be continued with or cannot be put back on track.
[82] A court is required to grant an order when it is satisfied that it is appropriate to
do so. The orders contemplated in subsection (13) are no exception. Subsection (13)(d)
makes it clear in effect that the orders contemplated in paragraphs (a) to (c) may only
be granted when it is not appropriate to grant an order under paragraph (d) and
vice versa.
[83] While it is unlikely to be appropriate for the Labour Court to order the
reinstatement of employees pending the employer’s compliance with a fair procedure
after two years have lapsed since the dismissal of the employees, it might be perfectly
appropriate for it to order such reinstatement if , for example, only three months have
lapsed. Indeed, while it would probably not be appropriate for the Labour Court to
order reinstatement for the purpose of putting the consultation process back on track
two years after the date of dismissal, it might still be appropriate for the Labour Court
to make an order for the payment of compensation as contemplated in paragraph (d)
after a period of two or three years has lapsed since the date of dismissal.
[84] The orders in paragraphs (a), (b) and (c) and the order in paragraph (d) do not
serve the same purpose. Indeed, there is no reason why each one of the orders
contemplated in paragraphs (a) to (d) cannot be claimed alone. If an employer is going
through a consultation process and no dismissal is imminent but the employer is not
complying with a fair procedure, there is no reason why a union or employees may not
approach the Labour Court and simply ask for an order contemplated in paragraph (a)
only. Equally, there is no reason why, if an employer is not complying with a fair
procedure and the dismissal is imminent, a union or the employees may not approach
the Labour Court and seek an order under paragraph (b) only. They would not need an
order under paragraph (a) or (c) or (d) at that time.
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[85] If an employer dismisses employees without following a fair procedure, there is
no reason why a union or employees cannot approach the Labour Court and seek an
order contemplated in paragraph (c) only. They would not need an order contemplated
in paragraph (a) or (b). An order contemplated in paragraph (b) would be inapplicable.
An order contemplated in paragraph (b) is already effectively included in the last part
of paragraph (c). Therefore, there is no room for an order contemplated in paragraph (a)
when there is a dismissal.
[86] So, just like an order contemplated in paragraph (a) has a time when it is
appropriate and orders in paragraphs (b) and (c) would not be applicable, an order
contemplated under paragraph (c) only applies when an order in paragraph (a) and an
order in paragraph (b) would not be applicable. An order contemplated in paragraph (d)
applies in a scenario where paragraphs (a), (b) and (c) would no longer be appropriate.
Indeed, an order contemplated in paragraph (d) can only be granted if any order
contemplated in paragraphs (a) to (c) is inappropriate. Employees would not need an
order of compensation contemplated in paragraph (d) nor would they be entitled to one,
if an order contemplated in paragraph (a), (b) or (c) was granted and achieved the
statutory purpose of the employer complying with a fair procedure before it can dismiss
employees.
[87] As will have been realised from what I have said earlier in this judgment, as a
norm, when employees are dismissed for operational requirements by an employer to
which section 189A applies, for a certain number of months, perhaps three months, four
months or maybe more an order of reinstatement might be appropriate. In those
circumstances, compensation would not be competent and, therefore, cannot be
claimed. It can only be claimed and granted when an order of reinstatement would no
longer be appropriate. However, the question arises as to whether compensation can
never be claimable immediately after dismissal and whether it is only claimable after
some months have lapsed since the dismissal of the employees.
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39
[88] In my view, compensation will normally not be claimable soon after the
dismissal because at that stage reinstatement would still be appropriate. However, there
may be exceptional cases where compensation will be claimable soon after the
dismissal. However, those cases will be those w hen reinstateme nt will not be
appropriate even soon after the dismissal has been effected. One example is where the
employer of more than fifty workers is a natural person and he or she dies a few days
after the dismissal of the employees. In such a case reinstatement will not be appropriate
the moment the employer dies. In fact reinstatement would not be competent. If the
death happens before the employees launch their section 189 A(13) application, the
position would be that, when the employees prepare their section 189A(13) application,
they would be aware that reinstatement would not be appropriate because their
employer had died. Therefore, in their papers they could only claim compensation.
They would claim compensation on its own and without first claiming reinstatement
and compensation only as an alternative.
[89] Another situation where compensation may be claimable soon after the dismissal
is a situation where the reason for dismissal is that the employer is selling his or her
business but not as a going concern. In other words, where section 197 of the LRA does
not apply – and a few days after the dismissal of the employees, the transaction gets
completed. In such a case reinstatement might not be appropriate even after a few days
of the dismissal. Compensation would be claimable a few days after dismissal if the
sale of the business has been completed. Where section 197 applied, reinstatement
would be appropriate. There may be other examples where compensation can be
claimed soon after dismissal but it is not necessary to look for other examples. These
two examples are enough to make the point that an order of compensation under
subsection (13)(d) can be claimed and granted as a standalone remedy.
[90] What I have set out above shows that each one of the orders contemplated in
paragraphs (a) to (d) in section 189A(13) can be claimed alone. In CC Steenkamp II
this Court held, in a unanimous judgment by Basson AJ, that an order contemplated in
section 189A(13)(d) cannot be claimed as a standalone order. A reading of
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CC Steenkamp II does not reveal that the conclusion that an order under paragraph (d)
cannot be claimed as a standalone order was based on any analysis of the orders
contemplated in paragraphs (a) to (d). There was no analysis of the language used in
section 189A(13). That conclusion seems to me to have been a result of the Court
focusing on the primary purpose of section 189A(13) and not its secondary purpose.
[91] Throughout the discussion of section 189A(13) in this Court’s judgment in
CC Steenkamp II, Basson AJ emphasised the primary purpose of
subsection (13) – which relates to the orders contemplated in paragraphs(a) to (c) and
not paragraph (d) – and overlooked the secondary purpose of the subsection which is
served by an order contemplated in paragraph (d). I said earlier that the primary purpose
of subsection (13) is to ensure that the employer complies with a fair procedure before
employees may be dismissed finally . That is why an order contemplated in
paragraph (c) will reverse a dismissal which has been effected without compliance with
a fair procedure.
[92] There is no difference in purpose between an order of compensation under
section 189A(13)(d) and an order of compensation granted under section 191. They
both serve the same purpose, namely, to afford the employee effective relief when his
or her right to procedural fairness has been infringed and holding the employer
accountable for the violation of the employee’s right. In fact the remedy of
compensation provided for in section 189(13)(d) is the same remedy of compensation
that is provided for in section 191. I say this because, prior to the enactment
of section 189A in 2002 employees retrenched by large scale employers without
compliance with a fair procedure had a right to claim the remedy of compensation but,
when section 189A(13) was enacted, that right under section 191 insofar as it related to
such employees was moved to section 189A. Accordingly, the right to claim
compensation provided for in section 189A(13) is the same right that such employees
used to enjoy under section 191 prior to the enactment of section 191 of the LRA. The
only difference is that under section 189A(13) they can only claim compensation when
it is not appropriate to claim reinstatement.
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[93] This interpretation of section 189(13)(a) ensures that, when it comes to seeking
compensation for procedural unfairness, the employee who uses the section 189A(13)
route is treated in the same way as the one who uses the section 191 route. This is
subject to the qualification that an employee who seeks compensation under
section 189A(13)(d) is required to only seek it when an order under section 189A(13)(a)
to (c) is inappropriate and must comply with the 30-day time limit imposed by
section 189A(17) or obtain condonation for non-compliance with that time limit if he
or she fails to comply with it. A court considering an application for condonation would
be entitled to take into account that the 30-day time limit has been imposed because an
order in terms of section 189A(13)(a) to (c) is the lawmaker’s preferred remedy so as
to get the consultation process back on track.
[94] It is important to point out that section 189A(13) prescribes only one requirement
that must be met in order for an employee to seek the relief contemplated in
paragraph (d) of section 189A(13) i.e. compensation. That requirement is that
compensation may be sought “if an order in terms of paragraph (a) to (c) is not
appropriate.” Therefore, any proposition that effectively says an employee may not
seek compensation when it is no longer appropriate to seek an order under
paragraphs (a) to (c) of section 189A(13) is in conflict with paragraph (d) of
section 189A(13) and, therefore, contrary to the statute.
[95] The proposition that an employee may pursue his or her claim for compensation
some months after dismissal is simply based on the fact that section 189A(13)(d) itself
precludes the claiming of compensation while an order under paragraphs (a) to (c) is
appropriate and it can take a few months at least for the point to be reached where an
order under paragraphs (a) to (c) becomes inappropriate. I do not mean that employees
who have a dispute with an employer about the procedural fairness of their dismissal
for operational requirements to which section 189A applies may simply sit back and do
nothing about launching a section 189A(13) application and lodge their application at a
time convenient to themselves.
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[96] Any proposition to the effect that an employee who launches his
section 189A(13) application at a time when it is no longer feasible to put the
consultation process back on track is precluded from claiming compensation is in
conflict with the express provision of section 189A(13)(d). I say this because, precisely
when it becomes not feasible to put the consultation process back on track is the time
when it becomes inappropriate to grant any order under section 189A(13)(a), (b) or (c).
Paragraph (d) of section 189A(13) expressly says that that is when compensation can
be claimed. Subsection (13) should not be interpreted as if there is another provision in
it which overrides the clear wording of section 189A(13)(d) because it simply has no
such provision. The statute makes it quite clear that as long as one or more of the orders
contemplated in section 189A(13)(a), (b) or (c) is still appropriate, an order for
compensation is not appropriate and that the moment an order under
section 189A(13)(a), (b) or (c) is no longer appropriate, that is the moment when it is
appropriate to claim compensation . As I have said, however, this does not mean that,
just because relief in terms of paragraphs (a), (b) or (c) has, due to the passing of time,
become inappropriate, condonation for bringing an application in terms of
section 189A(13) outside the 30-day time limit should be granted as a matter of course.
Employees to whom section 189A applies are generally expected to protect their right
to procedural fairness by an application brought within the prescribed 30-day time limit.
If they lodge their application outside of the 30-day time period, they are obliged to
apply for condonation and, among others, furnish an acceptable explanation for their
delay.
[97] Orders contemplated in paragraphs (a) to (c) serve the primary purpose of
subsection (13) whereas paragraph (d) serves the secondary purpose of the subsection.
The secondary purpose is to ensure that an employer who dismisses employees for
operational requirements without complying with a fair procedure and, therefore, in
violation of the employees’ right to procedural fairness does not do so with impunity
and to ensure that employees whose rights to procedural fairness have been infringed
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43
are granted an appropriate remedy for the infringement of their rights in line with the
principle that where there is a right, there is a remedy.
Discussion of case law on the meaning, scope and function of
section 189A(13)
[98] There are cases in all our courts which have jurisdiction to adjudicate labour
disputes at different levels in which our courts have not interpreted subsection (13) as
reflected above.20 It is not necessary to mention all of them. Those cases have dealt
with subsection (13) as if it has one purpose – namely, the primary purpose of
subsection (13) as articulated above which is linked to paragraphs (a) to (c). They did
not identify the secondary purpose of subsection (13) which is linked to paragraph (d).
In my view this was an error and this error led those courts to conclude that, when the
consultation process can no longer be put back on track, none of the orders contemplated
in paragraphs (a) to (d) may be granted. Those cases are dealt with later in this
judgment.
[99] As an order contemplated in paragraph (d) has nothing to do with the primary
purpose of subsection (13), the proposition that an order for compensation under
paragraph (d) of subsection (13) could not be granted when the consultation process
could no longer be put back on track was , in my view, incorrect. An order under
paragraph (d) could and can be made when the consultation process can no longer be
put back on track. Therefore, when some cases say that an order under
paragraphs (a) or (b) or (c) cannot be granted when the consultation process can no
longer be put back on track, they are correct. However, when they say that even an
order of compensation under paragraph (d) cannot be granted when the consultation
process can no longer be put back on track, they are, with respect, not correct. Actually,
section 189A(13)(d) is quite clear that it is when an order under paragraphs (a) to (c) is
inappropriate that an order for compensation may be granted. An order under
20 Some of those cases are: Parkinson v Edcon Ltd [2016] ZALCJHB 540; Ramiyal v Clinix Selby Park Hospital
(Pty) Ltd [2016] ZALCJHB 485; CC Steenkamp II above n 6 and CC Barloworld above n 11.
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paragraphs (a) to (c) is inappropriate when the consultation process can no longer be
put back on track. An order for compensation is appropriate at that stage.
[100] When one considers how much time should elapse before it can be said that an
order contemplated in paragraph (c) would not be appropriate, one should remember
that provisions in labour legislation that grant a court the power to order a status quo
order pending some processes are not new in our labour law. Under the 1956 LRA as
amended, two sections gave the Industrial Court such powers. The one was
section 17(11)(a) and the other section 43(4). For purposes of this matter it is only
necessary to say something about section 43. Under that section the Industrial Court
had powers to order the temporary reinstatement of an employee whose dismissal it
found to prima facie constitute an unfair labour practice. That order of reinstatement
was popularly known as a status quo order. Such an order of reinstatement endured for
90 days or until one of certain events stipulated in that provision occurred but the Court
could extend the operation of that order beyond 90 days.
[101] The purpose of such a reinstatement was to place the employee in the position
that he or she was in before the prima facie unfair labour practice was committed by the
employer to enable the parties to try and settle the dispute. In the case of a dismissal
for operational requirements – which is what we are dealing with in the present
case – the basis of the conclusion that the dismissal prima facie constituted an
unfair labour practice could be that the employer had not complied with a fair procedure
in the sense that there was no consultation or because, although there was consultation,
such consultation was not a proper consultation. The point I want to make is that under
section 43 of the 1956 LRA the Industrial Court did not regard it as inappropriate to
make a status quo order three months, four months or even six months after the date of
dismissal. Such orders were frequently made and the employer could go through the
consultation process afresh if it accepted that there had not been a proper consultation
with regard to that employee or group of employees. That being the case I do not think
that the mere fact that three or four months have elapsed before a section 189A(13)
application is made or adjudicated under the current Act would make it necessarily
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45
inappropriate for the Labour Court to grant an order of reinstatement under
paragraph (c) of subsection (13).
SA Five Engineering
[102] In SA Five Engineering 21 the National Union of Metalworkers of South
Africa (NUMSA) and its affected members launched an application in terms of
subsection (13) within a few days of the dismissal which occurred in October 2002.
The employees were dismissed for operational requirements by an employer to which
section 189A applied. It would appear from the judgment of Murphy AJ, sitting in the
Labour Court, that NUMSA and its members subsequently referred to the Labour Court
a dispute about the substantive fairness of their dismissal. In their application in terms
of subsection (13) NUMSA and its members sought relief in terms of subsection (13)
including reinstatement pending compliance by the employer with a fair procedure or
alternatively compensation. The basis for seeking such relief was that in dismissing the
employees, the employer had failed to comply with a fair procedure. It appears that at
some stage the Labour Court, through Waglay J, made an order the effect of which
seems to have been to consolidate both the subsection (13) application and the dispute
about the substantive fairness of the dismissal.
[103] In SA Five Engineering the employees launched their subsection (13) application
timeously but there were delays before the matter could be adjudicated. The employees
had asked for reinstatement in terms of paragraph (c) of subsection (13) but by the time
that the adjudication took place reinstatement was considered no longer appropriate.
Compensation had been asked for in the alternative.
[104] With regard to section 189A(13) Murphy AJ held that the Labour Court “was
competent to proceed with the adjudication of the dispute about procedural fairness in
terms of section 189A(13)”. The Labour Court made this decision in that case in 2004
21 National Union of Metalworkers of South Africa (NUMSA) v SA Five Engineering [2004] ZALC 81; (2004) 25
ILJ 2358 (LC); [2005] 1 BLLR 53 (LC).
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despite the fact that the dismissal had occurred in October 2002. In other words, in
SA Five Engineering the Labour Court did not take the view that the remedy of
compensation contemplated in paragraph (d) could not be granted when the consultation
process could no longer be put back on track as that Court subsequently held in
Parkinson and Clinix.
[105] Murphy AJ said in SA Five Engineering about section 189A(13):
“As explained earlier, the applicants initially moved the court in terms
of this section for an order of reinstatement and to compel compliance
with fair procedure. As also explained, the order of Waglay J of
6 March 2003 can be interpreted as having referred that dispute to oral
evidence under rule 7(8)(b). However, with the effluxion of a
considerable period of time since the dismissals, the applicants are less
interested in the adjudication of the procedural dispute and would
prefer resolution of the dispute about substantive unfairness. Certainly,
in practical terms, the time for a pre-emptive interdict has long passed.
But section 189A(13)(d) also bestows on the applicants the right to seek
compensation for procedural irregularities where interdictory relief or
specific performance is not appropriate. Moreover, section 189A(14)
preserves the court’s general power to award compensation under
section 158(1)(a) in such cases. Hence, even though the horse long
bolted the stable, there is no reason why the applicants should be
barred from proceeding with their claim for relief in respect of any
procedural irregularities that may have tainted their dismissals. For
that reason, I was prepared to grant a postponement for the
adjudication of the procedural dispute under section 189A(13).”
22
(Emphasis added.)
[106] I agree with what Murphy AJ said in this passage about section 189A(13). What
he said reflects that he understood the different purposes served by paragraphs (a) to (c),
on the one hand, and paragraph (d), on the other, and by any order contemplated in
either (a), or (b), or (c), on the one hand, and, by an order contemplated in paragraph (d)
22 Id at para 10.
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of subsection (13). It is a pity that this important passage in this judgment of the
Labour Court does not appear to have been noticed or brought to the attention of the
Labour Court in Parkinson, Clinix and to the Labour Appeal Court in
LAC Steenkamp II,23 referred to below, and in the present case. In the end Murphy AJ
postponed the section 189A(13) application for later adjudication on the basis that the
remedy of compensation under paragraph (d) of subsection (13) could still be
competently granted even after two years had lapsed since the dismissal.
Parkinson
[107] In Parkinson the Labour Court had this to say about an application that had been
brought in terms of subsection (13) seven months after the dismissal:
“Even if I were to grant to the applicant the benefit of the doubt in
relation to the explanation for the delay in bringing this application, she
has no prospect of success on the merits. This court has made clear on
more than one occasion that the purpose of section 189A(13) is one that
enables this court to supervise an ongoing retrenchment process or one
that has recently been concluded; it is not a remedy that is available well
after dismissals have been effected. The section intends to ensure that
a fair process is followed; it is not a means to thwart retrenchment itself
(see Insurance and Banking Staff Association v Old Mutual Services
and Technology ). In the present instance, the applicant’s date of
dismissal, as I have indicated, is 25 August 2014, a little short of two
years ago. The irresistible con clusion to be drawn is that having
abandoned her unfair dismissal claim, the applicant seeks redress in
terms of section 189A(13), a provision ordinarily reserved for urgent
intervention in a consultation process involving a significant number of
employees. There is no basis, in these circumstances, for the court to
intervene in the present dispute, and the applicant’s prospects of success
are accordingly minimal, if they exist at all.”
24
23 LAC Steenkamp II above n 11.
24 Parkinson above n 20 at para 4.
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[108] It will be seen from this extract that the Labour Court understood subsection (13)
to have one purpose only and failed to appreciate that paragraph (d) had a different
purpose and an order under paragraph (d) could be granted years after the dismissal of
the employees, unlike the orders contemplated under paragraphs (a) to (c).
Murphy AJ’s judgment in SA Five Engineering does not appear to have been cited to
Van Niekerk J who decided Parkinson. Had Van Niekerk J been aware of
Murphy AJ’s judgment, he would have realised that Murphy AJ had held that
compensation under paragraph (d) of subsection (13) could be awarded two years after
dismissal when the consultation process could no longer be put back on track. That
Murphy AJ’s judgment was not drawn to Van Niekerk J’s attention is regrettable
because Parkinson, Clinix and other cases might not have followed what Parkinson
erroneously said in this regard.
Clinix
[109] The reference to Clinix is a reference to the judgment of the Labour Court in
Clinix.25 The error that the Labour Court made in Parkinson was repeated in a
subsequent case in the Labour Court, namely Clinix. Clinix was also a judgment of
Van Niekerk J. That case had similarities to CC Steenkamp II. The employees had
initially challenged the validity of their dismissals in the same way the employees in
CC Steenkamp I did. After the handing down of this Court’s judgment in
CC Steenkamp I, the employees in Clinix abandoned the CC Steenkamp I route and
brought an application in the Labour Court in terms of subsection (13) and sought
certain orders under subsection (13). In CC Steenkamp I this Court held that the LRA
did not provide for the remedy of an invalid dismissal for a breach of the LRA. The
orders they sought included reinstatement with effect from 1 June 2015 plus directions
on a consultation process and some interdict preventing the employer from issuing
notices of dismissal before certain events occurred or before the expiry of a certain
period. They had lodged the application about nine months after the notices of
25 Clinix above n 20.
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49
dismissals were issued or about eight months after the effective date of dismissal. That
was way out of time but not as late as the employees in CC Steenkamp II did.
[110] Although in Clinix the Labour Court was satisfied that dismissing the
condonation application without having regard to the prospects of success was justified,
it, nevertheless, had this to say about the merits of the applicants’ section 189A(13)
application:
“[The remedy provided in section 189A(13)] must necessarily be seen
in terms of its proper context and purpose. It is a mechanism that
enables this court to supervise an ongoing retrenchment process or one
that has recently been concluded; it is not a remedy that is available well
after dismissals have been effected. In short, the section intends to
ensure that a fair process is followed; it is not a means to thwart
retrenchment itself (see Insurance and Banking Staff Association).”
26
From this excerpt it can be seen that Clinix followed Parkinson.
[111] In paragraph 7 in Clinix the Labour Court said in part:
“The failure to furnish a reasonable explanation for an inordinate delay
has the consequence that any prospects of success in the main
application and the respective prejudice to the parties are not relevant.
I would mention though given the strict temporal limits that attach to a
section 189A (13) application, I fail to appreciate what prospects there
are at this late stage that this court will order the respondent to
recommence the consultation process. To the extent that the applicants
seek an alternative remedy of compensation, it is not the purpose of
section 189A to provide for compensation for any procedural
shortcomings in the consultation process well after any retrenchm ents
have been effected.”
27 (Emphasis added.)
26 Clinix above n 20 at para 5.
27 Id at para 7.
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[112] The last sentence of this excerpt – namely that it is not the purpose of
section 189A to provide compensation for any procedural shortcomings in the
consultation process well after any retrenchments have been effected – is, in my view,
incorrect. It flows from a failure to appreciate that paragraph (d) of subsection (13) has
a different purpose to the purpose of paragraphs (a) to (c). There is no reason why the
Labour Court cannot award compensation under paragraph (d) one, two or even three
years after the dismissal in the same way that the Labour Court is able to award
compensation for procedural unfairness in dismissals for operational requirements to
which section 189A does not apply. An order for the award of compensation under
paragraph (d) has nothing to do with putting the consultation process back on track or
reversing the dismissal of the employees. It is important to point out that, whereas the
Labour Court regarded the employees’ explanation for the delay in launching their
subsection (13) application in Clinix as unsatisfactory, both the Labour Appeal Court
and this Court in CC Steenkamp II accepted a similar explanation as plausible.
CC Steenkamp I
[113] The reference to CC Steenkamp I is a reference to the judgment of this Court in
CC Steenkamp I.28 The issue in that case was whether or not the remedy of an order of
invalidity of a dismissal for a breach of the LRA was available. Two judgments were
produced. The one was written by Cameron J in which Van der Westhuizen J
concurred. I wrote the other one. The rest of the Justices of this Court who sat in that
matter concurred in my judgment. In considering the issue before us in that matter, I
discussed various provisions of the LRA including the provisions of
section 189A including 189A(13).
[114] Here is part of what this Court said in CC Steenkamp I in regard to
section 189A(13):
28 CC Steenkamp I above n 11. Referring to this case in this way is meant to distinguish it from the judgment of
the Labour Court and Labour Appeal Court in Steenkamp I.
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“[157] Subsection (8)(b)(ii)(aa) and (bb) provide the only remedies
available to workers or their trade union if they dispute the fairness of
the reason for their dismissal. They do not have any other remedies .
However, they are still better off than their colleagues to whom
section 189A does not apply. This is in so far as they may be
challenging the fairness of the reason for their dismissal. What if they
challenge only the procedural fairness of the dismissal?
[158] It is to be noted that in such a case subsection (8)(b)(ii)(aa)
and (bb) does not contemplate the referral of a dispute concerning the
procedural fairness of a dismissal to the Labour Court for adjudication.
In terms of that provision only a dispute concerning whe ther there is a
fair reason for dismissal may be referred to the Labour Court for
adjudication. In fact subsection (18) precludes the Labour Court from
adjudicating any dispute about the procedural fairness of a dismissal for
operational requirements referred to it in terms of section 191(5)(b)(ii).
It reads:
‘The Labour Court may not adjudicate a dispute about the
procedural fairness of a dismissal based on the employer’s
operational requirements in any dispute referred to it in
terms of section 191(5)(b)(ii).’
Subsection (18) may seem very drastic and harsh on employees who
may be having a dispute with their employer concerning the procedural
fairness of their dismissal. However, it will be seen that, when re ad
with subsection (13), it is not harsh at all. Subsection (13) provides
extensive protections to employees where the employer has failed to
comply with a fair procedure.
[159] I cannot think of any relief that an employee could ask for
which is not provided for in this section. Subsection (17)(a) provides
that an application such as the one contemplated in subsection (13) must
be made not later than 30 days after the employer has given notice to
terminate the employees’ contracts of employment or if notice is not
given, the date on which the employees were dismissed. So, a challenge
based on procedural unfairness may be brought after the dismissals
have taken place. However, subsection (17)(b) gives the Labour Court
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power to condone, on good c ause shown, any failure to comply with
that time limit.
[160] If an employer has not issued notices of dismissal but has failed
or is failing to comply with a fair procedure in the pre-dismissal process,
a consulting party may make use of the remedy in subsection (13)(a).
In such a case the consulting party would apply to the Labour Court for
an order compelling the employer to comply with a fair procedure. If
an employer gives employees notices of dismissal without complying
with a fair procedure, or, if an employer dismisses employees w ithout
complying with a fair procedure, the consulting party may apply to the
Labour Court for an order interdicting the dismissal of employees in
terms of subsection (13)(b) until there is compliance with a fair
procedure. This would include giving premature notices of dismissal.
[161] If any employer has already dismissed employees without
complying with the fair procedure, the consulting party may apply to
the Labour Court in terms of subsection (13)(c) for an order reinstating
the employees until the employer has complied with the fair procedure.
The significance of the remedy of reinstatement in subsection (13)(c) is
that it is made available even for a dismissal that is unfair only because
of non-compliance with a fair procedure. That is significant because it
is a departure from the normal provision that reinstatement may not be
granted in a case where the only basis for the finding that the dismissal
is unfair is the employer’s failure to comply with a fair procedure. In
such a case the norm is that the Labour Court or an arbitrator may award
the employee only compensation.
[162] Subsection (13)(d) provides that a consulting party may apply
to the Labour Court for an award of compensation ‘if an order in terms
of paragraphs (a) to (c) is not appropriate ’. It seems to me that the
phrase ‘if an order in terms of paragraphs (a) to (c) is not appropriate’
constitutes a condition precedent that must exist before the C ourt may
award compensation. The significance of this condition precedent is
that its effect is that the Labour Court is required to regard the orders
provided for in subsection (13)(a) to (c) as the preferred remedies in the
sense that the Labour Court should only consider the remedy in
subsection (13)(d) when it is not appropriate to make any of the orders
in subsection (13)(a) to (c).
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[163] This is a reversal of the legal position that obtains in the case
of dismissals for the employers operational requirements governed by
only section 189 where dismissal is only procedurally unfair and not
substantively unfair as well. In these cases the Labour Court is required
not to order reinstatement at all. So, in making the remedy of
reinstatement available for a procedurally unfair dismissal and also
making it one of the preferred remedies in subsection (13), the
Legislature has gone out of its way to give special protection for the
rights of employees and to protect the integrity of the procedural
requirements of dismissals governed by section 189A.
[164] The extensive remedies in subsection (13) provide at least
partial compensation for the fact that in respect of disputes concerning
the procedure of fairness of dismissals the employees have been
deprived of the right to adjudication that other employees have. In part
the extensive remedies in subsection (13) for non- compliance with
procedural fairness have been provided because of the importance of
the pre-dismissal process.”
29
[115] What this Court said in CC Steenkamp I about section 189A(13) and (18) is
consistent with what I say in this judgment about the same provisions.
LC Steenkamp II
[116] The reference to LC Steenkamp II30 is a reference to the judgment of the
Labour Court in LC Steenkamp II. After this Court’s judgment in CC Steenkamp I, the
employees involved in that case instituted an application in the Labour Court in terms
of subsection (13) and sought an order of compensation as contemplated in
paragraph (d) of subsection 13. By then a period of more than two years had lapsed
since their dismissal. They had instituted the application two or so years outside the
30-day period after they were notified of their dismissal. They applied for condonation
in instituting the section 189A(13) application way out of the 30-day period.
29 CC Steenkamp I above n 11 at paras 157-164.
30 Steenkamp v Edcon Limited [2017] ZALCJHB 487. Referring to this case in this way is meant to distinguish it
from the judgment of the Labour Court in Regenesys which is referred to later as LC Regenesys.
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[117] It is important to note that both the Labour Appeal Court in LAC Steenkamp II
and this Court in the same case effectively accepted that the employees’ explanation for
their delay in lodging the subsection (13) application could not be faulted. The
explanation was that the employees were pursuing the remedy of an invalid dismissal
which they pursued up to this Court when they had lost in this Court in CC Steenkamp I
before they lodged their subsection (13) application. 31 In fact in CC Steenkamp II this
Court said:
“Although I do accept that a subsequently overturned legal
strategy may constitute a reasonable explanation for the delay,
this explanation must be viewed in its proper context.”32
The fact that both the Labour Appeal Court and this Court appeared to accept that th e
explanation for the delay could not be faulted means that in both courts the employees
in LAC Steenkamp II and CC Steenkamp II lost because both courts thought they had
no reasonable prospects of success on the merits.
[118] In LC Steenkamp II the Labour Court, through Malindi AJ, correctly took the
view that, if the employees in that case succeeded in showing that the employer had
failed to follow a fair procedure in dismissing them, “they would be entitled at least to
relief under section 189A(13)(d) if relief in terms of subparagraphs (a) to (c) was not
appropriate. The applicants seek relief under sub-paragraph (d).” The Labour Court
made this statement in a case where the subsection (13) application had been lodged
after a period of more than two years since the dismissal of the employees in that case.
The view expressed by the Labour Court in LC Steenkamp II as referred to above
accords with the analysis of subsection (13) given above. Malindi AJ may not have
referred to Murphy AJ’s judgment in SA Five Engineering but his decision was in line
with Murphy AJ’s decision in SA Five Engineering that compensation could still be
granted more than two years after the dismissal of the employees in that case.
31 LAC Steenkamp II above n 11 at paras 28 and 75.
32 CC Steenkamp II above n 6 at para 75.
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[119] The Labour Court, through Malindi AJ, granted condonation. Malindi AJ was
satisfied that under paragraph (d) of subsection (13) the employees could be granted
compensation if the Court was satisfied that they had been dismissed without
compliance with a fair procedure.
LAC Steenkamp II
[120] The reference to LAC Steenkamp II is a reference to the judgment of the
Labour Appeal Court in LAC Steenkamp II.33 The employer then appealed to the
Labour Appeal Court against the decision of the Labour Court on condonation even
before the Labour Court could decide the merits of the section 189A(13) application.
The error which the Labour Court had committed in Parkinson and Clinix was repeated
by the Labour Appeal Court in LAC Steenkamp II. In LAC Steenkamp II the
Labour Appeal Court, through Sutherland JA, with Musi and Coppin JJA concurring,
said that the principal controversy before it was “whether the granting of condonation
to the respondents to bring an application in terms of section 189A(13) of the LRA after
the expiry of the prescribed 30 -day pe riod was an incorrect exercise of judicial
discretion. Upon the fate of that issue, hangs the propriety of consolidating the several
other cases.”
34
[121] In considering that controversy the Labour Appeal Court had to consider the
employees’ prospects of success in their subsection (13) application. It, therefore,
expressly considered the purpose, function and scope of subsection (13). In considering
the purpose, scope and function of subsection (13) the Labour Appeal Court referred to
the judgments of the Labour Court in Parkinson and Clinix. Unfortunately, it seems
that the judgment of the Labour Court in SA Five Engineering, particularly paragraph 10
thereof, was not brought to the attention of the Labour Appeal Court just as it seems not
to have been brought to the attention of Van Niekerk J in Parkinson and Clinix.
33 LAC Steenkamp II above n 11. Referring to this case in this way is meant to distinguish it from the judgment
of the Labour Court and this Court in Steenkamp II which is referred to as LC Steenkamp II and CC Steenkamp II.
34 Id at para 2.
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[122] In paragraph 13 in LAC Steenkamp II the Labour Appeal Court said:
“[13] The complications that this present application envisages
resolving arise from the fact that the sole issue upon which the
respondents’ grievances have hitherto been advanced have been the
alleged invalidity of their dismissals, having expressly abandoned
claims for procedural and substantive unfairness claims under the
circumstances described. Because the viability of the ‘ invalidity’
premise, as a cause of action, [was] dashed by this Court and by the
Constitutional Court, what the respondents want now is a chance to get
a compensation order for procedural unfairness using
section 189A(13)(d) as a hook. The foundation of the present claim
rests on two legs; (1) first, that it can pursue a trial about unfair
procedure to obtain relief in terms of section 189A(13)(d), and (2)
second, they can obtain condonation of the late referral of a
section 189A(13) application, years out of time, on the basis of the
alleged reasonableness of pursuing an invalidity claim until the
Constitutional Court scotched that hope , and thus the delay is
satisfactorily explained.”
35 (Emphasis added.)
[123] In paragraph 24 and, referring to the periods in section 189A(17)(a) and (b),36
the Labour Appeal Court said in LAC Steenkamp II:
“[24] In context, these time periods speak plainly to the intrinsic
urgency of judicial intervention pursuant to section 189A(13), if a party
wishes a procedural fairness dispute to be addressed. The relief that a
court might grant in terms of section 189A(13)(a) – (d) must be
understood in that context. The remedies are designed to b e available
when an aggrieved applicant brings the application by not later than
35 Id at para 13.
36 Section 189A(17)(a) and (b) reads:
“(a) An application in terms of subsection (13) must be brought not later than 30 days after
the employer has given notice to terminate the employee ’s services or, if notice is not
given, the date on which the employees are dismissed.
(b) The Labour Court may, on good cause shown condone a failure to comply with the
time limit mentioned in paragraph (a).”
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30 days after the notification of the possible retrenchment, and thus,
30 days before a dismissal notice may be given. The primary purpose
is to g et the retrenchment process back onto a track that is fair.
Remedies (a) and (b) plainly are appropriate before a dismissal is
effected. Remedy (c) is aimed at not only reversing a dismissal, but
obligating the employer in future to comply with fairness during an
implicitly resumed process, which implies timeous proximity to the
dismissals. Remedy (d) is plainly contingent on remedies (a) (b) or (c)
being inappropriate in given circumstances; it is thus subordinated to
the first three options, and cannot be read disjunctively from the rest.
Were it appropriate to separate remedy (d) from the rest, the effect of
the section would be to totally contradict section 189A(18). Such an
interpretation cannot therefore be sustained, and it is not open to a
party to seek primary relief in terms of section 189A(13)(d). The
function of section 189A(13)(d) is a residual power, if the given
circumstances make the first three remedies inappropriate. ”
37
(Emphasis added.)
[124] In paragraphs 25 and 26 in LAC Steenkamp II the Labour Appeal Court went on
to say:
“[25] In summary, s ection189A(13) is a procedure designed to
enable the Labour Court to urgently intervene in a large -scale
retrenchment to ensure that fair procedure is followed. It is not
designed to offer a platform for ex post de facto adjudication of unfair
procedure disputes. Although a failure to comply with the 30- day
period can be condoned, the merits of any condonation application must
be understood within the context of an urgent intervention, that being
the critical functional characteristic of an application in terms of
section 189A(13).
[26] Moreover, the intervention contemplated, by its nature does not
contemplate a trial at some future remote time. It exists not to facilitate
a post mortem but, rather, to oversee the process of retrenchment while
it is taking place or shortly thereafter where precipitate dismissals make
37 LAC Steenkamp II above n 11 at para 24.
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intervention before actual dismissal impossible, and to reverse the
dismissals. Remedy (d) is a last resort back up to cater only for the
inappropriateness of remedies (a), (b) or (c).”38
[125] In paragraphs 44 and 45 in LAC Steenkamp II the Labour Appeal Court said:
“[44] At paragraph [43] of the judgment a quo, the findings are
premised o nthe assumption that a self -standing remedy in terms of
section 189A(13)(d) exists. As addressed above, that reading is
incorrect.
[45] The Court a quo therefore misdirected itself in the several
respects addressed in this judgment; i.e. the proper purpose of
section 189A(13) and its limitations were not recognised and the
explanation in support of condonation, relying on a failed legal strategy
to justify the delay is not acceptable, especially, as alluded to above,
because earlier opportunities to seek condonation were spurned,
causing further delay, to which must be added the express and fatal
abandonment of the alternative cause of action.”
39 (Emphasis added.)
[126] Two or three of the features of the Labour Appeal Court’s judgment in
LAC Steenkamp II are that the remedy of compensation contemplated in paragraph (d)
of subsection (13) cannot be claimed as a standalone order and cannot be a
primary remedy. I have expressed the view elsewhere in this judgment that this would
be incorrect, if it meant that compensation could not be claimed separately from the
orders contemplated in paragraphs (a) to (c). The Labour Appeal Court also said that
the remedy of compensation under paragraph (d) could not be granted when a lot of
time had passed since dismissal. I have also expressed the view that this is not correct
because the purpose of paragraph (d) is different from the purpose of
paragraphs (a) to (c) of subsection (13).
38 Id at paras 25-6.
39 Id at para 2.
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[127] Another feature of the judgment of the Labour Appeal Court in
LAC Steenkamp II is that it is based upon an identification of only the primary purpose
of section 189A((13). It said nothing about the secondary purpose of the subsec tion
which is linked to paragraph (d) of subsection (13). The Labour Appeal Court based its
judgment on the view that all the orders under subsection (13), including an order under
paragraph (d), serve the primary purpose of the subsection. This is not correct because
an order under paragraph (d) serves the secondary purpose of subsection (13) and not
the primary purpose.
[128] I have given above two scenarios where an order for compensation may be
claimed a few days after the dismissal of the employees. I need not repeat those
scenarios again.
[129] In so far as the Labour Appeal Court criticised the Labour Court for the
assumption that a self -standing remedy in terms of section 189A(13)(d) exists, that
criticism is not justified in so far as it may suggest that an order of compensation as
contemplated in paragraph (d) of subsection (13) cannot be granted alone at a time when
no order contemplated in paragraphs (a) to (c) can appropriately be granted. Indeed, in
so far as the Labour A ppeal Court criticised the Labour Court that it had misdirected
itself and did not recognise the “proper purpose of section 189A(13) and its limitations”,
that criticism was erroneous. The Labour Court correctly took the view that an order
of compensation as contemplated in paragraph (d) of subsection (13) could be granted
long after the consultation process had ended.
CC Steenkamp II
[130] The reference to CC Steenkamp II is a reference to the judgment of this Court in
CC Steenkamp II. In paragraph 52 in CC Steenkamp II this Court quoted a passage from
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the judgment of the Labour Court in Insurance and Banking Staff Association40 and said
it recognised the purpose of section 189A(13). That passage reads:
“The overriding consideration under section 189A is to correct and
prevent procedurally unfair retrenchments as soon as procedural flaws
are detected, so that j ob losses can be avoided. Correcting a
procedurally flawed mass retrenchment long after the process has been
completed is often economically prohibitive and practically impossible.
All too often the changes in an enterprise with the passage of time deter
reinstatement as a remedy. So, the key elements of section 189A are:
early expedited, effective intervention and job retention in mass
dismissals.”
41
This passage is to be found in paragraph 9 of Pillay J’s judgment in
Insurance and Banking Staff Association in the Labour Court.
[131] In paragraph 12 Pillay J said that, “if there was undue delay between the
occurrence of the procedural flaw, or if the flaw was formal or insignificant, ‘remedies
under subsections (13)(a) to (c) would be inappropriate’”.42 Pillay J did not say between
the occurrence of the procedural flaw and what. She may have meant between the
occurrence of the procedural flaw and the launching of the application or the
adjudication of the application. It is difficult to speculate what the said event is that she
may have had in mind. Nevertheless, it is clear that Pillay J deliberately did not include
the remedy of compensation contemplated in paragraph (d) of subsection (13) when she
mentioned remedies in subsection ( 13) that would be affected by a delay between the
occurrence of the procedural flaw and whatever event.
40 Insurance and Banking Staff Association v Old Mutual Services and Technology Administration (2006) 27 ILJ
1026 (LC).
41 CC Steenkamp II above n 6 at para 52. Referring to this case in this way is meant to distinguish it from the
judgment of the Labour Court and th e Labour Appeal Court in Steen kamp II which is referred to as
LC Steenkamp II and LAC Steenkamp II.
42 Insurance and Banking Staff Association above n 40 at para 12.
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[132] Pillay J seems to have recognised some difference in the purpose of the remedy
in paragraphs (a) to (c) of subsection (13) and the purpose of the remedy contemplated
in paragraph (d) of the same subsection. In fact she began the next paragraph with a
sentence that reinforced this idea. I will quote the whole paragraph. It reads:
“[13] In my opinion, therefore, the remedies under
section 189A(13)(a)-(c) should not be gra nted after the retrenchment
process is completed and if any of the circumstances in the preceding
paragraph obtain. However, in this application, the employee does not
seek relief in terms of subsections (a)-(c). If it is foreseeable at the time
the appl ication is launched that the relief in terms of
subsections (13)(a)-(c) are inappropriate, or if orders in terms of those
subsections are not sought, the next question that arises is whether the
employee can have recourse to relief under subsection (d).”
43
[133] In CC Steenkamp II this Court also fell into the error into which both the
Labour Court and the Labour Appeal Court had, respectively, fallen in Parkinson and
Clinix and in LAC Steenkamp II. This Court said in CC Steenkamp II:
“[52] Where procedural irregularities arise, the process provided for
in section 189A(13) of the LRA allows for the urgent intervention of
the Labour Court to correct any such irregularities as and when they
arise so that the integrity of the consultation process can be restored and
the consultation process can be forced back on track. The purpose of
section 189A(13) has been recognised in a long line of cases.”44
This Court then quoted from Pillay J’s judgment in Insurance and Banking Staff
Association the paragraph quoted above concerning what Pillay J called “The overriding
consideration under section 189A.” Immediately after this, this Court quoted a passage
from Murphy AJ’s judgment in SA Five Engineering but, unfortunately, that passage
was not paragraph 10 of Murphy AJ’s judgment. Paragraph 10 of Murphy AJ’s
43 Id at para 13.
44 CC Steenkamp II above n 6 at para 52.
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judgment contains a different view and, in fact, the correct view about compensation
under paragraph (d) of subsection (13).
[134] This Court went on to say in CC Steenkamp II:
“[58] A central dispute between the parti es is the question whether
the remedy of ‘compensation’ provided for in section 189A(13)(d) is a
self-standing remedy. The applicants insist that it is. Edcon disputes
this.
[59] The remedies provided for in section 189A(13)(a)-(d) must be
considered in the broader context of section 189A of the LRA and
keeping in mind the overall purpose of section 189A(13).
[60] The primary purpose of section 189A(13) is thus to allow for
early corrective action to get the retrenchment process back on track.
Paragraphs (a)-(d) establish a hierarchy of appropriate relief. Only
where it is not appropriate to grant an order in terms of
paragraphs (a)-(c) may an order for compensation be granted in terms
of paragraph (d).
[61] Can it be said then that the compensation remedy provided for
in paragraph (d) is self -standing? The answer is no. The remedy
provided for in section 189A(13)(d) cannot, as contended by the
applicants, be divorced from the remainder of this section and given
self-standing meaning.
[62] Before this Court, counsel for the respondent conceded that a
postponement by a Judge of the consideration of the paragraph (d)
compensation remedy may create the basis for compensation being
considered separately. I think not.
[63] Whereas a postponement of the consideration of compensation
at a later stage may separate its determination procedurally, a Judge
who postpones consideration of paragraph (d) compensation would at
least have had the benefit of considering the other three remedies and
determined their inappropriateness.
[64] On its own terms, paragraph (d) provides for an exceptional
remedy which is granted only where the primary remedies provided for
in paragraphs (a) -(c) are inappropriate. From the reading of the
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language in the text of paragraph (d), it i s cogent that remedy (d) will
only be considered where (a) -(c) are ‘not appropriate’. This therefore
means that a Judge who reaches the decision to postpone the
consideration of paragraph (d) would have considered remedies in
paragraphs (a)-(c) first and would have found these remedies
inappropriate. Thus the compensation remedy can never be a
stand-alone remedy. This was made clear by this Court in Steenkamp I,
where it stated:
‘Subsection (13)(d) provides that a consulting party may
apply to the Labour Court for an award of compensation
“if an order in terms of paragraphs (a) to (c) is not
appropriate”. It seems to me that the phrase “if an order in
terms of paragraphs (a) to (c) is not appropriate”
constitutes a condition precedent that must exist before the
court may award compensation. The significance of this
condition precedent is that its effect is that the
Labour Court is required to regard the orders provided for
in subsection (13)(a) -(c) as the preferred remedies in the
sense that the Labour Court should only consider the
remedy in subsection (13)(d) when it is not appropriate to
make any of the orders in subsection (13)(a) -(c).’”
45
(Emphasis added.)
[135] A reading of the passage quoted from CC Steenkamp I at the end of this excerpt
reveals that the passage from CC Steenkamp I does not say nor does it support the
statement that the order contemplated in paragraph (d) can never be a standalone
remedy. On the contrary that passage from CC Steenkamp I shows the opposite,
namely, that an order of an award of compensation contemplated in paragraph (d) can
only be granted when it would no longer be appropriate to grant any of the orders
contemplated in paragraphs (a) to (c).
[136] In paragraph 66 this Court also said in CC Steenkamp II:
45 Id at paras 58-64.
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“[66] The main purpose of the section and the remedies it provides is
thus to ‘get the retrenchment process back onto a track that is fair.’
Even the remedy of compensation must be read in the context of the
short-term remedies provided for in the same subsection and in light of
the jurisdictional restriction provided for in section 189A(18).
Compensation in terms of section 189A(13)(d) cannot be the primary
relief.”
46 (Emphasis added.)
[137] What the above reveals is that an error that started in the Labour Court in
Parkinson was repeated by the Labour Appeal Court and in this Court. Nevertheless, it
is in the interests of justice that this error be corrected in order to prevent injustices from
being visited upon many workers who may need to be granted a remedy under
section 189A(13)(d) if their employer has failed to comply with a fair procedure in
dismissing them. If the erroneous interpretation of subsection (13) is allowed to
continue, there are many workers whose rights not to be dismissed without compliance
with a fair procedure will be violated by employers. In such a case such employees will
not be granted the remedy contemplated in paragraph (d) on the basis that the
consultation process can no longer be put back on track. Such employees could be
awarded compensation under paragraph (d) because that remedy has nothing to do with
putting the consultation process back on track. The purpose of paragraph (d) of
subsection (13) is to ensure accountability, the vindication of employees’ right not to
be dismissed without compliance with a fair procedure and the granting of an effective
remedy to the affected employees for the infringement of their rights by their employer.
[138] It appears from this Court’s judgment in CC Steenkamp II that the Labour Court
had expressed the view, in deciding the condonation application in LC Steenkamp II,
that, should the employees in that case be successful in their procedural unfairness
claim, they would at least be entitled to relief under section 189A(13)(d), if relief in
terms of paragraphs (a) – (c) was no longer appropriate.47
46 Id at para 66.
47 Id at para 18.
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[139] When the present matter came before the Labour Court as an application in terms
of section 189A(13), Prinsloo J did not take the view that an order contemplated in
paragraph (d) could no longer be granted because the consultation process could no
longer be put back on track. She went ahead to adjudicate the section 189A(13)
application and awarded compensation in terms of paragraph (d) to those employees
whose dismissal was unfair only because there was no compliance with a fair procedure.
In the present matter the Labour Court concluded that it had jurisdiction to adjudicate
the employees’ application brought under section 189A(13) concerning a dispute about
the procedural fairness of their dismissal for operational requirements. On appeal the
Labour Appeal Court decided that the Labour Court had no such jurisdiction. It did so
without any analysis of section 189A(13), 189A(18) or 191 and without any analysis of
any case law including its own previous decisions on the section. It relied on the
judgment of this Court in CC Steenkamp II for its conclusion in this regard.
[140] In summary, therefore, the position is, in my view, that:
(a) subsection (13) has two purposes, not one.
(i) the primary purpose of subsection (13) is to enable the
Labour Court to make an order to compel the employer to comply
with a fair procedure before employees may be dismissed finally
for operational requirements.
(ii) orders of the Labour Court that are capable of achieving the
primary purpose of subsection (13) as articulated in (i) above are
the orders contemplated in paragraphs (a) to (c) of subsection (13).
(iii) an order for the award of compensation contemplated in
paragraph (d) of subsection (13) is not capable of achieving the
primary purpose of subsection (13) as articulated in (i) above but
serves a different purpose, namely, the secondary purpose of
subsection (13) as articulated in (iv) below.
(iv) the secondary purpose of subsection (13) is to hold an employer
who has dismissed employees finally for operational requirements
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without compliance with a fair procedure accountable and ensure
that the employees whose rights have been violated are granted
appropriate relief without insisting on compliance with a fair
procedure.
(v) the secondary purpose of subsection (13) relates to an order for the
payment of compensation contemplated in paragraph (d).
(vi) it is correct to say that an order contemplated in paragraphs (a) to
(c) cannot be granted when the consultation process can no longer
be put back on track because putting the consultation process back
on track is the primary purpose of orders contemplated in
paragraphs (a) to (c).
(vii) an order for the payment of compensation contemplated in
paragraph (d) cannot be refused on the basis that at that time the
consultation process cannot be put back on track because that is not
the purpose served by an order for the payment of compensation.
The purpose served by an order of compensation is the secondary
purpose.
(viii) the orders contemplated in paragraphs (a) to (c) are the primary or
preferred orders under subsection (13).
(ix) the order contemplated in paragraph (d) is an order that is granted
only when an order contemplated in paragraphs (a) to (c) is not
appropriate.
(x) there is a limited time during which orders contemplated in
paragraphs (a) to (c) may appropriately be granted but, once that
limited period has expired, only an order of compensation
contemplated in paragraph (d) can appropriately be granted
because at that stage no order contemplated in paragraphs (a) to (c)
is appropriate.
(xi) while an order under paragraphs (a) to (c) may not be granted years
after the dismissal of the employees, an order for an award of
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compensation as contemplated in paragraph (d) may be granted
appropriately even years after the dismissal.
(xii) whereas the orders contemplated in paragraphs (a) to (c) are
granted on the basis of a rejection of the employer’s failure to
comply with a fair procedure, an order of compensation
contemplated under paragraph (d) is granted on the basis of an
acceptance that the employer has failed to comply with a fair
procedure and there is no insistence that the employer complies
with a fair procedure.
(xiii) although compensation would normally not be claimable soon after
the dismissal of the employees, there are few instances where it
would be claimable soon after the dismissal; in each one of those
instances an order under paragraphs (a) to (c) in section 189A(13)
would not be appropriate.
(xiv) although an order for the payment of compensation would
normally not be claimable or cannot be granted as a standalone
remedy, there are circumstances in which it can be granted as a
standalone remedy.
[141] It is now necessary to discuss the issue for determination in the cross-appeal.
That is whether section 189A(18) excludes any jurisdiction of the Labour Court to
adjudicate disputes about the procedural fairnesss of dismissals for operational
requirements and, if so, whether all such disputes or only some.
Section 189A(18) and the jurisdiction of the Labour Court in regard to disputes
about procedural fairness
[142] The errors disclosed above in regard to the meaning, scope and functioning of
section 189A(13) of the LRA are not the only errors by the Labour Court,
Labour Appeal Court and, ultimately, this Court in applications brought before the
Labour Court in terms of subsection (13) and in subsequent appeals to the
Labour Appeal Court and this Court. Another one is that the Labour Appeal Court has
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held that the Labour Court has no jurisdiction to adjudicate disputes about the
procedural fairness of dismissals for operational requirements, even in a case where
employees have approached the Labour Court by way of an application in terms of
section 189A(13) complaining that, in dismissing them for operational requirements,
their employer to which section 189A applied did not comply with a fair procedure. In
such a case they would be asking for one or other order in terms of
subsection (13)(a) to (d).
[143] This is what the Labour Appeal Court decided in the present matter when this
matter was before that Court. The Labour Appeal Court relied upon section 189A(18)
for this holding and on this Court’s judgment in CC Steenkamp II. The Labour Court,
the Labour Appeal Court and this Court have also made various statements in certain
cases that by virtue of section 189A(18) the Labour Court has no jurisdiction at all to
adjudicate disputes about the procedural fairness of dismissals based on the employer’s
operational requirements or that it has no jurisdiction to adjudicate such matters under
section 191 or that the Labour Court has no jurisdiction to adjudicate such matters under
section 189A(13) even when the dismissal relates to employees to whose employer
section 189A applies.
[144] The Labour Court, Labour Appeal Court and this Court have made such
statements at the different levels of the cases in Steenkamp and/or Barloword and, in
the case of the Labour Appeal Court, also in the present matter. I propose to quote
section 189A(18), then deal with what the provision means and, thereafter, discuss
various cases which dealt with the meaning and effect of section 189A(18) and the
jurisdiction of the Labour Court in regard to disputes about the procedural fairness of
dismissals for operational requirements.
[145] Section 189A(18) reads:
“The Labour Court may not adjudicate a dispute about the procedural
fairness of a dismissal based on the employer’s operational
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requirements in any dispute referred to it in terms of
section 191(5)(b)(ii).”
The first feature that, in my view, needs to be borne in mind in interpreting this provision
is that subsection (18) is a subsection under section 189A. The implication hereof is
that under section 189A any reference to “employer” is a reference to an employer as
contemplated in section 189A(1). That means an employer who employs more than
50 employees. This alone immediately tells one that the dismissal referred to in
subsection (18) is a dismissal of employees to whose employer section 189A applies or,
put differently, whose employ er employs more than 50 employees as contemplated in
section 189A(1). That, therefore, must mean that in terms of section 189A(18) the
Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal
for the employer’s operational requirements in a dispute referred to the Labour Court
for adjudication under section 191 where the employer concerned employs more than
50 employees. Section 189A(18) precludes the Labour Court from adjudicating under
section 191 any dispute about the procedural fairness of dismissals for operational
requirements relating to employees to whose employer section 189A applies if such
dispute is referred to the Labour Court in terms of section 191 of the Act.
[146] In my view, the following points must be emphasised about subsection (18), read
with section 191(5)(b)(ii) and subsection (13):
(a) The Labour Court has jurisdiction to adjudicate disputes about the
procedural fairness of dismissals for operational requirements to which
section 189A applies and which are brought to the Labour Court by way
of applications in terms of subsection (13).
(b) By virtue of subsection (18), the Labour Court has no jurisdiction to
adjudicate in terms of section 191(5)(b)(ii) a dispute about the procedural
fairness of a dismissal for operational requirements to which
section 189A applies because the LRA provides a special procedure and
special remedies in subsection (13) for such disputes. In other words,
such disputes cannot competently be referred to the Labour Court in terms
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of section 191(5)(b)(ii) for adjudication because the LRA has a special
procedure and special remedies for such disputes in subsection (13) in
terms of which they can be adjudicated by the Labour Court.
(c) The Labour Court’s jurisdic tion to adjudicate disputes about the
procedural fairness of dismissals for operational requirements to which
section 189A does not apply and which are referred to it for adjudication
in terms of section 191(5)(b)(ii) is not ousted by subsection (18). That
jurisdiction remains intact and the Labour Court has jurisdiction to
adjudicate such disputes.
[147] If subsection (18) was a subsection of section 191, it, indeed, would have ousted
the Labour Court’s jurisdiction to adjudicate disputes about the procedural fairness of
dismissals for operational requirements to which section 189A does not apply and
which are referred to the Labour Court in terms of section 191(5)(b)(ii) for adjudication.
However, subsection (18) is not located as a subsection to section 191. It is located as
a subsection of section 189A. That is not a coincidence. The reason for that is that, like
all the subsections to section 189A, subsection (18) relates to dismissals for operational
requirements to which section 189A applies. If it was meant to relate to dismissals for
operational requirements to which section 189A does not apply, it would have been
located as a subsection to section 191.
[148] The interpretation that subsection 189A(18) has ousted the jurisdiction of the
Labour Court to adjudicate disputes about the procedural fairness of dismissals for
operational requirements referred to it in terms of section 191(5)(b)(ii) is not accurate.
What is accurate is the interpretation that says that, by virtue of subsection (18), the
Labour Court’s jurisdiction to adjudicate under section 191 disputes about the
procedural fairness of dismissals for operational requirements of employees to whose
employer section 189A applies has been ousted because the LRA has created a special
process and remed y for such disputes in terms of subsection (13). I now proceed to
refer to and discuss the cases in which the Labour Court, Labour Appeal Court and this
Court have made inaccurate statements about the jurisdiction of the Labour Court in
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respect of disputes about the procedural fairness of dismissals for operational
requirements.
Discussion of relevant case law
CC Steenkamp I
[149] The reference to CC Steenkamp I is a reference to the judgment of this Court in
Steenkamp I.48 This Court pointed out in CC Steenkamp I that “section 189A creates
special rights and obligations for which it provides special remedies.” 49 This Court
went on to say in paragraphs 157 and 158:
“[157] Subsections (8)(b)(ii)(aa) and (bb) [of section 189A] provide
the only remedies ava ilable to workers or their trade union if they
dispute the fairness of the reason for their dismissal. They do not have
any other remedies. However, they are still better off than their
colleagues to whom s ection 189A does not apply. That is insofar as
they may be challenging the fairness of the reason for their dismissal.
What if they challenge only the procedural fairness of the dismissal?
[158] It is to be noted that in such a case s ubsection (8)(b)(ii)(bb)
does not contemplate th e referral of a dispute concerning the
procedural fairness of a dismissal to the Labour Court for adjudication.
In terms of that provision only a dispute concerning whether there is a
fair reason for dismissal may be referred to the Labour Court for
adjudication. In fact subsection (18) precludes the Labour Court from
adjudicating any dispute about the procedural fairness of a dismissal for
operational requirements referred to it in terms of section 191(5)(b)(ii).
It reads:
‘The Labour Court may not adjudicate a dispute about the
procedural fairness of a dismissal based on the employer’s
operational requirements in any dispute referred to it in
terms of section 191(5)(b)(ii).’
48 CC Steenkamp I above n 11. Referring to this case in this way is meant to distinguish it from the judgment of
the Labour Court and the Labour Appeal Court in Steenkamp I.
49 Id at para 147.
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Subsection (18) may seem very drastic and harsh on employees who
may be having a dispute with their employer concerning the procedural
fairness of their dismissal. However it will be seen that when read with
subsection (13), it is not harsh at all. Subsection (13) provides
extensive protections to employees where the employer h as failed to
comply with a fair procedure.”50 (Emphasis added.)
What the last two sentences in this excerpt mean is that subsection (18) is not so harsh
because disputes about the procedural fairness of dismissals for operational
requirements of employees to whose employer section 189A applies can still be
adjudicated by the Labour Court under section 189A(13). In saying that in
CC Steenkamp II this Court affirmed that the disputes about the procedural fairness of
dismissals based on the employer’s operational requirements which subsection (18)
says cannot be adjudicated by the Labour Court under section 191 can actually be
adjudicated by that same court under section 189A(13).
[150] It needs to be made clear that, in stating in CC Steenkamp I that subsection (18)
“precludes the Labour Court from adjudicating any dispute about the procedural
fairness of a dismissal for operational requirements”, this Court did not stop there but it
added the qualification “referred to [the Labour Court] in terms of section 191(5)(b)(ii)”
which is part of subsection (18). What this Court said in CC Steenkamp I regarding
subsection (18) is simply the literal meaning of subsection (18) as it is without any
interpretation. Some of the cases have ignored that qualification and have given
subsection (18) a meaning to the effect that except for subsection (13 ) jurisdiction, the
Labour Court has no jurisdiction to adjudicate any cases relating to procedural fairness
in dismissals for operational requirements whatsoever or has no jurisdiction if those
disputes have been referred to the Labour Court in terms of section 191(5)(b)(ii).
[151] Those cases have said that subsection (18) has ousted the jurisdiction of the
Labour Court to adjudicate disputes about the procedural fairness of dismissals for
50 Id at paras 157-8.
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operational requirements without any reference to section 191. What subsection (18)
means is that a dispute about the procedural fairness of a dismissal for operational
requirements to which section 189A applies cannot be referred to the Labour Court in
terms of section 191(5)(b)(ii) for adjudication. This is because the legislature has
provided a special process for the adjudication of such disputes under subsection (13).
[152] Subsection (18) does not relate to disputes about the procedural fairness of
dismissals to which section 189A does not apply. Those may still be referred to the
Labour Court in terms of section 191(5)(b)(ii) for adjudication. Later on, this Court
said in paragraph 164 in CC Steenkamp I:
“[164] The extensive remedies in subsection (13) provide at least
partial compensation for the fact that, in respect of disputes concerning
the procedural fairness of dismissals, the employees have been deprived
of the right to adjudication that other employees have . In part, the
extensive remedies in subsection (13) for non- compliance with
procedural fairness have been provided b ecause of the importance of
the pre-dismissal process.”51 (Emphasis added.)
It is vitally important to point out that the first sentence of paragraph 164 does not say
that employees to whom section 189A does not apply have been deprived of the right
to adjudication in respect of their disputes about the procedural fairness of dismissals
for operational requirements.
[153] The reference to “the employees” at the beginning of the second half of that
sentence is a reference to employees to whom “[ t]he extensive re medies in
subsection (13)”, which appears at the beginning of the sentence, are available and those
are the employees to which section 189A applies. In other words, that sentence says in
effect that, although the employees to which section 189A applies are deprived of the
right of adjudication which other employees have, which is the right of adjudication of
a dispute about the procedural fairness of a dismissal for operational requirements that
51 Id at para 164.
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follows after a referral of such dispute to the Labour Court in terms of
sections 191(5)(b)(ii), subsection (13) provides employees to which section 189A
applies with “partial compensation”.
[154] Subsection (18) is the provision on which the Labour Appeal Court and this
Court in CC Steenkamp II relied to say that the Labour Court’s jurisdiction to adjudicate
the procedural fairness of dismissals for operational requirements had been ousted. In
saying so, both the Labour Appeal Court and this Court were also referring to disputes
about the procedural fairness of dismissals for operational requirements to which
section 189A applies and which are brought in the Labour Court by way of applications
in terms of section 189A(13). As I say elsewhere in this judgment, in giving
section 189A(18) that meaning, this Court and the Labour Appeal Court interpreted
section 189A(18) as if the words that appear after the word “dispute” in that provision
are not there. The view that section 189A(18) ousts the jurisdiction of the Labour Court
to adjudicate the procedural fairness of dismissals for operational requirements
including where a dispute about procedural fairness is brought before the Labour Court
in terms of subsection (13) is not correct.
LC Steenkamp II
[155] The reference to LC Steenkamp II is a reference to the judgment of the
Labour Court in Steenkamp II.52 After the employees involved in CC Steenkamp I had
failed in their bid to obtain an order that their dismissals had been invalid, they
approached the Labour Court by way of an application in terms of section 189A(13) for
an order for the payment of compensation. The employees’ section 189A(13)
application was more than two years late. They applied for condonation. The Labour
Court granted condonation. It said that the employees would still be able to be awarded
compensation in terms of section 189A(13) if they succeeded in proving that the
employer had failed to comply with a fair procedure. This shows that the Labour Court,
52 LC Steenkamp II above n 30. Referring to this case in this way is meant to distinguish it from the judgment of
the Labour Appeal Court and this Court in Steenkamp II which is referred to as LAC Steenkamp II and
CC Steenkamp II.
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through Malindi AJ, did not think that the Labour Court had no jurisdiction to adjudicate
under section 189A(13) disputes about the procedural fairness of dismissals for
operational requirements in respect of employees to whose employer section 189A
applies.
LAC Steenkamp II
[156] The reference to LAC Steenkamp II is a reference to the judgment of the
Labour Appeal Court in Steenkamp II.53 In LAC Steenkamp II the Labour Appeal Court
accepted that the Labour Court had jurisdiction to adjudicate disputes about the
procedural fairness of dismissals for operational requirements properly brought before
the Labour Court in terms of section 189A(13). However, without any qualification the
Labour Appeal Court made certain statements about the Labour Court not having
jurisdiction.
In LAC Steenkamp II the Labour Appeal Court also said, after quoting
section 189A(13):
“This jurisdictional competence cannot be read disjunctively from
section 191(5)(b)(ii) and section 189A(18). Plainly, this power is an
exception to the primary prescription that no adjudication can occur
about unfair procedure.”
54 (Emphasis added.)
[157] These statements do not say that the Labour Court has no jurisdiction under
section 191 to adjudicate disputes about the procedural fairness of the dismissals for
operational requirements of employees to which section 189A applies and that such
disputes, in so far as they may relate to employees to whose employer section 189A
does not apply, can still be adjudicated by the Labour Appeal Court.
53 LAC Steenkamp II above n 11. Referring to this case in this way is meant to distinguish it from the judgment
of the Labour Court and this Court in Steenkamp II which is referred to as LC Steenkamp II and CC Steenkamp II.
54 Id at para 21.
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[158] After quoting subsection (18), the Labour Appeal Court said in
LAC Steenkamp II in paragraphs 18 and 19:
“[18] An employer who dismisses an employee must justify the
decision to do so. Section 189 regulates that obligation. Furthermore,
in large scale retrenchments, like that in this case, additional obligations
are imposed on the employer by section 189A. Central to the present
controversy is section 189A(18) which provides that:
‘The Labour Court may not adjudicate a dispute about
procedural fairness of a dismissal based on the employer’s
operational requirements refe rred to it in terms of
section 191(5)(b)(ii)’.
[19] There could be no clearer indication that after a dismissal had
taken place under the stipulated circumstances of operational
requirements of an employer, the Labour Court is bereft of jurisdiction,
save in respect of substantive fairness. That express exclusion of
jurisdiction to evaluate procedural unfairness ex post facto is in stark
contrast to the jurisdictional competence of the Labour Court in other
kinds of dismissal disputes.”
55 (Emphasis added.)
What the Labour Appeal Court was saying in the emphasised sentence is in effect that
the Labour Court has no jurisdiction to adjudicate disputes about the procedural fairness
of dismissals based on the employer’s operational requirements. It was also saying that,
in disputes concerning dismissals for operational requirements, the Labour Court
remains only with the jurisdiction in respect of the substantive fairness of such
dismissals. That statement is not correct because the Labour Court still has jurisdiction
to adjudicate disputes about the procedural fairness of dismissals of employees whose
employer employs less than 50 employees.
55 LAC Steenkamp II above n 23 at paras 18-9.
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CC Steenkamp II
[159] The reference to CC Steenkamp II is a reference to the judgment of this Court in
Steenkamp II.56 I repeat that this was a case where employees launched their application
in terms of section 189A(13) more than two years after the dismissal of the employees.
The issues before this Court were whether the Labour Appeal Court ’s decision setting
aside the Labour Court’s decision granting condonation for the delay in the launching
of the section 189A(13) application was correct and whether the remedy of
compensation under section 189A(13)(d) was a self-standing-remedy.
[160] Although this Court concluded that the Labour Appeal Court had correctly
exercised its discretion in setting aside the Labour Court’s decision, it, through
Basson AJ, made various statements about section 189A(18) and the jurisdiction of the
Labour Court in respect of disputes about the procedural fairness of dismissals for
operational requirements. Some of those statements about the jurisdiction of the
Labour Court and section 189A(18) are inaccurate. One of the statements made by this
Court in CC Steenkamp II was this:
“Disputes about procedural fairness have been removed from the
adjudicative reach of the Labour Court and may no longer be referred
to the Labour Court as a distinctive claim or cause of action that a
dismissal on the basis of operational requirements was procedural ly
unfair.”
57
This statement is unqualified and basically says that the Labour Court no longer has
jurisdiction in respect of disputes about procedural fairness and such disputes may no
longer be referred to the Labour Court “as a distinctive claim or cause of action” relating
to a dismissal for operational requirements.
56 CC Steenkamp II above n 6. Referring to this case in this way is meant to distinguish it from the judgment of
the Labour Court and the Labour Appeal Court in Steenkamp II which is referred to as LC Steenkamp II and
LAC Steenkamp II.
57 Id at para 48.
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[161] This is not correct because the Labour Court still has jurisdiction in respect of
disputes about the procedural fairness of dismissals for operational requirements in
regard to employees to whose employer section 189A does not apply. This Court itself
accepted that the Labour Court has jurisdiction in respect of disputes about the
procedural fairness of dismissals for operational requirements that are properly brought
before the Labour Cou rt in terms of section 189A(13). What this Court should have
said is that the Labour Court may not adjudicate under section 191(5)(b)(ii) a dispute
about the procedural fairness of a dismissal for operational requirements of employees
to whose employer section 189A applied.
[162] Under the heading “Nature, purpose and functioning” of section 189A(13), in
CC Steenkamp II this Court, inter alia, said at paragraphs 47 to 48:
“[47] A distinctive feature of section 189A(13) of the LRA is the
separation of disputes a bout procedural fairness. Disputes about
substantive fairness may be dealt with by resorting to strike action or
by referring a dispute about the substantive fairness of the dismissals to
the Labour Court in terms of section 191(11) of the LRA.
[48] Disputes about procedural fairness have been removed from
the adjudicative reach of the Labour Court and may no longer be
referred to the Labour Court as a distinctive claim or cause of action
that a dismissal on the basis of operational requirements was
procedurally unfair.”
58
[163] This Court also made the following statements about the jurisdiction of the
Labour Court:
“[49] Although a clear policy decision has been made to remove
claims of procedural unfairness from the ex post facto jurisdictional
competence of the Labour Court, employees are not left without a
remedy. In what the Labour Appeal Court referred to as a ‘parti al
claw-back of jurisdiction’, they may approach the Labour Court in
terms of section 189A(13) of the LRA for an order compelling the
58 Id at paras 47-8.
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employer to comply with a fair procedure. Where employees have
already been dismissed, the Labour Court has the additional power in
terms of section 189A(13)(c) of the LRA to reinstate such an employee
to allow for the consultation process to run its course.
. . .
[51] The rationale for the removal of the Labour Court’s jurisdiction
in respect of procedural issues from the ambit of section 191(5)(b)(ii) of
the LRA must be viewed against the broader context and purpose of
section 189A as a whole. Recognising that large-scale retrenchments
may benef it from the intervention of third parties, section 189A
provides for an assisted consultative framework in the context of
large-scale retrenchments albeit only for a limited time.”
59
[164] This Court commented on the Labour Appeal Court’s interference with the
Labour Court’s decision to grant the employees condonation for their delay in launching
their section 189A(13) application. This Court said:
“[69] The Labour Appeal Court interfered with the Labour Court’s
discretion because of the Labour Court’s misconception about the
purpose and functioning of section 189A(13) of the LRA. Here the
Labour Appeal Court criticises the Labour Court’s acceptance that it
has jurisdiction to adjudicate disputes about unfair procedure in the
context of large scale retrenchments. It concludes by emphasising the
point that the jurisdictional competence assigned to the Labour Court in
section 189A(13) cannot be read disjunctively from
sections 191(5)(b)(ii) and section 189A(18) because ‘plainly, this
power is an exception to the primary prescription that no adjudication
can occur about unfair procedure.’
[70] The Labour Appeal Court’s criticism is warranted. The
Labour Court misunderstood the jurisdictional competence conferred
on it by section 189A(13) of the LRA. This much is clear if regard is
had to the order granted by the Labour Court. In its order the
Labour Court consolidated the application for compensation in respect
of procedural unfairness under section 189A with the main action and
59 Id at paras 49 and 51.
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referred it to trial. This is wrong. The jurisdiction of the Labour Court
to adjudicate on the procedural fairness of a dismissal based on the
employer’s operational requirements has been ousted by
section 189A(18) of the LRA. As the Labour Appeal Court correctly
stated, the Labour Court’s jurisdictional competence ‘cannot be read
disjunctively from section 191(5)(b)(ii) of the LRA and
section 189A(18) of the LRA.’”60
[165] In paragraph 69 there is a sentence where this Court says the
Labour Appeal Court criticised the Labour Court for accepting that it (i.e. the
Labour Court) had “jurisdiction to adjudicate disputes about unfair procedure in the
context of large scale retrenchments.” Although I accept that the Labour Appeal Court
criticised the Labour Court extensively, I do not think that it criticised the Labour Court
for accepting that it had jurisdiction to adjudicate a dispute about the procedural fairness
of dismissals for operational requirements in large scale retrenchments. In its judgment
the Labour Appeal Court made some statements about the jurisdiction of the
Labour Court but it is not clear from its judgment why those statements were relevant
because the issue of jurisdiction of the Labour Court to adjudicate a dispute about the
procedural fairness of a dismissal based on the employer’s operational requirements of
employees to whose employer section 189A applied that was brought in the
Labour Court in terms of section 189A(13) was not in dispute. The Labour Court
clearly had jurisdiction in terms of section 189A(13) to adjudicate this matter because
this was a dispute about the procedural fairness of dismissals for operational
requirements of employees to whose employer section 189A applied and which had
been brought in the Labour Court in terms of section 189A(13). The employees had
launched their section 189A application very late but they applied for condonation and
whether or not the Labour Court would get to adjudicate the dispute depended upon
whether or not the employees’ delay in launching their application was to be condoned.
The Labour Court had granted condonation but the Labour Appeal Court had reversed
that decision and dismissed the condonation application.
60 Id at paras 69-70.
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[166] It will have been seen from paragraph 70 in CC Steenkamp II as quoted above
that this Court went on to say that it was wrong for the Labour Court to consolidate the
matter relating to procedural fairness (that was brought in the Labour Court in terms of
section 189A(13)) and the matter relating to the substantive fairness of the dismissal
(that was referred to the Labour Court in terms of section 191(5)(b)(ii) for adjudication).
This Court gave the basis for its criticism as being the following:
“The jurisdiction of the Labour Court to adjudicate on the procedural
fairness of a dismissal based on the employer’s operational
requirements has been ousted by section 189A(18) of the LRA. As the
Labour Appeal Court correctly stated, the Labour Court’s jurisdictional
competence ‘cannot be read disjunctively from section 191(5)(b)(ii) of
the LRA and section 189A(18) of the LRA.’”61
Quite clearly, this passage relates to the dispute about the procedural fairness that was
consolidated by an order of the Labour Court with the dispute about the substantive
fairness of the dismissal.
[167] The dispute about the procedural fairness was not referred to the Labour Court
in terms of section 191(5)(b)(ii). Because of that, the exclusion of the Labour Court’s
jurisdiction in section 189A(18) did not get triggered. That dispute was brought in the
Labour Court in terms of section 189A(13) and, quite clearly , the Labour Court had
jurisdiction to adjudicate it if condonation for the delay was granted. Paragraph 70 of
this Court’s judgment in CC Steenkamp II may well be the paragraph that led the
Labour Appeal Court in the present matter to think that that judgment was authority for
the proposition that the Labour Court had no jurisdiction to adjudicate disputes about
the procedural fairness of dismissals for operational requirements of employees to
whose employer section 189A applied even if it had been brought in the Labour Court
in terms of section 189A(13). I say this because that is what the Labour Appeal Court
61 Id at para 70.
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effectively decided in the present matter despite the clear language of section 189A(13).
To the extent that this is what paragraph 70 says, it is not correct.
[168] To the extent that this Court criticised the Labour Court for consolidating the
matter of substantive fairness of the dismissal that was referred to the Labour Court in
terms of section 191 with the matter of the procedural fairness of the dismissal that was
brought in the Labour Court in terms of section 189A(13), I do not think that it was
justified. Actually, the consolidation of such matters (where the employees in a
section 189A(13) application only seek compensation) and the substantive fairness
matter makes sense because these are two components of the same dispute. The role
players in the two matters will usually be the same. If such matters are consolidated,
they will be heard by the same Judge whereas, if they are not consolidated, they could
be heard by different Judges. If that were to happen, the one Judge could find that a
particular witness is unreliable or dishonest and the Judge hearing the other matter finds
that the same witness’ evidence is credible with all the problems that could flow from
that. If the matters are consolidated and heard by the same Judge, the Judge would
simply have to bear in mind that he or she is adjudicating one matter under section 191
and the other under section 189A(13).
[169] There are statements made by this Court in CC Steenkamp II which suggest that
this Court accepted that the Labour Court has jurisdiction to adjudicate disputes about
the procedural fairness of dismissals for operational requirements that are brought in
the Labour Court by way of applications in terms of section 189A(13).62
LC Barloworld
[170] The reference to LC Barloworld is a reference to the judgment of the
Labour Court in Barloworld. 63 In Barloworld the Labour Court dealt with two
applications brought by two unions in terms of section 189A(13). The two unions
62 Id at paras 49, 52 and 54.
63 LC Barloworld above n 11. Referring to this case in this way is meant to distinguish it from the judgment of
this Court in Barloworld which is referred to as CC Barloworld.
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complained that the employer, namely, Barloworld, had dismissed their respective
members without compliance with a fair procedure. Both unions contended that such
consultation as Barloworld may have purported to undertake was inadequate. The
Labour Court held that the applications did not raise issues of non-compliance with a
fair procedure but they raised issues of procedural fairness. The Labour Court sought
to draw a distinction between the concept of procedural fairness of a dismissal and the
concept of compliance with a fair procedure.
[171] The Labour Court went on to say that the matters that could be brought to it in
terms of subsection (13) were those that related to a failure to comply with a fair
procedure and not matters that related to the procedural fairness of a dismissal. It held
that matters concerning the procedural fairness of dismissals could not be brought to it
in terms of subsection (13). The Labour Court’s conclusion in LC Barloworld that the
two phrases meant different things was contrary to a decision of this Court in
CC Steenkamp I where this Court expressly said:
“[126] The procedural obligations placed upon an empl oyer in
section 189A, including those in section 189A(8), relate to procedural
fairness contemplated in section 188(1)(b). Then, when subsection (13)
refers to non-compliance with a fair procedure, it refers to procedural
fairness made up of the procedura l obligations and rights provided for
in section 189A.”64
[172] In LC Barloworld the Labour Court dismissed the two subsection (13)
applications. The basis for the Labour Court’s decision to dismiss these two
applications was that the two unions were complaining about the dismissal of
employees on the basis that the dismissals were procedurally unfair whereas
section 189A(13) did not relate to disputes about the procedural fairness of dismissals
but about dismissals without compliance with a fair procedure. The distinction that the
Labour Court tried to make about these phrases is without any justification.
64 CC Steenkamp I above n 11 at para 126.
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[173] Although the Labour Court did not therefore say that it had no jurisdiction to
adjudicate disputes about non-compliance with a fair procedure, in saying that it had no
jurisdiction to adjudicate under section 189A(13) disputes about the procedural fairness
of dismissals for operational requirements of employees to whose employer
section 189A applied, it created the impression that there were some di sputes
concerning the procedural fairness of dismissals for operational requirements in respect
of which the Labour Court had no jurisdiction.
[174] Nevertheless, the Labour Court made this statement which, unqualified as it is,
could be understood as meaning that the Labour Court’s jurisdiction to adjudicate
disputes about the procedural fairness of dismissals for operational requirements that
the Labour Court adjudicates under section 191 of the LRA had been ousted. The
passage reads:
“As a build up to what was said in TAWUSA, it is important to add that in
terms of section 189A (18) of the LRA, this Court is precluded from
adjudicating disputes about the procedural fairness of a dismissal based on the
employer’s operational requirements. As confirmed by the
Constitutional Court in [ CC Steenkamp II] the jurisdiction of the
Labour Court to adjudicate on procedural fairness of a dismissal based on the
employer’s operational requirements has been ousted.”65
So, the judgment purported to bar certain workers from bringing some of their disputes
to the Labour Court and bar workers to which section 189A did not apply from having
their disputes about the procedural fairness of dismissals for operational requirements
brought to the Labour Court for adjudication. In the LC Barloworld case the
Labour Court also said:
“
[13] Where this Court adjudicates procedural fairness disputes
under the banner of section 189A(13) this Court would be acting
ultra vires. Its powers were taken away by section 189A(18).”66
65 LC Barloworld above n 64 at para 7.
66 Id at para 13.
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Quite clearly, in this passage the Labour Court was saying that it has no power or
jurisdiction to adjudicate disputes about procedural unfairness under section 189A(13)
which is clearly incorrect. In this passage the Labour Court says the Labour Court’s
power to adjudicate such disputes were taken away by section 189A(18). That is also
not correct. The Labour Appeal Court refused leave to appeal. The
Labour Appeal Court’s refusal of leave meant that the Labour Appeal Court agreed with
the decision of the Labour Court.
CC Barloworld
[175] The reference to CC Barloworld is a reference to the judgment of this Court in
Barloworld.67 CC Barloworld was an appeal to this Court by Solidarity against the
Labour Court’s judgment in LC Barloworld. Tshiqi J gave this Court’s unanimous
judgment.68 This Court considered the merits of the two applications brought by these
two unions in the Labour Court in terms of section 189A(13) of the LRA and concluded
that there had been a meaningful consultation before the members of the two unions
were dismissed and that, for that reason, the appeals fell to be dismissed. NUMSA did
not take part in the appeal before this Court.
[176] The essence of the dispute, said Tshiqi J in her judgment in this Court, was
whether or not there had been a meaningful joint consensus-seeking process as
envisaged in section 189(2). In CC Barloworld this Court, quite correctly, rejected the
distinction that the Labour Court sought to make between procedural fairness and
compliance with a fair procedure in the context of dismissal disputes. I would go further
than this Court did in CC Barloworld. This Court seemed to leave open a window of
opportunity for an argument in some future case in which the distinction could be shown
to exist. There is no such chance. These are different phrases which mean exactly the
67 CC Barloworld above n 11. Referring to this case in this way is meant to distinguish it from the judgment of
the Labour Court in Barloworld which is later referred to as LC Barloworld.
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same thing. In essence they both relate to the observance or non- observance of the
audi alteram partem rule in labour law.
[177] A look at the history of our jurisprudence on unfair dismissal law in the 1980s
will reveal that in its first few unfair labour practice cases in the early 1980s the
Industrial Court relied on the audi alteram partem rule to hold that an employer was
obliged to give an employee an opportunity to be heard before such employee could be
dismissed. In the context of dismissals for misconduct that requirement remained one
for a hearing. In the context of dismissals for incapacity, that requirement developed in
due course to be counselling. In the case of retrenchment, that requirement developed
to a requirement for consultation. Also, in due course, our courts and academic writers
began to refer to procedural fairness and to failure to follow, or, comply with, a fair
procedure interchangeably. The notorious 1988 amendments to the 1956 LRA included
a reference to a “fair procedure”. Accordingly, not only is the distinction sought to be
drawn by the Labour Court not supported by common sense and logic, it is also
inconsistent with the historical development of our jurisprudence on unfair dismissal
law. Accordingly, procedural fairness and fair procedure in the context of dismissal
disputes refer to the same thing. Their origin is the same. It is the audi alteram partem
rule.
[178] In CC Barloworld this Court referred to this Court’s judgment in
CC Steenkamp I extensively. It then concluded that in CC Steenkamp I this Court had
stated on the basis of subsection (18) that the Labour Court had no jurisdiction to
adjudicate disputes about the procedural fairness in dismissals for operational
requirements referred to it in terms of section 191(5)(b)(ii). In CC Barloworld this
Court then said:
“[65] It is thus clear that the Labour Court may not adjudicate a
dispute about the procedural fairness of a dismissal based on the
employer’s operational requirements in any dispute referred to it in
terms of section 191(5)(b)(ii). As this Court reasoned, in Steenkamp I,
section 189A(13) provides adequate protection for employees where
there has been a failure to comply with a fair procedure. Moreover, in
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Steenkamp II, this Court confirmed the features of section 189A(13)
and said:
‘A distinctive feature of section 189A(13) of the LRA is the
separation of disputes about procedural fairness from disputes
about substantive fairness. Disputes about substantive fairness
may be dealt with by resorting to strike action or by referring a
dispute about the substantive fairness of the dismissals to the
Labour Court in terms of section 191(11) of the LRA. Disputes
about procedural fairness have been removed from the
adjudicative reach of the Labour Court and may no longer be
referred to the Labour Court as a distinctive claim or cause of
action that a dismissal on the basis of operational requirements
was procedurally unfair.’
. . .
[67] The above excerpts read with section 189A(18) remove
disputes about procedural fairness, as a distinctive claim or cause of
action, that a dismissal on the basis of operational requirements was
procedurally unfair, from the adjudicative reach of the Labour Court.
[68] It follows from this jurisprudence that, in order for the
Labour Court to adjudicate a claim of the unfairness of a procedure in
dismissals for operational requirements, the Court must be approached
in terms of section 189A(13) on the basis of non- compliance with the
procedures prescribed by sections 189 or 189A of the LRA .”69
(Emphasis added.)
What this Court was saying here was that the only remaining route for the adjudication
of disputes about the procedural fairness of dismissals for operational requirements was
section 189A(13). This is not correct because the Labour Court still has jurisdiction to
adjudicate disputes about the procedural fairness of dismissals on the basis of the
employer’s operational requirements in regard to employees to whose employer
section 189A applies.
69 Id at paras 65 and 67-8.
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[179] In CC Barloworld this Court also made certain unqualified statements which
suggested that the Labour Court had no jurisdiction to adjudicate disputes about the
procedural fairness of dismissals for operational requirements of employees to whose
employer section 189A applied. It said:
“[65] It is thus clear that the Labour Court may not adjudicate a
dispute about the procedural fairness of a dismissal based on the
employer’s operational requirements in any dispute referred to it in
terms of section 191(5)(b)(ii). As this Court reasoned in Steenkamp I,
section 189A(13) provides adequate protection for employees where
there has been a failure to comply with a fair procedure. Moreover,
in Steenkamp II, this Court confirmed the features of section 189A(13)
and said:
‘A distinctive feature of s ection 189A(13) of the LRA is
the separation of disputes about procedural fairness from
disputes about substantive fairness. Disputes about
substantive fairness may be dealt with by resorting to
strike action or by referring a dispute about the substantive
fairness of the dismissals to the Labour Court in terms of
section 191(11) of the LRA. Disputes about procedural
fairness have been removed from the adjudicative reach of
the Labour Court and may no longer be referred to the
Labour Court as a distinctive claim or cause of action that
a dismissal on the basis of operational requirements was
procedurally unfair.’”
70
[180] Later on, this Court also said in CC Barloworld:
“It follows from this jurisprudence that, in order for the Labour Court
to adjudicate a claim of the unfairness of a procedure in dismissals for
operational requirements, the court must be approached in terms of
section 189A(13) on the basis of non- compliance with the procedures
prescribed by section 189 or 189A of the LRA.”71
70 Id at para 65.
71 Id at para 68.
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[181] Later, this Court went on to say in CC Barloworld:
“[71] The following emanates from the above discussion. Firstly, the
power of the Labour Court to adjudicate the procedural fairness of
retrenchment consultations is limited to the ‘fair procedure ’ that is
prescribed in sections189 and 189A, which give effect to section 188.
Secondly, it is evident that a party seeking the Labour Court’s
intervention when an employer fails to follow a fair procedure during
retrenchment consultations must approach the Court for relief in terms
of section 189A(13). This is because the Labour Court is barred from
determining the procedural fairness of a dismissal based on
operational requirements when it is approached in terms of
section 191(5)(b)(ii).” (Emphasis added.)
[182] This Court also stated that until there was a basis for drawing a distinction
between non-compliance with a fair procedure and procedural unfairness, “it may be
safely concluded that the Labour Court’s jurisdiction to adjudicate procedural fairness
is only ousted in respect of unfair dismissal proceedings brought in terms of
section 191(5)(b)(ii). It is uncontroversial and has been settled by this Court that if an
employer fails to follow the procedures prescribed by sections 189 and 189A of the
LRA, a party is entitled to approach the Labour Court in terms of section 189A(13) and
the Court, in turn, is entitled to grant any of the remedies contained in that provision.”
72
[183] The essence of this Court’s judgment in CC Barloworld was that, by virtue of
subsection (18), the Labour Court no longer had jurisdiction to adjudicate disputes
about the procedural fairness of dismissals for operational requirements referred to it in
terms of section 191(5)(b)(ii) but that it did have jurisdiction to adjudicate disputes
about the procedural fairness in dismissals f or operational requirements to which
section 189A applied if they were brought by way of applications in terms of
subsection (13). While the second part of this statement correctly reflects the legal
position, the first part does not, in my respectful view, reflect the correct interpretation
of subsection (18). This is so because the Labour Court still has jurisdiction to
72 Id at para 72.
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adjudicate disputes about the procedural fairness of dismissals based on the employer’s
operational requirements of employees to whose employer section 189A does not apply
and the first part of that statement says the opposite.
LAC Regenesys
[184] The reference to LAC Regenesys is a reference to the Labour Appeal Court’s
judgment in Regenesys73 which is the present matter. Regenesys’ appeal against the
judgment and order of the Labour Court came before the Labour Appeal Court. The
Labour Appeal Court upheld Regenesys’ appeal against the decision of the
Labour Court that the dismissal was effected without compliance with a fair procedure
and the order for the payment of various amounts of compensation.
[185] The dispute between the employees and Regenesys in this case has two
components. The one component relates to the procedural fairness of the dismissal.
That is the one referred to in the above excerpt. The dismissal here was based on the
employer’s operational requirements. Regenesys employed more than 50 employees.
The other component of the dispute relates to the substantive fairness of the dismissal.
The two components of the dispute were consolidated by an order of the Labour Court.
[186] In a judgment penned by Savage AJA and concurred in by Davis JA and
Coppin JA, the Labour Appeal Court said:
“The first issue in this appeal is whether the Labour Court had
jurisdiction to determine the procedural fairness together with the
substantive fairness of a dismissal of the respondents”74
[187] Savage AJA then quoted section 189A(13) and 189A(18) in succession and said:
“In [CC Steenkamp II], the Constitutional Court noted that the primary purpose
of section 189A(13) is thus to allow for early corrective action to get the
73 LAC Regenesys above n 11. Referring to this case in this way is meant to distinguish it from the judgment of
the Labour Court in Regenesys which is referred to later as LC Regenesys.
74 Id at para 13.
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retrenchment process back on track. Section 189A regulates dismissals for
operational requirements by employers with more than 50 employees, with
it found that section 189A(18) expressly deprives the Labour Court of
jurisdiction to determine procedural fairness in such cases. As a result, it was
found that the Labour Court erred in consolidating the application for
compensation in respect of procedural unfairness under section 189A with the
main action and refer it to trial, on the basis that:
‘The jurisdiction of the Labour Court to adjudicate on the
procedural fairness of a dismissal based on the employer’s
operational requirements has been ousted by
section 189A(18) of the LRA. As the Labour Appeal Court
correctly stated, the Labour Court’s jurisdictional competence
‘cannot be read disjunctively from section 191(5)(b)(ii) of the
LRA and section 189A(18) of the LRA.’”
75
[188] The Labour Appeal Court continued at para 17:
“It was incompetent for Gush J to issue the order that he did in that
section 189A(18) expressly provides that the Labour Court may not
adjudicate a dispute concerned with the procedural fairness of a
dismissal based on the employer’s operational requirements. In such
circumstances, Prinsloo J ought properly to have refused to conduct the
trial in accordance with the terms of that order. The Labour Court erred
in adjudicating the procedural fairness of the respondents’
retrenchment given that its jurisdiction to do so has been ousted
by section 189A(18). It follows that the finding that the dismissals of
the respondents were procedurally unfair must consequently be set
aside.”76
[189] It is not very clear from the judgment of the Labour Appeal Court in
LAC Regenesys what role the consolidation of the substantive fairness matter and the
procedural fairness matter played in determining whether the Labour Court had
jurisdiction to deal with this matter which was brought before it in terms of
75 Id at para 15.
76 Id at para 17.
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section 189A(13). Of course, the consolidation of any matter with another matter
cannot affect the jurisdiction of a court to deal with a particular matter. Accordingly, if
the Labour Court had jurisdiction in respect of a matter before its consolidation with
another matter, it woul d still have jurisdiction in respect of that matter even after the
matter has been consolidated with the other one. Consolidation cannot confer upon a
court jurisdiction which the Court otherwise does not have. Nor can consolidation take
away from a court jurisdiction that the Court otherwise has.
[190] The Labour Appeal Court could not have intended to say the Labour Court did
not have jurisdiction to adjudicate this matter because of its consolidation with the
matter relating to the substantive fairness matter. However, I do not understand why it
included the issue of the consolidation of the two matters in articulating the first issue
for determination before it. The Labour Appeal Court articulated the first issue before
it thus:
“The first issue in this a ppeal is whether the Labour Court had
jurisdiction to determine the procedural fairness together with the
substantive fairness of a dismissal of the respondents.”77
[191] It must be noted that the Labour Appeal Court did not say: The first issue in this
appeal is whether the Labour Court had jurisdiction to determine the dispute about the
procedural fairness of the dismissal for operational requirements brought to the
Labour Court in terms of section 189A(13). It said “The first issue in this appeal is
whether the Labour Court had jurisdiction to determine the procedural fairness together
with the substantive fairness of a dismissal of the respondents.” This way of
formulating the first issue in that appeal suggests that the Labour Appeal Court may
have considered the consolidation of the two matters as relevant to the determination of
the Labour Court’s jurisdiction.
[192] The Labour Appeal Court also said in Regenesys:
77 Id at para 13.
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“As a result, it was found that the Labour Court erred in consolidating
the application for compe nsation in respect of procedural unfairness
under section 189A with the main action and refer it to trial, on the
basis that:
‘The jurisdiction of the Labour Court to adjudicate on the
procedural fairness of a dismissal based on the employer’s
operational requirements has been ousted by section 189A(18)
of the LRA. As the Labour Appeal Court correctly stated, the
Labour Court’s jurisdictional competence ‘cannot be read
disjunctively from s ection 191(5)(b)(ii) of the LRA and
section 189A(18) of the LRA.’”78
[193] If the Labour Appeal Court was of the view that the Labour Court was wrong to
have consolidated the two matters but it, otherwise, accepted that the Labour Court had
jurisdiction to adjudicate the two matters under different sections of the LRA, one
would have expected that it would have remitted the matter to the Labour Court to
adjudicate it separately from the substantive fairness matter or that it would have dealt
with the matter itself in the way in which it believed the Labour Court should have dealt
with it. The fact that the Labour Appeal Court made the decision it made suggests that,
indeed, the view it took was that the Labour Court had no jurisdiction to adjudicate a
dispute about the procedural fairness of a dismissal for operational requirements of
employees to whose employer section 189A applied despite the clear language of
section 189A(13).
[194] It is quite clear that in paragraph 17 in LAC Regenesys, quoted above, the
Labour Appeal Court was saying that in CC Steenkamp II this Court held that
“section 189A(13) expressly deprive[d] the Labour Court of jurisdiction to determine
procedural fairness in such cases”. The reference to such cases at the end of the
sentence is a reference to cases brought before the Labour Court under
section 189A(13). It is difficult to understand how the Labour Appeal Court could say
that section 189A(18) took away the Labour Court’s jurisdiction to deal with a matter
78 Id at para 15.
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brought before it in terms of section 189A(13) when the latter section is so clear and it
expressly refers to the Labour Court making the orders that are listed in the subsection.
[195] One would have expected that the moment the Labour Appeal Court was
thinking of saying section 189A(18) meant that the Labour Court had no jurisdiction to
adjudicate disputes about the procedural fairness of dismissals for operational
requirements brought in the Labour Court in terms of section 189A(13), the question
that would have arisen in their minds would have been: How can the Labour Court not
have jurisdiction to entertain such matters under section 189A(13) because the
subsection is so clear? Another question that one expects to have arisen in their minds
is: if employees to whose employer section 189A applies cannot bring to the
Labour Court their disputes about the procedural fairness of the ir dismissals for
operational requirements under section 189A(13), where may they take those disputes
to because it cannot be that the LRA means that they may not take them anywhere? If
these questions had arisen in the m inds of the Labour Appeal Court panel, they would
have appreciated that there was something wrong with that interpretation and would
have analysed this Court’s judgment in CC Steenkamp II on which they relied and, the
relevant statutory provisions, closely.
[196] The Labour Appeal Court relied on a portion of paragraph 70 of this Court’s
judgment in CC Steenkamp II to support its conclusion that the Labour Court had no
jurisdiction to determine this dispute. It is appropriate to quote the whole of
paragraph 70. It reads:
“[70] The Labour Appeal Court’s criticism is warranted. The
Labour Court misunderstood the jurisdictional competence conferred
on it by section 189A(13) of the LRA. This much is clear if regard is
had to the order granted by the Labour Court. In its order the
Labour Court consolidated the application for compensation in respect
of procedural unfairness under section 189A with the main action and
referred it to trial. This is wrong. The jurisdiction of the Labour Court
to adjudicate on the procedural fairness of a dismissal based on the
employer’s operational requ irements has been ousted by
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section 189A(18) of the LRA. As the Labour Appeal Court correctly
stated, the Labour Court’s jurisdictional competence ‘cannot be read
disjunctively from section 191(5)(b)(ii) of the LRA and
section 189A(18) of the LRA.’”79
[197] While the statements made by this Court in paragraph 70 in CC Steenkamp II
may, when read alone, have justified the Labour Appeal Court’s conclusion that this
Court had held that the Labour Court had no jurisdiction “to adjudicate on the
procedural fairness of a dismissal based on the employer’s operational requirements”
because it was ousted by section 189A(18), if the Labour Appeal Court had also looked
at the next paragraph, namely, paragraph 71, it would have realised that this Court also
said that the Labour Court could deal with disputes about the procedural fairness of
dismissals for operational requirements if brought as applications in terms of
section 189A(13). In paragraph 71 in CC Steenkamp II this Court said in part:
“[71] Moreover, the procedure within section 189A(13) of the LRA
provides for an urgent remedy on application whilst the parties are still
locked in consultations or shortly thereafter in circumstances where the
reinstatement of the dismissed employees can still salvage the
consultation process by restoring the status quo ante. This process does
not contemplate a trial at some future time after the horse has bolted. It
cannot be said that the application had any prospects of success and
thus it could not be said to have been in the interests of justice to grant
condonation.”
80
[198] Although there are statements in CC Steenkamp II which suggest that this Court
may have been saying that the Labour Court had no jurisdiction to adjudicate a dispute
about the procedural f airness of a dismissal for operational requirements – whether
under section 191 or 189A(13) – a proper reading of this Court’s CC Steenkamp II
judgment reveals that this Court did not hold that the Labour Court had no jurisdiction
to adjudicate under section 189A(13) disputes about the procedural fairness of
79 CC Steenkamp II above n 6 at para 70.
80 Id at para 71.
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dismissals for operational requirements to which section 189A applied. In support of
this, let me refer below to a few areas in this Court’s judgment in CC Steenkamp II.
[199] In CC Steenkamp II this Court said in paragraphs 49-50:
“[49] Although a clear policy decision has been made to remove
claims of procedural unfairness from the ex post facto jurisdictional
competence of the Labour Court, employees are not left without a
remedy. In what the Labour Appeal Court referred to as a ‘ partial
claw-back of jurisdiction’ , they may approach the Labour Court in
terms of section 189(A)(13) of the LRA for an order compelling the
employer to comply with a fair procedure. Where employees have
already been dismissed, the Labour Court has the additional power in
terms of
section 189A(13)(c) of the LRA to reinstate such an employee
to allow for the consultation process to run its course.
[50] Only where these orders are not appropriate, may the
Labour Court, where it is appropriate to do so, order compensation in
terms of subsection (d).”81 (Emphasis added.)
These two paragraphs also make it clear that this Court was saying that the Labour Court
had jurisdiction under section 189A(13) to adjudicate disputes about the procedural
fairness of dismissals based on the employer’s operational requirements concerning
employees to whose employer section 189A applied.
[200] This Court also said in CC Steenkamp II at paragraph 52:
“[52] Where procedural irregularities arise, the process provided for
in section 189A(13) of the LRA allows for the urgent intervention of
the Labour Court to correct any such irregularities as and when they
arise so that the integrity of the consultation process can be restored
and the consultation process can be forced back on track .”
82
(Emphasis added.)
81 Id at paras 49-50.
82 Id at para 52.
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This Court pointed out in this paragraph in CC Steenkamp II that, where there are
procedural irregularities, the Labour Court could intervene in terms of
section 189A(13).
[201] In paragraph 54 in CC Steenkamp II this Court said:
“[54] In exercising its powers in terms o f section 189A(13) of the
LRA, the Labour Court thus acts ‘as the guardian of the process ’ and
exercises a ‘ degree of judicial ’ management or oversight over the
process. The aim is to proactively foster the consultation process by
allowing parties to seek the intervention of the Labour Court on an
expedited basis to ensure that procedural irregularities do not
undermine or derail the consultation process before it ends. The
Labour Court in Anglo American expounds:
‘Section 189A(13) was introduced in 2002 and was
intended, broadly speaking, to provide for the
adjudication of disputes about procedural fairness in
retrenchments at an earlier stage in the ordinary dispute-
resolution process, and by providing for their
determination, inevitably as a matter of urgency, on
application rather than by way of referral. The section
empowers employees and their representatives to
approach the court to require an employer to apply fair
procedure, assuming, of course, that the jurisdictional
requirements set out in section 189A are met. The section
affords the court a broad range of powers, most of which
appear to suggest that where a complaint about procedure
is made by a consulting party, the court has a broad
discretion to make orders and issue directives, thereby
extending to the court an element of what might be termed
a degree of judicial management into a contested
consultation process.’” (Emphasis added.)
It is quite clear from these passages in the judgment of this Court in CC Steenkamp II
that this Court accepted that the Labour Court had jurisdiction to adjudicate disputes
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about the procedural fairness of dismissals for operational requirements that have been
brought before the Labour Court in terms of section 189A(13).
[202] After paragraph 57 of this Court’s judgment in CC Steenkamp II there is a
heading that reads: “Is section 189A(13)(d) a self -standing remedy?” It is written in
bold. Seeing that heading alone should have alerted the Labour Appeal Court that this
Court could not have been saying that the Labour Court had no jurisdiction to adjudicate
disputes about the procedural fairness of dismissals for operational requirements
brought in the Labour Court under section 189A(13). The discussion in the second half
of that page consisting of paragraphs 58 – 66 could only mean that this Court was saying
that the Labour Court had jurisdiction to adjudicate disputes about the procedural
fairness of dismissals for operational requirements brought in terms of
section 189A(13).
[203] Lastly, this Court also said in part in CC Steenkamp II at paragraph 71:
“[71] Moreover, the procedure within section 189A(13) of the LRA
provides for an urgent remedy on application whilst the parties are still locked
in consultations or shortly thereafter in circumstances where the reinstatement
of the dismissed employees can still salvage the consultation process by
restoring the status quo ante.” (Emphasis added.)
[204] Given these passages which clearly show that this Court accepted that the
Labour Court had jurisdiction to adjudicate disputes about the procedural fairness of
dismissals for operational requirements brought in the Labour Court in terms of
section 189A(13), one can only conclude that the Labour Appeal Court did not properly
apply its mind to this Court’s judgment in CC Steenkamp II. It is also unfortunate that
there is no indication in the Labour Appeal Court judgment that the
Labour Appeal Court undertook an y analysis of this Court’s judgment in
CC Steenkamp II. The Labour Appeal Court erred in a serious way in attributing to this
Court’s judgment in CC Steenkamp II the holding that it did. The Labour Appeal Court
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should have rejected Regenesys’ contention and held that the Labour Court was correct
in adjudicating the procedural fairness dispute under section 189A(13).
[205] I believe that the statements I have quoted above do show that, indeed, there are
judgments in which the Labour Court, Labour Appeal Court and this Court made
statements about the jurisdiction of the Labour Court and section 189A(18) which were
inaccurate and created the impression either that the Labour Court h ad no jurisdiction
whatsoever to a djudicate disputes about the procedural fairness of dismissals for
operational requirements or that the Labour Court had no jurisdiction to adjudicate such
disputes in terms of section 191 or section 189A(13) or both. I have also shown that in
relying on this Court’s judgment in CC Steenkamp II to hold that the Labour Court had
no jurisdiction to adjudicate disputes about the procedural fairness of dismissals in the
present case, the Labour Appeal Court had overlooked a number of passages which
made it clear that this Court accepted that the Labour Court had jurisdiction to
adjudicate disputes about procedural fairness contemplated in section 189A(13) under
that provision.
[206] The interpretation of subsection (18) to the effect that the latter provision has
ousted the jurisdiction of the Labour Court to adjudicate disputes about the procedural
fairness in dismissals for operational requirements brought before it in terms of
section 191(5)(b)(ii) or in terms of subsection (13) or both is inconsistent with the right
of access to courts in terms of section 34 of the Constitution and section 38 of the
Constitution.
[207] Section 34 of the Constitution reads:
“Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair publi c hearing before a court or,
where appropriate, another independent and impartial tribunal or
forum.”
Section 38 of the Constitution reads:
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“Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot
act in their own name;
(c) anyone acting as a member of, or in the interest of, a
group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.”
[208] The reason why the interpretation of subsection (18) that the Labour Court has
no jurisdiction to adjudicate disputes about procedural fairness of dismissals for
operational requirements either in general or those referred to it in terms of
section 191 (5)(b)(ii) is that it means that workers/trade unions and employers which
have such disputes – which are clearly disputes that can be resolved by the application
of law – have nowhere to take such disputes. That interpretation means that workers
have a right to procedural fairness but they have nowhere to go in order to enforce that
right. Such an interpretation should be avoided if there is another interpretation which
can be adopted without doing violence to the language of the statute. In terms of the
interpretation advanced in this judgment no worker who has a right to procedural
fairness has nowhere to go to enforce or protect that right.
[209] In my view, although in both CC Steenkamp II and CC Barloworld this Court
discussed what subsection (18) means, the statements it made on the meaning of
subsection (18) were not necessary for its decision in both cases. Therefore, what this
Court said about the meaning of subsection (18) was not part of the ratio of its decision
in each case. CC Steenkamp II was an appeal to this Court against the judgment of the
Labour Appeal Court in LAC Steenkamp II. In its judgment in LAC Steenkamp II the
Labour Appeal Court said:
“[2] The principal controversy in the appeal is whether the granting
of condonation to the respondents to bring an application in terms of
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section 189A(13) of the [LRA] after the expiry of the prescribed
30 day-period was an incorrect exercise of judicial discretion. Upon
the fate of that issue, hangs the propriety of consolidating the several
other cases.”83
It is clear from this excerpt that the case before the Labour Appeal Court in
LAC Steenkamp II had little, if anything, to do with subsection (18).
[210] Later on, the Labour Appeal Court said in LAC Steenkamp II:
“[15] In our view the application by the respondents is fatally flawed
and the judgment a quo in error. Upon these grounds the appeal has to
succeed. The principal reason for this outcome is the misconception
about the purpose and functioning of section 189A(13).”84
From this it is clear that the principal or main reason for the Labour Appeal Court’s
decision which was on appeal before this Court in CC Steenkamp II was based on the
purpose and functioning of section 189A(13) and not the purpose, meaning and
functioning of section 189A(18).
[211] The Labour Appeal Court did not anywhere decide or say that the Labour Court
had no jurisdiction to adjudicate disputes about the procedural fairness of dismissals for
operational requirements brought to it by way of applications in terms of
section 189A(13). The case before it was an appeal on a decision on condonation in
regard to the failure by the employees to lodge their section 189A(13) application
timeously. The Labour Appeal Court’s conclusions at the end of its judgment in
LAC Steenkamp II do not include a conclusion on subsection (18). Its conclusions are
recorded as follows:
“Conclusions
[46] Accordingly, our findings can be summarised thus:
83 LAC Steenkamp II above n 23 at para 2.
84 Id at para 15.
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On the law:
46.1. Section 189A(13) is a procedure to be utilised
expeditiously, to address an ongoing retrenchment process and
is not available long after.
46.2. Section 189A(13)(d) is not a self-standing remedy that
can be disaggregated from (a) , (b) and (c), because it is
subordinate and ancillary to those provisions.
46.3. The explanation that a failed legal choice of strategy is
the reason why a delay occurred to exercise a legal option is
not an acceptable explanation.”
85
After this, the Labour Appeal Court said: “The respondent made out no sound case for
condonation.”86
[212] In CC Steenkamp II this Court described the issues it was called upon to
adjudicate in these terms:
“[21] The pertinent issues before this Court are: first, whether the
Labour Appeal Court was correct in overturning the decision of the
Labour Court granting condonation to the applicants, in circumstances
where they launched their procedurally unfair dismissal claim years
outside of the 30-day statutorily prescribed time period and where the
cause of action initially relied upon was found to be inappropriate by
this Court in Steenkamp I , and second, whether compensation for
procedural unfairness can be claimed as a self -standing remedy in the
context of large-scale retrenchments in terms of section 189A(13)(d) of
the LRA.”
It is clear from this passage that the meaning of subsection (18) was not one of the issues
that this Court was called upon to decide. Therefore, its pronouncement on the meaning
of subsection (18) was obiter dictum and is, therefore, not binding.
85 Id at para 46.
86 Id at para 46.4.
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[213] In CC Barloworld this Court made statements both to the effect that the
Labour Court had no jurisdiction to adjudicate disputes about the procedural fairness of
dismissals for operational requirements and that the Labour Court had no jurisdiction
to adjudicate disputes about the procedural fairness of dismissals for operational
requirements referred to it in terms of section 191(5)(b)(ii). I show this below.
[214] It must be remembered that in CC Barloworld the employees had lodged their
subsection (13) application about a month after the employer had issued notices of
dismissals. Accordingly, the applications were lodged within the prescribed 30 days
from the date when the notices of dismissals were issued. This Court said that the matter
concerned “the interpretation of the LRA and the crisp question before the Court relates
to the interpretation of sections 189 and 189A.” After referring to, and quoting
extensively from, CC Steenkamp II, this Court said in CC Barloworld:
“[65] It is thus clear that the Labour Court may not adjudicate a
dispute about the procedural fairness of a dismissal based o n the
employer's operational requirements in any dispute referred to it in
terms of section 191(5)(b)(ii)”.87 (Emphasis added.)
This is in accordance with the text of subsection (18).
[215] After having regard to various statements in CC Steenkamp II, this Court said in
CC Barloworld:
“[71] The following emanates from the above discussion. Firstly,
the power of the Labour Court to adjudicate the procedural fairness of
retrenchment consultations is limited to the ‘fair procedure’ that is
prescribed in sections 189 and 189A, which give effect to s ection 188.
Secondly, it is evident that a party seeking the Labour Court’s
intervention when an employer fails to follow a fair procedure during
retrenchment consultations must approach the court for relief in terms
of section 189A(13). This is because the Labour Court is barred from
determining the procedural fairness of a dismissal based on
87 CC Barloworld above n 11 at para 65.
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operational requirements when it is approached in terms of
section 191(5)(b)(ii). Thirdly, it is evident that th ese provisions are in
place to serve the interests of expediency and efficiency, and to ensure
that the procedure requirements of the LRA are followed when parties
engage in consultation in anticipation of a large-scale retrenchment, and
that any defects in the procedures can be cured before jobs are lost. This
policy choice was adopted to avoid the courts having to adjudicate
alleged procedural unfairness in the aftermath of mass retrenchments.
It was self -evidently a sensible legislative decision, for it reduces the
likelihood of parties being exposed to the inconveniences and
complications that could arise from a court ordering them to unscramble
the proverbial scrambled egg. Of course s ection 189A(13) does
envisage, and apply to a situation where it dismissal has already taken
place. Paragraph (c) of this section empowers the court to direct ‘the
employer to reinstate an employee until it has complied with a fair
procedure’. Because the s ection 189A(13) process is meant to take
place immediately and to be finalis ed expeditiously, the para graph (c)
power does not detract from the metaphor of the scrambled egg,
because the scrambling will not be complete.”
88
[216] It will be realised that one of this Court’s conclusions after referring to, and,
quoting from , CC Steenkamp II was that “a party seeking the Labour Court’s
intervention when an employer fails to follow a fair procedure during retrenchment
consultations must approach the Court for relief in terms of section 189A(13) .”89 To
the extent that in this statement this Court meant employees to whose employer
section 189A applies, that statement is correct. However, if it was meant to suggest that
even employees whose employer is not subject to section 189A could use
section 189A(13) for relief in regard to a dispute about the procedural fairness of a
dismissal for operational requirements, I would respectfully disagree. The following
statement in CC Barloworld suggests that this Court was saying that the Labour Court’s
88 Id at para 71.
89 Id.
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jurisdiction to adjudicate disputes about the procedural fairness of dismissals for
operational requirements had been ousted. That statement reads:
“[47] A distinctive feature of s ection 189A(13) of the LRA is the
separation of disputes about procedural fairness fr om disputes about
substantive fairness. Disputes about substantive fairness may be dealt
with by resorting to strike action or by referring a dispute about the
substantive fairness of the dismissals to the Labour Court in terms of
section 191(11) of the LRA.
[48] Disputes about procedural fairness have been removed from
the adjudicative reach of the Labour Court and may no longer be
referred to the Labour Court as a distinctive claim or cause of action
that a dismissal on the basis of operational requireme nts was
procedurally unfair.”90
[217] The procedure and remedies provided for in subsection (13) only apply to
employees whose employer is subject to section 189A, namely employers who employ
more than 50 employees. Employees employed or formerly employed by an employer
who employed less than 50 employees cannot utilise section 189A(13). Those may use
section 191 of the LRA to get their disputes about the procedural fairness of a dismissal
for operational requirements resolved. Lastly, in CC Barloworld this Court decided the
appeal on the merits of whether or not the consultation that had been undertaken
constituted a joint-consensus-seeking process. It concluded that that consultation was
such a process. In that way this Court decided that section 189A(13) application on its
merits.
[218] I conclude that that the Labour Appeal Court erred when it decided in the present
case that the Labour Court had no jurisdiction to adjudicate disputes about the
procedural fairness in dismissals for operational requirements. The position is that the
only jurisdiction of the Labour Court that subsection (18) has ousted is its jurisdiction
to adjudicate under section 191 disputes about the procedural fairness of dismissals for
90 Id at para 65.
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operational requirements of employees to whose employer section 189A applies.
Otherwise, the Labour Court still has jurisdiction to adjudicate disputes about the
procedural fairness of the dismissals for operational requirements to which
section 189A does not apply.
[219] Contrary to certain statements that appear in judgments of the Labour Court in
Parkinson, Clinix, those of the Labour Appeal Court in LAC Steenkamp II and
LAC Regenesys and those of this Court in CC Steenkamp II and CC Barloworld, the
effect of this judgment in regard to section 189A(13) is as set out in paragraph 140
above. Contrary to certain statements by the Labour Appeal Court in
LAC Steenkamp II, the judgment of the Labour Appeal Court in LAC Regenesys and
certain statements by this Court in CC Steenkamp II and CC Barloworld, the effect of
this judgment in regard to section 189A(18) is that:
(a) section 189A(18) does not take away the jurisdiction of the Labour Court
to:
(i) adjudicate under section 191 a dispute about the procedural
fairness of a dismissal for the employer’s operational
requirements of employees to whose employer
section 189A does not apply.
(ii) adjudicate under section 189A(13) disputes about the
procedural fairness of dismissals for operational
requirements of employees to whose employer
section 189A applies.
(b) section 189A(18) takes away the jurisdiction of the Labour Court to
adjudicate under section 191(5)(b)(ii) a dispute about the procedural
fairness of a dismissal for operational requirements of employees to
whose employer section 189A applies.
(c) there is nothing wrong with the consolidation of a dispute about
procedural fairness brought in the Labour Court in terms of
section 189A(13) with a dispute about the substantive fairness of a
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dismissal for operational requirements referred to the Labour Court for
adjudication in terms of section 191(5)(b)(ii) where an order under
section 189A(13)(a) to (c) is not appropriate and the remedy being
pursued by the employees at the time is compensation in terms of
section 189A(13)(d). Indeed, in such a case a consolidation of the two
matters makes sense.
Was the Labour Court right in awarding compensation in terms of section 189A(13)(d)?
[220] Unlike some of the cases referred to earlier in this judgment which were brought
to the Labour Court in terms of subsection (13) which were lodged in the Labour Court
a year or two after the dismissal, the employees’ application in terms of subsection (13)
in the present case was lodged about five weeks after the effective date of the
employees’ dismissal. They applied for condonation for their failure to lodge it within
the prescribed 30 days from the date the notices of dismissal were issued. The
Labour Court granted condonation. The effect of that decision of the Labour Court
condoning their failure to compl y is that their application must be treated in the same
way the Court would have treated an application that was lodged within the prescribed
period. Nobody can legitimately suggest that the consultation process could not have
been put back on track as at 8 September to 15 September 2015 if the Labour Court had
adjudicated the application as an urgent application.
[221] In their notice of motion, the employees asked that their application be dealt with
on an urgent basis. They also asked that a Judge be assigned to their application in
terms of the Labour Court Practice Manual so as to ensure that their application was
dealt with expeditiously. It would appear that Gush J may have been assigned to “case
manage” the application. At some stage during the first two weeks of
October 2015 – that is about a month or just over a month after the application had been
lodged – Gush J made an order consolidating the employees’ section 189A(13)
application and the dismissal dispute referred to the Labour Court for adjudication in
terms of section 191(5) of the LRA so that the two matters would be adjudicated
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together. The dismissal dispute that was referred to the Labour Court in terms of
section 191(5) included the procedural fairness of the dismissal.
[222] In their section 189A(13) application the employees asked for the orders
contemplated in paragraphs (a) to (c) alternatively an award of compensation in terms
of section 189A(13)(d). There is a good chance that Gush J, being a Judge of the
Labour Court, took the view, rightly or wrongly, that as at October 2015, the orders
contemplated in paragraphs (a) to (c) of subsection (13) were no longer appropriate and
that the only order that could be appropriate at that stage was an order of compensation
contemplated in paragraph (d) of subsection (13). In such a case he may have realised
that there was no urgency about an order for the payment of compensation and that, in
all of the circumstances, it made sense that the two matters be decided by the same
Judge, hence the consolidation.
[223] Those two matters were the dispute about the procedural fairness of the dismissal
of the employees for operational requirements brought to the Labour Court by way of a
subsection (13) application and the dispute about the substantive fairness of the
dismissal of the same employees for operational requirements. That would explain why
Gush J consolidated the two matters and ordered that they be adjudicated together.
Once it would no longer be appropriate for the Labour Court to grant any of the orders
contemplated in paragraphs (a) to (c), it became appropriate for compensation to be
awarded if it was established that Regenesys had failed to comply with a fair procedure
in dismissing the employees.
[224] Although it may still have been appropriate for the Labour Court to grant an
order contemplated in paragraph (c) of subsection (13) when Gush J consolidated the
two matters in October 2015, it certainly would no longer have been appropriate for the
Labour Court to grant the orders contemplated in paragra phs (a) to (c) when the
Labour Court eventually adjudicated the two matters in February 2020, because that
was more than four-and-a-half years after the dismissals. Therefore, the Labour Court
was obliged to adjudicate both disputes when it did.
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[225] Section 189A(14) reads:
“Subject to this section, the Labour Court may make any appropriate
order referred to in section 158(1)(a).”
Section 158(1)(a) of the LRA reads:
“158. Powers of Labour Court
(1) The Labour Court may—
(a) make any appropriate order, including—
(i) the grant of urgent interim relief;
(ii) an interdict;
(iii) an order directing the performance of any
particular act which order, when
implemented, will remedy a wrong and
give effect to the primary objects of this
Act;
(iv) a declaratory order;
(v) an award of compensation in any
circumstance contemplated in this Act;
(vi) an award of damages in any
circumstances contemplated in this Act;
and
(vii) an order for costs;”
[226] When Prinsloo J adjudicated the dispute about the procedural fairness of the
dismissal in the Labour Court in this matter, she was alive to the fact that that dispute
had been brought in the Labour Court by way of an application in terms of
section 189A(13) and it was not a dispute about the procedural fairness of dismissals
referred to the Labou r Court in terms of section 191(5)(b)(ii) for adjudication. It will
be recalled that I said earlier that the dismissal dispute that was consolidated with the
section 189A(13) application concerned both the procedural and substantive fairness of
the dismissal of the employees. In paragraph 138 of her judgment Prinsloo J said that
“it is undisputed that [Regenesys] did not comply with the consultation period or the
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process provided for in section 189A of the LRA”. Just above paragraph 153, she put
this heading: “Was there compliance with section 189A”.
[227] The Labour Court dealt with the procedural fairness of the dismissal from
paragraph 133 to paragraph 155. In paragraph 133 Prin sloo J said that the employees
“challenged the procedural fairness of their dismissal in the section 189A(13)
application of the LRA filed in this Court in September 2015.” She mentioned four
grounds advanced by the employees in support of their challenge to the procedural
fairness of their dismissal. She recorded the first one as being:
“[Regenesys’] retrenchment exercise f ell squarely within the ambit of
section 189 of the LRA, yet [Regenesys] has not complied with the
provisions of the said section and terminated the [employees’] services
within a few days after they were issued with a notice in terms of
section 189(3) of the LRA, in total disregard for the period prescribed
by section 189A.”91
She recorded that the employees contended that they were dismissed within a few days
after they had been issued with section 189(3) notices and there was no justification for
the consultation process to be concluded so quickly.
[228] Another ground was that there was no meaningful joint consensus seeking
process. Another one was that there was no proper attempt to avoid the retrenchment.
The last one was that the employees were given only one opportunity to make
representations on very short notice.
[229] In paragraph 134 Prinsloo J referred to the relationship between sections 189 and
189A. She quoted a passage in paragraph 34 of the Labour Appeal Court’s judgment
in Gijima.
92 The passage reads:
91 Nortje v Regenesys Management (Pty) LTD (JS776/15 & D1824/2015) (27 February 2020) ZALCJHB at para
133.1. Referring to this case in this way is meant to distinguish it from the judgment of the Labour Appeal Court
in Regenesys which is referred to as LAC Regenesys.
92 Gijima AST (Pty) Ltd v Hopley [2014] ZALAC 9; (2014) 35 ILJ 2115 (LAC) at para 34.
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“[134] The relationship between sections 189 and 189A of the LRA is
symbiotic and this was confirmed by the Labour Appeal Court in
[Gijima] where it was held that:
‘The two sections must be read together since they both
apply to dismissals for operational requirements. Further,
the overall obligation imposed by the two sections is for
consultation on the matters referred to in section 189. It is
also significant to note that the section 189A process is
initiated by the very same section 189(3) notification
issued for retrenchments. The items that form the subject
of consultation are only listed in section 189(2) which
includes the method for selecting employees to be
dismissed. Such a provision is not found in
section 189A.’”
93
[230] Prinsloo J said in paragraphs 149 to 152 of her judgment:
“[149] It is evident from the section 189(3) letter issued on
18 June 2015 that the reason for the contemplated retrenchment was
stated as ‘because the company is implementing a new business model
and the organisational structure to improve operational efficiencies and
effectiveness.’ Accordingly, the Respondent’s affected employees
were invited to make proposals and recommendations ‘ regarding the
proposed restructuring process and the proposed organisational
structure’. No mention was made of the financial crisis the Respondent
experienced and the employees were not invited to make any
submissions on that.
[150] The Applicants were only invited to comment on the proposed
structure and there was no consultation on any of the issues prescribed
by section 189 of the LRA. In fact, Ms Brownlee conceded in her
evidence that there was no consultation with the Applicants on
measures to avoid dismissal, on minimi sing the dismissals, on the
timing thereof or to mitigate the adverse effect of the dismissal,
severance pay or selection criteria. These are not only topics of crucial
93 LC Regenesys above n 91 at para 104.
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importance to consult on, but are prescribed by the LRA and which
were ignored by the Respondent.
[151] Not only were the Applicants deprived of an opportunity to
consult, they were also not provided with information relating to the
real reason behind the retrenchment. Up to the moment the
section 189(3) notice was iss ued, the Respondent presented a sugar
coated version and never communicated and engaged with its
employees on the real reason behind the restructuring and the
retrenchments. For that the Respondent was far too concerned about its
own image, its own interests and its own livelihood.
[152] The Applicants were not consulted on the issues prescribed by
the LRA and the Respondent made no serious effort to engage them in
a joint consensus-seeking process.”94
[231] In paragraph 153 Prinsloo J said:
“[153] It was con ceded by Dr Law that the process and time frames
prescribed by section 189A had not been complied with. The rushed
process followed by [Regenesys] underlines [Regenesys’] failure in this
regard.”95
[232] The Labour Court concluded that the dismissal of the employees for operational
requirements “was procedurally unfair.” 96 The Labour Court made this conclusion
under a heading that read: “W as there compliance with section 189A? ” This, once
again, shows that Prinsloo J was alive to the fact that she was adjudicating a dispute
about the procedural fairness brought to the Labour Court in terms of subsection (13)
and not one referred to the Labour Court in terms of section 191(5)(b)(ii).
[233] In the light of the above, there can be no doubt that the Labour Court adjudicated
the procedural fairness of the dismissal that was brought in the Labour Court by a way
94 Id at paras 149-152.
95 Id at para 153.
96 Id at para 155.
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of an application in terms of section 189 A(13). It did not adjudicate the procedural
fairness of a dismissal dispute referred to it in terms of section 191(5)(b)(ii) as
contemplated in section 189A( 18). This means that, as is stated elsewhere in this
judgment, in the present matter the Labour Appeal Court’s decision was to the effect
that the Labour Court did not have jurisdiction to adjudicate disputes about the
procedural fairness of dismissals for operational requirements irrespective of whether
such disputes were brought before it by way of section 189(13) or section 191(5)(b)(ii).
[234] There can be no basis for suggesting that the Labour Appeal Court thought that
in this case the Labour Court had adjudicated under section 191 a dispute about
procedural fairness of the dismissals of employees to which section 189A applied. I
say this because, as I have indicated above, Prinsloo J’s judgment made it crystal clear
in a number of areas that the Labour Court was adjudicating a section 189A(13) matter.
There is no way that the Labour Appeal Court could not have appreciated this. In fact,
the Labour Appeal Court had thought that the Labour Court had adjudicated the matter
under section 191 when it should have adjudicated it under section 189A(13) it (i.e. the
Labour Appeal Court) would have said that the Labour Court had no jurisdiction to
adjudicate the dispute under section 191 because it was a section 189A(13) matter. The
Labour Appeal Court did not make that distinction. In fact none of the judgments in
which the Labour Appeal Court dealt with matters that had been brought to the
Labour Court under section 189A(13) did it make such a distinction. This includes its
judgment in LAC Steenkamp II. The reason why it did not make that distinction is that
its view was that the Labour Court’s jurisdiction to adjudicate disputes about the
procedural fairness of dismissals for operational requirements – whether under
section 191 or 189A(13) – had been ousted. The Labour Appeal Court believed,
wrongly in my view, that that was the effect of this Court’s judgment in
CC Steenkamp II. This is not a conclusion that one can reach lightly but it is the only
explanation of the Labour Appeal Court’s decision in the present case.
[235] If the reason why the Labour Appeal Court made the decision that it made was
that it was of the view that the Labour Court had adjudicated under section 191 a dispute
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that it should have adjudicated under section 189A(13), it would have done one of two
things. Since all the evidence was in the record before it, it could have proceeded to
adjudicate the employees’ section 189A(13) claim on the merits. It did not follow this
route. Another route would have been for the Labour Appeal Court to remit the matter
to the Labour Court and direct that the Labour Court should adjudicate it under
section 189A(13). It did not follow this route either. The Labour Appeal Court simply
held that the Labour Court had no jurisdiction to a djudicate the dispute about the
procedural fairness of the dismissal for operational requirements and did not qualify
this statement in any way by reference to either section 191 or 189A(13).
[236] This position taken by the Labour Appeal Court is consistent only with the view
that the Labour Court’s jurisdiction to adjudicate disputes about the procedural fairness
of dismissals for operational requirements – whether under section 191 or
189A(13) – had been ousted. I accept that it is difficult to understand how the
Labour Appeal Court could reach the decision that the Labour Court had no jurisdiction
even to adjudicate disputes about the procedural fairness of dismissals for operational
requirements of employees to which section 189A applied which were brought to the
Labour Court in terms of section 189A(13) when the statute is as clear as it is in that
provision. However, I come back to the question: if the Labour Appeal Court believed
that the Labour Court did have jurisdiction to adjudicate disputes about the procedural
fairness of dismissals for operational requirements under section 189A(13) if
section 189A applied to the employees concerned, why did it not adjudicate the matter
on the merits or remit it to the Labour Court to adjudicate it under section 189A(13)?
[237] The effects of that decision of the Labour Appeal Court were far-reaching. The
decision meant that potentially millions of workers in this country who have disputes
with their employers about the procedural fairness of their dismissal for operational
requirements, can no longer bring those disputes to the Labour Court or any independent
tribunal or forum as contemplated in section 34 of the Constitution for adjudication.
Those are the disputes about the procedural fairness of dismissals for operational
requirements irrespective of whether such disputes have been brought by way of
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applications as contemplated by subsection (13) or by way of a referral to the
Labour Court in terms of section 191(5).
[238] The Labour Appeal Court erred in concluding that the Labour Court had no
jurisdiction to adjudicate disputes about procedural fairness of dismissals for
operational requirements that it adjudicated. Its decision in this regard falls to be set
aside. It is not correct, as the Labour Appeal Court said, that the Labour Court had
misunderstood the legal position. The Labour Court had correctly understood the legal
position in taking the approach that it had jurisdiction to adjudicate the procedural
fairness of the employees’ dismissal for operational requirements which had been
brought before it by way of an application in terms of subsection (13).
Other misdirections in the Labour Appeal Court’s order
[239] The order that was made by the Labour Appeal Court setting aside the whole
order of the Labour Court including orders that it had not concluded were wrongly
granted by the Labour Court is strange. The only orders that the Labour Appeal Court
was entitled to set aside were the Labour Court’s declaration that the dismissals of the
employees were procedurally unfair and the order for the payment of compensation to
those employees whose dismissals had been found to be procedurally unfair only.
When I say “entitled”, this is on the assumption that the Labour Appeal Court was
correct in its conclusion that the Labour Court had no jurisdiction to adjudicate the
procedural fairness of the dismissals of the employees.
[240] Furthermore, the Labour Appeal Court set aside the order of costs made by the
Labour Court against Regenesys and replaced it with an order that “there is no order as
to costs” even though there is no indication in its judgment that Regenesys had appealed
against the Labour Court’s court order. Indeed, for all intents and purposes the position
must be that Regenesys did not seek to pursue any appeal against the costs order
because, if it had, the Labour Appeal Court would have covered its contentions on costs
in its judgment. The Labour Appeal Court erred in this regard. A court of appeal cannot
just set aside an order of a lower court if it has not been appealed against and such
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appeal has been upheld. Furthermore, a costs order is an order that a court grants in the
exercise of a true discretion and such orders can only be interfered with on appeal on
certain limited grounds such as where there is a misdirection. In the absence of one or
more of those limited grounds, such an order must stand. There is no discussion in the
judgment of the Labour Appeal Court as to why that order was set aside nor did the
Labour Appeal Court give any reasons for setting that order aside and replacing it with
a different order.
Costs
[241] In my view, this is an appropriate case in which the Court should order
Regenesys to pay the employees’ costs. The reasons are the same as those given earlier
in this judgment in regard to the dismissal of the appeal.
Order
[242] In the result the following order is made:
1. Leave to appeal and to cross-appeal is granted.
2. The appeal is dismissed with costs including the costs of two Counsel
where two Counsel were employed.
3. The cross-appeal is upheld with costs including the costs consequent
upon the employment of two Counsel where two Counsel were
employed.
4. Save in respect of the sixth and ninth respondents in the
Labour Appeal Court (Ms Wendy Mary Malleson and
Ms Ariadne David):
(a) the decision of the Labour Appeal Court that the Labour Court
had no jurisdiction to adjudicate disputes about the procedural
fairness of dismissals for operational requirements is set aside.
(b) the order of the Labour Appeal Court on costs in that Court is
hereby set aside and replaced with the following:
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“The appellant is to pay the costs of the appeal including the costs of
two Counsel where two Counsel were employed.”
(c) the order of the Labour Appeal Court setting aside the order of
the Labour Court on costs is hereby set aside.
(d) the order of the Labour Court is reinstated.
ROGERS J:
Introduction
[243] I have had the pleasure of reading the Chief Justice’s judgment (first judgment).
I agree with the first judgment’s proposed disposition of the case. I write separately
because there are aspects of the first judgment with which I do not agree. I accept that
our jurisdiction is engaged and that leave to appeal and cross-appeal should be granted.
There is nothing I wish to add to the first judgment’s reasons for rejecting Regenesys’
appeal on the substantive unfairness of the retrenchments of Ms Ilunga, Dr Dos Santos,
Ms Nkodi and Ms Mahlangu.
[244] The cross-appeal raises the question whether the Labour Court was right to
award compensation to Ms Nortjé, Ms Mann and Ms Chalklen in terms of
section 189A(13)(d) because their retrenchments were procedurally unfair. Although
in principle the same issue arises in relation to the four persons mentioned in the
preceding paragraph, it is academic in their case because of the finding that their
retrenchments were substantively unfair.
Compensation under section 189A(13)(d) as stand-alone relief
[245] Paragraphs 72 to 97 of the first judgment deal with the question whether
compensation in terms of section 189A(13)(d) may be claimed as stand-alone relief.
That question does not strictly arise in this case. The retrenched employees sought
reinstatement in terms of subsection (13)(c), with compensation in terms of
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subsection (13)(d) as an alternative. Although the subsection (13) application was
brought slightly late, it was launched at a time when – as the first judgment rightly
holds – reinstatement in order to get consultation back on track was feasible. The
Labour Court condoned the delay in launching the subsection (13) application, but
evidently considered that reinstatement in terms of subsection (13)(c) was no longer
appropriate.
[246] In those circumstances there was no urgency in adjudicating the alternative claim
for compensation in terms of subsection (13)(d). The Labour Court could thus
competently adjudicate the claim on a more leisurely basis, simultaneously with the
claim based on substantive unfairness. The case is on all fours with SA Five
Engineering.97 I agree with the first judgment that SA Five Engineering was correctly
decided.
[247] We thus do not have to decide whether the retrenched employees could have
brought a claim for compensation under subsection (13)(d) as their primary relief.
Nevertheless, and although what we say on that question may be an obiter dictum (a
non-binding observation made in passing), I agree with the first judgment that there
may be circumstances in which a claim for compensation alone under
subsection (13)(d) will be permissible. If the circumstances are such that an order in
terms of subsection (13)(a), (b) or (c) is very unlikely to be granted, the affected
employees should not be forced to seek such an order as their primary relief, just so as
to be able to make a subsection (13)(d) claim for compensation in the alternative.
[248] However, it is important that the existence of this possibility should not be
misunderstood. As the first judgment states, the lawmaker’s preferred remedy is to
ensure procedural fairness through proper consultation.
98 Relief in terms of
subsection (13)(a), (b) or (c) is thus the lawmaker’s preferred outcome. Although
97 SA Five Engineering above n 21.
98 See the first judgment at [93].
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compensation in terms of subsection (13)(d) exists as a fallback possibility, it cannot be
divorced from subsection (13) as a whole read with subsections (17) and (18).
[249] If, in the case of large employers to whom section 189A applies, the lawmaker
had intended there to be what I may call an ordinary claim for compensation for
procedurally unfair retrenchment, the lawmaker would not have needed to include
compensation as part of subsection (13) or to have made a claim for compensation under
subsection (13) subject to the 30-day time-limit set in subsection (17) or to have enacted
the exclusion in subsection (18). Claims for compensation for procedurally unfair
retrenchments could have been left to the ordinary unfair-dismissal machinery of the
Act.
[250] What this shows is that employees to whom section 189A applies are expected
to move promptly with a view to achieving the primary object of subsection (13). If
they fail to do so, and then bring a leisurely claim for compensation under
subsection (13)(d) on the basis that such a claim, unlike the relief in subsections (13)(a),
(b) and (c), is not inherently urgent, a request for condonation for non-compliance with
the 30-day time-limit is unlikely to be granted. Affected employees must strive to
achieve the primary object of subsection (13). Similarly, if employees bring a prompt
application but seek only compensation under subsection (13)(d), the Labour Court may
interrogate why the preferred relief under subsection (13) is not being claimed. It must
be borne in mind that compensation for a large number of employees – the typical
scenario in which section 189A applies – may be ruinous for the employer.
[251] Nevertheless, there may be circumstances where even vigilant employees could
not plausibly be expected to claim reli ef under subsection (13)(a), (b) or (c). I prefer
not to speculate about what those circumstances might be, since we do not have a
concrete case before us. In principle, however, I accept that in such cases the employees
may claim compensation as stand -alone relief, subject to satisfying the Labour Court
that the primary relief contemplated in subsection (13) is not appropriate. Even if the
employees have claimed compensation only in the alternative, the granting of
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compensation instead of the primary relief may be justified, including by changed
circumstances as a result of a delay in adjudicating a timeous or near-timeous
application.
[252] The failure of the retrenched employees’ applications in Parkinson 99 and
Clinix100 was almost certainly justified. The ap plications were brought between seven
and nine months late, at a time when achieving the primary object of subsection (13)
had long since passed. The Labour Court in both cases refused condonation. In doing
so, the Labour Court could properly have taken into account the special features of
section 189A that I have mentioned. These special features are superimposed on the
more conventional aspects of an explanation for failure to meet a time-limit.
[253] In Steenkamp II101 the application for compensation in terms of subsection (13)
was two years late. The decision of the Labour Appeal Court, confirmed in this Court,
that the delay could not be condoned was undoubtedly right. It is true that the Labour
Appeal Court and this Court made statements to the effect that compensation could not
be claimed as stand -alone relief. I think those judgments can be read, however, as
meaning no more than that compensation in terms of subsection (13) is not the primary
relief contemplated by the lawmaker and that this has to loom large in any application
for condonation.
[254] As this Court said in Steenkamp II, the remedy provided for in subsection (13)(d)
cannot be “divorced from the remainder of this section and given self -standing
meaning”.102 It is a fallback remedy only available when the primary remedy is not
appropriate, and condonation has to be assessed on the basis that employees are
expected to bring their application in sufficient time to make the granting of the primary
99 Parkinson above n 20.
100 Clinix above n 20.
101 Steenkamp II above n 6.
102 Id at para 61.
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remedy feasi ble. If, however, the Labour Court concludes that the granting of the
primary relief is not appropriate, it may defer a claim for compensation for later
adjudication.103
[255] However, if anything said by the Labour Appeal Court or this Court in
Steenkamp II were to be understood as meaning that under no circumstances can
affected employees claim compensation under subsection (13)(d) without co-joining it
to a primary claim for relief under subsections (13)(a), (b) or (c), that statement would
be wrong, even if the circumstances under which that would be permissible might be
unusual, even rare.
Exclusion of jurisdiction in all cases of procedurally unfair retrenchment
[256] Paragraphs 149 to 219 of the first judgment address and criticise cases in which,
according to the first judgment, the Labour Court, Labour Appeal Court and this Court
have held or implied that subsection (18) excludes the jurisdiction of the Labour Court
to adjudicate claims for compensation for procedurally unfair retrenchments, whether
or not the retrenchments fall within the scope of section 189A and whether or not the
claim is brought in terms of section 189A(13).
[257] Since it is common cause that the present case falls within the scope of
section 189A, the question whether section 189A(18) applies to other retrenchments as
well does not arise. Unsurprisingly, in the circumstances, it was not the subject of any
argument, and anything we say on that subject is again obiter. Neve rtheless, since the
matter is discussed at length in the first judgment, I have no difficulty saying, in
agreement with the first judgment, that the exclusion in section 189A(18) clearly applies
only to retrenchments falling within the scope of section 189A. This is clear from the
opening words of section 189A(1): “This section applies to employers employing more
than 50 employees if—”.
103 Id at paras 63-4.
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[258] However, and unlike the first judgment, I do not believe that any of the cases
discussed therein, all of which were cases governed by section 189A, reflect an
understanding by any of the courts concerned that subsection (18) ousts the
Labour Court’s jurisdiction in cases of procedurally unfair retrenchments falling outside
the scope of section 189A. I do not think that one should attribute such a fundamental
error to those courts. The context of cases dealing with the exclusion in subsection (18)
have been cases governed by section 189A. The Labour Court and the Labour Appeal
Court (including the three Judges of Appeal who sat in the present case) have without
question adjudicated cases involving procedurally unfair retrenchments falling outside
the scope of section 189A.
104
[259] Statements in judgments, perhaps even more so than the provisions of contracts
and statutes, must be read with due regard to the context of the judgment as a whole.
Where the courts have spoken of an exclusion of jurisdiction under subsection (18),
they have been talking about retrenchments by large employers falling under
section 189A. Often this is explicit. In Steenkamp II,105 for example, this Court began
its discussion of subsection (13) by highlighting that section 189A applies to
retrenchments involving a “large number of employees”.
106 The Court said that the
exclusion of jurisdiction in subsection (18) had to be viewed in the broader context and
purpose of section 189A as a whole – namely “large-scale retrenchments” and getting
the consultation process back on track.107
[260] In Barloworld108 this Court concluded its discussion of the scope of
subsection (13) by stating, among other things, that the relevant provisions of
104 For a few recent examples of successful claims in the Labour Appeal Court, see Zeda Car Leasing (Pty) Ltd
t/a Avis Fleet v Van Dyk [2020] ZALAC 4; [2020] 6 BLLR 549 (LAC); (2020) 41 ILJ 1360 (LAC), Total SA (Pty)
Ltd v Meyer [2021] ZALAC 12; [2021] 8 BLLR 795 (LAC); (2021) 42 ILJ 1696 (LAC) , Mbekela v Airvantage
(Pty) Ltd [2021] ZALAC 47 and Reeflords Property Development (Pty) Ltd v Almeida [2022] ZALAC 8; [2022]
6 BLLR 530 (LAC); (2022) 43 ILJ 1648 (LAC).
105 Steenkamp II above n 6.
106 Id at para 46.
107 Id at paras 51-2.
108 Barloworld above n 11.
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section 189A, including subsection (13), were enacted to serve the interests of
expediency and efficiency in cases of “large-scale retrenchment” and to avoid the courts
having to adjudicate alleged procedural unfairness “in the aftermath of mass
retrenchments”.109
[261] Likewise, I do not read any of the cases reviewed in the first judgment as holding
that, in the case of retrenchments by large employers to which section 189A applies, the
Labour Court cannot assess procedural fairness in a claim brought under
subsection (13). Subsection (13) expressly states that the Labour Court can do so, and
the Labour Court has often done so.
[262] In my respectful view, therefore, paragraphs 149 to 219 set up and knock down
a proposition which has not been adopted in past cases. There has been no uncertainty
in our jurisprudence on these matters. There is no case of which I am aware where the
Labour Court or Labour Appeal Court has refused to consider the procedural fairness
of an ordinary retrenchment falling outside the scope of section 189A. And for these
reasons, I cannot associate myself with the criticisms made in the first judgment of the
Labour Appeal Court in the present case. In regard to the first major topic of the first
judgment, namely the legitimacy of a claim for compensation under subsection (13)(d)
as “stand-alone” relief, I agree with the first judgment that the Labour Appeal Court
erred. It was perhaps led astray by statements made in Steenkamp II, either because the
Labour Appeal Court misunderstood the import of Steenkamp II (as I think) or because
Steenkamp II was wrong, albeit obiter (as the first judgment holds). But the Labour
Appeal Court merely erred – no more, no less.
[263] In regard to the second major topic of the first judgment, namely the scope of the
exclusion in subsection (18), the criticism of the Labour Appeal Court in the first
judgment is simply not justified, in my view. The Labour Appeal Court did not find
109 Id at para 71. See also at para 69 with reference to Association of Mineworkers and Constructions Union v
Piet Wes Civils CC (2017) 38 ILJ 1128 (LC).
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that the exclusion in section 189A(18) applied to retrenchments falling outside the scope
of section 189A or that the Labour Court could not adjudicate claims for procedural
unfairness brought in terms of section 189A(13). The Labour Appeal Court expressly
recognised that subsection (18) applied only to retrenchments by large employers falling
within the scope of section 189A.110 The Labour Appeal Court’s sole error was to hold
that a claim for compensation under subsection (13)(d) could not competently have
been adjudicated by the Labour Court as stand-alone relief. That is the error forming
the subject of the first major topic of the first judgment.
110 See at para 15, where the reference to the exclusion of jurisdiction in terms of subsection (18) in “such cases”
is a reference to the cases mentioned in the earlier part of the same sentence, namely retrenchments by employers
who employ 50 or more people.
For the Applicants in the application for
leave to appeal and the Respondent in the
application for leave to cross-appeal:
G Fourie SC (with D Groenewald)
Instructed by Higgs Attorneys
Incorporated
For the Respondents in the application for
leave to appeal and the Applicants in the
application for leave to cross-appeal:
C Watt -Pringle SC (with L Erasmus )
Instructed by Du Randt Du Toit Pleser
Attorneys