Real Time Investments 158 t/a Civil Works v Commission for Conciliation, Mediation & Arbitration and Others (JA77/19) [2022] ZALAC 7; [2022] 6 BLLR 524 (LAC); (2022) 43 ILJ 1642 (LAC) (17 March 2022)

85 Reportability

Labour Law

Brief Summary

Labour Law — Unfair dismissal — Reinstatement — Court's authority to grant reinstatement without notice to employer — Appellant dismissed employee for gross misconduct; employee's dismissal deemed fair by arbitrator — Employee's review application led to Labour Court ordering reinstatement without prior request — Appellant contended that reinstatement was not sought and it was not notified of such relief — Court held that reinstatement could not be granted in absence of notice to employer and without opportunity to be heard, rendering the order of reinstatement improper.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an appeal in the Labour Appeal Court against the entire order of the Labour Court (Moshoana J). The Labour Court had, on review, set aside a CCMA arbitration award which had found the dismissal of an employee to be procedurally and substantively fair, and then substituted that award with an order declaring the dismissal substantively unfair and directing retrospective reinstatement.

The parties were Real Time Investments 158 t/a Civil Works as the appellant employer, the Commission for Conciliation, Mediation & Arbitration (CCMA) as first respondent, the commissioner/arbitrator Mohamed Jassat N.O. as second respondent, and the dismissed employee Mr Samuel Rantsieng as third respondent.

Procedurally, the dispute followed the common trajectory of a dismissal dispute under the Labour Relations Act 66 of 1995 (LRA). After dismissal, the employee referred an unfair dismissal dispute to the CCMA. Following unsuccessful conciliation, the matter proceeded to arbitration, where the arbitrator found the dismissal fair. The employee then launched a review application in the Labour Court under section 145 of the LRA, seeking to set aside the award and primarily to have the matter remitted to the CCMA for a fresh hearing. The Labour Court dealt with the review as unopposed and nevertheless granted reinstatement. The employer’s application for leave to appeal was refused by the Labour Court, but leave to appeal was later granted on petition to the Labour Appeal Court.

The general subject-matter of the dispute was an unfair dismissal claim arising from a workplace-related incident, but the appeal itself turned primarily on a procedural and remedial question: whether it was permissible for the Labour Court to grant reinstatement in circumstances where it had not been sought by the employee in the review application and where the employer had not been notified that such relief would be pursued or considered.

Material Facts

Mr Rantsieng was employed by the appellant as a general worker. He was dismissed following an incident that occurred outside the gate of the workplace, shortly after closing time, in which he became involved in a physical altercation with a co-employee concerning money. He was charged with and found guilty of gross misconduct at a disciplinary hearing, and he was dismissed.

It was common cause that, after dismissal, Mr Rantsieng (assisted at the time by his trade union) referred an unfair dismissal dispute to the CCMA. Conciliation failed and the dispute proceeded to arbitration. On 14 July 2016, the arbitrator issued an award finding the dismissal to have been procedurally and substantively fair.

On 16 August 2016, Mr Rantsieng launched a review application in the Labour Court in terms of section 145 of the LRA. In his notice of motion, he sought relief reviewing and setting aside the award, referring the matter back to the CCMA for a hearing de novo before another commissioner, and costs, together with “further and/or alternative relief”. The judgment recorded that he relied on multiple grounds of review and, among other things, alleged a lack of procedural fairness in both the employer disciplinary process and the CCMA arbitration process.

The record reflected that the employer filed a notice of intention to oppose, and an affidavit responding to the review. However, it was common cause that, ultimately, no one appeared on behalf of the employer at the hearing of the review application in the Labour Court. The employer’s explanation (advanced on appeal) was that it elected not to appear, on advice, on the assumption that if the review succeeded, the likely “worst case” outcome would be a remittal to the CCMA for a fresh arbitration, given the relief the employee had sought in his notice of motion.

The Labour Court treated the matter as unopposed, found the award reviewable, and made findings that the fight occurred outside the premises after working hours and could not constitute contravention of a workplace rule, and that there was no evidence that the employer’s business was affected. On that basis, it substituted the award with a finding of substantive unfairness and granted retrospective reinstatement.

A critical factual feature for the appeal was that Mr Rantsieng had not sought reinstatement in his notice of motion, and the employer contended it had not been notified that reinstatement would be sought or contemplated, nor afforded an opportunity to address that form of relief.

Legal Issues

The central legal question on appeal was whether the Labour Court could competently and fairly grant an order of reinstatement in circumstances where reinstatement had not been sought by the employee in the review application and where the employer had not been notified that such relief would be pursued or considered.

This was principally a question concerning the application of procedural fairness principles to motion proceedings and to the framing of issues by pleadings (in the form of a notice of motion and founding affidavit). It also concerned the relationship between the relief claimed and the permissible scope of adjudication in review proceedings, including whether an order may be granted that is materially different from what the initiating papers disclosed, without giving the affected party notice and an opportunity to be heard.

Although the underlying dismissal dispute involved factual questions about misconduct, the appeal was decided on a procedural and remedial basis, focusing on the fairness and permissibility of the reinstatement order given the way the review was framed and conducted.

Court’s Reasoning

The Labour Appeal Court dealt first with an application for condonation for the late filing of the notice of appeal and the record, and for reinstatement of the appeal to the roll if it had lapsed. It accepted the explanation advanced by the employer, including that the delay was not extensive, was largely beyond the employer’s control, and was linked to failures by previous attorneys, while the employer had acted diligently once it became aware of the relevant order. The Court also considered that the appeal had prospects of success. On that basis, the Court granted condonation and reinstated the appeal.

On the merits, the Court emphasised the role of the notice of motion and founding affidavit in motion proceedings. It described it as trite that these documents constitute both the pleadings and the evidence, defining the issues the court is asked to determine. The Court stressed that an applicant must not only state the relief sought, but must also make out a case for that relief in the founding papers. Where relief is not claimed, it is not properly raised as an issue for adjudication, and the opposing party is not properly alerted to the case it must meet.

The Court located the problem in terms of fairness and notice. It held that a pleading is intended to enable the other party to fairly and reasonably know the case it is called upon to meet, and that fairness is paramount. In that context, it treated the Labour Court’s reinstatement order as an instance of the kind of “trial by ambush” that has long been deprecated. The Labour Appeal Court reasoned that it was not unreasonable for the employer—given the employee’s pleaded relief—to assume that an adverse outcome might be a remittal to the CCMA, rather than a direct reinstatement order.

The Court addressed the possibility that the employee’s catch-all prayer for “further and/or alternative relief” could have covered reinstatement. It rejected that as sufficient for notice in the circumstances, indicating that such wording could “hardly” serve to alert the employer that reinstatement would be sought or might be ordered, particularly where reinstatement was not otherwise pleaded and motivated. The Court suggested that an amendment might have been required if such relief was to be pursued, and that notice of such amendment would have had to be given to the employer.

The Court further reasoned that the unfairness was not limited to the remedial question. It recorded that the review was decided on grounds not raised by the employee in the application, which compounded the procedural unfairness. In addition, it highlighted a practical dimension: the grant of reinstatement depends on all relevant facts and circumstances, implying that the employer should have had an opportunity to place such facts before the court if reinstatement were to be considered.

Because reinstatement had been granted without proper notice and opportunity to be heard, and because reinstatement involves evaluative considerations that required a proper ventilation of facts, the Court concluded that the Labour Court’s order could not stand. It held that the appropriate course was to set aside the entire Labour Court order and to remit the matter for a fresh hearing as an opposed matter before a different judge.

Outcome and Relief

The Labour Appeal Court granted condonation for the late filing of the notice of appeal and the record and reinstated the appeal on the roll.

It upheld the appeal, set aside the entire order of the Labour Court, and referred the matter back to the Labour Court to be heard afresh as an opposed matter before a different judge.

As to costs, the order recorded that the appeal was upheld with costs, and further recorded that there was no costs order. The relief granted was stated in those terms in the Court’s final order.

Cases Cited

Molusi and others v Voges NO and others 2016 (3) SA 370 (CC).

GCC Engineering (Pty) Ltd and others v Maroos and others 2019 (2) SA 379 (SCA).

Home Talk Developments (Pty) Ltd and others v Ekuruleni Metropolitan Municipality 2018 (1) SA 391 (SCA).

CUSA v Tao Ying Metal Industries & others [2009] 1 BLLR 1 (CC).

Legislation Cited

Labour Relations Act 66 of 1995, section 145.

Labour Relations Act 66 of 1995, section 158(1)(g).

Rules of Court Cited

Labour Court Rule 7A(8)(b).

Held

The Labour Appeal Court held that it was procedurally unfair for the Labour Court to grant an order of reinstatement where reinstatement was not sought in the employee’s notice of motion and founding affidavit, and where the employer had not been notified that such relief would be sought or considered and had not been given a reasonable opportunity to be heard on that remedy.

It further held that, given that the review was decided on grounds not raised and that reinstatement requires consideration of all relevant circumstances, the appropriate remedy was to set aside the entire Labour Court order and remit the matter for a fresh hearing as an opposed matter before a different judge.

LEGAL PRINCIPLES

In motion proceedings, the notice of motion and founding affidavit perform the dual function of pleadings and evidence, and they define the issues to be decided. A litigant must clearly state the relief sought and must set out a case for that relief in the founding papers.

A party is entitled to fair notice of the case it must meet. Fairness in litigation requires that courts avoid outcomes amounting to a trial by ambush, particularly where a material form of relief is granted without proper notice to the affected party.

A court should not grant substantive relief, such as reinstatement, where it has not been sought or where the opposing party has not been alerted that such relief is in issue and has not been afforded a reasonable opportunity to address it. This is especially so because reinstatement involves an evaluative assessment that depends on the relevant facts and circumstances, which must be properly ventilated.

Where a matter has been determined in a procedurally unfair manner, including by granting relief beyond the pleaded case without notice and hearing, the appropriate corrective step may be to set aside the order and remit the matter for rehearing as an opposed application before a different judicial officer.