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[2024] ZALCJHB 111
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Dawn Ltd and Others v Molefe and Others (JR2114/21) [2024] ZALCJHB 111 (4 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 2114 / 21
In
the matter between:
DAWN
LTD AND 2 OTHERS
Applicants
and
PATRICK
MOLEFE
First Respondent
STEPHEN
LUCKY MTHETHWA
N.O.
Second Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Third Respondent
Heard
:
4 October
2023
Delivered
:
4
March 2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 4 March 2024
Summary:
Review
–
matter
concerns issue of jurisdiction – principles considered –
test for review – s 145 of LRA 1995 – reasonable
outcome
test does not apply – review considered on the basis of a
de
novo
determination of whether award is right or wrong
Jurisdiction
– joinder of parties to unfair dismissal dispute –
joinder not competent where there is no prior referral
to
conciliation against party – arbitrator has no jurisdiction to
grant relief against party not properly before him
Employment
relationship – identity of employer in dispute –
principles relating to determination of identity of employer
considered – must be actual employment relationship on the
facts – no relief competent against party that is not the
employer
Corporate
personae – separate corporate personae must be respected –
cannot disregard such separate personae because
it may be just and
equitable – must establish a case of piercing corporate veil –
no such case pleaded or proven –
arbitrator has no jurisdiction
to make award against holding company that is not the employer
Dismissal
dispute – reason for dismissal considered – issue in
dispute concerns dismissal for operational requirements
as
contemplated by s 189 / 189A of LRA – s 191(12) not applicable
– CCMA has no arbitration jurisdiction
Dismissal
dispute – employee referring dispute classified as dismissal
for reasons unknown – despite dispute description
arbitrator
obliged to determine true nature of dispute – true nature of
dispute dismissal for operational requirements –
arbitrator
erred by failing to conclude that he had no jurisdiction – only
Labour Court has jurisdiction to adjudicate dispute
Review
of award – finding by arbitrator wrong – review
application granted – award substituted with determination
that
arbitrator had no jurisdiction
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This
judgment concerns an application brought by the applicants in terms
of section 145 as read with section 158(1)(g) of the Labour
Relations
Act (LRA),
[1]
to review and set
aside an arbitration award handed down by the second respondent, in
his capacity as an arbitrator of the Commission
for Conciliation,
Mediation and Arbitration (CCMA), being the third respondent.
[2]
In
this matter, the first respondent had pursued an unfair dismissal
dispute to the CCMA, on the basis of a dismissal for ‘
reasons
unknown
’.
This unfair dismissal dispute ultimately ended up before the second
respondent for arbitration. The applicants, as the
cited employer
parties in the proceedings, opposed the matter, and raised two
preliminary issues. The first issue related to a
contention that the
dispute concerned one of a dismissal for operational requirements,
and thus the CCMA had no jurisdiction to
arbitrate the same. The
second issue related to whom the employer of the first respondent
actually was.
[3]
In
an arbitration award dated 15 September 2021, the second respondent
held that the first respondent was dismissed in terms of
section 191
of the LRA, and not in terms of section 189. He then proceeded to
find that the dismissal of the first respondent by
‘
Dawn
Management Services
’
and ‘
Polanofield
(Pty) Ltd
’
was substantively and procedurally unfair, and he ordered that the
‘
Respondent
’
pay compensation to the first respondent in the sum of R659 792.00,
being an amount equivalent to 10(ten) months’
salary.
[4]
The
arbitration award was received by the applicants on 15 September
2021. On 19 October 2021, the applicants’ review application
was filed, in which the applicants sought to review and set aside the
arbitration award of the second respondent. The review application
has therefore been filed within the time limit as contemplated
section 145(1) of the LRA and is properly before Court.
[5]
For
the reasons to follow, it is my view that this is a case that can be
disposed of based on the preliminary issues raised by the
applicants.
There is no need to decide the fairness of the first respondent’s
dismissal. I will therefore only set out the
background facts
relevant to these questions, below.
The
relevant background
[6]
From
the outset, there were three employer parties ultimately brought into
the arbitration proceedings by the first respondent,
as it came
before the second respondent. These were Dawn Ltd (Dawn), Polanofield
(Pty) Ltd (Polanofield) and Saffer Plumbing and
Hardware (Pty) Ltd
(Saffer). In his arbitration award, and unfortunately, the second
respondent only refers to the ‘
Respondent
’
when evaluating and deciding the case, without indicating to which of
these three parties the reference to ‘
Respondent
’
relates to. It was common cause that all three these parties were
distinct, separate and independent corporate entities
and personae.
[7]
Of
relevance to the case
in
casu
, the
first respondent was employed as a Human Resource Manager –
Private Clients, at Dawn HR Solutions (Pty) Ltd with registration
number 1998/020686/07, as from 26 March 2012. Dawn HR Solutions was a
wholly owned subsidiary of Dawn. He was seconded to Dawn
Logistics,
which was a trading division of Wholesale Housing Supplies (Pty) Ltd
(which was also a wholly owned subsidiary of Dawn),
as from 2 July
2013, but remained employed by Dawn HR Solutions. On 1 February 2016,
the first respondent was promoted to Group
Employee Relations
Manager, still employed by Dawn HR Solutions. Dawn HR Solutions is
not a party to these proceedings.
[8]
In
April 2017, the first respondent was transferred to Dawn Management
Services (DMS). DMS was not a distinct and separate legal
corporate
entity. DMS was actually also a trading division of Wholesale Housing
Supplies (Pty) Ltd, with registration number 1997/000615/07.
The
transfer was confirmed in a letter in April 2017, in terms of which
the first respondent was afforded an increase, and in which
it was
confirmed, in those specific words, that the legal entity that was
his employer was DMS which was a trading division of
Wholesale
Housing Supplies (Pty) Ltd.
[9]
Wholesale
Housing Supplies (Pty) Ltd had a name change approved by the CIPC, to
Saffer Plumbing and Hardware (Pty) Ltd, on 3 April
2019, being Saffer
referred to above. It however remained the same corporate entity and
persona, with the same registration number.
It follows that the first
respondent was employed by Saffer as from April 2017. This reality
was confirmed further by an increase
letter issued to the first
respondent by Saffer on 19 October 2019, the first respondent’s
pay slips in 2019 which were all
the name of ‘
Dawn
Management Services
’,
and his IRP5s and UI19 forms, which were in the name of Saffer.
[10]
Dawn
was never an employer of staff, but was the listed holding company of
a group of companies comprising the Dawn group. Dawn
however delisted
from the JSE with effect from 26 February 2019 as part of a scheme of
arrangement, and ceased trading. Its entire
interests were then
transferred to Polanofield in 2019, the latter then becoming the
holding company of what can be described as
the Dawn group of
companies. This would include Saffer. Polanofield itself is also a
holding entity, with no employees. There was
never a working
relationship between the first respondent and Polanofield.
[11]
It
was common cause that the Dawn group of businesses ran into financial
difficulties in the course of 2020. Saffer itself was placed
under
business rescue, which commenced on 23 July 2020. The business rescue
plan was published on 14 September 2020, in terms of
which the assets
of Saffer were to be sold off to settle creditors, and Saffer would
then be wound up. Also in terms of the approved
business rescue plan,
all the employees of Saffer would be retrenched.
[12]
Pursuant
to the business rescue plan, a section 189A retrenchment process was
then initiated. The first respondent was responsible
for drawing and
then issuing the section 189(3) notices to all Saffer employees. It
would appear that he never issued a section
189(3) notice to himself.
[13]
The
consultation process itself was conducted by way of CCMA
facilitation, with commissioner Magmood Fadal being the appointed
facilitator. The first respondent was directly involved in the CCMA
facilitation, and in fact was part of the representation of
Saffer in
that process. The facilitated consultations resulted in a
retrenchment agreement being concluded between SACCAWU and
NUMSA (on
behalf of their members employed at Saffer), all the non-unionised
employees of Saffer, and the business rescue practitioner,
on 23
October 2020. The first respondent himself was a part of negotiating
this agreement and was a signatory to such agreement,
as a witness.
In terms of clause 3 of that agreement, is it recorded that: ‘
The
parties agree that the services of
all
employees of Saffer nationally, will be terminated as a consequence
of section 189A of the LRA
…
’
(emphasis added), with the date of termination being 30 November
2020. It was undisputed that the employment of all the
employees of
Saffer was terminated pursuant to this agreement.
[14]
The
first respondent received a termination letter on 10 November 2020
from Saffer terminating his employment due to retrenchment.
It was
undisputed that pursuant to his employment being terminated, the
first respondent was paid severance pay.
[15]
The
first respondent referred an unfair dismissal dispute only against
Dawn to the CCMA. In this referral, the first respondent
indicated
that he had been dismissed for reasons unknown. The dispute was set
down for con/arb on 8 December 2020, by way of a
set down notice
dated 19 November 2020. This notice was only sent to Dawn and the
first respondent, by the CCMA.
[16]
The
dispute first came before commissioner Menzi Mabunda on 8 December
2020. In those proceedings, an issue was raised by Dawn that
the
first respondent’s employer was not before the CCMA, as the
first respondent was not employed by Dawn. After argument
on this
issue by the parties, the first respondent applied, in the hearing,
that Saffer and Polanofield be joined to the proceedings.
In a
written ruling dated 21 December 2020, commissioner Mabunda did not
decide who the actual employer of the first respondent
was. Instead,
he ruled that Saffer and Polanofield had an interest in the matter,
considering the arguments raised by the parties,
and therefore should
be joined to the proceedings. The commissioner also directed that the
matter should proceed to arbitration
on request of the first
respondent.
[17]
It
is in terms of the ruling of commissioner Mabunda that Saffer and
Polanofield came into the matter. The fact however remains
that no
dispute was ever referred to conciliation by the first respondent
against Saffer or Polanofield. These parties were also
not invited to
the proceedings by way of the notice of set down of 19 November 2020.
There was also no joinder application filed
by the first respondent
beforehand.
[18]
On
22 December 2020, and based on the ruling of commissioner Mabunda,
the first respondent referred an unfair dismissal dispute
against
Dawn, Polanofield and Saffer to arbitration. It remained a dispute,
according to the first respondent, for reasons unknown.
The matter
ultimately came before the second respondent for arbitration on 15
June, 21 July and 25 August 2021.
[19]
In
the arbitration, Luis Baeta (Baeta), the former CEO of Saffer,
testified that the first respondent was employed by Saffer and
that
he was retrenched along with the 563 other employees of Saffer. This
testimony was confirmed by Erna Volschenk (Volschenk),
the former
payroll and benefit manager of Saffer. Sandra Robbins (Robbins), the
former group HR executive, also testified that
the first respondent
was retrenched by Saffer, along with all the other employees of
Saffer.
[20]
The
first respondent, in presenting his case in the arbitration, did not
dispute that he was directly involved in the retrenchment
exercise
relating to all the Saffer employees. He also conceded these
employees were retrenched. However, and according to the
first
respondent, he was not affected by this exercise, because a section
189(3) notice had not been issued to him, and he was
never consulted
and advised by management about any retrenchment that may affect him.
The first respondent also contended that
he was not consulted in the
course of the retrenchment process that had been conducted. In short,
the first respondent was of the
view that because he was conducting
the retrenchment exercise on behalf of the employer, he could not
have been part of it.
[21]
The
applicants argued in the arbitration that any proceedings against
Dawn was not competent, as it was a holding company with no
employees, and had in any event delisted in 2019. The applicants
further argued that Polanofield had no interest in this matter,
as it
was also a holding company with no employees, and had simply taken
over the holding interest from Dawn following a scheme
of arrangement
and Dawn’s subsequent delisting, also in 2019. And finally
where it came to Saffer, the applicants conceded
and accepted that
Saffer was the employer of the first respondent and had been
dismissed by Saffer, however they pertinently raised
the issue that
the first respondent was dismissed for operational requirements along
with all its other employees, resulting from
business rescue
proceedings, and the CCMA therefore had no jurisdiction to entertain
the dispute, which needed to be referred to
the Labour Court for
adjudication.
[22]
In
his arbitration award of 15 September 2021, the second respondent
recognised that he had to decide who the ‘
true
employer
’
of the first respondent was, and whether the first respondent had
been dismissed for operational requirements. He referred
to the
evidence by the applicants showing that Saffer was the employer of
the first respondent. He also considered the concession
by the
applicants that Saffer was the employer of the first respondent.
However, and despite this, the second respondent held that
the first
respondent was not employed by Saffer. His reasons for so finding
will be dealt with later in this judgment.
[23]
Next,
and with regard to whether the first respondent was dismissed for
operational requirements, the second respondent in effect
bought
directly into the argument of the first respondent. The second
respondent accepted that despite the whole retrenchment exercise,
the
first respondent was representing the employer, and as such, he could
not be an affected employee. He held that ‘…
a
bogus retrenchment was contrived to justify the Applicant’s
dismissal without a valid reason’
,
and then concluded: ‘
I
find that the dismissal of the Applicant was not based on section 189
but on section 191 of the LRA …
’
(whatever this may mean).
[24]
The
second respondent then proceeded to find that the dismissal of the
first respondent by the ‘
Respondent
’
was unfair, and that the ‘
Respondent
’
was ordered to pay the first respondent compensation in the sum of
R659 792, being a sum equivalent to 10 months’
salary. As
what the second respondent may have had in mind when referring to
‘
Respondent
’,
is found in the paragraph headed ‘
Award
’
in the arbitration award, where the second respondent records: ‘
The
dismissal of the Applicant, Mr Patrick Molefe by the Respondent Dawn
Management Services and Polanofield (Pty) Ltd, the Holding
Group, was
procedurally and substantively unfair
’.
[25]
The
applicants were clearly not satisfied with this outcome, which led to
the current review application now before me.
Test
for review
[26]
As
will be dealt with more fully below, the only real question to be
decided in this case was whether the CCMA, and thus consequently
also
the second respondent, had the necessary jurisdiction to arbitrate
the unfair dismissal dispute brought by the first respondent
to the
CCMA, based not only on the reason for dismissal, but also on the
basis of whether the parties against whom relief was awarded
by the
second respondent was competently before the CCMA and / or were the
employer(s) of the first respondent.
[27]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[2]
the Court considered the well-known review test postulated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
and said:
‘…
Nothing
said in Sidumo means that the CCMA’s arbitration award can no
longer be reviewed on the grounds, for example, that
the CCMA had no
jurisdiction in a matter or any of the other grounds specified in
section 145 of the Act.
If the CCMA had
no jurisdiction in a matter, the question of the reasonableness of
its decision would not arise …
’
(emphasis added)
[28]
The
aforesaid means that where the issue to be considered on review is
about the jurisdiction of the CCMA, it is not about a reasonable
outcome. What happens is that the Labour Court is entitled to, if not
obliged, to determine the issue of jurisdiction of its own
accord. In
doing so, the Labour Court determines the issue
de
novo
in order to decide whether the determination by the arbitrator is
right or wrong.
[4]
In
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others,
[5]
the Court articulated the enquiry as follows:
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court …’
[29]
Finally
in this respect, and in the context of a dispute concerning whether
an employment relationship exists, the Court in
Universal
Church of the Kingdom of God v Myeni and Others
[6]
held as follows:
‘…
It is
said that the value judgment of the commissioner in a jurisdictional
ruling has no legal consequence and that it is only a
ruling for
convenience. Therefore, the applicable test is simply whether,
at the time of termination of his relationship with
the church, there
existed facts which objectively established that Mr Myeni was indeed
the employee of the church. If, from an
objective perspective, such
jurisdictional facts did not exist, the CCMA did not possess the
requisite jurisdiction to entertain
the dispute, regardless of
what the commissioner may have determined. …’
[30]
Accordingly,
and in this instance, I shall proceed to decide this matter
de
novo
on
the basis of determining whether the second respondent was right or
wrong in making the findings that then clothed the CCMA,
according to
him, with the necessary jurisdiction to determine this matter and to
grant substantive relief against the applicants
in favour of the
first respondent.
Analysis
[31]
It
is perhaps appropriate to start with determining who the true
employer of the first respondent was. In my view, and in this regard,
the second respondent got it completely wrong, for the reasons to
follow.
[32]
From
the outset, the second respondent completely misconstrued the issue
of the onus. The approach adopted by the second respondent
was that
the duty was on the applicants to prove that Saffer was the employer
of the first respondent. That is simply not correct.
In CCMA
arbitration proceedings, where employment is in dispute, the onus is
on the employee party to prove employment. It follows
that the first
respondent had to prove who his true employer was, and consequently,
since the employer parties conceded Saffer
was the employer, that it
was not Saffer.
[7]
This error in
approach by the second respondent unfortunately tainted his entire
reasoning, rendering it irregular.
[33]
Turning
to the facts relating to who the employer of the first respondent may
be, Polanofield could never be the employer of the
first respondent.
It only came into the picture in 2019, long after the first
respondent had commenced employment. There is no
evidence of any
employment contract being concluded or any employment relationship
being established between the first respondent
and Polanofield. There
is not a single shred of evidence of the first respondent doing any
work for Polanofield, being paid by
it or even dealing with it. The
undisputed evidence was that Polanofield was a holding entity, having
no employees, which in essence
held the shareholding in those
remaining subsidiary entities in what was known as the Dawn group,
one of which was Saffer. As said
in
Myeni
supra
[8]
:
‘
Indeed,
it appears to me that, by its very nature, an employment relationship
presupposes a working arrangement of a contractual
nature between two
or more persons, in circumstances where the rights, duties and
obligations inter partes are legally enforceable.
Therefore, in the
present instance, even if Mr Myeni had not relied on s 200A, I
would still find that there was no legally
enforceable agreement
between him and the church and that, for that reason, no employer and
employee relationship existed between
them. There was simply no
contract that could be classified as an employment contract on the
evidence.’
[34]
Turning
then to Dawn, the undisputed evidence was that it was also a holding
entity having no employees. It was the original holding
entity of the
Dawn group of companies, comprising quite a few subsidiaries. Dawn
was a listed entity on the Johannesburg Stock
Exchange (JSE). It was
common cause that it was delisted from the JSE in 2019 and ceased
operations accordingly. It was in effect
superseded by Polanofield as
holding entity of four remaining former Dawn subsidiaries. Dawn thus
never could be the employer of
the first respondent when he was
dismissed in November 2020, and certainly, the first respondent was
never dismissed by Dawn.
[35]
It
is true that the employment of the first respondent, in the past,
moved through the Dawn operating entities, however he was always
fulfilling group HR activities at a group support level, to
individual operating entities. He started at Dawn HR Solutions, but
ended up at DMS, which, as said, was an operating division of Saffer.
The first respondent remained employed at DMS until his termination
of employment in November 2020. In the arbitration, the applicants
accepted and conceded that the first respondent was employed
by
Saffer.
[36]
According
to the second respondent, there was no ‘
credible
evidence
’
that the first respondent was employed by Saffer. The reason for this
finding is that according to the second respondent,
the first
respondent could not have been issued with the transfer letter in
April 2017 to DMS, because he was not in Gauteng when
it was issued,
because at the time he was executing HR duties in Mpumalanga and
Kwa-Zulu Natal. The second respondent also rejected
the IRP5 and UI19
of the first respondent presented by the applicants in evidence,
because, according to him, it was generated
after the fact.
[37]
I
must say that I have considerable difficulty with the reasoning of
the second respondent. First and foremost, it does not explain
the
first respondent’s signature on the transfer letter together
with a date of 19 April 2017. Further, the second respondent
does not
even consider the increase letter issued to the first respondent by
Saffer in October 2019 as well as a pay slip of the
first respondent
in 2019 reflecting Saffer as his employer. It is entirely irrational
for the second respondent to simply reject
the IRP5 and UI19 on the
basis that they are issued after the fact. The second respondent does
not appear to understand that such
documents, and especially an IRP5,
are issued based on existing payroll records, or in other words, are
extracted from past information.
For the second respondent to reject
these documents, he implied that they were fraudulently generated,
when there was no evidence
of this, and it is in my view highly
unlikely that the applicants would fraudulently generate these kind
of documents with all
the legal implications associated with such
conduct, just to serve as some kind of proof that the first
respondent was employed
by Saffer. It just makes no sense. The second
respondent, in view, got it completely wrong.
[38]
But
even stranger, in my view, is that if Saffer was not the employer of
the first respondent, then who was? It could not be Dawn,
as it
turned out to be common cause that Dawn had delisted and ceased
operating in 2019. That left only Polanofield, and as discussed
above, it could also not be the employer of the first respondent.
Ironically, the second respondent never found that Polanofield
was
the employer of the first respondent, and himself quickly discarded
Dawn as employer because it effectively no longer existed.
The second
respondent held Polanofield liable for a different reason, discussed
later in this judgment. As these were the only
three parties before
the second respondent, then it could only follow that the first
respondent’s true employer, if it was
not Saffer, was not
before the CCMA nor before the second respondent, and that had to be
the end of the matter, based on the second
respondent’s own
reasoning.
[39]
Another
ironical twist is found in the fact that the second respondent then
determines that ‘
Dawn
Management Services
’
dismissed the first respondent. That of course is true. For ‘
Dawn
Management Services
’
to have dismissed the first respondent, it had to be his employer.
But the second respondent clearly does not understand
what Dawn
Management Services actually is. On the evidence, there can be no
doubt that there is no legal persona or corporate entity
called Dawn
Management Services. It is clear that Dawn Management Services, or
DMS, is an operating division of Saffer and part
and parcel of
Saffer. Once that is so, the second respondent thus finds on the one
hand that the first respondent was not employed
by Saffer, but on the
other hand finds he was dismissed by Saffer. This is clearly an
unsustainable approach and finding.
[40]
But
even accepting Dawn Management Services was somehow a separate legal
persona and corporate entity, then the problem is that
such entity
was never before the CCMA and the second respondent, and no unfair
dismissal dispute was ever referred against such
entity to the CCMA
by the first respondent. As such, the second respondent would have no
jurisdiction to make any finding against
such entity, nor afford any
relief against it in favour of the first respondent.
[41]
Considering
that the applicants concede that Saffer is the employer of the first
respondent, and in the absence of any real and
acceptable evidence to
the contrary, it must be true that Saffer is the employer of the
first respondent. However, the first respondent
never referred an
unfair dismissal dispute against Saffer to the CCMA for conciliation.
The dispute was only referred against Dawn.
Saffer was also not given
notice on 19 November 2020 of the con / arb proceedings on 8 December
2019. There was no prior application
by the first respondent to join
Saffer to the proceedings. The only reason why Saffer was before the
second respondent in the arbitration
is because commissioner Mabunda
joined it to the proceedings by way of his ruling of 20 December
2020.
[42]
But
was it even competent to join Saffer to the proceedings in a such
manner? In my view, the answer must be no. Whilst I accept
that the
ruling of commissioner Mabunda was not sought to be reviewed,
answering this question concerns a matter of jurisdiction,
and this
Court is always entitled to consider the same because it directly
impacts on the competence of the CCMA to grant relief.
In
casu
,
and as said, the first respondent never referred his unfair dismissal
dispute under section 191 of the LRA to the CCMA for conciliation,
against Saffer. Because such a referral is a pre-requisite
jurisdictional fact which would enable the CCMA to arbitrate an
unfair
dismissal dispute against Saffer, it must follow that in the
absence of such a referral to conciliation, the CCMA simply has no
jurisdiction to arbitrate such a dispute against Saffer. In
National
Union of Metalworkers of SA v Intervalve (Pty) Ltd and
Others
[9]
it was held as follows:
‘
Referral
for conciliation is indispensable. It is a precondition to the Labour
Court's jurisdiction over unfair dismissal disputes
…’
[43]
In
Association
of Mineworkers and Construction Union and Others v Ngululu Bulk
Carriers (Pty) Ltd (In Liquidation) and Others
[10]
the
Court described the requirement of first referring an unfair
dismissal despite to conciliation as ‘
deferring
’
the jurisdiction to determine such a dispute, until this happened.
The following
dictum
by Jafta J is instructive:
[11]
‘
Although
unfair dismissal disputes such as the ones we are concerned with here
fall within the jurisdiction of the Labour Court, the
exercise
of that jurisdiction is deferred until a dispute has been
conciliated. The LRA is structured in a manner that obliges
parties
to disputes to first make use of non-litigation dispute-resolution
mechanisms, before approaching courts. Of importance
in this regard
is s 191, which requires dismissed employees to refer disputes about
the ‘fairness of a dismissal to conciliation’
…’
Of
course, and in this case, there was a referral to arbitration under
the auspices of the CCMA, but this makes no difference, and
the same
principles apply.
[44]
But
can it be said that the referral against Dawn could encompass a
referral against Saffer as well, considering the close relationship
between the parties and the fact that the one is / was a subsidiary
of the other? Once again, the answer must be in the negative.
The
reason for this is once again found in
Intervalve
supra
.
In that case, there were three corporate entities, called
Steinmuller, Intervalve and BHR. The referral was against Steinmuller
only, It was common cause that the three companies were closely
related, shared a central corporate service, and were all aware
of
the referral and the set down for conciliation. The Court articulated
the question as being: ‘…
can
we conclude from these facts that the Steinmüller conciliation
referral encompassed also
Intervalve
and
BHR? …
’
[12]
.
The Court held:
[13]
‘
So
whether the referral embraced Intervalve and BHR depends on
the provision's purpose. The purpose of s 191 is to ensure
that,
before parties to a dismissal or unfair labour practice dispute
resort to legal action, a prompt attempt is made to bring
them
together and resolve the issues between them. Resolving the
issues early has benefits not only for the parties, who avoid
conflict and cost, but also for the broader public, which is served
by the productive outputs of peaceable employment relationships
…’
The
Court concluded:
[14]
‘…
The
focal question narrows to the purpose of the service requirement in s
191(3). The objective cannot be just to let the employer
know that a
dispute, related to the dispute that affects it, is being
conciliated. It must be to put each employer party individually
on
notice that it may be liable to legal consequences if the dispute
involving it is not effectively conciliated. Those consequences
may be severe. They may include enterprise-threatening implications:
trial proceedings, reinstatement orders, backpay and costs
orders. So
the notice must be directly targeted.
This
emerges from the provision, which explicitly names the beneficiary
of the service requirement: 'the employer'. This makes
clear that a
referral citing one employer does not embrace another, uncited,
employer. The fact that the uncited employer has informal notice
of the referral cannot make a difference. The objectives of service
are both substantial and formal. Formal service puts the recipient
on
notice that it is liable to the consequences of enmeshment in the
ensuing legal process. This demands the directness of an arrow.
One cannot receive notice of liability to legal process through
oblique or informal acquaintance with it.
The
separate legal personality of the three employers —
Steinmüller, Intervalve and BHR — cannot be
willed away because there was some overlap in their corporate
operations. They had overlapping boards of directors and
interconnected
shareholdings, and a joint holding company. But this
does not help NUMSA. NUMSA's argument depends on the proposition that
knowledge
held by an officer or employee of one corporation may be
imputed to other corporations with which she is associated. That
approach
has long been alien to our law. …’
[45]
Because
of this jurisdictional pre-requisite as articulated in
Intervalve
,
it is simply not competent to join further parties to the CCMA
proceedings after the referral to conciliation, where the referral
has also not been directly and actually made against those parties as
well. In short, the pre-requisite of a prior referral in
terms of
section 191(1) against an actual and individual employer, which
referral is also served directly on that employer, cannot
be
circumvented by a subsequent joinder. This was made clear in
Prinsloo
v Expidor 163 CC t/a the League of Gentlemen and Another
[15]
where it was held:
‘
The
approach of our courts has been that a party may not be joined to
proceedings if that party had not been a party to the
conciliation
process, and further that a joinder may not take place after judgment
has been handed down. The reasoning behind
this approach is that
any party should be afforded an opportunity to be heard in a matter
where it has a direct and substantial
interest. A further
important factor is that a party sought to be joined is entitled
to be heard on the specific question
of the relief.
’
[46]
In
Temba
Big Save CC v Kunyuza and Others
[16]
the Court adopted a similar view, and had the following to say:
‘…
Having
said that a referral for conciliation is indispensable and
a precondition to a commissioner's or the Labour Court's
jurisdiction over unfair dismissal disputes means that if a party is
not part of the conciliation proceedings it cannot be joined
at a
later stage …’
The
Court however did add that this principle would not apply in the case
of the joinder of a new employer where there has been
a transfer of a
business in terms of section 197 of the LRA, because in such a case,
the effect of section 197 was that the old
employer is substituted by
the new employer from the outset, as if it was always the
employer.
[17]
The matter
in
casu
is not such an instance, and there never reliance placed on section
197 by the first respondent.
[47]
Considering
the facts
in
casu
that Saffer was never served with a dispute referral to conciliation
and the notice of set down for con / arb, was at the time
under
business rescue without the business rescue practitioner being
brought into the proceedings, and was in essence
mero
motu
joined by commissioner Mabunda just because the first respondent
asked for joinder and without even giving Saffer the option to
be
heard, the following
dictum
in
G-Ways
CMT Manufacturing (Pty) Ltd v National Bargaining Council for the
Clothing Manufacturing Industry (Western Cape Sub-Chamber)
and
Others
[18]
is quite apposite, where the Court stated:
‘…
The
proceedings in the bargaining council, however, gave rise to a
few material irregularities. The second respondent conducted
the
arbitration without notice to Greenways which had been placed first
in provisional and then final liquidation. It was necessary
to
substitute the liquidator for the CC. The second respondent mero
motu joined G-Ways to the award that he made without any
notice to
G-Ways that he intended to do so. This overlooked the audi
alteram partem rule. Lastly, the second respondent made
G-Ways
jointly liable with Greenways. …’
[48]
It
follows from all of the above that Saffer was not even properly or
lawfully part of and party to the arbitration proceedings
before the
second respondent. It follows that the second respondent never had
any jurisdiction to entertain any claim against Saffer,
and could not
grant any relief against it. Therefore, and insofar as any award made
by the second respondent may be considered
to have been made against
Saffer, that award was not competently made, was irregular, and must
be reviewed and set aside.
[49]
This
brings me to the relief against Polanofield. I have already dealt
with the fact that it could not have been the employer of
the first
respondent. So how could the second respondent have granted relief
against it? It seems to me that the second respondent
did this
because Polanofield was the ‘
holding
company
’
of Dawn Management Services. In short, and according to the second
respondent, Polanofield can he held liable for the award
against its
subsidiary if it is fair to do so. This approach is completely
erroneous and at odds with the law. The second respondent
fails to
appreciate the trite principle of all corporate entities being
distinct legal personae, just like natural persons. In
Dadoo
Ltd and Others v Krugersdorp Municipal Council
[19]
it
was said: ‘…
A
registered company is a legal persona distinct from the
members who compose it….
’.
That being so, it simply cannot be disregarded, unless a proper case
is made out with regard to what is commonly known
as ‘
piercing
the corporate veil
’.
However, and in
Cape
Pacific Ltd v Lubner Controlling Investments (Pty) Ltd
[20]
it
was held that '…
a
court has no general discretion simply to disregard a company's
separate legal personality whenever it considers it just to do
so …
'.
And in
The
Shipping Corporation of India Ltd v Evdomon Corporation and
Another
[21]
the Court decided as follows:
‘…
It
seems to me that, generally, it is of cardinal importance to keep
distinct the property rights of a company and those of its
shareholders, even where the latter is a single entity, and that
the only permissible deviation from this rule known to our
law
occurs in those (in practice) rare cases where the circumstances
justify 'piercing' or 'lifting' the corporate veil. And in
this
regard it should not make any difference whether the shares be held
by a holding company or by a Government. I do not find
it necessary
to consider, or attempt to define, the circumstances under which
the Court will pierce the corporate veil. Suffice
it to say that they
would generally have to include an element of fraud or other improper
conduct in the establishment or use of
the company or the conduct of
its affairs. In this connection the words 'device', 'stratagem',
'cloak' and 'sham' have been used
…’
[50]
It
follows that it was not competent nor permissible for the second
respondent to extend the relief he awarded to Polanofield because
he
may have considered it just and equitable to do so, and because he
believed it as a group holding company should be liable for
the debts
of its subsidiaries. The reasons for this simply are that there was
no case made out to justify the piercing of the corporate
veil. In
fact, that was not even asked for. Secondly, and in terms of the LRA
in the case of unfair dismissal disputes, relief
can only be made
against an employer. There is no such thing as a fictional employer,
or an employer in equity, which is what the
approach of the second
respondent would have to contemplate, as Polanofield was never the
actual employer of the first respondent.
[22]
As held in
Group
6 Security Services (Pty) Ltd and Another v Moletsane NO and
Another
[23]
:
‘
Mr
Masters was never made a party before the arbitrator. He was present
as a witness for the company and not in his personal
capacity.
The award cannot be made against a person simply because it is just
to do so. There has to be some fault on the part
of the directors or
shareholders to make them jointly liable with the company. No such
evidence of fault was led …’
[51]
A
final appropriate comparator to the case
in
casu
can be found in
Jamie
and Another v Ellis Park Stadium (Pty) Ltd and Another
[24]
,
where the Court had the following to say:
‘…
What
is lacking in this case by contrast is an analogous factual basis for
contending that EPWOS was a mere sham to conceal the
actions and
interests of EPS and/or alternatively GLRU. The mere fact that the
three entities acted in a closely collaborative
way under the
direction of De Klerk is not sufficient to lay a foundation of abuse
of corporate personality. …’
[52]
In
sum, any relief against Polanofield is not competent, and the award
of compensation by the second respondent as against Polanofied
is
thus irregular, and unsustainable on review. It falls to be reviewed
and set aside.
[53]
This
leaves the last issue of jurisdiction. Accepting that Saffer was
properly before the CCMA, the first respondent was employed
by
Saffer, and that Saffer dismissed him, then why was he dismissed? It
is trite that if the first respondent was dismissed for
operational
requirements, then the CCMA would have no arbitration
jurisdiction.
[25]
This is
because, on the common cause facts, more than 500 employees were
dismissed for operational requirements by Saffer, and
accordingly
section 191(12) would not apply.
[26]
It is therefore critical for the second respondent, as arbitrator, to
have determined the true reason for the first respondent’s
dismissal, no matter how the first respondent may have labelled his
dismissal. In
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
[27]
the
Court held:
‘…
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a court
must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by a party
is not
necessarily conclusive. …’
[54]
In
my view, the facts relating to the dismissal of the first respondent
was straight forward. Saffer was in financial trouble, went
into
business rescue, and the outcome of this business rescue process was
that its assets be sold off and that it be wound down.
This resulted
in all its employees being retrenched, without exception. The
retrenchment was conducted by way of facilitated CCMA
consultations
in terms of section 189A of the LRA. The first respondent was
intimately involved in this process, issued the section
189(3)
notices of intention to retrench, and was party to the consultations.
The consultations led to a retrenchment agreement
being concluded
between all parties, which applied to all employees, and which
specifically recorded that all employees would be
retrenched by 30
November 2020. All the employees were then indeed retrenched, and
were paid severance pay. In the end, there was
nothing left in
Saffer, and certainly no work for the first respondent to, as he
rendered HR services and how can one provide HR
services to a
non-existent workforce.
[55]
Despite
acknowledging all the above, the first respondent’s position
was that none of this applied to him. In essence, he
said that he
cannot consult with himself, and needed to be consulted separately by
management. He also did not issue himself with
a section 189(3)
notice. He did admit that he received a retrenchment letter
terminating his employment and was paid severance
pay.
[56]
In
my view, none of the contentions advanced by the first respondent
detracts from the material facts that establish that ultimately,
he
was retrenched. Once it is true that he was employed by Saffer, which
he was, then the undisputed evidence was that there exists
a
retrenchment agreement that applies to all Saffer employees, without
exception, and which records that all employees would be
retrenched
by 30 November 2020. This undoubtedly applies to the first respondent
as Saffer employee. In any event, on the undisputed
facts, Saffer was
effectively closed down by virtue of the business rescue plan, and
its assets sold off to pay creditors. So where
was the first
respondent, as well as all the other employees, going to work going
forward. This is why they all lost their jobs,
and it can only be a
dismissal for operation requirements as defined in section 213 of the
LRA.
[28]
[57]
I
need not go into the question whether the first respondent was
properly consulted about the retrenchment. This is because this
is an
issue concerning the fairness of the retrenchment, and has nothing to
do with whether a retrenchment existed. What the first
respondent
actually said was because he was not consulted by management about
retrenchment, he was not retrenched. This is a clearly
a nonsense.
Ironically, the second respondent finds that the retrenchment was
‘
bogus
’.
This finding however does not change the fact that there was a
retrenchment. A ‘
bogus
’
retrenchment is still a retrenchment, but being ‘
bogus
’
would impact on the reason for retrenchment, rendering it unfair. In
simple terms, a ‘
bogus
’
retrenchment does not make a retrenchment not to be a retrenchment.
Rather, it is a retrenchment without a valid reason,
which makes it
unfair. But that question the CCMA, and the second respondent, had no
jurisdiction to answer, and only the Labour
Court could adjudicate
the same.
[58]
I
have little hesitation in concluding that the true and / or real
reason for the dismissal of the first respondent could only be
one
related to the operational requirements of Saffer, his employer. Even
though the LRA allows for the referral of a dispute to
the CCMA for
arbitration where the employee ‘
does
not know
’
the reason for dismissal,
[29]
it would always be subject to an arbitrator determining the true or
real reason for dismissal. It is trite that jurisdiction is
determined on the case as pleaded,
[30]
but in the context of dispute resolution in the CCMA, where there are
no true pleadings to speak of, it is not unusual that the
true or
real reason for the dismissal of an employee may only emerge once
evidence is presented in the arbitration.
[31]
[59]
It
is trite that once it is undisputed that an employee has been
dismissed, the onus would be on the employer to prove that dismissal
is fair.
[32]
The employer is
however only able to prove a fair dismissal based on one of three
reasons, being misconduct, incapacity or operational
requirements.
[33]
It follows
that in arbitration proceedings placed before an arbitrator by an
employee on the basis of reasons unknown, the true
issue in dispute
will emerge from the basis on which the employer seeks to establish
that the dismissal it is fair.
In
September
and Others v CMI Business Enterprise CC
[34]
it
was said that: ‘
In
my view, the commissioner is not bound by a party’s
categorisation of the nature of the dispute. Rule 15 clearly intended
the commissioner to have the right and power to investigate and
identify the true nature of the dispute.
’
Having so said, the Court then concluded:
[35]
‘…
The
general rule is that the referral form and certificate of outcome
constitute prima facie evidence of the nature of
the
dispute conciliated. However, if it is alleged that the nature
of the dispute is in fact different from that reflected
on such
documents, the parties may adduce evidence as to the nature
of the dispute.’
[60]
To
illustrate the point by example, the employer summarily dismisses the
employee without giving the employee any reason for the
dismissal.
The employee pursues an unfair dismissal dispute to the CCMA on the
basis of reasons unknown. In the arbitration, the
employer presents
evidence that it summarily dismissed the employee because he stole.
That would be a dismissal for misconduct.
The fact that the employer
did not have a disciplinary hearing or provide reasons for dismissal
at the time of dismissal would
mean that the dismissal could be
unfair, but that does not change that the reason for the dismissal
was misconduct. If the arbitrator
does not accept the evidence that
the employee stole, it simply means that the employer was unable to
substantiate its case that
the dismissal of the employee for
misconduct was fair, however this would equally not change the nature
of the dispute as being
one of a dismissal for misconduct.
[61]
So,
and in short, any characterization of the dispute by the first
respondent in his referral documents
in
casu
is simply a
prima
facie
basis of placing the dispute before an arbitrator of the CCMA to
arbitrate. The true nature of the reason for dismissal is determined
on the basis of the facts placed before the first respondent. As
clearly said in
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others
[36]
:
‘…
The
informal nature of the arbitration process permits a commissioner to
determine what the real dispute between the parties is
on a
consideration of all the facts. The dispute between the parties
may only emerge once all the evidence is in.
’.
[62]
Using
once again illustration by example, the facts of this case itself
serves as an example of how the true reason for dismissal
is
established. Accepting for the moment that the first respondent was
not retrenched, then what possibly could he have been dismissed
for?
Certainly, he committed no misconduct. There was also no issue of
incapacity being raised by any of the parties. But it is
undeniable
that he was dismissed. This would mean that the applicants had to
prove this dismissal was fair based on operational
requirements. And
in doing so, it would present the case that the first respondent was
part of all of the employees of Saffer that
were retrenched under the
circumstances summarised above, and that is why he was dismissed. In
contradiction to this case, the
first respondent would say he does
not know why he was dismissed, but he would have nothing to gainsay
the reason provided by the
applicants. This all being so, and in
order for the second respondent to decide if the dismissal of the
first respondent was fair
on the basis put forward by the applicants,
he would have to assess whether the reasons provided to him by the
applicants for the
dismissal of the first respondent was proven and
fair, and whether the process followed in arriving at dismissal as
fair, which
is something he simply had no jurisdiction to determine,
as it is undoubtedly an issue relating to operational requirements.
It
follows that he should have to declined jurisdiction, and direct
that the matter be placed before the Labour Court.
[63]
I
wish to conclude with one last issue. The second respondent finds
that the first respondent was not dismissed in terms of section
189,
but was dismissed in terms of section 191. What does this even mean?
Section 191 is the section dealing with the dispute resolution
process of all unfair dismissals. This would include a dismissal for
operational requirements. Section 191 does not exclude the
application of section 189, but is actually the process in terms of
which a section 189 dismissal dispute is prosecuted. The second
respondent appears to misconstrue the provisions of the LRA, which is
symptomatic of the manner in which he decided this case.
[64]
In
summary, it must follow from the above that the second respondent’s
conclusion that the first respondent was not employed
by Saffer is
clearly wrong. The second respondent in any event materially erred in
entertaining any claim against Saffer and /
or Polanofield, as such
parties could not be joined to the proceedings after the fact in the
absence of specific referrals to conciliation
against them. The
second respondent further erred in making Polanofield liable for an
award against Saffer, because Polanofield
was not the employer of the
first respondent. And finally, even if the second respondent could
entertain a dispute against Saffer,
it is clear from the evidence
that the first respondent was dismissed by Saffer for operational
requirements, and the CCMA and
the second respondent had no
jurisdiction to entertain such a claim, as it could only be
adjudicated by the Labour Court. The second
respondent’s award
therefore constituted a gross and reviewable irregularity, and falls
to be reviewed and set aside, on
the basis of a want of jurisdiction.
Conclusion
[65]
For
all the reasons as set out above, the second respondent’s
arbitration award cannot stand. The second respondent simply
did not
have jurisdiction to entertain the dispute and / or make the award
that he had made. The second respondent should have
dismissed the
matter for want of jurisdiction. It follows that the arbitration
award that he had made, falls to be reviewed and
set aside.
[66]
With
the second respondent’s arbitration award having been reviewed
and set aside, where to now? As stated above, it
is up to this
Court to finally determine the matter, not only because of the
jurisdictional issue, but also on the issues of law
at stake. The
facts in this matter are in essence largely uncontested and straight
forward, and it is not even necessary to resolve
the factual disputes
that do exist, in deciding this matter. There is simply no need to go
through arbitration all over again,
especially considering that the
CCMA in any event would have no jurisdiction, no matter what. For all
the reasons elaborated on
above, I am satisfied that the second
respondent should have disposed of the dispute on the basis of a lack
of jurisdiction. Accordingly,
the arbitration award of the second
respondent must be substituted with an award to the effect that the
CCMA and the second respondent
had no jurisdiction to entertain the
dispute.
Costs
[67]
This
then only leaves the issue of costs. In terms of section 162 of the
LRA, I have a wide discretion where it comes to the issue
of costs.
Even though the applicants were successful, this was certainly an
arguable case which had some novelty attached to it.
I do not think
any of the parties acted unreasonably in seeking to pursue this
matter to finality, and in any event, it is an issue
that called for
final determination by this Court. I also consider
the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[37]
where
it comes to costs awards in employment disputes before this Court,
and in this case there certainly exists no reason to depart
from the
principle set out therein.
Therefore,
I consider it to be in the interest of fairness that no costs order
should be made.
[68]
In
the premises, I make the following order:
Order
1.
The
applicant’s review application is granted.
2.
The
arbitration award of the second respondent, arbitrator
Stephen
Lucky Mthethwa
,
dated 15 September 2021, and issued under case number GAJB 23221 –
20, is reviewed and set aside.
3.
The
arbitration award is substituted with a determination that the CCMA
has no jurisdiction to entertain the dispute, and the dispute
is
dismissed on such basis.
4.
There
is no order as to costs.
S
Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants:
Advocate L Pillay
Instructed
by:
Yusuf Nagdee Attorneys
For
the First Respondent:
Mr K Letsholo of Letsholo Manasoe Inc
Attorneys
[1]
Act 66 of 1995 (as amended).
[2]
(2008)
29 ILJ 964 (LAC) at para 101.
[3]
(2007)
28 ILJ 2405 (CC).
[4]
See
Trio
Glass t/a The Glass Group v Molapo NO and Others
(2013)
34
ILJ
2662 (LC) at para 22.
[5]
(2008)
29
ILJ
2218
(LAC)
at para 40.
[6]
(2015)
36 ILJ 2832 (LAC) at para 27.
[7]
Myeni
(
supra
)
at para 52;
Schoeman
v IT Management Advisory Services (Pty) Ltd
(2002) 23 ILJ 1074 (LC) at para 12;
Naude
v Member of the Executive Council, Department of Health, Mpumalanga
(2009) 30 ILJ 910 (LC) at para 58.
[8]
Id
at para 51.
[9]
(2015)
36 ILJ 363 (CC) 40. See also
September
and Others v CMI Business Enterprise CC
(2018) 39 ILJ 987 (CC) at para 46;
Malinga
and Others v KwaZulu-Natal Provincial Department of Education and
Others
(2020) 41 ILJ 228 (LC) at para 10.
[10]
(2020)
41 ILJ 1837 (CC).
[11]
Id
at para 16. See also
Premier
FMCG (Pty) Ltd t/a Blue Ribbon Bakery v Food and Allied Workers
Union on Behalf of Members and Others
(2022) 43 ILJ 2584 (LC) at para 10;
Smith
and Another v Office of the Chief Justice and Others
(2018) 39 ILJ 1357 (LC) at para 30.
[12]
Id at para 44.
[13]
Id at para 46.
[14]
Id at paras 52 – 54.
[15]
(2019)
40 ILJ 2113 (LC) at para 11. Although this judgment was overturned
in
Wilson
v Prinsloo: In re Prinsloo v
Expidor
163
CC t/a the League of Gentlemen and Another
(2021) 42 ILJ 1714 (LAC), the judgment of the LAC only related to
the issue of the Labour Court deciding to lift the corporate
veil,
and hold the individual member of the Close Corporation employer
liable, which the LAC considered to be in error.
[16]
(2016)
37 ILJ 2633 (LAC) at para 29.
[17]
See para 31 of the judgment.
[18]
(2017)
38 ILJ 571 (LAC) at para 15.
[19]
1920
AD 530
at
550-1.
[20]
1995
(4) SA 790 (A)
at
803A.
[21]
[1993] ZASCA 167
;
1994
(1) SA 550
(A) at 566C-F.
[22]
See
Buffalo
Signs Co Ltd and Others v De Castro and Another
(1999)
20
ILJ
1501
(LAC) at paras 13 and 16.
[23]
(2005)
26 ILJ 1693 (LC) at para 58.
[24]
(2020)
41 ILJ 2465 (LC) at para 21.
[25]
Section
191(5)(b)(ii) reads: ‘
If
a council or a commissioner has certified that
the dispute remains unresolved … the employee may
refer the dispute to the Labour Court for adjudication if
the employee has alleged that the reason for dismissal is
… based on the employer's operational requirements …’
[26]
Section
191(12) reads: ‘
An employee who
is dismissed by reason of the employer's operational
requirements may elect to refer the dispute either
to
arbitration or to the Labour Court if- (a) the employer
followed a consultation procedure that applied to
that employee only,
irrespective of whether that procedure
complied with section 189; (b) the employer's operational
requirements lead
to the dismissal of
that employee only; or (c) the employer employs less
than ten employees, irrespective
of the number of employees who
are dismissed’
.
[27]
(2003)
34
ILJ
305
(CC) at para 52.
[28]
The definition reads: ‘
operational
requirements' means requirements based on the economic,
technological, structural or similar needs of an employer.
’
.
[29]
See
section 191(5)(a)(iii) of the LRA.
[30]
See
Gcaba
v
Minister for Safety and Security and Others
(2010)
31
ILJ
296
(CC)
at
para 75;
Mbatha
v University of Zululand
(2014)
35
ILJ
349
(CC) at para 157;
Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members
(2015)
36
ILJ
624
(LAC) at para 21;
Moodley
v Department of National Treasury and Others
(2017)
38
ILJ
1098
(LAC) at para 37.
[31]
See
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others
(2008)
29
ILJ
2461
(CC) at para 65;
Hotbake
Systems (Pty) Ltd t/a the Rich Corporation of SA v Commission for
Conciliation, Mediation and Arbitration and Others
(2019) 40 ILJ 1516 (LAC) at para 21. See also
Health
and Other Services Personnel Trade Union of SA on behalf of Tshambi
v Department of Health, Kwazulu-Natal
(2016) 37 ILJ 1839 (LAC) at para 16;
National
Union of Metalworkers of SA on behalf of Sinuko v Powertech
Transformers (DPM) and Others
(2014) 35 ILJ 954 (LAC) at para 17;
Pikitup
(SOC) Ltd v SA Municipal Workers Union on behalf of Members and
Others
(2014)
35
ILJ
983 (LAC) at para 47.
[32]
See
section 192(2) of the LRA.
[33]
Section
188(1) of the LRA reads: ‘
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- (i) related to the employee'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’
.
[34]
(2018)
39
ILJ
987
(CC) at para 43.
[35]
Id
at para 52.
[36]
(2008)
29
ILJ
2461
(CC) at para 66.
[37]
(2018)
39 ILJ 523 (CC) at para 25.