United National Breweries (SA) Limited v Khanyeza and Others (DA4/04) [2005] ZALAC 6; [2006] 4 BLLR 321 (LAC); (2006) 27 ILJ 150 (LAC) (30 September 2005)

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[2005] ZALAC 6
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United National Breweries (SA) Limited v Khanyeza and Others (DA4/04) [2005] ZALAC 6; [2006] 4 BLLR 321 (LAC); (2006) 27 ILJ 150 (LAC) (30 September 2005)

25
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case
No. DA4/04
In the matter between:
UNITED NATIONAL BREWERIES (SA)LIMITED Appellant
And
PIUS KHANYEZA First respondent
URMILLA
PATEL NO Second respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION Third respondent
JUDGMENT
ZONDO JP
INTRODUCTION
[1] This appeal concerns the interpretation of sec
189(1)(a) of the Labour Relations Act, 1995 (Act 66 of 1995 (“
the
Act
”) with regard to when an employer who
contemplates the dismissal of an employee who is a member of a
registered trade union for
operational requirements is entitled not
to consult with such employee’s union before he can dismiss such
employee. In the view
I take of this matter, it is not necessary to
set out the full background to the matter. It will suffice to set out
only those facts
that are strictly necessary for a proper
understanding of the issues in this judgment. I do so in the next two
paragraphs.
The
facts.
[2] The
first respondent was employed by the appellant at its Khangela plant
in Durban as a sales representative of its product. He
was a member
of the Food and Allied Workers Union (“
the
union
”) with which the appellant had a
collective agreement which the two parties had concluded in 1993. At
that time the Labour Relations
Act, 1956 (Act 28 of 1956) (“
the
old Act
”) was in operation. Indeed, clause
1.1 of the collective agreement provided that “
Act
”
in the agreement would “
mean the Labour
Relations Act No 28 of 1956 and any promulgated amendments thereto.”
[3] The first respondent was dismissed from the
appellant’s employment on or about the 3
rd
March 2001 for operational requirements as defined in sec 213 of the
Act. The appellant had purported to consult the first respondent
before dismissing him but had not consulted the union despite the
fact that the first respondent was a member of the union. Subsequent
to the first respondent’s dismissal, a dispute arose between, on
the one hand, the appellant and, on the other, the first respondent
and his union on whether such dismissal was procedurally fair in the
light of the fact that the appellant had not consulted the union
before it could dismiss the first respondent. It was common cause
that the dismissal was for a fair reason.
Arbitration
[4] The dispute was referred to conciliation.
Conciliation failed to produce a resolution of the dispute. Although
ordinarily a dispute
such as this one would have had to be referred
to the Labour Court for adjudication in terms of sec 191 of the Act,
the parties referred
it by mutual consent to arbitration which was to
be conducted under the auspices of the Commission for Conciliation,
Mediation and
Arbitration (“
the CCMA
”).
That is permissible in terms of sec 141(1) of the Act. In due course
the second respondent, a commissioner of the CCMA, arbitrated
the
dispute. She found that the appellant had been under an obligation to
consult with the union before it could dismiss the first
respondent.
She found that, as the appellant had failed to consult with the
union, the dismissal was procedurally unfair. She awarded
the first
respondent compensation equivalent to the remuneration that he would
have been paid for the period from the date of dismissal
to the last
day of the arbitration hearing - which she gave as the 7
th
May 2002. She calculated such compensation to be a sum of R 45
390,77. Apparently the first respondent’s monthly salary at the
time of his dismissal was R 3 200,00.
Review proceedings
[5] The appellant was aggrieved by the second
respondent’s award. Accordingly, it brought an application in terms
of sec 145 of
the Act in the Labour Court for an order reviewing and
setting aside the second respondent’s award. The first respondent
opposed
the review application. In due course it came before Ndlovu
AJ who, after hearing argument, dismissed it. He made no order as to
costs. He subsequently granted the appellant leave to appeal to this
Court. This then is the appeal against Ndlovu AJ’s judgment
and
order.
The appeal
[6] According to the second respondent’s award the
basis upon which the appellant sought to justify its failure to
consult with
the union before it could dismiss the first respondent
was that the first respondent “
did not
belong to the bargaining unit as in terms of their recognition
agreement, sales representatives were not covered by the recognition
agreement
.” That was the second
respondent’s stance as taken in the founding affidavit of the
review application as well. The union insisted
that, as the first
respondent was one of its members, he was entitled to be represented
and assisted by the union in the consultation
process when his
dismissal for operational requirements was contemplated.
[7] The second respondent held that in terms of sec
189(1)(c) of the Act the appellant was required to consult with any
registered
trade union whose members were likely to be affected by
the proposed dismissals if there was no workplace forum in the
workplace
in which the employees likely to be affected by the
proposed dismissals were employed. She expressed the view that an
examination
of the recognition agreement “
shows
no reference at all to bargaining units nor does it identify or
define any section/s of employees as the bargaining units”
.
She went on to observe that
“(t)he
recognition agreement makes mention only of ‘members’ of the
union who will be paid up members of the union
.”
A little later she said: “(
t)he recognition
agreement (clause 1.11 …) indicates that ‘union members shall
mean and include all employees who are paid up
members of the Union
as defined and that ‘employee’ shall mean all permanent employees
engaged in Production, Distribution, Packaging
and Engineering and
shall exclude management
”.
[8] The second respondent stated that she understood
clause 1.11 of the collective agreement to mean that “
the
only employees excluded from the scope of this agreement were those
involved in management and there is no indication that the
sales
representatives were part of management.
”
She also said: “
Furthermore, with regard to
the retrenchment procedure of the recognition agreement (pages 44-46
of applicant’s bundle states (sic)
that the [appellant] will give
the union written notification of the possibility of retrenchment,
including the reasons, the number
of employees likely to be affected
and the date of the envisaged retrenchment, the procedure relating to
consultation with the union
is then fully outlined.
”
The second respondent found that “
both
section 189(1)(a) and (c) and the recognition agreement made it
doubly mandatory upon the [appellant] to consult with the union
as
the [respondent] was a paid up member of a registered union and his
union membership was never disputed by the appellant.”
The second respondent also relied on the decision of the Labour Court
in
FAWU & Another v National Sorglum
Breweries
[1997] 11 BLLR 1410
(LC)
. She said
that in that case the Labour Court had found that the current
appellant had acted unfairly in retrenching employees without
informing the union in that case (which is the same union involved in
this case,) of consultation meetings.
[9] In the founding affidavit which initiated the review
proceedings in the Labour Court the appellant attacked the second
respondent’s
finding that the appellant was obliged to have
consulted with the union and that, therefore, the first respondent’s
dismissal had
been procedurally unfair. It contended that the second
respondent committed a gross irregularity and misconduct in making
this finding.
It also contended that the second respondent’s
findings were not rational or justifiable in the light of the
evidence presented
to her. The appellant contended that the second
respondent misinterpreted sec 189(1)(c) of the Act as well as
provisions of the collective
agreement in coming to the conclusion
that the first respondent was not excluded from the scope of the
collective agreement or in
finding that the appellant was obliged to
consult with the union.
[10] In considering this appeal, it is, I consider,
necessary to quote the provisions of sec 189(1) in their entirety.
Sec 189(1)
reads thus:
“189 Dismissals based on
operational requirements
When an employer contemplates dismissing one or more
employees for reasons based on the employer’s operational
requirements, the
employer must consult –
any
person whom the employer is required to consult in terms of a
collective agreement;
if there is no collective agreement that requires
consultation –
a workplace forum, if the employees likely to be
affected by the proposed dismissals are employed in a workplace in
respect of which
there is a workplace forum; and
any registered trade union whose members are likely
to be affected by the proposed dismissals;
if there is no workplace forum in the workplace in
which the employees likely to be affected by the proposed
dismissals are employed,
any registered trade union whose members
are likely to be affected by the proposed dismissals; or
if there is no such trade union, the employees
likely to be affected by the proposed dismissals or their
representatives nominated
for that purpose.”
[11] In interpreting the relevant provisions of the Act,
it is necessary to bear in mind both the constitutional and statutory
interpretive
framework within which such interpretation must occur.
Sec 39(1) of the Constitution provides:
“
When interpreting the Bill of Rights, a court,
tribunal or forum –
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may
consider foreign law.”
[12] It is also necessary to have regard to the purpose
of the Act. The purpose of the Act is “
to
advance economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary objects
”
of the Act. The primary objects of the Act are set out in paras (a)
to (d) of sec 1. They are:-
“
(a)
to
give effect to and regulate the fundamental rights conferred by
section 27 of the Constitution;
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 –
collectively bargain to determine wages, terms and
conditions of employment and other matters of mutual interests; and
formulate industrial policy; and
(d) to promote –
orderly collective bargaining;
collective bargaining at sectoral level
employee participation in decision-making in the
workplace; and
the effective resolution of labour disputes.”
Of particular importance among these primary objects,
within the context of this case, seem to me to be paras (a), (b), (d)
(iii)
and (iv). Furthermore sec 3 of the Act requires
“(a)ny
person applying this Act to interprete its provisions-
to give effect to its primary objects;
in compliance with the Constitution; and
in compliance with the public international law
obligations of the Republic.”
[13] There was no workplace forum in the workplace where
the first respondent was based. I have already said earlier that the
appellant
and the union had a collective agreement which was
applicable in the workplace where the first respondent was employed.
That there
was a collective agreement in such workplace is
significant because that may be important in determining whom the
appellant was required
to consult in terms of sec 189(1) of the Act
before it could dismiss the first respondent. In the arbitration
proceedings the appellant’s
contention was that it was not obliged
to consult the union because the first respondent fell outside the
bargaining unit which the
union represented. In support of this
proposition reliance was placed upon sec 189(1)(a) of the Act which
is quoted above. It needs
to be pointed out that the Act makes no
reference to bargaining units in sec 189.
[14] As will have been seen above, sec 189(1)(a) of the
Act provides that
“(w)hen an employer
contemplates dismissing one or more employees for reasons based on
the employer’s operational requirements,
the employer must consult-
(a) any person whom the employer is required to
consult in terms of a collective agreement;”
What sec 189(1)(a) means in effect is that, when an
employer contemplates the dismissal for operational requirements of
any employee
who is based in a workplace where there is a collective
agreement which requires the employer to consult with a particular
person
or body before such employee can be dismissed for such
reasons, the employer must consult with such person or body before it
can
dismiss such employee. Once the employer has consulted with such
person or body, it has discharged its obligation to consult provided
for in sec 189(1). If the employer fails to consult with such person
or body, the employer has not discharged is obligation to consult
provided for in sec 189(1) of the Act. If, of course, there is a
collective agreement but it does not have such a consultation
requirement,
then sec 189(1)(a) is of no application.
[15] Sec 189(1)(a) does not and cannot mean that, as
long as there is a collective agreement applicable in a workplace
that has a
provision requiring consultation, sec 189(1)(a) applies
irrespective of whether or not the consultation required by the
collective
agreement relates to the contemplation of the dismissal of
the employee sought to be dismissed. What I mean by this may be
better
illustrated by way of an example. If in a workplace there is
only one union that has members but such union represents a minority
of the employees in the workplace, for example 10% of the workforce,
and, for some or other reason, such union has a collective agreement
with the employer which requires consultation when dismissals for
operational requirements are contemplated, and the employer
contemplates
the dismissal of employees who are not members of such
union, sec 189(1)(a) does not mean and cannot mean that the employer
must
consult with such union.
[16] Another example would be where there are two
registered trade unions, one representing 30% of the workforce and
the other 70%.
If the minority union had a collective agreement with
a provision that required consultation but the majority union did not
have
a collective agreement but was recognised by the employer as the
representative of the majority of the employees, sec 189(1)(a)
does
not mean and cannot mean that, if the employer contemplated the
dismissal of employees who are members of the majority union
(which
does not have a collective agreement with such a requirement), the
employer would be obliged to consult with the minority
union and not
the majority union simply because the collective agreement of the
minority union has a provision requiring consultation.
Accordingly,
it seems to me that, if I am right with regard to the examples I have
given above, sec 189(1)(a) must be purposively
construed. Purposively
construed, it means that the collective agreement envisaged therein
is a collective agreement that requires
the employer to consult with
a particular person or union or body when it contemplates the
dismissal of the employees in question
for operational requirements.
[17] Once it has been established that there is a
collective agreement in a particular workplace which requires
consultation, the
next question that must be answered before it can
be said that sec 189(1)(a) applies is: does the collective agreement
require the
employer to consult with a particular person or body when
it contemplates the dismissal of the employee or employees in
question?
If it does, then sec 189(1)(a) applies and the employer
must consult with such person or body. If it does not, then sec
189(1)(a)
does not apply. The next question for consideration is
whether in this case the collective agreement required the appellant
to consult
with any particular person or body when contemplating the
dismissal of the first respondent for operational requirements.
[18] In clause 2.1 to 2.3.4 of the collective agreement,
provision is made for a consultation procedure and steps that the
parties
had bound themselves to take in dealing with dismissals for
operational requirements. It is provided that the appellant is
required
to consult the union “
should it be
necessary to retrench members of the union.”
Accordingly, the collective agreement appoints the union as the body
that the appellant is required to consult when it seeks to dismiss
“
members of the union”
for
operational requirements. The word “
members
”
in the phrase “
members of the union
”
in clause 2 of the retrenchment procedure is not defined but what is
defined is
“union member
”.
In the collective agreement this phrase is defined thus: “
Union
member
shall mean and
include all employees who are paid up members of the union as
defined.
” The words “
as
defined
” at the end of this definition
cannot refer to “
paid up members
”
because in the collective agreement there is no definition for the
term “
paid up members
”.
The words “
as defined
”
qualify the word “
employees
”
in that definition because there is a definition of the word
“
employee
” in the
definition clause of the collective agreement. The word “
employee
”
is defined thus: “
Employee shall mean all
permanent employees engaged in Production, Distribution, Packaging
and Engineering and shall exclude management
”.
In the light of this it seems to me to be crystal clear that the word
“
member
” in clause
2 of the retrenchment procedure means the same as the expression
“
union member
” as
defined in the definition clause.
[19] If I am right, as I think I am, in saying the
reference to “
member
”
in clause 2 of the retrenchment procedure – which is part of the
collective agreement – is a reference to a “
union
member
” as defined, then it can safely be
concluded that the collective agreement requires the appellant to
consult with the union when
it contemplates the dismissal for
operational requirements of a union member (as defined) employed by
it. That would mean that the
collective agreement does not require
the appellant to consult with the union when it contemplates the
dismissal of an employee who
is a member of the union but who falls
outside the definition of “
union member
”
in the collective agreement. Employees of the appellant who are not
“
permanent employees engaged in Production,
Distribution, Packaging and Engineering”
fall
outside the definition of the word “
employee
”
in the definition clause. Indeed, employees of the appellant who fall
within the designation of “
management
”
are also excluded.
Accordingly,
the provisions of the collective agreement which require the
appellant to consult with the union when it contemplates
the
dismissal for operational requirements of members of the union refers
to members of the union who fall within the definition
of “
union
member
” in the collective agreement and not
those who fall outside such definition. That means that it refers to
members of the union
who are permanent employees of the appellant
engaged in Production, Distribution, Packaging and Engineering and
not to any others
who fall outside that category of employees.
[20] It is common cause that the first respondent was a
sales representative. Accordingly, he was not engaged in “
Production,
Distribution, Packaging and Engineering
.”
This means that he fell outside the definition of “
employee
”
in the collective agreement. As “
employee
”
is part of the definition of “
union member
”
and he was not an employee as therein defined, he was also not a
“
union member
”
within the meaning of that phrase in the collective agreement. In
those circumstances I am of the view that the respondent fell
outside
the definition of “
union member
”.
[21] Going back to
the appellant’s reliance upon sec 189(1)(a), the question that
needs to be asked is: did the collective agreement
specify the person
whom or the body which the appellant was required to consult when it
contemplated the dismissal of an employee
who fell outside the
definition of “
union member
”
as read with the definition of the word “
employee
”
in the collective agreement? In this regard it must be borne in mind
that the collective agreement could do so either expressly
or by
necessary implication. The collective agreement in this case does not
do so expressly. However, counsel for the appellant submitted
that,
by necessary implication, it did. He submitted that it required the
appellant to consult with the employees whose dismissal
for
operational requirements is contemplated and not the union. He
submitted that by agreeing to limit the employees with regard
to
whose retrenchment the appellant was required to consult the union to
only its members employed by the appellant in the departments
specified in the definition of the word “
employee”
in the collective agreement, the union effectively waived its right
to be consulted when the appellant contemplated the dismissal
for
operational requirements of its members falling outside the
definition of employee in the collective agreement.
[22] The answer to this contention is this: in so far as
the contention is that the collective agreement provides in effect
that the
appellant should not or need not consult the union when it
contemplates the dismissal for operational requirements of the
union’s
members falling outside the specified departments, it
misses the point of sec 189(1)(a). What is required in order for sec
189(1)(a)
to apply is not for the collective agreement to specify who
should not be consulted but to specify who should be consulted.
[23] I am of the opinion that the effect of the
collective agreement is to say to the appellant in this regard: the
appellant is not
required
in terms of this
agreement
to consult the union in respect of
a contemplated dismissal for operational requirements of union
members who fall outside the specified
departments. It does not say
to the appellant that it does not have to consult the union
in
terms of the Act.
Accordingly, on this
approach, in so far as the collective agreement may not have
contemplated that the appellant should consult
the union when
contemplating the dismissal for operational requirements of union
members who are not permanent employees in the specified
departments,
that does not affect the rights or conferred upon such employees by
the Act and the obligations imposed upon the appellant
by the Act. In
this regard it is important to bear in mind paragraph 34 of the
judgment of the Constitutional Court in NUMSA &
others v Bader
Bop (Pty)Ltd & Another (2003) 24 ILJ 305 (CC). There, the Court,
after referring to the Freedom of Association
and Protection of the
Right to Organise Convention 1948 (NO 87) and the Right to Organise
and Collective Bargaining Convention 1949
(No 98), had this to say:
“
Of importance to this case in the ILO
jurisprudence described is firstly the principle that freedom of
association is ordinarily interpreted
to afford unions the right to
recruit members and to represent those members at least in individual
workplace grievances; and secondly,
the principle that unions should
have the right to strike to enforce collective bargaining demands.
The first principle is closely
related to the principle of freedom of
association entrenched in s 18 of our Constitution, which is given
specific content in the
right to form and join a trade union
entrenched in s 23(2)(a), and the right to trade unions to organize
in s 23(4)(b).
These rights will be
impaired where workers are not permitted to have their union
represent them in workplace disciplinary and grievance
matters, but
are required to be represented by a rival union that they have chosen
not to join
.”
(Underlining
supplied).
The matter in respect of which consultation was required
in this case had nothing to do with discipline nor was it a
grievance. However,
in my view, what is said towards the end of this
passage applies with equal force to union representation in sec 189
consultations.
[24] On this approach employees who are members of the
union who fall outside the definition of the word “
employee
”
are not entitled to union representation
in
terms of the collective agreement
when the
appellant contemplates their dismissal for operational requirements
but they are still entitled to such representation
in
terms of sec 189(1)(c) of the Act.
The
contention advanced on behalf of the appellant would have the effect
of depriving union members employed as permanent employees
of the
appellant outside the specified departments of their right in terms
of the Act to union representation which they ordinarily
otherwise
have when their employer contemplates their dismissal. A construction
of the Act which has the effect of taking away employees’
rights
should not be lightly adopted. Indeed, if there is another
construction of the statute which does not take away such rights,
such construction is the one that should be preferred. The
appellant’s contention leads to a strange situation in terms of
which
a union member who has paid the union to protect and advance
his interests in the workplace including representing him during sec
189 consultations is denied union representation precisely when union
representation matters the most. Unions spend enormous time,
energy
and, sometimes, money on negotiating collective agreements. They do
so because they seek to add to, and, improve upon, the
rights –
usually basic rights – that their members have in terms of
legislation but not to take away from their members rights
that such
legislation has already conferred upon them. They would be surprised
if they were told that through a collective agreement
that they
entered into with an employer, they took away their members’ basic
rights conferred by legislation such as the Act.
[25] In my judgement the provisions of the collective
agreement in this case seek to give union members covered by the
agreement additional
or better rights than those that they may
already have in terms of the Act or some other legislation. The aim
of the collective agreement
is not to deprive union members who fall
outside the collective agreement of the statutory rights that they
already have such as
their right to have their union consulted by the
appellant in terms of sec 189 of the Act when the appellant
contemplates their dismissal
for operational requirements. The
purpose is not to disadvantage such employees and let them face the
prospect of their dismissal
due to no fault of their own without the
benefit of the assistance and representation of their union. The
purpose was to give the
union members who fall within the collective
agreement better rights and benefits in the knowledge that those
union members not covered
by the collective agreement would still be
covered by the Act and not that they would be left to struggle on
their own without union
assistance and representation. In the light
of the above I conclude that there is no person or body that in terms
of the collective
agreement that the appellant was required to
consult when contemplating the dismissal of the first respondent.
However, there is
a person or body that in terms of the Act the
appellant was required to consult. The next question is who that was.
[26] It is common cause that there was no workplace
forum in the appellant’s workplace. It is also common cause that
the first respondent
was a member of the union. If there was no
workplace forum, is it sec 189(1)(b)(ii) or sec 189(1)(c) that
applies? Section 189(1)(b)(ii)
seems to me to contemplate a situation
where there is a workplace forum in the relevant workplace but the
employees whose dismissal
for operational requirements is
contemplated or proposed are members of a registered trade union. In
other words what sec 189(1)(b)
seeks to achieve is that, where there
is a workplace forum, the employer does not consult the workplace
forum in respect of employees
who are members of a registered trade
union but consults such union and that, in respect of employees who
are not members of a registered
union, the workplace forum is
consulted where there is one. This regeme must have been created in
order to ensure that unions did
not view workplace fora as
competition or as their replacement. In the light of this it seems to
follow that sec 189 (1)(c) is the
provision that applies in a case
such as this one where there was no workplace forum and the
employee(s) proposed to be dismissed
is or are members of a
registered trade union. Accordingly, the appellant should have
consulted the union in terms of sec 189(1)(c)
of the Act.
[27] The appellant also contended that, even if it was
obliged to have consulted with the union which it did not do, it
should be
held to have substantially complied with the consultation
requirement of sec 189 because it consulted with the affected
employees
themselves including the first respondent. The difficulty
with this contention – even assuming that one can speak of
substantial
compliance with the requirements of sec 189 of the Act -
is this. Mr Thipe, who was called by the first respondent as a
witness,
testified that what took place was not a proper consultation
because Mr Dlamini and Mr Khathi, who represented the management in
the meetings, came to the employees when the appellant had already
taken the decision to retrench and only came to convey this fact
to
the employees and to tell them about other available positions.
[28] A reading of both versions of the minutes of the
meeting of the 19
th
February 2001 – one version being that of the employees, the other
being that of the appellant – lends credence to this evidence
by Mr
Thipe. The appellant does not appear to have ensured that evidence
was given as to what was discussed in other meetings. Accordingly,
it
is not possible to conclude that the appellant held proper
consultations with the employees before it made the decision to
retrench.
Since the union’s representative made it quite clear in
the arbitration that what was in issue was procedural fairness, one
would
have thought that the appellant would have made sure that full
and proper evidence was led on what was discussed in all the meetings
that related to the possible retrenchment of the employees. The
appellant failed to do so and it had only itself to blame in this
regard.
[29] The appellant also contended that certain positions
had been made available to the employees. Once again the appellant’s
witnesses
did not, in their evidence, give full information about
such positions as the first respondent would have applied for or
taken to
enable one to conclude whether he had acted unreasonably in
not applying for, or, taking up one of those positions. Nothing was
said,
for example, about what salaries were payable for such
positions. Accordingly, this cannot assist the appellant. In these
circumstances
I conclude that the appellant’s failure to consult
the union when it contemplated the dismissal of the first respondent
rendered
his dismissal procedurally unfair.
[30] The appellant also contended that the commissioner
failed to exercise her discretion against awarding compensation and,
that,
for that reason, her decision to award the first respondent the
compensation that she awarded should be reviewed and set aside. There
is no indication in the commissioner’s award that she considered
whether to award or not to award compensation. However, there
is no
indication in the record that in the arbitration the matter was
argued on the footing that, if the commissioner found that
the
dismissal was procedurally unfair, she should, nevertheless, exercise
her discretion against awarding the first respondent any
compensation. A reading of the commissioner’s notes of the argument
presented by both parties represented before her suggests that
she
was not asked to do so. In those circumstances it seems to me that
the matter was dealt with in the arbitration on the footing
that, if
the commissioner found the dismissal to have been procedurally
unfair, she could go ahead and award compensation.
[31] In any event, if the matter had been argued on the
basis that, if the commissioner found that the dismissal had been
procedurally
unfair, she should exercise her discretion against
awarding compensation and I had found that she did not exercise her
discretion,
I would not have remitted the matter to the CCMA. I would
have proceeded to deal with the matter myself after setting her award
aside.
I would also have exercised my discretion in favour of
awarding the first respondent compensation.
[32] Finally, I need to point out that the amount of
compensation that the commissioner awarded – which was 14 months’
remuneration
– falls outside the statutory maximum permissible in a
case such as this one. The maximum is 12 months even if the period
from
the date of dismissal to the last day of the arbitration is more
than 12 months. Accordingly, an amount equivalent to two months’
remuneration should be deducted from the amount of compensation
awarded by the commissioner. As to costs, the matter was argued on
the basis that costs should follow the result. Accordingly, I shall
give effect to this approach.
[33] In the premises I make the following order:
1. Subject
to 3 below, the appeal is dismissed.
2. The appellant is ordered to pay the first
respondent’s costs of the appeal.
The amount of compensation awarded by the second
respondent is hereby set aside and replaced with the following
amount: R38 400,
00 being the equivalent of the first respondent’s
remuneration for 12 months at R3 200,00 per month.
The attention of the parties is drawn to the provisions
of sec 143(2) of the Act with regard to interest on the amount
payable to
the first respondent.
Zondo
JP
I
agree.
Davis
AJA
I
agree.
Nkabinde
AJA
Appearances:
For the appellant : Mr J Forster
Instructed
by : Barkers Attorneys
For the respondent : Adv H Bounes
Instructed
by : Brett Purdon Attorneys
Date of judgment : 30 September 2005