Kemp t/a Centralmed v Rawlins (JA 11/06) [2009] ZALAC 8; [2009] 11 BLLR 1027 (LAC); (2009) 30 ILJ 2677 (LAC) (26 March 2009)

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[2009] ZALAC 8
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Kemp t/a Centralmed v Rawlins (JA 11/06) [2009] ZALAC 8; [2009] 11 BLLR 1027 (LAC); (2009) 30 ILJ 2677 (LAC) (26 March 2009)

48
I
N
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no:
JA
11/06
In the matter between
Dr D.C.
Kemp t/a Centralmed Appellant
And
MB Rawlins
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO
JP
Introduction
[1] I have had the opportunity of reading the judgment
prepared by Waglay JA in this matter. Although I agree with the order
he
proposes, my reasons for agreeing with that order are those set
out below.
[2] Waglay JA has in his judgment set
out the relevant facts of this case. I do not propose to repeat that
exercise in this judgment.
As Waglay JA points out in his judgment,
the appellant did not pursue his appeal against the declaratory order
made by the Labour
Court that the respondent’s dismissal was
substantively unfair. One issue for decision in this appeal is
whether or not the Labour
Court was correct in awarding compensation
to the respondent. If this Court finds that the Labour Court should
not have awarded
the respondent any compensation, that would be the
end of the matter and it would uphold the appeal and make such order
as to costs
as it deems appropriate to make. If, however, this Court
finds that the Labour Court was correct in deciding to award the
respondent
compensation, the next question would be whether it ought
to have awarded the amount of R120 000,00 that it awarded or whether
it should have awarded her a lesser amount.
Discretion
[3] Whether or not the Labour Court
ought to have awarded the respondent compensation depends upon
whether or not its decision to
award compensation was the result
of the exercise of a true discretion because, if it was, then this
Court would only be entitled to interfere with the exercise
of such
discretion on very limited grounds. However, if it was not, then this
Court would be at large to decide the issue according
to its own
judgement.
[4]
A true discretion is also referred to as a narrow discretion. (see
EM
Grosskopf JA in MWASA v Press Corporation of SA Ltd 1992(4)SA 791 (A)
at 800 D-E
. In the
MWASA case the Court referred to a quotation from an article by
Henning: “
Diskresie
uitoefening
” in
1968 THRHR 155
at 158 where the author said:
“
A truly discretionary power is
characterised by the fact that a number of courses are available to
the repository of the power (Rubinstein
Jurisdiction and Illegality
(1956) at 16)”.
After this quotation in the MWASA
case
EM Grosskopf JA
said at 800 E – F:-
“
The essence of a discretion in this narrower sense
is that, if the repository of the power follows any one of the
available courses,
he would be acting within his powers, and his
exercise of power could not be set aside merely because a Court would
have preferred
him to have followed a different course among those
available to him.”
[5] In MWASA’s case the Appellate
Division had to decide on the nature of the power given to the
now
defunct Labour Appeal Court (“
the
old LAC
”) created
under the Labour Relations Act, 1956, as amended when it dealt with
appeals from industrial court determinations of
unfair labour
practices under sec 46(9) of that Act. It considered whether such a
decision fell under the category of questions
of law, the category of
questions of fact or the category of questions of judicial discretion
[6] In MWASA’s case the Appellate
Division referred, with approval, through EM Grosskopf JA, to
Salmond
on Jurisprudence
12th ed at 70 – 1 where different categories of matters that come
before courts are discussed. The part in Salmond’s work which
was
quoted in MWASA’s case reads:
“
matters and questions which
come before a court of justice, therefore, are of three classes:
matters and questions of law – that is to say, all
that are determined by authoritative legal principles;
matters and questions of judicial discretion –
that is to say, all matters and questions as to what is right, just,
equitable
or reasonable, except so far as determined by law;
In matters of the first kind, the
duty of the Court is to ascertain the rule of law and to decide in
accordance with it. In matters
of the second kind, its duty is to
exercise its moral judgment in order to ascertain the right and
justice of the case. In matters
of the third kind, its duty is to
exercise its intellectual judgment on the evidence submitted to it in
order to ascertain the
truth.
”
That is how the quotation from
Salmond on
Jurisprudence appears in EM Grosskopf JA’s judgment in MWASA’s
case at 796 F – H. It will be seen that, although
three classes of
matters were supposed to be listed according to the opening part of
the quotation, only two are listed – that
is (1) and (2), there is
in the last sentence of the quotation a reference to “
matters
of the third kind
”.
That class of matters referred to as the “
third
kind
” is not in
the quotation appearing in the MWASA judgment of EM Grosskopf JA. Its
omission must have been an error because, if
one goes back to
Salmond
on Jurisprudence
12
th
ed page 70, the third kind of matters that come before Courts is
there. For convenience and for the sake of completeness I quote
the
relevant passage from
Salmond
on Jurisprudence
hereunder together with the part omitted in MWASA’s case. It reads
as follows”
“
Matters and questions which
come before a court of justice, therefore, are of three classes:
(1) Matters and questions of law – that is to say,
all that are determined by authoritative legal principles;
(2)
Matters
and questions of judicial direction – that is to say, all matters
and questions as to what is right, just equitable, or
reasonable,
except so far as determined by law;
Matters and questions of fact – that is to say,
all other matters and questions whatever.
In matters of the first kind, the
duty of the court is to ascertain the rule of law and to decide in
accordance with it. In matters
of the second kind, its duty is to
exercise its moral judgment, in order to ascertain the right and
justice of the case. In matters
of the third kind, its duty is to
exercise its intellectual judgment on the evidence submitted to it in
order
to
ascertain the truth.
”
In the next paragraph in
MWASA’s
case at 796 H - I EM Grosskopf JA pointed out that in the above
passage the word “
discretion
”
was used “
in a
wide sense to convey
‘
the action of
discerning or judging; judgment; discrimination
(The Shorter Oxford
Dictionary SV discretion.
”
[7
] In
Ex Parte Neethling and others 1951(4) SA 331 (A) the Appellate
Division had to deal with an appeal from a decision of a Provincial

Division of the High Court in terms of which the Provincial Division
had dismissed an application made to it in terms of sec 87
of the
Administration of Estates Act 24 of 1913 for an order authorising the
sale of a certain property in terms of a deed of sale.
Some of the
parties to the deed of sale were minors and were represented by their
natural guardians. The need for the authority
of the court arose out
of the provisions of a joint will and the fact that some of the
parties involved were minors. The Provincial
Division had refused to
grant the authority on the basis that it was not satisfied that the
proposed contract of sale of the property
was in the interests of all
minors concerned.
[8
] On
appeal to the Appellate Division, the Court, through Greenberg JA,
said that the duty imposed on the Provincial Division, as
upper
guardian of all minors within its jurisdiction, “
was
that, in the exercise of its discretion (I am assuming in favour of
the appellants that it is a judicial and not an administrative

discretion) it should decide whether the proposed contract was in the
interest of the minors and it was contended that it should
be
approved, notwithstanding that it was in conflict with the provision
of the will.
”
(p.334 H-335A). Greenberg JA went on to say at 335 A - J:-
“
I think, therefore, that, if an
appeal lies, this Court would be entitled to interfere, not on the
ground that in its opinion the
contract was not in the interest of
the minors, because if it did so it would be substituting its
discretion for that of the upper
guardian but only if it came to the
conclusion that the Court a quo had not exercised a judicial
discretion. Rex
v
Zackey,
1945 AD 505
, dealt with the question of an appeal court’s
power to overrule a lower court’s decision where the decision had
been on a matter
within the discretion of such lower court and three
classes of such cases were referred to, viz decision on the question
of costs,
on a postponement and on an amendment of pleadings in the
lower court. To these might be added the question of an alteration of

sentence on appeal (see Rex v Ramanka
1949 (1) SA 417).
I see no
distinction in principle between these and the present case. At p.
513 of the report in Rex v Zackey, supra, instances
were given to
show what is meant by ‘judicial discretion’ and these instances
are apposite here (see also Merber v Merber,
1948(1) SA 446, and
Levin v Felt and Tweeds Ltd, 1951(2) SA 401 at p.416). Can it be said
in the present case that the Court a
quo has exercised its discretion
capriciously or upon a wrong principle, that it has not brought its
unbiased judgment to bear
on the question or has not acted for
substantial reasons? I can see no ground for answering this question
in the affirmative.”
(p.335
A-G).
The Court dismissed the appeal. Schreiner, Van den
Heever, Hoexter and Fagan JJA concurred in the judgment of Greenberg
JA.
[9
] In
Knox D’ Arcy Ltd
and others v Jameson and others 1996(4) SA 348 (A)
the Appellate Division had to deal with an appeal from a decision
dismissing an application for an interdict. It was argued that
a
decision refusing an application for an interdict was a decision
which a court takes in the exercise of a discretion and that
an
appeal court dealing with an appeal from such a decision does not
decide the appeal on the basis whether the decision was right
or
wrong. It was argued that the court could only interfere on appeal
with such a decision if the court a quo had not exercised
its
discretion properly. The Court, through EM Grosskopf JA, with whom
Nestadt, FH Grosskopf, Harms and Scott JJA concurred, examined
some
of the cases in which the Appellate Division had considered decisions
refusing an application for an interdict. The cases
were
Messina
(Transvaal) Development Co Ltd v South African Railways and Harbours
1929 AD 159
,
Goldsmid v The South
African Amalgamated Jewish Press Ltd
1929 AD 441
,
Erikson Motors
(Welkom) Ltd v Protea Motors, Warrenton and Anohter 1973(3) SA 685
(A)
and
Cassim
& others v Meman Mosque Trustees
1917 AD 154
.
Grosskopf JA said that in those cases the Appellate Division had
decided appeals against decisions refusing applications for
interdicts on the basis of it making up its own mind on whether or
not an interdict should have been granted. He said that the Appellate

Division had not decided the cases on the basis that it could only
interfere with the decision of the court of first instance on
limited
grounds. He said that it seemed to him that in those cases the
Appellate Division had not used the term “
discretion
”
“
in a strict
sense
”.
[10
] At
362 D-E in Knox D’Arcy EM Grosskopf JA pointed out that, if a court
had “
a truly
discretionary power in an application for an interim interdict, it
would mean that in principle on identical facts it could
choose
whether to grant or refuse an interdict and a Court of Appeal would
not be entitled to interfere merely because it disagreed
with the
lower court’s choice (Perskor case at 800 D-F). I doubt whether
such a conclusion could be supported on the grounds
of principle or
policy. As I have shown, previous decisions of this Court seem to
refute it
.”
Thereafter, EM Groskopf JA said that the statement that “
a
Court has a wide discretion seems to mean no more than that the Court
is entitled to have regard to a number of disparate and

incommensurable features in coming to a decision.
”
The Appellate Division decided to deal with the matter on the same
basis as it had dealt with appeals against refusals of applications

for interim interdicts in the cases to which EM Grosskopf JA had
referred.
[11
] The
case of
Benson v SA
Mutual Life Assurance Society 1986(1) SA 776 (A)
concerned the delivery of shares (i.e. specific performance). It
dealt with the discretion of a court in the context of its power
to
grant or refuse an order for specific performance. The Appellate
Division stated that “
(i)t
is an equally well-settled principle that the power to interfere on
appeal in matters of discretion is strictly circumscribed
”
(p.781 I-J). Hefer JA, who wrote for a unanimous Court, then referred
to Greenberg JA’s judgment in Ex Parte Neethling with
approval in
relation to the limited grounds upon which an Appeal Court may
interfere
with
a decision taken by a lower Court in the exercise of a discretion
(see p.781 I – 782A). Hefer JA said that the approach set
out in
Greenberg JA’s judgment was the approach that should be adopted in
the case before him (p.782A).
[1
2] At
798 in MWASA’s case the Appellate Division, after considering the
definition of “
unfair
labour practice
”
contained in the Labour Relations Amendment Act 83 of 1988, said that
in determining whether or not conduct constituted an unfair
labour
practice as therein defined, the Court was required not only to
decide whether the effects envisaged in the definition had
been
caused or could be caused but was also required to have “
regard
to considerations of fairness or unfairness.
”
It then said:
“
Clearly, the Court’s view as
to what is fair in the circumstances is the essential determinant in
deciding the ultimate question
.”
The ultimate question to which the Appellate Division
was referring was the question whether the conduct concerned, e.g.
dismissal,
constituted an unfair labour practice. At 798 H-I the
Appellate Division said through EM Grosskopf JA:
“
In my view a decision of the
Court pursuant to these provisions is not a decision on a question of
law in the strict sense of the
term. It is the passing of a moral
judgment on a combination of findings of fact and opinions
.”
At 799 D-E EM Grosskopf JA said that
the determination of the ultimate question, i.e. the question whether
a dismissal constituted
an unfair labour practice – did not fall
into the category of questions of law, but into the category of
questions of judicial
discretion as contemplated in the second kind
of question that comes before Courts as suggested in
Salmond
on Jurisprudence
at
70-1. The Appellate Division emphasised at 799D-E that the
determination of the question whether or not a dismissal constituted

an unfair labour practice “
is
a question which, in the final analysis, has to be answered in
accordance with conceptions of fairness. It cannot be answered
by
applying rules of law, nor can it be determined by way of proof or
demonstration in the manner in which facts are proved.
”
[13
] It
is clear from the aforegoing that the Appellate Division regarded the
category of questions relating to judicial discretion
in
Salmond
on Jurisprudence
as
not relating to a true discretion. That is why EM Grosskopf JA said
at 796 H-I and 800 C-D that that was a discretion in the
wide sense.
At 800D EM Grosskopff JA quoted Henning:
Diskresie-uitoefening
”
in
1968 THRHR 155
at 158 where true discretionary power was described
as being characterised “
by
the fact that a number of courses are available to the repository of
the power
.” That
is the discretion in the true sense – the discretion that is
usually referred to as the discretion in the narrow sense.

Immediately after this, EM Grosskopf JA said at 800 F-G:
“
The essence of a discretion in
this narrow sense is that, if the repository of power follows any one
of the available courses, he
would be acting within his powers, and
his exercise of power could not be set aside merely because a Court
would have preferred
him to have followed a different course among
those available to him. I do not think the power to determine that
certain facts
constitute an unfair labour practice is discretionary
in that sense. Such a determination is a judgment made by a Court in
the
light of all relevant considerations. It does not involve a
choice between permissible alternatives. In respect of such a
judgment
a Court of appeal may, in principle, well come to a
different conclusion from that reached by the Court a quo on the
merits of
the matter. In the field of unfair labour practices this
has been accepted by this Court in the Ergo and Macsteel cases.
”
[14
] In
MWASA’s case EM Grosskopf JA went on to point out at 800G that,
even in those cases where the decision is not discretionary
in the
narrow sense, “
there
may be features in the nature of the decision or the composition of
the tribunal a quo which might call for restraint by a
Court of
Appeal in the exercise of its powers.
”
He said that in such cases
“(s)uch
restraint would then, however, be exercised for policy reasons, and
would not, as with discretionary decisions, flow necessarily
from the
nature of the decision appealed against
”
(p800H).
[1
5] In
Hix Networking
Technologies v System Publishers (Pty)Ltd
[1996] ZASCA 107
;
1997 (1) SA 391
(A)
the Court dealt with a decision of a Provincial Division of the High
Court dismissing an application for an interim interdict restraining

the publication of an allegedly defamatory matter. There, the Court,
through Plewman JA, referred to the Knox D’ Arcy case at
361 B-E
and concluded, in the light of that decision, that the refusal or
granting of an application for an interim interdict is
not a decision
that is taken in the exercise of a true discretion and that the Court
of Appeal was entitled to decide the appeal
on the basis of its own
view of the merits of the case (see p.402 A-C of the judgment).
[1
6] The
next case that I need to refer to is
Shepstone
& Wylie & others v Geyser N.O. 1998(3) SA 1036(SCA)
.
However, before I do so, it is necessary to quote the provisions of
sec 13 of the Companies Act 61 of 1973 which were the focus
of
attention in that case. Sec 13 of the Companies Act reads as follows:
“
Where a company or other body
corporate is plaintiff or applicant in any legal proceedings, the
court may at any stage, if it appears
by credible testimony that
there is reason to believe that the company or body corporate or, if
it is being wound up, the liquidator
thereof, will be unable to pay
the costs of the defendant or respondent if successful in his
defence, require sufficient security
to be given for those costs and
may stay all proceedings till the security is given.
”
In
that
case (i.e. the Shepstone & Wylie case)
the Supreme Court
of Appeal dealt at 1044J – 1045E with the issue of interference by
a Court of appeal with the exercise of a
discretion by a lower Court
or a Court of first instance. Hefer JA, writing for a unanimous
Court, pointed out at 1044 J – 1045A
that there were numerous
judgments of the Supreme Court of Appeal which were to the effect
that the power to interfere on appeal
with the exercise of a
discretion is limited to cases in which it is found that the lower
Court or Court of first instance had
exercised its discretion
capriciously or upon a wrong principle, or had not brought its
unbiased judgment to bear on the question,
or had not acted for
substantial reasons. In support of this statement Hefer JA referred
to
Benson v SA
Mutual Life Assurance Society 1996(1) SA 776(A)
at
781I - 782B and the cases cited therein. Hefer JA then continued and
said that the judgment in
Knox
D’Arcy, supra,
revealed,
however, “
that
this is not the correct approach in cases where the word ‘discretion’
is not used in the strict sense”
(p.104
5A-C). What Hefer JA was saying was that in those cases where the
word “
discretion
”
is used in a
“non-strict”
sense, the
principle that an appellate court does not interfere lightly with the
exercise of a discretion by a lower court does
not apply. In such a
case the Court of appeal is entitled to come to its own decision in
accordance with its own view of the merits
of the case.
[
17] Hefer
JA gave an example of a case where it could be said that the word
“
discretion
”
is used in the
“non-strict”
sense or in a loose sense. He said that that is when it is said that
the court has a discretion to grant an interim interdict.
He said
that, when that is said, it is meant to convey that the court is
entitled to have regard to a number of disparate and incommensurate

features in coming to a conclusion. In this regard he referred to the
judgment of EM Grosskopf JA at 361 H-I in the Knox D’Arcy
case.
Hefer JA went on to say that in such a case the Court of appeal is at
liberty to decide the matter according to its own views
of the
merits.
[18
] In
National Coalition
for Gay and Lesbian Equality v Minster of Home Affairs
2000 (2) SA 1
(CC)
the
Constitutional Court had to deal inter alia with an appeal against a
decision of a High Court dismissing an application for
a postponement
of a matter. At 14 A-E (par 11) the Constitutional Court, through
Ackerman J, said about the power of an appeal
court to interfere with
a decision of a lower Court arrived at pursuant to the exercise of a
discretion:
“
[11]
A
Court of appeal is not entitled to set aside the decision of a lower
court granting or refusing a postponement in the exercise
of its
discretion merely because the Court of appeal would itself, on the
facts of the matter before the lower court, have come
to a different
conclusion; it may interfere only when it appears that the lower
court had not exercised its discretion judicially,
or that it had
been influenced by wrong principles or a misdirection on the facts,
or that it had reached a decision which in the
result could not
reasonably have been made by a court properly directing itself to all
the relevant facts and principles. On its
face, the complaint
embodied in the ground of appeal sought to be introduced by the
amendment does not meet this test because it
alleges only an error in
the exercise of its discretion by the High Court. Even assuming,
however, that such ground correctly formulates
the test which would
permit interference by this Court, the respondents have got nowhere
near to establishing such a ground on
the facts before the High
Court. No such vitiating error on the part of the High Court was
contended for by the respondents in
their written or oral argument
before this Court and none can, on the papers, be found. In fact I am
of the view that the High
Court correctly dismissed the application
for good and substantial reasons and that both the applications in
this Court relating
to such dismissal ought to be refused.”
[19
] Against
what has been said above, the question arises then whether deciding
whether the power given by sec 193(1)(c) of the Labour
Relations Act,
1995 (Act 66 of 1995) (“
the
Act
”) to the
Labour Court or an arbitrator to award or not to award compensation
in a case where it has found the dismissal of an
employee unfair
involves the exercise of a true discretion (i.e the narrow
discretion). Sec 193(1)(c) reads:
“
193. Remedies for unfair
dismissals-(1) if the labour court or an arbitrator appointed in
terms of this Act finds that a dismissal
is unfair, the court or the
arbitrator may –
(a) ……..
(b) ……..
(c) order the employer to pay
compensation to the employee
”.
[20
] There
are many factors that are relevant to the question whether the court
should or should not order the employer to pay compensation.
It would
be both impractical as well as undesirable to attempt an exhaustive
list of such factors. However, some of the relevant
factors may be
given. They are:
(a) the nature of the reason for
dismissal; where the reason for the dismissal is one that renders the
dismissal automatically
unfair such as race, colour, union
membership, that reason would count more in favour of compensation
being awarded than would
be the case with a reason for dismissal that
does not render the dismissal automatically unfair; accordingly, it
would be more
difficult to interfere with the decision to award
compensation in such case than otherwise would be the case;
(b) whether the unfairness of the
dismissal is on substantive or procedural grounds or both substantive
and procedural grounds;
obviously it counts more in favour of
awarding compensation as against not awarding compensation at all
that the dismissal is both
substantively and procedurally unfair than
is the case if it is only substantively unfair, or, even lesser, if
it is only procedurally
unfair;
(c ) in so far as the dismissal is
procedurally unfair, the nature and extent of the deviation from the
procedural requirements;
the minor the employer’s deviation from
what was procedurally required, the greater the chances are that the
court or arbitrator
may justifiably refuse to award compensation;
obviously, the more serious the employer’s deviation from what was
procedurally
required, the stronger the case is for the awarding of
compensation;
(d) in so far as the reason for
dismissal is misconduct, whether or not the employee was guilty or
innocent of the misconduct;
if he was guilty, whether such misconduct
was in the circumstances of the case not sufficient to constitute a
fair reason for the
dismissal;
(e ) the consequences to the parties
if compensation is awarded and the consequences to the parties if
compensation is not awarded;
(f) the need for the courts,
generally speaking, to provide a remedy where a wrong has been
committed against a party to litigation
but also the need to
acknowledge that there are cases where no remedy should be provided
despite a wrong having been committed
even though these should not be
frequent.
(g) i
n
so far as the employee may have done something wrong which gave rise
to his dismissal but which has been found not to have been
sufficient
to warrant dismissal, the impact of such conduct of the employee upon
the employer or its operations or business.
(h) a
ny
conduct by either party that promotes or undermines any of the
objects of the Act, for example, effective resolution of disputes.
[21
] From
the above it is clear that in the case of a narrow discretion –
that is a situation where the tribunal or Court has available
to it a
number of courses from which to choose – its decision can only be
interfered with by a Court of appeal on very limited
grounds such as
where the tribunal or Court:
(a) did not exercise a judicial discretion or;
(b) exercised its discretion capriciously or;
(c) exercised its discretion upon a wrong principle
or;
(d) has not brought its unbiased judgment to bear on the
question or;
(e) has not acted for substantial
reasons;
(see Ex Parte Neethling and others
1951(4) SA 331 (A) at 335) or;
(f) has mis
conducted
itself on the facts (Constitutional Court judgment in the National
Coalition for Gay and Lesbian Equality case at par
11);
(g) reached a decision in which the
result could not reasonably have been made by a Court properly
directing itself to all the relevant
facts and principles
(Constitutional Court judgment in National Coalition for Gay and
Lesbian Equality at par 11).
Although the principle is that the
exercise of a true discretion by a Court of first instance or by a
tribunal can only be interfered
with by an Appeal Court on limited
grounds, the list of those grounds on which interference is
permissible is not so short any
more as can be seen above..
[22
] I
do not think that the provisions of sec 193 (1) ( c ) of the Act give
the Labour Court or an arbitrator the kind of power which
would
enable it or him to grant or refuse an order of compensation on
identical facts as it or he sees fit. In my view the ultimate

question that the Labour Court or an arbitrator has to answer in
order determine whether compensation should or should not be granted

is: which one of the two options would better meet the requirements
of fairness having regard to all the circumstances of this
case? If
however the Court or arbitrator answers that the requirements of
fairness, when regard is had to all of the circumstances,
will be
better met by denying the employee compensation, no order of payment
of compensation should be made. If the Court or arbitrator
answers
that the requirements of fairness will be better met by awarding the
employee compensation, then compensation should be
awarded. When that
question is answered, the interests of both the employer and the
employee must be taken into account together
with all the relevant
factors. In my view, where the court or an arbitrator decides the
issue of whether or not to award the employee
compensation, it does
not exercise a true discretion or a narrow discretion. The
determination of that question or issue requires
the passing of a
moral or value judgment. It is decided or determined on the basis of
the conceptions of fairness because the Court
or arbitrator has to
look at all the circumstances and say to itself or himself or herself
as the case may be: What would be more
in accordance with justice and
fairness in this case? Would be to award compensation or would it be
to refuse to award compensation?
It or he or she would then have to
make the decision in accordance with its, his or her sense of which
of the two options would
better serve the requirements of justice and
fairness.
[23
] In
MWASA’s case the Appellate Division said that determining whether
an employer’ conduct in dismissing an employee is fair
or not fell
within the second kind of matters that come before Courts as listed
in
Salmond on
Jurisprudence
. The
second kind refers to matters of judicial discretion. The Court
explained that the word “
discretion
”
in the relevant passage of Salmond on Jurisprudence was not used in
the sense of a narrow discretion but in the sense of a wide

discretion. The Appellate Division explained in MWASA’s case that
matters falling under judicial discretion in
Salmond
of Jurisprudence’s
kinds of matters at 70 – 71 were not matters in which an Appeal
Court’s power to interfere with a lower Court’s decision
is
circumscribed. In such a case an Appeal Court is at large to come to
its own decision on the merits of the case. Accordingly,
this Court
is at large to determine that issue according to its own view of the
merits of the case. A challenge to an order of
the Labour Court
awarding or refusing an employee compensation in terms of sec 193 (1
) ( c ) of the Act is not limited to the
grounds applicable where an
order is made pursuant to the exercise of a true discretion or narrow
discretion. It is only in regard
to the determination of the amount
of compensation that the Labour Court or arbitrator exercises a true
or narrow discretion. It
is in regard to that decision that this
Court’s power to interfere is circumscribed and can only be
exercised on the limited
grounds referred to earlier in this
judgment. In the absence of one of those grounds this Court has no
power to interfere with
the amount of compensation determined by the
Labour Court. I now proceed to consider whether or not, in the light
of the aforegoing
and all the relevant factors, the Labour Court was
correct in awarding compensation to the employee in this case.
Was
the Court a quo correct in deciding to award the respondent
compensation?
[
24] The
Court a quo rejected the respondent’s contention that the reason
why the respondent was dismissed was her pregnancy. It
said that no
evidence whatsoever was tendered to substantiate the respondent’s
allegation in this regard. However, as already
pointed out earlier,
the Court a quo found that the respondent’s dismissal was both
substantively and procedurally unfair.
[
25] The
appellant made an offer to the respondent to reinstate her. One of
the factors that the Court a quo considered in connection
with
compensation was whether or not the respondent’s rejection of the
appellant’s offer of reinstatement was reasonable. It
would appear
that the Court a quo considered this issue in relation to what the
“
appropriate
compensation
”
should be (see par 45 of the judgment) as opposed to whether or not
it should award compensation.
[26] During argument Counsel for the
respondent conceded that the appellant’s offer was genuine and
reasonable. I can add that
the appellant’s conduct in making an
offer of settlement was in line with one of the primary objects of
the Act namely, the effective
resolution of disputes. It would seem
that the respondent’s reason for not accepting the offer was that
she felt that she could
no longer work with the appellant. There
seems to be no basis for that suggestion because the two would be
working in different
places and there would be minimal contact
between them. The appellant may have treated the respondent unfairly
when he dismissed
her in the manner in which he did but he had “
a
right to seek to right the wrong
”
that he had committed by offering to put the respondent back in the
position in whichs she would have been in had she never
been
dismissed. It is what I call an employer’s “
right
to right a wrong.
”
And, if that offer was genuine and reasonable, as it has been
conceded on behalf of the respondent it was, I cannot see why
the
appellant must be ordered to pay her compensation which would not
have arisen if the respondent had accepted the offer of
reinstatement. In my view it is very important to affirm the
employer’s “
right
to right a wrong
”
that he or she has made in these kinds of circumstances. If an
employer unfairly dismisses an employee and he wishes to reverse
that
decision, he must be able to do so, and if the employee fails to
accept that offer for no valid reason, the employer has a
strong case
in support of an order denying the employee compensation. (See in
this regard the passage quoted from my judgment in
Chemical Workers
Industrial Union v Johnson & Johnson (Pty) Ltd
[1997] 9 BLLR 1186
(LC) at 1198 E – H as quoted by this Court on appeal in Johnson &
Johnson (Pty) Ltd v CWIU (1999) 20 ILJ (LAC) at par 49
p. 102.)
[27
] It
seems that one basis upon which the Court a quo sought to justify its
decision to award the respondent compensation was that
“
(t)he
manner in which the [appellant] went about dismissing the
[respondent] and his timing is deserving of censure”
.
(par 52 of the judgment of the Court a quo). However, the Court a quo
did not offer much by way of substantiation of this statement.

Another basis seems to have been that the dismissal was both
substantively and procedurally unfair. In par 46 of its judgement
the
Court a quo stated that “
(t)his
in itself justifies an award of compensation.”
While
it is true that, in the case of a dismissal that is both
substantively and procedurally unfair, it would be difficult to find

a situation where the employee is awarded neither reinstatement nor
compensation, this does not mean that there are no such situations.

The Court has to consider all the relevant circumstances and make
such order as it deems fair to both parties in the light of
everything. In my view this is a case where it would have been
justified for the Court a quo to deny the respondent compensation

despite the fact that her dismissal had been found to have been both
substantively and procedurally unfair.
[28
] I
have already referred to the fact that the Court a quo dealt with the
question of whether or not to award compensation on the
basis of
whether or not the respondent’s rejection of the appellant’s
offer of reinstatement was unreasonable. Whether or not
the rejection
of the employer’s offer of reinstatement by an employee is
reasonable is a question that applies to a case where
an employee who
was dismissed for operational requirements rejected an offer of
alternative employment offered by the employer
or offered by another
party at the instance of the employer and the Court must decide under
s41 of the Basic Conditions of Employment
Act, 1998 whether he is
entitled to payment of severance pay. But that is because sec 41 of
the Basic Conditions of Employment
Act, 1998 makes the
unreasonableness or otherwise of the rejection of the offer of
alternative employment by the employee the test
for determining
whether or not the employee forfeits the severance pay.
[29
] In
this case there is no statutory provision that makes the
unreasonableness or otherwise of an employee’s rejection of the

offer the determining factor. As I have already said, the question,
it seems to me, is whether or not it is to award or not to
award
compensation that would better serve the requirements of fairness in
the matter. In Johnson & Johnson (Pty) Ltd v CWIU
& others
(1999) 20 ILJ 89 (LAC) this Court held in par 40 that the Labour
Court has a “
discretion
”
to award or not to award compensation. Froneman DJP, who wrote for a
unanimous Court, did not explain whether the discretion
to which he
was referring was the narrow one (i.e. the true discretion) or the
wide discretion. I have already expressed the view
earlier in this
judgment that it is not the true discretion or narrow discretion.
[30
] In
my view the following factors justify the conclusion that the
respondent should have been denied compensation in this case:
a genuine and reasonable offer of
reinstatement was made to her which she did not accept;
had the respondent accepted the appellant’s offer of
reinstatement,
she would not have suffered any financial loss which
she may have suffered as a result of her dismissal;
the dispute between the parties would have been
resolved without the appellant having to incur the legal costs that
he must
be taken to have incurred in defending the unfair dismissal
claim and the costs relating to this appeal;
the respondent
would not have incurred the legal costs that she must be taken to
have incurred through this litigation both in the Labour
Court and
in this Court.
for some time after the appellant
had made the offer of reinstatement to the respondent, the
respondent did not even bother to
respond to the appellant – and
that is conduct which is unacceptable, particularly when one of the
parties is trying to have
the dispute resolved. Such conduct
undermines one of the primary objects of the Actwhich is the
effective (which includes expeditious)
resolution of disputes: it is
better that disputes be resolved through conciliation than through
litigation or arbitration or
industrial action.
The conclusion that the employee should not have been
awarded compensation in this case seems to be quite in line with the
decision
of this Court to the same effect in Johnson & Johnson,
supra, particularly if regard is had to paragraphs 41 – 43 and
paras
49 – 51 of this Court’s judgment.
[
31]
With regard to costs I have been seriously tempted to order the
respondent to pay the appellant’s costs but have decided
that I
should not make any order of costs
[
32] In
the premises I agree with the order proposed by Waglay JA.
ZONDO JP
I agree.
Waglay JA.
WAGLAY,
JA.:
[
33]
The respondent was dismissed from her employ as a medical doctor on 1
February 1998.  Believing
that she was dismissed because of her
pregnancy, she instituted proceedings against the appellant, her
employer, on the basis that
her dismissal constituted an
automatically unfair dismissal as contemplated by s187 (1) (e) of the
Labour Relations Act no 66 of
1995 (hereinafter “the LRA”).
The appellant contended that the dismissal was fair because it was
motivated by considerations
of the appellant’s operational
requirements and, in any event, was effected at the instance of the
respondent’s husband.
[
34]
The Court
a quo
(per Gush AJ) found that the dismissal of the respondent was not
based on her pregnancy and, therefore, was not automatically unfair.

It found that the dismissal was based on the appellant’s
operational requirements but that it was both procedurally and
substantively
unfair.  The Court
a
quo
in consequence
ordered the appellant to pay the respondent twelve months salary as
compensation amounting to R120 000,00.
[
35]
Leave to appeal was refused by the Court
a
quo
and granted on
petition to the Judge President of this Court.
[
36]
The appellant did not appeal against the declaratory order of the
Court
a quo
that the respondent’s dismissal was procedurally unfair.  In
his notice of appeal he contended that the Court
a
quo
erred in three
respects:  (i)  finding that the dismissal was
substantively unfair;  (ii)  finding that compensation

should be paid;  and  (iii)  awarding compensation
equal to 12 months salary amounting to R120 000,00.
[
37]
The appellant has since abandoned the appeal against the order that
the dismissal was substantively
unfair.  Accordingly, the issues
to be determined in this appeal concern whether or not compensation
should have been awarded
to the appellant pursuant to her unfair
dismissal, and if so whether the award of 12 months compensation was
just and equitable
in the circumstances.
[
38]
Briefly the background to the matter is that the appellant, also a
medical doctor, conducted his medical
practice in Bloemfontein.
In the beginning of 1997 he purchased a second medical practice
(“satellite practice”) and
employed the respondent in that
practice.  The respondent commenced employment on 1 February
1997 at the net monthly salary
of R10 000.00.  The respondent
ran the satellite practice independently of the appellant.
[
39]
The respondent became pregnant and advised the appellant thereof.
The parties agreed that the
respondent would take maternity leave for
a period of two months commencing on 1 February 1998.  Two weeks
of the two months
leave would be taken as paid annual leave and the
balance was to be unpaid leave.
[
40]
The appellant’s testimony was to the effect that despite all his
efforts to make the satellite practice
successful it continued to run
at a loss.  His only option was to replace the respondent with a
doctor whom he could pay a
lesser salary than what he paid the
respondent.  Accordingly, on the day before the respondent was
to commence her maternity
leave, he informed her that she should
attempt, during her maternity leave, to find alternative employment.
The appellant
added that later that day the respondent’s husband
telephoned him demanding that he (the appellant) give the respondent
a written
notice that her employment had been terminated.  This
he did.  Appellant says that the only reason he wrote the letter

of termination was that the respondent’s husband, in a heated
telephonic discussion, insisted that he should do so.
The
appellant denied that the dismissal was in any way related to the
respondent’s pregnancy and confirmed that he had employed
a doctor
in place of the respondent as and from 1 February 1998 at a salary of
R8 000,00 per month which was R2 000,00 less than
the salary he paid
the respondent.
[
41]
The respondent’s evidence on the other hand was to the effect that
on 31 January 1998 she had gone
to collect her salary cheque at the
appellant’s home.  At the appellant’s home she was advised
by him that he could no
longer retain her in his employ as she was
too expensive.  She said that she responded by saying that she
could not work for
a lesser salary because her husband was still a
student.  The appellant then reacted by telling her that he had
already employed
someone else in her place.  Her services were
thus terminated.  The respondent said that she became extremely
upset by
these turn of events and on her return home spoke to her
husband about it. Her husband then telephoned the appellant and asked
him for a written notice of termination of employment and the
appellant supplied the letter.  The respondent stated that she

believed that she was dismissed because of her pregnancy.
[
42]
The respondent gave birth on 4 February 1998, four days after her
dismissal and only commenced her new employment
on 1 September 1998.
[
43]
Although the appellant conceded that he had not complied with any of
the procedural requirements as set out
in s189 of the LRA he
contended that the dismissal was justified by reason of the financial
state of his satellite practice. I
may at this stage add that the
Court
a quo
found that the financial statements relied on by the appellant to
substantiate that the satellite practice was running at a loss
was at
best “incomplete” and “unconvincing” and were simply prepared
to justify the appellant’s contention that it had
become necessary
to replace the respondent with a doctor who was prepared to accept a
lesser salary.  The Labour Court also,
correctly, did not accept
that the respondent was dismissed at the instance of her husband as
claimed by the appellant.
[
44]
Once the respondent, through her trade union, served the referral of
her dismissal dispute to the Commission
for Conciliation, Mediation
and Arbitration (CCMA), for conciliation, the appellant through his
attorneys wrote to the respondent’s
trade union offering to
reinstate the appellant alternatively to make a payment to her in
settlement of the dispute.  The
offer which was made on 12 March
1998 was the following:
“
We would like to make the following offer to your
client in order to settle the dispute.  Our offer is as follows:
1)
Our client offers reinstatement of your client, to be reinstated
after her maternity leave, being
such date as in terms of the Basic
Conditions of Employment Act,
753
of 1988
(sic)
;
or
Alternatively to the above our client offers to pay
your
client:
1)      One month’s notice
as in terms of the contract of employment;  and
2)      Our client will make
payment to your client of one week severance pay for each completed
year of
service;  and
3)      Our client will
compensate your client for the period 1 February 1998 to 12 March
1998 being the
date of this offer.”
[
45]
The respondent did not react to the above offer.  A few days
later, on 17 March 1998, the appellant again
offered to reinstate the
respondent but the respondent refused such offer and demanded
compensation equal to 12 months salary.
After the respondent
had instituted her claim for automatically unfair dismissal in the
Labour Court, the appellant yet again offered
her reinstatement
stressing that the personal contact between the two would be minimal
as the respondent worked independently of
the appellant.  The
offer as contained in the letter of 2 October 1998 stated the
following:
“
Dit is ons instruksies om ter beslegting van
hierdie geskil die aanbod wat op 12 Maart 1998 reeds aan u klient
gemaak is te herhaal
en wel as volg:
1.       Ons klient
bied hiermee aan om u klient onvoorwaardelik in diens te herstel op
dieselfde
terme en voorwaardes wat gegeld het tydens
diensbeëindiging.
2.       Aangesien u
klient nie ons klient se vorige aanbod aanvaar het nie, sluit hierdie
aanbod
ongelukkig nie betaling van salaris vir die tydperk tussen
diensbeëindiging en aanvaarding van hierdie aanbod in nie.
Ons wys graag daarop dat u klient voorheen en soos
voorsien in die toekoms geheel en al op haar eie gefunksioneer het in
‘n afsonderlike
mediese praktyk en dat minimale kontak tussen haar
en ons klient bestaan.  Ons is derhalwe van mening dat die
voorgesette
werkgewer/werknemer verhouding tussen die partye wel
moontlik is.
Indien die bogemelde aanbod nie vir u klient
aanvaarbaar is nie, verneem ons graag welke alternatiewe voorstelle
gemaak kan word
ten einde hierdie geskil te besleg.”
[
46]
The offer of reinstatement was also repeated in the appellant’s
response to the respondent’s statement of claim.
Respondent
rejected these offers.
[
47]
During the trial the respondent testified that in referring the
matter to the CCMA the relief sought was compensation
and not
reinstatement.  She indicated that she could not continue to
work for the appellant because of the manner in which
she had been
treated by the appellant on the day that her services were
terminated.  She also confirmed that at the time that
the offers
were made to her she was unemployed.
[
48]
Taking into account that the respondent had agreed to take six weeks
unpaid leave she would have been on unpaid
leave from 14 February to
31 March. The respondent was therefore effectively unemployed as from
1 April 1998 to 31 August 1998
– a period of five months. She
commenced her new employment on 1 September 1998 at a salary in
excess of what she earned in the
appellant’s employ.
[
49]
Based on the above facts and circumstances the first issue to be
considered is whether or not the respondent
was entitled to be
awarded compensation for being unfairly dismissed.
[
50]
In terms of the LRA, although every employee has the right not to be
unfairly dismissed (s185 (a)) the
infringement of that right does not
necessarily or automatically confer a right to a remedy.  The
remedies that are available
to an unfairly dismissed employee are set
out in s193 (1) read with s194 of the LRA.
[
51]
In terms of s193 (1) and (2) of the LRA where a dismissal is found to
be unfair:
“
(1)   . . .
. . . the Court or the arbitrator may-
(a)     order
the  employer to reinstate the employee from
any date not earlier than the date
of dismissal;
(b)     order the employer to
re-employ the employee, either in the work in which the employee was
employed
before the dismissal or in other reasonably suitable work on
any terms and from any date of dismissal;  or
(c)     order the employer to pay
compensation to the employee.
(2)     The Labour Court or the
arbitrator must require the employer to reinstate or re-employ the
employee
unless-
(a)     the employee does not
wish to be reinstated or re-employed;
(b)     the circumstances
surrounding the dismissal are such that a continued employment
relationship would
be intolerable;
(c)     it is not reasonably
practicable for the employer to reinstate or re-employ the employee;
or
(d)     the
dismissal is unfair only because the employer did not follow a fair
procedure.”
[
52]
Section 194 (1) then goes on to provide:
“
(1)   The compensation awarded to an
employee whose dismissal is found to be unfair either because the
employer did not
prove that the reason for dismissal was a fair
reason relating to the employee’s conduct or capacity or the
employer’s operational
requirements or the employer did not follow
a fair procedure, or both, must be just and equitable in all the
circumstances, but
may not be more than the equivalent of 12 months’
remuneration calculated at the employee’s rate of remuneration on
the date
of the dismissal.”
[
53]
Hence, once a finding is made that a dismissal is unfair an
arbitrator or the Labour Court must exercise a
discretion as provided
in s193(1).  The discretion that is conferred on the arbitrator
or the Labour Court by s193 (1), (because
of the use of the word
“
may
”
in the commencement of this section which says
“…the
court or the arbitrator
may),
limits
the decision the arbitrator or the Labour Court may make. (See in
this regard
Johnson
and Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20
ILJ 89 (LAC)
at
para 38). The discretion that must be exercised by the arbitrator or
the Labour Court, after it has considered all the relevant
factors is
whether or not to grant the relief sought in terms of s193 (1).
The discretion that must be exercised in granting
the relief sought
by the respondent in terms of s193(1)( c) is significantly different
to the discretion that an arbitrator or
the Labour Court has in terms
of s194(1) of the LRA.
[
54]
If the arbitrator or the Labour Court decides to award or order
payment of compensation as provided in s193(1)
(c) then it must turn
to s194(1) to determine the amount of compensation.  Although
s194(1) sets out the parameters for the
amount of compensation the
arbitrator or the Labour Court may order, the arbitrator or the
Labour Court has a discretion to decide
on the appropriate amount.
The parameters do not hindre the choice; it merely sets the outer
limits beyond which the arbitrator
or the Labour Court may not go.
Within the limits, however, the arbitrator or the Labour Court may
make any decision which
it considers to be the correct one.
[
55]
The importance of the distinction between a discretion that is
exercised in terms of s193(1)( c) and a discretion
that is exercised
in terms of s194(1) is how the reviewing Court will consider the
matter.  When the discretion that is challenged
is a discretion
such as the one exercised in terms of s194 (1) the test that the
Court, called upon to interfere with the discretion,
will apply is to
evaluate whether the decision-maker acted capriciously, or upon the
wrong principle, or with bias, or whether
or not the discretion
exercised was based on substantial reasons or whether the
decision-maker adopted an incorrect approach. When
dealing with a
discretion however such as provided for in s193(1)( c), the Court
must consider if the arbitrator or the Labour
Court properly took
into account all the factors and circumstances in coming to its
decision and that the decision arrived at is
justified.  In
essence therefore, a review of a discretion exercised in terms of
s193(1)( c) is essentially no different to
an appeal because the
reviewing Court will be required to consider all the facts and
circumstances which the arbitrator or the
Labour Court had before it
and then decide based on a proper evaluation of those facts and
circumstances whether or not the decision
was judicially a correct
one.
[
56]
An unfairly dismissed employee therefore does not obtain a vested
right to the remedy provided in s193 (1)(
c) of the LRA.  All
that such employee has is a right to be considered for that remedy.
Section 193 (1) thus provides for
the general kinds of appropriate
orders that the Labour Court or an arbitrator may make and s193 (2)
sets out the position with
regard to an order in terms of s193 (1)
(a) or (b). Section 194 (1) on the other hand deals with the limit to
the compensation
that may be granted once order is made in terms of
s193 (1) (c), and how that compensation is to be calculated; it does
not deal
with when and why compensation must be ordered.
[
57]
In this matter the Labour Court found the dismissal of the respondent
both substantively and procedurally
unfair and exercised its
discretion in favour of granting compensation as provided for in
s193(1)(c).  The Labour Court has
not explained the basis for
making that decision.  However, on appeal this Court is entitled
to decide on whether or not the
decision was a correct one because
the discretion the Labour Court was called upon to exercise was one
where the court
a
quo
had to make a
decision based on the facts and circumstances that were placed before
it.
[
58]
The facts relevant to deciding whether or not to order compensation
were the following, that:
(i)      the respondent was
dismissed on the eve of her commencing her maternity leave;
(ii)      the dismissal was
both substantively and procedurally unfair;
(iii)
the reason proffered
for the dismissal was that the respondent was too expensive to retain
and the doctor employed in place of the
respondent was paid R2 000
less a month;
(iv)
immediately on
receiving the respondent’s referral of her dismissal dispute to the
CCMA, the appellant offered her unconditional
reinstatement – this
offer constituted a full redress in terms of the LRA;
(v)
the respondent did not
want to be reinstated or re-employed;
(vi)
the respondent wanted
compensation;
(vii)
the respondent failed
to respond to the appellant’s offer of reinstatement.  The
appellant then repeated the offer on at
least three subsequent
occasions; on each occasion the offer of reinstatement was refused
with the respondent insisting on compensation
as the only relief.
The offer of reinstatement was also made at the conciliation meeting
held under the auspices of the CCMA;
(viii)
had the respondent
accepted either the first or the second offer of reinstatement she
would not have been out of work for even one
day because she was only
required to return from maternity leave on 1 April 1998 and these
offers to reinstate were made prior
to that date;
(ix)
the respondent as an
employee of the appellant worked independently of the appellant in a
separate medical practice with minimal
contact with the appellant;
(x)
respondent was
unemployed for a period of five months;
(xi)
the respondent was
upset by her dismissal, particularly because she was simply told that
she was too expensive to retain and should
find alternative
employment while on maternity leave. This, she says, led to a
breakdown in the working relationship with the appellant;
(xii)
the respondent claimed
that she no longer trusted the appellant;
(xiii)
the respondent’s
husband involved himself in the dispute between the appellant and the
respondent which led to acrimonious exchanges
between the
respondent’s husband and the appellant;
(xiv)
the respondent was
subjectively of the view that she was dismissed for reasons relating
to her pregnancy;
(xv)
the respondent’s
allegation that she was dismissed because of her pregnancy was
demonstrated to be untrue;
[
59]
On a conspectus of all of the above fact and circumstances I am of
the view that the Labour Court should have
refused to make any order
in terms of s193(1)(c ).  The reason for this is that the LRA
aims at striking a balance between
the interests of the employers and
employees alike.  In terms of the LRA the primary means through
which conflict between
employers and employees should be resolved is
through conciliation which is either voluntarily or via the machinery
provided for
by the LRA.  In this matter every conciliatory
approach made by the appellant by way of offering the respondent the
maximum
relief obtainable in terms of the LRA was rebuffed and no
sound reason has been given for rejecting it.  This action was
contrary
to the spirit and intent of the LRA.
[
60]
Respondent’s belief that the relationship had broken down and that
she no longer trusted the appellant is
not foreshadowed by any
reasonable explanation why it was so.  The respondent’s claim
that the manner in which she was dismissed
led to the breakdown in
the relationship is unconvincing.  I do not accept that when an
individual employer tells an employee
that s/he is dismissing him/her
because s/he is too expensive to retain in his/her employ that this
will cause an employee such
great trauma that s/he could not return
to the employ of that employer, particularly where the employee is a
professional and works
independently of that employer or has minimal
contact with the employer. In this matter the respondent’s evidence
was that the
appellant did not involve himself in the satellite
practice that was run by her.
[
61]
While there was an acrimonious exchange between the appellant and the
respondent’s husband this cannot form
a basis for a breakdown in
the relationship between the respondent and the appellant, in any
event, respondent did not rely hereon
for the said breakdown.
Insofar as the breakdown in the relationship may be related to the
subjective belief by the respondent
that she was being dismissed for
reasons relating to her pregnancy, again, there is no basis for such
belief.  The Labour
Court correctly did not find that the
respondent was dismissed for reasons relating to her pregnancy as
there was simply nothing
to indicate this possibility.  Indeed,
it would be surprising for that to be the case as it would mean the
appellant tolerated
the respondent’s pregnancy until she went on
maternity leave in the ninth month of her pregnancy!
[
62]
In essence all we have from the respondent is her subjective belief
that the relationship between the appellant
and her had broken down.
There is no support to the effect that her belief was a reasonable
one.  The mere
ipse
dixit
that the
relationship has broken down has never been sufficient for an
employer to avoid reinstating an employee, likewise it cannot
be a
sufficient basis for an employee to justify a rejection of a
reasonable offer of reinstatement.
[
63]
In the circumstances I am of the view that in exercising its
discretion on whether or not to grant the respondent
the remedy she
sought for her unfair dismissal the Labour Court should have had
regard to what was fair to the respondent as well
as what was fair to
the appellant.  While it would appear to be unfair not to grant
an unfairly dismissed employee any remedy,
especially where
reinstatement or re-employment is not sought it cannot necessarily be
so where reinstatement is offered by the
employer and refused by the
unfairly dismissed employee in circumstances such as in the present
matter.  The appeal must therefore
succeed.
[
64]
With regard to the issue of costs the respondent has argued that
because the appellant continued to defend
this claim on the basis
that the dismissal was fair or at the very least that the dismissal
was only substantively fair, and persisted
therewith until he filed
his heads of argument in this Court, there should therefore be no
order of costs either in the Court
a
quo
or in this
Court in the event of she not being successful.  I agree. It is
in the interest of equity that costs should not
follow the result
either in the Labour Court or in this Court.
[
65]
In the result I make the following order:
(a)      The appeal succeeds
and the order of the Labour Court is set aside and replaced with the
following
order:
“
(i)    the dismissal of the
applicant was both substantively and procedurally unfair;
(ii)
no relief is
granted in respect of the unfair dismissal;
(iii)
there is no
order as to costs.”
(b)     There is no order as to
costs in the appeal.
_______________
WAGLAY JA
WILLIS JA:
[66] It is important that when respondent was
cross-examined by counsel for the appellant, he elicited that the
reason why the respondent
had not accepted the appellant’s offer of
reinstatement was that her working relationship with the appellant
had been totally
destroyed and that she did not trust him anymore.
That evidence stands and the court may have regard to it.
1
That is one of the hazards of cross-examination.
[67] In my opinion, the court
a
quo
made valid
criticisms of the evidence of the appellant. In my opinion, the
appellant may consider himself fortunate that the court
a
quo
could not go so far as to find that the
reason for her dismissal lay not merely in her pregnancy but also her
impending status
as a mother of a young child. No other reason
suggests itself and this is especially so in the light of the court
a
quo
’s finding (correctly, in my opinion)
that the appellant had failed to prove that the dismissal was based
on his operational requirements.
Nevertheless, the failure to find
that the reason for the dismissal was for reasons related to the
respondent’s pregnancy does
not mean that she was not justified in
believing that this was so. This has a bearing on the question of
whether she may be criticised
for not accepting the offer of
reinstatement. In my opinion the court
a quo
was correct in finding that the respondent
had been shocked by her dismissal, no longer had any trust in the
appellant and justifiably
believed that the employment relationship
had broken down. The court
a quo
found that the respondent had acted “entirely reasonably” in
refusing the appellant’s offer of reinstatement. It may have
been
more correct to have said that the respondent did not act
unreasonably in refusing the offer of reinstatement. Nevertheless,
in
my opinion, the court
a quo
cannot
be criticised, in the light of the above, for deciding to award
compensation in terms of section 193(1) (c) read together
with
section 193 (2)(a) of the LRA.
[68] When it came to the determination of the amount of
compensation, however, the court
a quo
completely failed to apply its mind to the
fact that the respondent had secured alternative employment at a
better level of remuneration
in September, 1998. Mr
Boda
,
who appeared for the respondent, conceded that this amounted to a
material misdirection on the facts which, in terms of the decision

in,
for
example,
National
Coalition for Gay & Lesbian Equality v Minister of Home Affairs
2
would justify
interference by this court. Moreover, the court
a
quo
failed to have regard to the
important fact that the respondent was offered reinstatement. It is
common cause that, as a result
of her unfair dismissal, the
respondent was “out of pocket” for four months’ remuneration.
Having regard to all the circumstances
of the case, I would have
intervened to set aside the order of compensation in the court
a quo
and would have substituted six months’
pay as compensation.
[69] I agree with my brothers Zondo JP and Waglay JA,
that this is a case in which the appropriate orders as to costs are
that the
parties are to bear their own costs both in the appeal and
in the application before the court
a quo.
_________________
WILLIS
JA
JUDGE
OFAPPEAL
For the Appellant: Mr
S.
Snyman
Instructed by:
Snyman Attorneys
For the respondent:
Adv F.A. Boda
Instructed by:
Phatsoane Henney INC
Date of the
judgment: 26 March 2009
1
See,
for example,
R
v Bosch
1949
(1) SA 548
(A) at 553-554 and
De
Klerk v Zagorie
1943 EDL 44
2
See,
2000
(2) SA 1
(CC) at para [11]