About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2012
>>
[2012] ZALAC 1
|
|
Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality and Others (CA 08/08) [2012] ZALAC 1; [2012] 7 BLLR 660 (LAC); (2012) 33 ILJ 1081 (LAC) (13 February 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, HELD IN CAPE TOWN
JUDGMENT
case
no: CA 08/08
In the matter between:
THE INDEPENDENT MUNICIPAL AND
ALLIED TRADE UNION obo ANTON
STRYDOM
…................................................
Appellan
t
(Applicant in court
a quo
)
and
WITZENBURG MUNICIPALITY
…..............................................................
First
Respondent
THE SOUTH AFRICAN LOCAL
GOVERNMENT BARGAINING COUNCIL
….........................................
Second
Respondent
PIET VAN STADEN N.O.
….......................................................................
Third
Respondent
Delivered: 13 February 2012
______________________________________________________________
CORAM: WAGLAY, DJP; ZONDI, AJA
et
MOLEMELA, AJA
JUDGMENT
______________________________________________________________
MOLEMELA AJA
Introduction
[1] This is an appeal against the
judgment of the Labour Court in which it dismissed an application to
review and set aside an arbitration
award issued by the third
respondent (“the commissioner”) under the auspices of the
second respondent. The appeal arises
from the dismissal of a Mr
Strydom (“the employee”), a member of the appellant trade
union, by the first respondent
(“the employer”) pursuant
to an enquiry into the employee’s incapacity on the grounds of
illness. The incapacity
enquiry having culminated in the employee’s
dismissal, the commissioner subsequently found that the employee’s
dismissal
was procedurally and substantively fair. The court
a quo
dismissed an application to review the award. The appellant
approaches this Court with leave of the court
a quo
. There is
no opposition to the appeal.
Application for condonation
[2] At the commencement of the
proceedings this court had to determine an application brought by the
appellant for condonation of
its non-compliance with the rules
pertaining to the filing of the appeal record, the notice of appeal,
as well as the power of
attorney. This Court, being satisfied with
service of the application on the first respondent, was of the view
that the appellant
had made a proper case for the granting of
condonation and accordingly granted the order and re-instated the
appeal.
Background
[3] The employee previously held the
position of “Town Clerk” until December 2000. After a
merger of several municipalities
to form the first respondent, the
employee occupied the position of Senior Administration Officer while
acting as its Municipal
Manager. Between May 2004 and January 2005,
he was absent from the workplace due to illness for about eight
months, during which
period he was booked off-sick on the grounds of
a mental condition, viz ‘major depression disorder with
symptoms of post
traumatic stress disorder’. Throughout this
period of absence, the employer did not initiate any enquiry into the
employee’s
absence on account of ill-health. During January
2005 the employee applied for ill-health retirement benefits, a
procedure commonly
referred to as “medical boarding”,
from his pension scheme, which was underwritten by Metropolitan
Insurance Company
(“Metropolitan”). Although the employer
was aware of the employee’s application for medical boarding,
it took
no steps whatsoever for a further four months. It was only
after the employer received Metropolitan’s notification of its
repudiation of the employee’s claim that the employer directed
two letters to the employee. The first letter enquired as
to the
employee’s intended date of resumption of duties in light of
Metropolitan’s attitude to his claim. Curiously,
on the same
day, the employer directed another letter to the employee notifying
him about an enquiry that was to be held into his
incapacity. The
enquiry was subsequently held during July 2005. The enquiry found
that the employee was incapacitated from performing
his functions
with the employer on a permanent basis. The employee referred an
unfair dismissal dispute to the second respondent
and, in his
referral for arbitration, alleged that the incapacity enquiry was
incomplete as he had indicated that he wanted to
obtain a report from
another psychiatrist but was not permitted to do so. The relief
sought by the employee was that of re-instatement,
alternatively
compensation. The commissioner found that the dismissal was
procedurally and substantively fair. The employee unsuccessfully
launched an application for a review of the award and now approaches
this court on appeal.
Issues in the appeal
[4] The essence of the appellant’s
appeal is (1) whether the employer failed to give any effect to its
obligations as enunciated
in item 10 and 11 of Schedule 8 to the
Labour Relations Act 66 of 1995 (the “LRA”); (2) whether
the afore-mentioned
non-compliance with the schedule resulted in the
employee being dismissed unfairly; (3) whether the commissioner’s
finding
that the dismissal was fair, was reasonable considering the
employer’s patent disregard of the aforementioned Schedule; (4)
whether the court
a quo
erred in not setting the award aside
and in the process made fundamentally erroneous findings of fact.
The relevant provisions of the LRA
[5] It is apt to refer to section
188(2) of the LRA. It provides that:
‘
any
person considering whether or not the reason for dismissal is a fair
reason or whether or not the dismissal was effected in
accordance
with a fair procedure
must
take into account any relevant code of good practice
issued
in terms of this Act
’
.
(my
emphasis).
Schedule 8 to the LRA embodies the
code in relation to dismissal. Items 10 and 11 thereof provide as
follows:
‘
10:
Incapacity: Ill-health or injury
(1)
Incapacity on the grounds of ill-health or injury may be temporary or
permanent. If an employee is temporarily unable to work
in these
circumstances, the employer should investigate the extent of the
incapacity or the injury. If the employee is likely to
be absent for
a time that is unreasonably long in the circumstances, the employer
should investigate all the possible alternatives
short of dismissal.
When alternatives are considered, relevant factors might include the
nature of the job, the period of absence,
the seriousness of the
illness or injury and the possibility of securing a temporary
replacement for the ill or injured employee.
In cases of permanent
incapacity, the employer should ascertain the possibility of securing
alternative employment, or adapting
the duties or work circumstances
of the employee to accommodate the employee’s disability.
(2)
In the process of the investigation referred to in subsection (1) the
employee should be allowed the opportunity to state a
case in
response and to be assisted by a trade union representative or fellow
employee.
(3)
The degree of incapacity is relevant to the fairness of the
dismissal. The cause of the incapacity may also be relevant. In
the
case of certain kinds of incapacity, for example alcoholism or drug
abuse, counselling and rehabilitation may be appropriate
steps to
consider.
(4)
Particular consideration should be given to employees who are injured
at work or who are incapacitated by work-related illness.
The courts
have indicated that the duty on the employer to accommodate
incapacity of the employee is more onerous in these circumstances.
11
Guidelines in cases of dismissal arising from ill-health or injury.
Any
person determining whether a dismissal arising from ill-health is
unfair should consider-
(a)
whether or not the employee is capable of performing the work; and
(b)
if the employee is not capable-
(i)
the extent to which the employee is able to perform the work;
(ii)
the extent to which the employee’s work circumstances might be
adapted to accommodate disability, or where this is not
possible, the
extent to which the employee’s duties might be adapted; and
(iii)
the availability of any suitable alternative work.’
[6] It is trite
that the code of good practice is binding on commissioners. See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
1
(“The
Sidumo
case”).
My reading of item 10 and 11 gives me the impression that an
incapacity enquiry is mainly aimed at assessing whether
the employee
is capable of performing his or her duties, be it in the position he
or she occupied before the enquiry or in any
suitable alternative
position. I am of the view that the conclusion as to the employee’s
capability or otherwise can only
be reached once a proper assessment
of the employee’s condition has been made. Importantly, if the
assessment reveals that
the employee is permanently incapacitated,
the enquiry does not end there, the employer must then establish
whether it cannot adapt
the employee’s work circumstances so as
to accommodate the incapacity, or adapt the employee’s duties,
or provide him
with alternative work if same is available.
[7] I must mention that I have no
doubt in my mind that permanent incapacity arising from ill-health or
injury is recognised as
a legitimate reason for terminating an
employment relationship and thus an employer is not obliged to retain
an employee who is
permanently incapacitated if such employee’s
working circumstances or duties cannot be adapted. A dismissal would,
under
such circumstances be fair, provided that it was predicated on
a proper investigation into the extent of the incapacity, as well
as
a consideration of possible alternatives to dismissal.
[8] The
afore-mentioned obligations of the employer as set out in items 10
and 11 of Schedule 8 to the LRA are inter-related with
similar
obligations in the
Employment Equity Act 55 of 1998
. In their work
Employment
Equity Law
2001:
7-3 to 7.4
,
J L Pretorius
et
al
submit
that the duty of reasonable accommodation of employees by employers
is not confined to the
Employment Equity Act but
‘is a duty
that is implied in the concept of unfair discrimination in a general
sense’and …‘is one of
the judicial and legislative
tools for realising substantive equality’.
I
agree with this submission. Surely non-compliance with such an
important constitutional imperative would not only impact on
procedural
fairness but on the substantive fairness of the dismissal
as well?
[9] I am of the
view that the provisions of item 10 and 11 are inextricably tied and
thus non-compliance therewith would render
a dismissal both
procedurally and substantively unfair. This view is strengthened by
the following remarks made by the former Labour
Appeal Court in
National
Union of Mineworkers and Another v Libanon Gold Mining Co Ltd,
2
where the court
interpreted the relevant provision of the previous
Labour Relations
Act as
follows
:
‘
I
n
my
view it would not be fair to dismiss an employee without first
exhausting the possible alternatives. …What is in issue
is the
respondent’s act of terminating the appellant’s
employment. Observance of a fair process is in my view fundamental
to
the question whether its decision to do so was fair. In my view, the
fairness or otherwise of the decision cannot be divorced
from the
process by which it was arrived at.’
[10] In the case of
Samancor
Tubatse Ferrochrome v Metal & Engineering Industries Bargaining
Council and Others,
3
(
the
court, dealing with a dismissal based on incapacity albeit not one
related to illness, stated as follows:
‘
Manifestly,
the question as to whether a dismissal in the circumstances of the
present dispute is substantively fair depends upon
the facts of the
case. An employer needs to consider the reasons for the incapacity,
the extent of the incapacity, whether it is
permanent or temporary,
and whether any alternatives to dismissal do exist
’
.
The approach followed by the
chairperson of the incapacity enquiry
[11] The incapacity enquiry was held
on the 25
th
July 2005, approximately six months after the
employee had unsuccessfully applied for early retirement benefits. At
the enquiry,
the employer relied on the medical report filed by a dr
van Niekerk (a psychiatrist) which was attached as a supporting
document
to the employee’s application for early retirement
benefits. The employer also relied on the assessment report submitted
by Metropolitan in support of its decision repudiating the employee’s
application. As stated before, at the time of the enquiry,
dr van
Niekerk’s report was six months old. The latter report
inter
alia
stated as follows:
‘
Whilst
we do not dispute that the claimant is currently precluded from
returning to his own occupation with the current employer,
it is our
opinion that it would be premature to establish the permanence of
ongoing incapacity at this early stage. Since the claimant’s
symptoms reportedly stabilise when removed from the specific stressor
of his own workplace, it is accepted that with ongoing psychotherapy
and special management, the claimant is deemed capable of resuming
his own occupation or reasonable alternative duties within the
open
labour market in the future’.
[12] Having considered both dr van
Niekerk’s medical report and the Metropolitan’s
evaluation report, the chairperson
of the enquiry concluded that the
employee’s continued employment with the employer would be
contrary to medical opinion
and would not be viable. It is not clear
from the enquiry’s outcome report as to why the chairperson
found that ‘insufficient
argument had presented for me to
conclude that the condition of the employee is directly linked to his
work circumstances (sic)
when the undisputed medical evidence as
embodied in dr van Niekerk’s report actually stated that the
employee’s condition
was indeed caused by work-related stress.
Furthermore, he chose to finalise the enquiry on the basis of a
medical report that was
issued six months prior to the enquiry,
despite the employee having indicated that he intended seeking a
second opinion from another
psychiatrist. Clearly, reliance on an out
of date report compromises the making of a proper assessment of the
extent of an employee’s
incapacity.
[13] Furthermore, the chairperson of
the enquiry seems to have used the enquiry for other purposes which
had nothing to do with
establishing the extent of the employee’s
incapacity, thus fortifying the appellant’s contention that the
enquiry was
not only about incapacity but also about misconduct. I
would agree with this contention based on the following utterances
made
by the chairperson of the enquiry: Firstly, having correctly
stated in the introductory part of the outcome report that his role
was primarily to decide the degree of incapacity and to determine to
what extent the employee could continue to perform his duty,
he went
on to state that the issue to be decided was ‘
not whether
the employee is fit for duty or not but goes beyond that
. It
would highly be inappropriate as chairperson to make such a
recommendation since I am not a qualified medical practitioner
who
can make that kind of decision. Rather, I have the responsibility to
consider
whether or not a continued employment relationship is
going to be amenable
to both parties concerned.’ Secondly,
having recommended that the employee’s services be terminated
with immediate effect,
the chairperson went on to state that ‘…it
is advisable to reconvene the hearing specifically to allow Strydom
to present arguments in mitigation
’. Thirdly, the
chairperson, referring to a previous occasion where the employee had
lodged a claim for compensation arising
from an alleged injury on
duty, stated that it needed to be recorded that the employee had
‘
fraudulently applied
and submitted a report to the
Department of Labour.’ (my emphasis).
The arbitration
[14] The
arbitration was held from 15
th
to 26
th
of June 2006.
Documentary evidence was handed up and each party called one witness.
It is settled law that an arbitration hearing
is a hearing
de
novo
.
In the case of
County
Fair Foods (Pty) Ltd v CCMA and Others
4
it was stated
as follows: ‘
However,
the decision of the commissioner as to the fairness or unfairness of
the employer’s decision is not reached with
reference to the
evidential material that was before the employer at the time of its
decision but on the basis of all the evidential
material before the
commissioner. To that extent, the arbitration proceedings are a
hearing
de
novo
’
.
This principle was recently
re-affirmed by the Constitutional Court in the case of
the
Sidumo
case supra
at para 18 and also at para 59 where the following was
stated:
‘…
This
determination [whether a disputed dismissal was fair] and the
assessment of fairness is not limited to what occurred in the
disciplinary hearing.’
[15] On the understanding of what an
arbitration hearing entails, one would have expected that the
commissioner would listen to
evidence afresh and then make a
determination as to the fairness or otherwise of the employee’s
dismissal. Instead of doing
so, the commissioner sought to confine
himself only to the evidence that was available as at the time of the
enquiry notwithstanding
the fact that new evidence was adduced before
him, both documentary and oral. The latter approach was wrong as it
equated an arbitration
hearing with an appeal hearing of some sort,
quite far removed from the principle enunciated in the
afore-mentioned cases.
[16] The commissioner’s summary
of Mr du Plessis’ evidence confirms that it was not disputed
that the employee suffered
from the illness diagnosed by dr van
Niekerk, which, according to the same doctor, was work-related. The
same summary of evidence
also revealed that dr van Niekerk had noted
that the employee’s condition was not permanent and had
contended that the employee
could be ready for duty by 2007.
[17] The commissioner’s summary
of evidence as it appears on p42 of the record reveals that dr
Kalinski’s report was
handed in at the arbitration hearing.
This report
inter alia
stated that the employee was capable of
fulfilling the demands of his job and he ought to be encouraged to
return to work. That
same report also stated that the employee’s
diagnosis had always been of such a nature that he should never have
been regarded
as permanently impaired. The commissioner focused on an
earlier report that stated that the employee would possibly be ready
to
resume his duties in 2007, totally ignoring dr Kalinski’s
report that showed that at the time of the arbitration hearing,
he
had already recovered from his illness. Despite this evidence being
before the commissioner, he ignored dr Kalinski’s
entire report
except the part stating that the employee could not bear to be at
work. Surprisingly, on the same page on which this
remark was stated,
the report also stated that the employee ‘did not appear to be
clinically depressed and no psychotic symptoms
were evident’,
which evidence was not taken into account by the commissioner. I must
however add that the employee failed
to file the final page of Dr
Kalinski’s report. Whether this played a role in the
arbitrator’ failure to consider the
report as whole is not
evident.
[18] The commissioner furthermore
found that the employee did not “want” to accept an
alternative position Du Plessis
confirmed that there were many other
clerical positions available but none were offered to the employee as
it was assumed that
he would not accept a lower position. The
commissioner in my view correctly ignored the evidence of the
employee’s legal
representative, that the employee had an
interest in doing alternative work as the employee was available to
tender such evidence
himself. For its part, the employer did not
present any medical evidence either disputing the employee’s
illness or his fitness
to return to work or to do alternative work.
This, notwithstanding the fact that the
onus
to prove the
fairness of the dismissal rested on it, that is the employer.
[19] The commissioner also seems to
have been unsure as to how to deal with the evidence that was put
before him. Having canvassed
all the evidence in his summation of the
evidence adduced at the arbitration, including the medical report
issued by another psychiatrist,
viz dr Kalinsky, he went on to state
that he could not consider dr Kalinski’s report as it was
issued after the enquiry.
This confusion is aptly demonstrated by the
following passage from the award: ‘
It
is trite that an arbitrator must decide a case on the evidence before
him and not what was before the chairperson. As has been
mentioned,
Drs van Niekerk and Kalinsky’s reports could not have served
before the chairperson. In my view, for the reasons
alluded to above,
I am unable to find that there is any basis for me to interfere with
the finding and sanction of Respondent
.’
[20] It is clear from the award that
the commissioner admitted documentary and oral evidence pertaining to
dr Kalinski’s report,
but then made a finding that he could not
consider the reports that did not serve before the chairperson of the
enquiry. Having
made such a finding, he then still proceeded to
relying on certain parts of dr Kalinski’s report, albeit
selectively. Unfortunately
the medical report to the effect that the
employee had recovered from his illness and his representative’s
evidence that
the employee was willing to accept alternative
employment was not taken into account by the commissioner and he
instead relied
on dr van Niekerk’s initial report, which
indicated that the employee would resume duties only in 2007. It was
on this basis
that the commissioner went on to conclude that the
employee had no desire to return to work. This conclusion, in my view
was based
on a wrong premise.
[21] Whereas at the enquiry, the
chairperson’s interpretation of Metropolitan’s assessment
report was that the employee
was incapable of resuming his employment
with the employer, by the time of the arbitration, the assessment had
been clarified as
follows:
‘
It
was our opinion however that the claimant’s condition, at the
time of the assessment,
could
not be totally, permanently and continuously disabling in terms of
performing his own or a reasonable alternative occupation.
’
(my emphasis).
This clarification, too, was before
the commissioner and it was also referred to in the pre-arbitration
minutes, but was not taken
into account.
[22] This conduct on the part of the
commissioner flies in the face of the well-established principle of
our law, stated as follows
at para 268 of the
Sidumo
case
(
supra
):
‘
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing, in the words of Ellis, the commissioner’s
action prevents the aggrieved party from having its case fully and
fairly determined. This constitutes a gross irregularity in
the
conduct of the arbitration proceedings as contemplated in
section
145(2)(a)(ii)
of the LRA. And the ensuing award falls to be set aside
not because it is wrong, but because the commissioner has committed a
gross
irregularity in the conduct of the arbitration proceedings
.’
The finding of the court
a quo
vis-á-vis the review test
[23] In the
Sidumo
case (
supra
)
the review test was enunciated as follows in par 110:
‘
To
summarize, Carephone held that
s145
of the LRA was suffused by the
then constitutional standard that the outcome of an administrative
decision should be justifiable
in relation to the reasons given for
it. The better approach is that
s145
is now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in Bato Star: Is the decision
reached by the commissioner
one which a reasonable decision-maker could not reach? Applying it
will give effect not only to the
constitutional right to fair labour
practices but also to the right to administrative action which is
lawful, reasonable and procedurally
fair.’
[24] In the case of
Fidelity
Cash Management Services v CCMA and Others,
5
the
court elaborated on the afore-mentioned test as follows:
‘
The
court will need to remind itself that it is dealing with the matter
on review and the test on review is not whether or not the
dismissal
was fair or not but whether or not the commissioner’s decision,
one way or another, is one which a reasonable decision-maker
could
not reach in all of the circumstances.’
[25] I have, in the afore-going
paragraphs demonstrated how the commissioner failed to consider
certain evidence that was put before
him. If an arbitration hearing
is a hearing
de novo
, then there is no valid reason why the
additional evidence that was presented at the arbitration hearing was
not considered. Failure
to consider all the relevant evidence clearly
resulted in the employer failing to do a proper assessment of the
employee’s
capability to continue working, as contemplated in
item 10 and 11 of Schedule 8. When consideration is paid to all the
above circumstances,
it stands to reason that the decision of the
commissioner was one that a reasonable decision maker could not reach
and thus fell
to be set aside on review.
[26] The court
a quo,
however,
dismissed the application for review, having stated that the question
that needed to be answered was: ‘Can an employee
insist on
being employed in the same workplace that he alleges has induced his
depression?’ The court
a quo
then went on to remark as
follows:
‘
Typically
of all employees who do not succeed with their application for
medical boarding, this employee, too was in a Catch-22
situation. He
had to assert that he was permanently unfit for work in order to
succeed in his application. When he failed in that
application, he
had to assert that he could perform some work in order to resist an
incapacity dismissal successfully.”’
[27] In my view, the question posed
and the aforementioned remarks made by the court
a quo
were
misplaced as they did not take the following facts into account:
firstly, none of the medical reports that were submitted claimed
that
the employee was permanently disabled or incapacitated. Secondly,
there was a substantial lapse of time (a period of six months)
between the application for medical boarding and the incapacity
enquiry, such that by the time the arbitration hearing was held,
the
employee had, according to dr Kalinski recovered from his mental
condition and could resume duties. Under such circumstances,
there
was no basis for finding that the employee was permanently
incapacitated or that he could not reasonably be accommodated
by the
employer.
[28] In addition to the above, it is
patently clear from the award that the commissioner did not pay due
regard to items 10 and
11 of Schedule 8 and thus failed to comply
with
section 188(2)
of the LRA, which non-compliance has already been
alluded to in the preceding paragraphs. This is another reason why
the award
fell to be set aside, which the court
a quo
did not
do.
[29] I am satisfied that the decision
of the commissioner was not one that a reasonable decision-maker
could have reached under
the circumstances and ought to have been set
aside by the court
a quo
and substituted with an order that
the dismissal of the employee was both substantively and procedurally
unfair
.
The court
a quo
therefore erred in coming to
the opposite conclusion. In view of this finding, which is
dispositive of the matter, I do not deem
it necessary to address
myself to the aspect pertaining to the errors made by the court
a
quo
in its summation of the evidence adduced at the arbitration
hearing, which allegedly led it to make fundamental errors of fact.
[30] I have noted that the relief
sought by the employee was that of re-instatement, alternatively
compensation. It is trite that
the primary remedy is that of
re-instatement, except where same is inappropriate, in which event
compensation should be ordered.
[31] When deciding on the appropriate
relief, I am entitled to take into account the commissioner’s
finding that the employee
did not want to work for the Respondent.
This was the evidence led by the employer and not rebutted by the
employee. In fact, as
I have said earlier the employee, although
available, refused to testify at the arbitration. I am also entitled
to take into account
the employee’s conduct particularly after
he was said to be fit to resume his duties in determining an
appropriate relief.
[32] Despite the earlier report that
the employee was not permanently disabled, nothing was said as to
what, if anything, did the
employee do to demonstrate an interest to
return to work.
[33] Also, although the medical report
produced at the arbitration claimed he was fit to commence
employment, no such tender was
made, nor was the employer’s
evidence that he will not want to return to work challenged. The
absence of the employee testifying
and wanting to submit to
cross-examination about his willingness to work particularly in light
of the evidence to the contrary
must call into question the
appropriateness of granting reinstatement.
[34] Furthemore, the employee has not
worked since 28 May 2004 and there is also no evidence that the
stressors that caused his
condition are in any way eliminated or
lessened. In these circumstances I am satisfied that this is not a
matter in which reinstatement
is appropriate.
[35] I, however, believe that the
employee should be compensated for being dismissed unfairly. With
regard to costs I see no reason
why costs should not follow the
result in the court
a quo
.
[36] In the result, I would grant the
following order:
The application for condonation of
the late filing of the appeal record, the notice of appeal, as well
as the power of attorney
is granted.
The appeal against the decision of
the Labour Court is upheld.
The commissioner’s award is
hereby reviewed and set aside and replaced with the following order:
‘
The
dismissal of Anton Strydom was both procedurally and substantively
unfair.
The first respondent is ordered to
pay compensation to Anton Strydom in an amount equivalent to 12
months remuneration at the
rate that applied on the date of his
dismissal.
The first respondent is further
ordered to pay the costs of the suit.’
No order is made as to costs in
respect of the appeal.
____________________________
MOLEMELA, AJA
I agree.
_____________________________
WAGLAY DJP
I agree.
_____________________________ ZONDI
AJA
APPEARANCES:
For the appellant: Mr. Niehaus of
Minaar Niehaus Attorneys
1
[2007]
12 BLLR 1097(CC)
at paras
175 and 269.
2
(1994)
15 ILJ 585 (Lac) At 589 F-J
.
3
2010)
31 ILJ 1838 (LAC) at para 11,
4
(1999)
20 ILJ 1701 (LAC) at para 11.
5
(2008)
3 BLLR 197
(LAC) at par 98 – 99.