About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2012
>>
[2012] ZALAC 25
|
|
Super Group Supply Chain Partners v Dlamini and Another (JA 77/10) [2012] ZALAC 25; [2013] 3 BLLR 255 (LAC); (2013) 34 ILJ 108 (LAC) (29 August 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JA 77/10
In
the matter between:
SUPER
GROUP SUPPLY CHAIN PARTNERS
...............................................
Appellant
and
ARTHUR
DLAMINI
..............................................................................
First
Respondent
BENJAMIN
NKOSANA FUNANI
...................................................
Second
Respondent
Heard:
22 March 2012
Decided:
29 August 2012
JUDGMENT
TLALETSI JA
Introduction
The respondents’
services were terminated by their employer, the appellant on 30
April 2008. They contended that their dismissal
was unfair. The
appellant on the other hand contended that the respondents’
dismissal was both procedurally and substantively
fair and was based
on its operational reasons.
The respondents referred
a dispute of unfair dismissal to the Commission for Conciliation,
Mediation and Arbitration (“CCMA”)
at the end of May
2008. The dispute could not be conciliated and what remained was for
the respondents to refer the matter to
the Labour Court for
adjudication.
Indeed, on 15 July 2008
the respondents served and filed their statement of case. The claims
were opposed by the appellant as
well as Eugene van Wyk who was
cited as second respondent. The matter was set down for trial in the
Labour Court before Molahlehi J
on 23 March 2010. The learned
judge
a
quo
handed
down his judgment on 18 August 2010 in which he found that the
dismissal of the respondents by the appellant for operational
reasons were substantively unfair.
1
The appellant was
ordered to reinstate the respondents to its employ retrospectively
to the date of dismissals plus costs of suit.
The appellant is now
appealing against the judgment and the order of the Labour Court
with leave of this Court, having failed
to obtain leave to appeal
from the Court
a
quo
.
Factual Background
The appellant carries on
the business of Fast Moving Consumer Goods (“FMCG”). It
provides warehousing and distribution
services to three entities
namely, UniLever, Kimberly-Clark and Colgate. In terms of the
appellant’s operations, all resources
including staff and
vehicles were not allocated and dedicated to a specific contract,
but to all three contracts in totality.
There was a significant
amount of overlap in this regard. Whilst products were received on
separate vehicles from the three different
contracts referred to,
the same receiving staff in the warehouse attended to the receipt
and warehousing of these particular
items.
The products were stored
in the warehouse on approximately 40 000 pallets and the
pick-up and delivery of products consisted
of approximately 110 000
to 140 000 boxes per day. These operations ran continuously
over a five day week.
It is common cause that
during or about 31 January 2008, Unilever and Kimberly-Clark, the
two biggest contracts awarded to the
appellant were cancelled.
Certain functions were extended until 14 April 2008 and the
Kimberly-Clark contract ended on 31 May
2008 in respect of
warehousing functions. The loss of these contracts had the effect of
the appellant losing about 80% of its
business.
The appellant employed
approximately 700 staff to service the contracts of its customers.
Accordingly, upon the expiry of the
aforementioned contracts, the
appellant only required the services of a total of 100 employees to
attend to the duties in respect
of the remaining Colgate contract
which was the smallest of the three contracts.
The appellant thereafter
contemplated a restructure of its operations and on or about 1 April
2008 issued a letter to the employees
including the respondents to
that effect. The letter read,
inter alia,
as follows :
‘
NOTICE OF TERMINATION OF
SERVICE: SHIFT IN OPERATIONAL REQUIREMENTS
Our various consultations during
February and March 2008 have reference.
BACKGROUND
The Fast Moving Consumer Goods (FMCG)
business unit of the Supply Chain Partners Division is currently
providing warehousing and
distribution services to three (3) major
principles. Unilever’s contract with Super Group FMCG ends 30
April 2008. This
of course implies a shift in our operational
requirements and it affects all FMCG sites nationwide. To this end,
the new F.M.C.G.
structure at Super Park will be much smaller with
limited positions. The company considered making use of, amongst
others, the
LIFO (last-in first-out) principle, but in order to
ensure that the process is substantively and procedurally fair it
was agreed
that the filling of the new structure’s positions
will be done by means of “open competition”, i.e.
allowing
everybody to have an equal chance to apply and to be
considered for the positions in the new FMCG Super Park structure.
In terms
of the process all applications were reviewed and short
listed applicants was (sic) invited to attend interviews towards the
end of March 2008. Unfortunately your application as part of the
open competition process, was
not
successful. To this end the
company will continue to explore all possible alternatives to
dismissal in order to avoid the retrenchment
of employees. The
company will also consider proposed alternatives to dismissal by
employees.
TIME SCALES
This letter serves as notice that
should the company not be able to find any alternative to dismissal
your services will be terminated
on 30
th
April 2008, in
accordance with FMCG operational requirements.
SEVERANCE PAY
As per Basic Conditions of Employment
Act, Act 75 of 1997, all affected employees will receive a severance
pay of one week’s
remuneration
for every completed year of
continuous service
.
The company understands that you may
have certain, special requirements and may grant leave in order to
provide you the opportunity
to seek alternative employment provided
this does not have an adverse impact (on) current operational
requirements.
GENERAL
You are welcome to consult with Mike
van Staden, Lee Johnson or Graeme Barnard about any matter discussed
in this letter.
A more detailed letter, highlighting
the details of your leave pay, pension and provident fund as well as
severance pay will be
forwarded to you shortly.
I would like to take this opportunity
to thank you for your support and service during your tenure with
Super Group.’
On or about 18 April
2008, the appellant issued further letters to the respondents
notifying them that “as agreed”
their employment was
being terminated with effect from 30 April 2008 and further setting
out what was due to them as a consequence
of the termination of
their employment.
Mr Graham Barnard
(“Barnard”
)
is the Human Resources Executive of
the appellant. He testified that the appellant tried to look for
alternatives to retrenchment
within the company and could not find
any. They also approached DHL which had acquired their two lost
contracts and were unable
to find alternatives. He testified that
for Colgate structure, the best way out was to retain skills by
means of “open
competition process”. By that process
they would ensure that only the best skill was retained. The
respondents were also
part of the people that were invited to apply
for these particular positions at that point in time as part of the
open competition
process. However, despite their checking the
records they could not find copies of applications submitted by the
two respondents.
In response to the
contention that there was no consultation as required by law,
Barnard testified that there were consultation
sessions held with
specific groups of people, and after these consultations they issued
letters in which they physically invited
employees to come and
consult with specific individuals within the company. As far as he
was concerned, he was neither personally
consulted nor were there
any specific individual one-on-one consultations. He mentioned
further that the “onus” was
placed on the respondents to
actually engage with the company in terms of those consultations.
The process of open
competition entailed a request to the employees to apply by means of
submitting their CV’s as well as
a predictive index survey.
The latter was aimed at making sure that one gets the best match in
terms of the specific talents
required for a job and compared that
to the applicant’s specific talents or tracts. Through this
method they decided which
employees to keep and which to terminate.
He concluded that the financial loss then was about a billion Rand.
Under cross-examination,
Barnard testified that he was present at some of the administrative
meetings but could not recall whether
he was present at the meetings
addressing the warehouse and distribution consultations. He
estimated that a minimum of two meetings
were held per group but was
not aware if the meetings were also held for night shift which was
worked by the respondents. He
mentioned that although he was the
Human Resource Executive, the operations departments took control
and ultimate ownership of
the staff reduction process. He could not
dispute the respondent’s version that there was only one “mass
meeting”
that lasted five minutes where they were simply
informed that the appellant had lost the two contracts and that
there was going
to be structural changes within the company.
Barnard testified that
he could not comment on the version of the respondents that they
received the letter(s) dated 1 April 2008
on 30 April 2008 when they
were dismissed and as such they would not have known that they had
to consult. He emphasised that
it was upon the employees to initiate
meetings for further consultations.
Eugene Van Wyk (“Van
Wyk”
)
testified that he is the Chief Executive Officer
of FMCG Division of the first respondent. He confirmed that he was
the author
of the letters dated 18 April 2008 and that they were
given to the employees who refused to sign the letters on the space
provided
for as they were unhappy that they were to be dismissed. He
testified that they received notice on 31 January 2008 that the
contracts
would be cancelled and from February 2008 they held
meetings with all the employees to report what was happening. They
further
reported that they were going into a process to look for
other alternatives for where they could use the staff elsewhere in
the
company. He held a meeting with the National Inland Director for
DHL to take over their staff as they were going to take over the
two
contracts. He was told that DHL had also lost other contracts and
was unable to employ all employees and that they would
allow them to
apply for positions at DHL and appoint them through a screening
process.
Van Wyk mentioned
further that they could not use LIFO as selection method since most
employees started together when they obtained
the two contracts
respectively and as such there would have been about 300 to 400
employees eligible for the 100 positions at
Colgate. LIFO was then
disqualified as it was not practical to use it. They then used the
open competition method. There were
a lot of people who did not
apply for the advertised positions and indicated that they wanted
their severance money. Those who
applied were evaluated by the
computer system to determine those suitable for retention.
When confronted by the
allegation in the letter issued to the first respondent that his
application was unsuccessful, Van Wyk
replied that the letter was a
standard letter issued to 600 employees after they could not find
alternatives. He, however, checked
the files and could not ascertain
whether first respondent had indeed applied for a position for the
letter to read that his
application was unsuccessful. He did not
keep minutes of the meetings he had with the employees.
The first respondent
testified that he held a position of picker controller together with
other two pickers. He was working on
UniLever and Colgate contracts
and the two had the same system. Prior to his retrenchment, a
certain “Kaifas Mkhari”
was brought in from “Invoicing”
and he shared the duties of Colgate and Unilever with him. The first
respondent confirmed
that he attended a meeting called in January
2008 where Mike van Staden, who was the Distribution Manager,
informed them that
Kimberly-Clark and Unilever contracts were going
to be cancelled and that there would be restructuring as a result.
He then told
them to consider that meeting as the first step in the
consultation process and he left. The first respondent thereafter
went
to his immediate manager for him to clarify what it was meant
and whether they are going to be retrenched. The manager told him
that he did not know. He was thereafter not called to any other
meeting. During one of his night shifts, the warehouse manager
came
to their office and informed them that they had to apply for either
their jobs or any other position they considered suitable
because of
the new restructuring exercise. There were about five employees in
that office when the manager spoke to them. Gerda
Pieterse who was
the Admin Manager sent him an e-mail in which he attached a form
with instructions for him to complete. He did
not know what that
form was for. He was reluctant to complete it. At some stage,
Pieterse phoned him and warned him that if he
did not complete the
form he would be disciplined. He then completed the form and
submitted it.
The first respondent
insisted that he did not attend any meeting convened by Van Wyk. He
testified further that he received the
letter dated 1 April 2008
referred to above on 30 March 2008 and the subsequent letter dated
18
April 2008 on 30 April 2008. This letter was one of
many letters in the box and the employees were told to search
through the
pile to identify the one bearing his or her name. There
was no discussion as the box was only left there for them to search
for
their letters. He did not know the reason why he was selected
for retrenchment. He believed that he had the skills to do the job
since,
inter alia
, there were no changes to the technology
used. His job is still there and was given to someone else. He was
at no stage before
his retrenchment told that his position was
redundant. He had been working for the appellant since the year
2003. He tried to
secure a meeting with Van Staden and he had to go
through Pieterse who told him that he could not meet Van Staden as
he was either
busy or was in a meeting. The Night Warehouse Manager
could also not assist him as he was also in the dark and did not
know if
his job was secured. He testified further that Van Staden
offered jobs to six people who did not apply for the positions and
even extended the closing date for applications to accommodate these
people only. He supported his averment by referring to the
letter
written by Van Staden to those people.
The second respondent
also started working for first respondent in 2003. He confirmed that
there was a “mass meeting”
called by Van Staden in
January 2008 and made a report about the loss of two contracts. He
did not have access to a computer.
He does not know whether he
completed the predictive index survey as he did not even know what
it was. He however recalled that
he completed a form which was a job
application in 2008. He applied for the position of “cage
controller” and “receiving”
and he and one Edgar
Ntuli submitted their applications to one Hensom on the last day for
submission of the applications. Edgar
Ntuli was retained and he was
retrenched. He was never called individually to a meeting before his
retrenchment. He is not aware
of any consultation meetings that took
place. He was mainly working on the Colgate contract though he at
times assisted in the
other two contracts for stock-taking duties.
He could also operate the picking machine; drive a forklift and a
“reach truck”.
He was licensed to operate these
vehicles. He did mention this aspect in his CV that he submitted
when he applied for a position.
He was never told to apply for a
position at DHL. He was prepared to accept alternative positions but
was not granted an opportunity
to consider them. Edgar Ntuli who was
retained did not have the necessary licenses to perform the
functions he did when he was
retrenched.
Findings of the court
a quo
The Labour Court found
that the authorities are in agreement that in terms of s 189 A (19)
of the Act,
2
it may not adjudicate a
dispute about procedural fairness of a dismissal for operational
requirements. Since the case of the respondent
fell within the
provisions of s 189 A read with s 191(5) (b) (ii) of
the Act, it was precluded from determining
the procedural fairness
of the respondents’ dismissal. In relation to substantive
fairness,
the
court
a
quo
found
that the version of the appellant that the operational requirements
for terminating the respondents’ employment were
necessitated
by the cancellation of the two contracts by its clients was not
challenged. It held further that what was key in
the determination
of the substantive fairness of the dismissal of the respondents is
the selection criteria. The nub of the Labour
Court’s
reasoning is found in the following extracts from passages in the
judgment:
‘
[21] … whilst the
[appellant] contended that it had consulted with the [respondents]
through their chosen representatives,
there is no evidence that there
was consultation in as far as the selection criteria was concerned.
It therefore means that the
[appellant] did not comply with the
requirements of the first part of s 189(7) of the LRA. In my
view [appellant] has also
failed to satisfy the requirements of
fairness in as far as part (b) of the section is concerned.’
And:
‘
[22] The criterion used in
selecting the [respondents] was based on PMS as indicated above. The
[second respondent] stated in his
testimony that he did not have
knowledge about the PMS until this court case. It is also clear from
the testimony of the [respondents]
which was not challenged that they
were never informed as to what the purpose of filling in the forms of
the PMS was for. There
is also no evidence that the [appellant]
explained what the PMS was to be used for. And more importantly the
[respondents] ought
to have been made aware that the information they
provided in filling in the forms would be used for the purpose of
determining
their future employment. Except for stating that the PMS
was an objective system to match the position, there was no evidence
as
to in what way was the information derived from it, would result
in a fair and objective assessment of those to be retained and
those
who had to go.’
The court
a quo
held
further that the fairness of the PMS lies in the manner in which it
was implemented and found that the dismissal of the respondents
was
substantively unfair.
The Appeal
The grounds of appeal
relied upon by the appellant to challenge the judgment and the order
of the Court
a quo
in this Court may be summarised as
hereunder: The Labour Court:
23.1 erred in overlooking
the fact that the appellant had to implement a major reduction to its
workforce. Most of the affected
employees had the same length of
service; the criteria such as skills and experience were of paramount
importance to the appellant’s
objective of providing an
efficient service in terms of the last remaining contract operating
in a highly competitive environment.
23.2 erred in not finding
that the system (PMS) was independent and objectively compared to
each employee’s talent profile
with the profile of the
available positions. The selection criteria were both fair and
objective.
23.3 overlooked the fact
that the second respondent disqualified himself from a picking
position because he did not even bother
to apply for it.
23.4 erred in granting
reinstatement because under the circumstances it was wholly
inappropriate and impracticable. Their erstwhile
positions no longer
existed and it would place an unfair burden on the appellant to try
and accommodate them in a structure where
their services were
redundant.
It is trite that an
employer is permitted to dismiss an employee for its operational
requirements. However, for the employer to
do so successfully, it is
obliged to have a
bona
fide
economic
rationale for the dismissal and to comply with the provisions of
sections 189 as well as section 189A of the Act where
applicable.
Section 189 imposes an obligation on the employer to consult the
employee or its representative on the matters listed
in
subsection (2). There is a duty on the employer not only to
consult the affected employee(s) but to take appropriate
measures on
its own initiative to avoid and minimise the effect of the
dismissal.
3
The consultation
envisaged by the Act is a ‘meaningful joint consensus-seeking
process’ in which parties to the process
should attempt to
reach some agreement on a range of issues that may best avoid the
dismissal and where not possible to ameliorate
the effects of the
dismissal for operational requirements.
4
An employer should not
approach the consultation process with a predisposition to a
particular solution but to approach the process
with a mind open to
persuasion to alternatives that are practical and rational. The
employee party or its representative should
be given a fair
opportunity to suggest ways in which job losses might be avoided or
the effects of the dismissal might be ameliorated
before the
dismissal.
5
There also rests a duty
on the employer to provide the employee or its representatives with
relevant and sufficient information
that would place them in a
position to make informed representations and suggestions on the
subjects specified for the consultation.
6
It is not fair for an
employer to shirk its statutory duty to consult and create and onus
on an employee to ensure that he or
she chases the employer around
to ensure that consultation takes place.
Section 189(7) places a
duty on the employer to select the employee(s) to be retrenched
according to criteria that have been agreed
upon by the consulting
parties. In the event there being no criteria that have been agreed
upon, a criteria that are fair and
objective should be used. The
employer must prove on a balance of probabilities that the selection
criteria used were fair and
objective and was not used for ulterior
motives. In
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
,
7
this Court had the
following to say:
‘
A fair retrenchment process
imposes an obligation on the employer to disclose to the employee all
relevant information and that
obligation has since been codified in
the terms set out in section 189(3) of the Labour Relations Act 66 of
1995 (the Act) …
the duty to engage in meaningful and genuine
consultation is owed to all employees from the lowest to the
executive level, …
the process’s fairness to the
employee finds expression in the recognition of its prerogative to
make the final decision
to retrench … the final decision must
be informed by what transpired during consultation. This is why
consultation must
precede the final decision. The requirement of
consultation essentially formal or procedural one, but it also has a
substantive
purpose. That purpose is to ensure that such a decision
is properly and genuinely justifiable by the operational requirements
or
by commercial or business rationale … The function of the
court in scrutinizing the consultation process is not to second-guess
the commercial or business efficacy of the employer’s ultimate
decision but to pass judgment on whether such a decision was
genuine
and not merely a sham. The court’s function is not to decide
whether the employer made the best decision under the
circumstances,
but only whether it was a rational commercial or operational
decision, properly taking into account what emerged
during the
consultation process.’
(References
have been omitted)
What was expected of the
appellant in the Court
a
quo
was
to discharge the onus of proving that the dismissals of the two
respondents were fair.
8
In doing so, evidence
was to be presented to show that there was a need to retrench, there
was a fair reason to retrench the respondents
and in particular,
whether the selection criteria were fair; and the dismissals were
effected in accordance with the requirements
of a fair procedure.
The finding by the Court
a quo
that
the version of the appellant that it had lost its two major
contracts was not challenged,
is
correct. The respondents also confirmed that they were called to a
meeting where they were informed of the loss of the two
contracts.
It must therefore be accepted that the appellant faced a calamitous
situation by virtue of the loss of the two contracts
and therefore
had to embark on a restructuring exercise. However, the respondent’s
challenge was that there was no need
to retrench them and that they
were unfairly selected for retrenchment.
Counsel for the
appellant,
in
my view, found it difficult to demonstrate that the appellant
successfully discharged the onus it carried in the Court
a
quo
to
show that the dismissals of the respondents were fair. What made his
task more difficult is the fact that the appellant tendered
evidence
of a general and at times hearsay nature. There was no documentary
proof of the minutes of meetings held with the respondents
or their
representatives or that the meetings indeed took place. There was
therefore no evidence to prove that there was consultation
on the
selection criteria; that the employees knew and understood the
selection criteria; that the selection criteria were fair
and
objective; the two respondents were fairly identified for
retrenchment; that the two respondents did not apply for positions;
and that the employees that were appointed to the respondents’
positions had more skills or more appropriate skills than
the
respondents. Furthermore, the appellant unfairly placed onus on the
respondents to ensure that the consultation process was
undertaken.
In light of the above shortcomings,
I
find it difficult to find that the Labour Court misdirected itself
and should have found the dismissals of the two respondents
to have
been fair. There is nothing in the form of admissible evidence to
support a different conclusion. The Labour Court has
in my view
provided a well-reasoned judgment in support of its findings.
This brings me to the
challenge relating to the relief granted by the Labour Court.
Counsel for the appellant submitted (which
was admittedly the
appellant’s main contention) that the Labour Court ought not
to have ordered reinstatement and that
this was a case where
compensation would have been appropriate. He contended that the
respondents’ positions no longer
existed and as such it was
impossible for the appellant to reinstate them on the same terms and
conditions. He further submitted
that the Labour Court’s
findings were severe and the consequent relief ordered reinforces
the perception that our labour
market is inflexible which in itself
is an impediment to economic growth.
Section 193 of the Act
provides,
inter alia,
that if the Labour Court or an
arbitrator finds that the dismissal of an employee is unfair it must
order the employer to reinstate
the employee from any date not
earlier than the date of dismissal, 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 employ the employee; or
(d) the dismissal is unfair only
because the employer did not follow
a fair procedure.
In
casu,
since
the appellant contends that the Labour Court should not have
reinstated the respondents on the basis that it was not reasonably
practicable for the appellant to reinstate or re-employ them, it had
to place facts and evidence before Court to support its
claim. The
record does not contain any shred of evidence to support the
contention that it is not reasonably practicable to reinstate
the
respondents except that the first respondent had lost two main
contracts and had to reinstate about 600 employees.
The evidence on record
suggests that first respondent’s position was taken by another
employee even before the retrenchment
was finalised; the first
respondent was a controller of five years tenure and the second
respondent was a picker manager of five
years tenure. They both had
been pickers and had moved up the ranks; second respondent was
multitalented and the contract that
he mostly worked with being
Colgate was not cancelled; the appellant approached several
employees who were junior to the respondents
and encouraged them to
apply for picker positions and, that the respondents’ version
is that their positions still exist
and may only have changed in
title or name. There was no admissible evidence presented to gainsay
their version. In light of
the above circumstances, the decision of
the Labour Court to reinstate the respondents cannot be faulted. The
argument that the
Labour Court adopted a rigid approach which
reinforces the perception that our labour market is inflexible is,
in my view, without
merit. This argument was not raised in the
Labour Court and there is nothing on record to suggest that the
Labour Court adopted
a rigid approach. The appellant has failed to
discharge the onus created by the Act to show that the dismissal of
the respondents
was substantively fair. Reinstatement is a primary
remedy prescribed by the Act where the dismissal of an employee
occurred under
the circumstances such as of this case and the Labour
Court could not depart from awarding such remedy without valid a
reason
to do so. The appeal should be dismissed.
What remains is the
issue relating to costs. Both parties are
ad idem
that costs
should follow the result. In my view, it would be in accordance with
the requirements of law and fairness that the
appellant should pay
the respondents’ costs.
In the result, the
following order is made:
The appeal is dismissed
with costs.
________________
TLALETSI, JA
Judge of the Labour
Appeal Court
Ndlovu JA and Murphy AJA
concur in the judgment of Tlaletsi JA.
Appearance:
For
appellant: Adv WJ Hutchinson
Instructed
by: Fluxmans Incorporated
For
the respondents: Mr AL Goldberg of Goldberg Attorneys
1
A
point
in limine
was
raised by the appellant concerning the claim against Van Wyk who was
cited as the second respondent. It was contended that
Van Wyk was
merely an author of the dismissal letter and no claim could be
instituted against him personally. The Labour Court
found that the
respondents had failed to make out a case against Van Wyk in his
personal capacity. No order was however made
either in favour of or
against Van Wyk.
2
Labour
Relations Act 66 of 1995
.
3
See:
SA Chemical Workers Union v Afrox Ltd
(1999) 20 ILJ 1718(LAC) at para 36;
Johnson
and Johnson (Pty) Ltd v Chemical Workers Industrial Union and Others
(1999) 20 ILJ 89 (LAC) at para 27.
4
Kotze
v Rebel Discount Liquor Group
(Pty)
Ltd (2000) 21 ILJ 129 (LAC) at para 18
Johnson
and Johnson
(supra) at paras 26 and
27.
5
Grogan:
Workplace law 10
th
Edition 2009 pages 274-5.
6
National
Union of Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd
(1993) 14 ILJ 642 (LAC) at 643G and 650B.
7
Above
n4 at para 18.
8
S
192(2) of the Act provides that if the existence of the dismissal is
established, the employer must prove that the dismissal
is fair.