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[2013] ZALAC 26
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South African Revenue Services v Commission for Conciliation Mediation and Arbitration and Others (DA 7/11) [2013] ZALAC 26; [2014] 1 BLLR 44 (LAC); (2014) 35 ILJ 656 (LAC) (17 October 2013)
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
C
ase no. DA7/11
In the matter between
:
SOUTH AFRICAN REVENUE
SERVICE
....................................................
APPELLANT
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
...............................................
FIRST
RESPONDENT
COMMISSIONER PAUL
SHABANGU
N.O.
............................
SECOND
RESPONDENT
PSA obo D R
CHATROOGHOON
...............................................
THIRD
RESPONDENT
Heard: 23 November
2012
Delivered: 17 October
2013
Summary
:
Issue
:
Whether, by virtue of implied term of trust and confidence in
employment contract, employer is vested with power to substitute
its
own sanction for that imposed by chairperson of disciplinary hearing,
in circumstances where the collective agreement expressly
confers
power to impose sanction on chairperson and no provision in
collective agreement permitting unilateral substitution by
employer.
Held
: Collective agreement prohibits substitution. Appeal
dismissed.
J U D G M E N T
___________________________________________________________________
NDLOVU JA
Introduction
[1] The essential issue
in this appeal is whether the appellant, the South African Revenue
Service (SARS), in its capacity as the
employer, was entitledto
substitute a sanction short of dismissal imposed on its employee by
an independent disciplinary tribunal
appointed in terms of a
collective agreement, with a sanction of dismissal, in circumstances
where the collective agreementwas
silent on the issue of
substitution.
[2] The appeal is against
the judgment and order of the Labour Court (Cele J) handed down on 30
December 2010,
in
terms of which the Labour Court dismissed with costs a review
application launched by SARS to set aside an arbitration award
issued
by the second respondent, Mr Paul Shabangu (the commissioner) whereby
the commissioner found that the dismissal of Mr Dharamchand
R
Chatrooghoon (Chatrooghoon) was unfair. The Court
a
quo
granted
the appellant leave to appeal to this Court.
[3] Chatrooghoon was
cited as the third respondent, duly assisted by his registered
representative trade union, the Public Servants
Association (the
PSA). The first and second respondents, the CCMA and the commissioner
respectively, were presumably cited as interested
parties and no
relief appeared to be sought against them.
Factual background
[4] The facts in this
matter are largely common cause. On or about 12 August 1982
Chatrooghoonassumed employment with SARS as a
human resources (HR)
consultant at its Durban Customs offices.
[5] On 17 December 2003,
a collective agreement
known as the ‘Disciplinary Code and Procedures’ was
concluded between SARS, on the one hand,
and the PSA and another
representative trade union, the National Education Health and Allied
Workers Union (NEHAWU), on the other
(the collective agreement or the
disciplinary code)
1
.
The collective agreement
applied to SARS, as the employer, and all its employees falling
within the registered scope of SARS National
Bargaining Forum. It
became effective from 1 January 2004 and replaced all previous
disciplinary practices and procedures
2
.
NEHAWU was not involved
in the present dispute.
[6] On 18 April
2006,Chatrooghoon was charged with misconduct, it being alleged that
during or about February 2006 he ‘unlawfully
and with [the]
intention failed to comply with the basic principles underlying the
Code of Conduct of SARS by abusing [his] authority
as an HR
Consultant and further disclosing official information to [his]
nephew, Mr Chunilal, to wit, telephone records; and/or
leave records
of Mr PraneshMaharaj and Ms PrelinaChunilal; and [that] by doing so
[he] compromised the administration of the SARS.’
[7] Chatrooghoon’s
nephew, Mr Chunilal, was the husband of Ms PrelinaChunilal, who
worked with Chatrooghoon, together with
Mr Maharaj, albeit at
different sections. Chatrooghoon had embarked on some private
investigation into an alleged adulterous relationship
between Ms
Chunilal and Mr Maharaj. As part of his investigation Chatrooghoon
used certain SARS telephone and leave records in
respect of Ms
Chunilal and Mr Maharaj, in order to acquire proof of clandestine
communication and contact between Ms Chunilal and
Mr Maharaj. He then
showed these documents to his nephew who,in turn, reportedly
confronted Ms Chunilal about heralleged extra-marital
affair. Ms
Chunilalwas upset with Chatrooghoon and filed a complaint against him
with the management,which then culminated in the
misconduct
investigation being instituted against Chatrooghoon.
[8] Chatrooghoon did not
deny the charge. Instead, in response thereto, he submitted a written
statement in which he made essential
admissions. The statement reads
as follows:
‘
I, Chats
Chatrooghoon …
That around 16 Feburary 2006, it was
brought to my attention that my niece, Ms PrelinaChunilall stationed
at Outstanding Returns
Project was having an adulterous relationship
with Mr PraneshMaharaj, based at Customs.
Over a period of time, many employees
at SARS advised me that the allegation was very true and the
situation was getting worse.
I counselled Ms Chunilall and she
denied any alleged affair. Considering that she was getting herself
involved with a very unsavoury
character, I was concerned about the
safety and wellbeing of my nephew and his business.
With regard to the reference to
‘unsavoury character’ it is mentioned that Mr
PraneshMaharaj has been implicated in
two murders – wherein he
has shot two persons on separate incidents.
Various factors led me to obtain as
much information as possible to prove to my nephew that his wife was
being unfaithful to him,
bringing the good name of the work cluster,
SARS as a whole and my reputation into disrepute.
I realised that merely making an
accusation about her infidelity and failing to bring forward
witnesses (all SARS employees who
provided me with information
requested, that they remain anonymous), would be then very difficult
to prove.
I therefore resorted to obtaining
admissible information such as SARS official telephone records and
after studying and analysing
both their leave records.
I felt that the above was information
that could distinctly indicate the nature of their relationship and
activities. These were
used to justify the allegation and was not
intended to be given to any individual. My nephew, however, in a fit
of rage, took these
from me as he wanted to now deal with the matter.
I feel strongly that I had a moral
obligation to inform my nephew as there was sufficient [reason] to
suspect that his wife and
safety was in threat and that there was
ground that he was being swindled financially as he was unaware that
expensive transactions
were taking place on his accounts.
I reserve the right to continue
testifying my actions, as well as calling on any witnesses should the
need arise, at the next opportune
juncture, should they become
necessary.’
[9] In her first letter
of resignation dated 3 April 2006 (which was apparently declined by
SARS),Ms Chunilal stated the reason
for taking that step as being the
fact that she was suffering from “major depression”occasioned
by “false accusations”and
“malicious behaviour”
towards her by certain SARS employees (presumably including
Chatrooghoon) and which situation
was impacting negatively on her
marriage and family. However, prior to the conclusion of the
disciplinary proceedings against Chatrooghoon,
she made an about-turn
by submitting a second letter of resignation dated 18 April 2006 in
which, firstly, she withdrew her complaint
against Chatrooghoon“as
he has done nothing wrong instead he has helped me and my marriage”;
secondly, she requested
that “any [misconduct] inquiries
against Chats Chatrooghoonbe stopped”,and,thirdly, she sought
to“sincerely apologise
for any inconvenience that I have caused
to SARS”.
[10] The disciplinary
enquiry proceeded on 15 June 2006 and was chaired by an independent
dispute resolver, Mr Leslie Owen. Chatrooghoon
pleaded guilty and at
the conclusion of the hearing he was found guilty as charged.After
considering both the aggravating and mitigating
factors the
chairperson, on 14 July 2006,imposed a sanction of suspension without
pay for 15 days plus a final written warning.
3
[11] Shortly thereafter,
SARS business area manager submitted an internal memorandum to the
general manager in which the former
recommended that the sanction
imposed on Chatrooghoon be altered to one of dismissal. The general
manager endorsed the recommendation
accordingly. On 4 August 2006
Chatrooghoon was served with a notice of termination of his service
with immediate effect. The relevant
part of the notice of termination
reads as follows:
‘
Mr
Chatrooghoon,
RE: TERMINATION OF SERVICE
This office’s letter SP/10845020
as well as the disciplinary hearing held on 15 June 2006 refers.
Please be advised that the sanction of
a Final Written Warning as well as suspension without pay for 15
working days recommended
by the chairperson has been declined by the
Commissioner: SARS and a sanction of dismissal will be imposed.
In view of the above you are
terminated with immediate effect.
In the event that you decide to appeal
against your dismissal, ER will in terms of Clause 11.4 of the
Disciplinary Code and Procedure
consider whether or not to appoint a
chairperson from the SARS panel of Dispute Resolvers.
Your appeal should be lodged within 10
working days from the date of receipt of this letter.’
[12] It is common cause
that Chatrooghoon did lodge an internal appeal which, however, was
unsuccessful. He was aggrieved by his
dismissal which he felt was
unfair and, thus, referred an unfair dismissal dispute to the CCMA.
After an unsuccessful conciliation
process, the dispute was referred
to arbitration beforethe commissioner. The commissioner identified
the issues for his determination
as follows: “(1) whether the
chairperson of the disciplinary hearing had [the] power to make a
recommendation or a final
decision;(2) whether SARS had [the] power
to overturn the chairperson’s decision as to sanction and (3)
whether the dismissal
sanction was fair or not.”
4
[13] After considering
the evidence adduced, submissions made on behalf of the parties and
the relevant provisions of the disciplinary
code, the commissioner,
on 11 May 2007, issued the award in which he made the following
findings:
‘
There is
therefore no provision in the Code empowering management and/or
Employee Relations to interfere with the finding and the
sanction
meted out by the chairperson. To do so would be arbitrary and
prejudicial to the employee.
In sketching the historical background
of the disciplinary process at SARS ,MrNkadimeng said that in terms
of the old procedure
a magistrate would be appointed to chair the
hearing and that magistrate would make a recommendation that would go
to the head
of department who would make a decision. It would
therefore appear to me that the respondent’s [SARS’s]
contention
that the chairperson had to make a recommendation and not
a final decision was based on the provisions of the Disciplinary Code
of practices and procedures that obtained in the past which were
replaced by the current Code in terms of paragraph 4 referred
to
supra.
The provisions of the current Code are
clear and unequivocal and not pose any heuristic problems. There is
therefore no room for
reading in what is not provided for. I
therefore come to the conclusion that there was no justification for
the supervention (sic)
of management which culminated in the
alteration of the chairperson’s decision relating to the
sanction.
The applicant sought reinstatement
which was resisted by the respondent. No sound and cogent reasons
were advanced by the respondent
as to why they contended that trust
relationship had irretrievably broken down. SARS is a countrywide
organisation and the applicant
[Chatrooghoon] may be redeployed to
any station if need be.’
[14] Consequently, the
commissioner found that the dismissal of Chatrooghoon was unfair and
ordered, among other things, his reinstatement
on terms and
conditions not less favourable than those that governed his
employment prior to his dismissal on 2 August 2006. The
reinstatement
was to operate with retrospective effect from 25 August 2006, being
the date when Chatrooghoon would have resumed
duty after serving the
15 day suspension imposed by the chairperson.
[15] On 10 July 2007,
SARS referred the matter
to the Labour Court for review, in terms of section 145 of the Labour
Relations Act, 1965
5
.
Proceedings in the
Labour Court
[16] The Court
a
quo
found
that the facts of this case were on all fours with those in
County
Fair Foods (Pty) Ltd v CCMA and Others
6
and
further relied on the decision of the Labour Court in
South African Revenue
Service v CCMA and Others
7
in
which a similar factual scenario obtained.The Court further noted Mr
Bruinders’s submission that the commissioner had failed
to ask
himself ‘the fundamental question: ‘Does the implied term
of trust and confidence to which the collective agreement
is subject,
permit the re-instatement of an employee of an organ of State who is
guilty of a fundamental breach of integrity, confidence
and trust
that strikes at the heart of his responsibility to [SARS] and to its
employees?’”. However, the Court found
that even if the
commissioner had asked himself that question “he would have
found it unreasonable to interfere in a manner
suggested by [SARS] or
at all, in the light of the settled authorities on the matter.’
[17] In any event, the
Court further found that by unilaterally substituting the
chairperson’s sanction with its own, SARS
had thereby violated
the principles of natural justice. Accordingly, the Court
a
quo
dismissed the review application with costs.
The appeal
[18] Although Mr
Bruinders SC, for the appellant, conceded that the wording of the
collective agreement appeared to confirm that
the chairperson’s
pronouncement on penalty was indeed a final sanction and not a
recommendation, he submitted that it was
nevertheless the practice of
SARS to treat the pronouncement as a recommendation. He further
conceded that there was, however,
no evidence to demonstrate that the
practice as such had become a custom or that the unions had agreed to
it.
[19] Be that as it may,
Mr Bruinders submitted that the issue at point was whether SARS, as
the employer, was entitled to substitute
the sanction imposed by the
chairperson, given the fact that the collective agreement was silent
on that issue. He pointed out
that the collective agreement contained
no provision that expressly prohibited or restricted SARS from
substituting its own sanction
for that imposed by the chairperson.
[20] He submitted that
the test of whether substitution was permitted by the collective
agreement should be found in the question:
Does the collective
agreement preclude SARS from dismissing Chatrooghoon wherethere has
been a breakdown of trust and confidence
in the employment
relationship and SARS found continued employment relationship
intolerable?
[21] Mr Bruindersfurther
submitted that the Court
a quo
ought to have taken regard of
the implied term of trust and confidence applicable by operation of
law in every employment contract
and thatthe collective agreement was
subject to that implied term. The collective agreement is concerned
with discipline, particularly
the right given by the employment
contract to SARS, as the employer,to terminate the employment
contract for misconduct.
[22] Mr Macgregor, for
Chatrooghoon, submitted that it was indeed clear from the wording of
the collective agreement that the disciplinary
chairperson issued a
final sanction and not a recommendation. He pointed out that Mr Owen
(the chairperson) had testified and confirmed
that what he issued was
the final sanction and that he was surprised to be told later that it
was only a recommendation. He argued
that there was no provision in
the disciplinary code permitting SARS to review or appeal any
decisions of its own chairperson.
Analysis and
Evaluation
[23] It is common cause
that after 1 January 2004,the incidence of discipline in SARS
workplace was governed by the disciplinary
code or the collective
agreement which, at the time material to this dispute, was binding on
all the parties to it, namely SARS
and the two unions concerned
8
.
[24] To my mind, the
wording of the collective agreement is clear and unambiguous on the
point that the decision of the chairperson
on penalty becomes the
final sanction, not a mere recommendation
9
.
Therefore, Mr Bruinders correctly conceded this point.
[25] Indeed, the duty of
trust and confidence is an implied term in every employment contract.
The breach of that duty by an employee
may result in the dismissal of
the employee concerned on the ground that, in the absence of trust
and confidence in the employment
relationship, the employer can no
longer tolerate the continued employment of that employee. However,
the issue here is about whether
SARS was, in terms of the collective
agreement, entitled to substitute a sanction of dismissal (of
Chatrooghoon) for a sanction
short of dismissal imposed by the
chairperson, given the fact that the collective agreement was silent
on the issue of substitution.
Indeed, as a matter of principle, it is
in my viewregardless whether the substituted sanction was higher or
lesser than the one
imposed by the chairperson. In other words, the
issue is essentially about whether the element of implied term of
trust and confidence
in the collective agreement extended to include
a right in favour of SARS, as the employer, to substitute any
sanction imposed
by the chairperson appointed in terms of the
collective agreement, where SARS is of the view that the misconduct
the employee was
found guilty of has affected the trust relationship
between the parties.
[26] As indicated, it is
trite that the rules of contractual interpretation do allow for
reading into a contract a term which is
implied by law for that type
of contract. However, as was stated in
Alfred
McAlpine and Son (Pty) Ltd v Transvaal Provincial Administration
10
,
the intention of the parties should not be totally ignored, to the
extent that if the term in question is in conflict with the
express
provisions of the contract, the term cannotnormally be implied.
11
[27] It is apposite to
refer to the relevant parts of clauses 10.3 and 10.4 of the
disciplinary code, in relation to the issue of
sanction:
12
‘
10.3 Finding
10.3.1 …
10.3.2 …
10.3.3 Before deciding on a sanction,
the chair must give the employer and employee parties an opportunity
to present relevant circumstances
in aggravation and mitigation.
10.4 Sanctions
10.4.1 …
10.4.2 The chairperson with due
consideration to the Code of Good Practice in the Labour Relations
Act, the nature of the case,
the seriousness of the misconduct, the
employee’s previous record, any relevant mitigating or
aggravating circumstances and
sanctions imposed in similar or
comparable cases in the past
may impose any of the following
sanctions
: (emphasis added)
10.4.2.1 Counselling;
10.4.2.2 a written warning;
10.4.2.3 a final written warning;
10.4.2.4 suspension without pay, for
no longer than 15 working days;
10.4.2.5 demotion of one grade;
10.4.2.6 a combination of the above;
or
10.4.2.7 dismissal.
10.4.3 With the agreement of the
employee, the chairperson may only impose the sanction of suspension
without pay or demotion as
an alternative to dismissal. …
10.4.4 …
10.4.5 …
10.4.6 Employee relations will be
responsible for implementing the hearing outcome, and informing the
employee.
10.4.7 The employee has the right to
appeal the outcome of the disciplinary proceedings using the
proceedings outlined in section
11 below.
10.4.8 The employer shall not
implement the sanction during an appeal by the employee.’
[28] The wording of the
collective agreement does not only make it abundantly clear that the
chairperson’s pronouncement on
penalty is a final sanction,
but, in my view, it also leaves no room for interpretation in favour
of the parties having intended
to provide in the collective agreement
a term granting a right to SARS to substitute asanction imposed by
its chairperson for its
own. Whilst it is trite that the duty of
trust and confidence on the part of an employee is a term implied by
law in an employment
contract, I do not think that such implied term
extends to include the right of an employer to substitute its own
sanction for
that of the chairperson, particularly in a situation
such as the present where the parties in a collective agreement
elected expressly
to confer on the disciplinary chairperson the sole
power to impose the final sanction.
[29] Significantly, the
fact that in terms of the old disciplinary code the wording was clear
that a disciplinary chairperson (a
magistrate) was only entitled to
issue a recommendation which SARS was empowered either to endorse or
reject
13
should,
in my view, serve as sufficient demonstration that in terms of the
(new) disciplinary code,
SARS
no longer has such power. It seems to me that the disciplinary code,
to the extent that it conflicts with the old one on this
particular
aspect, ought to be treated on the same basis as in statutory
interpretation involving amending statutes.
In
this regard, the learned author Kellaway makes the following
submission, with which I respectfully agree:
14
‘
Although the
omission of certain words in a provision in an amending statute,
which were there before, may well appear to be an
oversight, a court
should not, it is submitted, construe the provision as if the words
were still there, particularly if the inclusion
would clearly
conflict with the intention or purpose of the amending Act.’
[30] On the basis of this
historical background, it seems to me reasonable to conclude, as a
further ground, that when the parties
signed the collective agreement
providing for the (new) disciplinary code they also intendedto move
away from the previous practice
where SARS had the final say on the
question of sanction. That being the case, I am inclined to find that
the collective agreement
prohibited SARS from substituting its own
sanction for the one imposed by the chairperson of the disciplinary
enquiry appointed
by SARS in terms of the collective agreement.
Instead, SARS was obliged in terms of the collective agreement to
implement and execute
the sanction imposed by the chairperson, unless
there was an appeal by the employee concerned
15
.
Therefore, for SARS to have substituted its own sanction it acted
ultra
vires
the
disciplinary code and the collective agreement,
16
which had statutory
authority in terms of the LRA.
17
Indeed, it was up to SARS
at the time of conclusion of the collective agreement to have
negotiated a clause that would include its
right to substitutethe
disciplinary sanction in certain circumstances. This, unfortunately
SARS did not do.
[31] In
Country
Fair Foods (Pty) Ltd v The Commission for Conciliation, Mediation and
Arbitration
and Others
18
this Court noted:
19
‘
The evidence
placed before the second respondent was that Kemp was appointed by
the appellant to chair the disciplinary enquiry.
No evidence was
presented by the appellant to contradict the conclusion reached by
the second respondent ‘that Kemp was clearly
mandated by the
company to make a final determination regarding the outcome of
Alexander’s disciplinary enquiry’. Second
respondent
found further that the company’s disciplinary code and practice
does not make provision for intervention or for
the overruling of
this sanction by a more senior manager than the one appointed to
chair the disciplinary enquiry.’
And, the Court concluded as follows:
20
‘
In the
present case appellant acted without recourse with the express
provision of its disciplinary code and on the basis of no
precedent.
Second respondent decided that the evidence put up by the appellant
did not justify interference with the Kemp enquiry.
In my view, there
is no basis for concluding that the decision of second respondent was
unjustifiable, in terms of the evidence
which was presented at the
arbitration hearing. Accordingly the appeal must fail.’
[32] I am unable to
appreciate any substantive distinction which Mr Bruinders submits
existed between the facts of the present case
and those in
County
Fair Foods
.
Each case concerned the issue of the employer substituting a sanction
of dismissal for one short of dismissal imposed by the chairperson
of
the disciplinary enquiry in circumstances where the disciplinary code
in each case made no provision permitting the employer
to substitute
any sanction imposed by the chairperson. In my view, the fact that in
the present case the disciplinary code was
incorporated in a
collective agreement, whereas in
County
Fair Foods
it
was not, makes no material difference, in the light of my finding
that the right of SARS to substitute the sanction is not an
implied
term of the collective agreement.
[33] I further note that
whilst in
County
Fair Foods
the
chairperson was the employer’s plant manager, in the present
case the disciplinary enquiry was chaired by an experienced
independent labour law practitioner and lecturer who held
appointments as a part-time senior CCMA commissioner and bargaining
council arbitrator.
[34] In any event, it was
utterly wrong and unacceptable both from the legal and constitutional
perspective, that SARS simply unilaterally
changed the sanction
without even affording Chatrooghoon or his representative trade union
an opportunity to be heard on the matter.
This was in gross violation
of the natural justice principle of
audialterampartem
rule and the rule of law.
The fact that SARS may have similarly conducted themselves in the
past without any objection from any
of the trade unions involved in
the collective agreement, did not render such patently unfair and
unjust conduct, on the part of
SARS, fair and just. I agree with the
remarks of the learned Judge
a
quo
that
“[w]hen the applicant [SARS] interfered with the sanction
imposed by Mr Owen, it literally threw the principles of natural
justice [out] through the window in a clear spirit of the end
justifies the means.”
21
Indeed, the conduct
further contravenes one of the main objectives of the disciplinary
code, namely, ‘to ensure that all the
principles of natural
justice are applied before an employee is disciplined.’
22
[35] The disciplinary
code provides that “[a]ny employee may appeal any disciplinary
action taken against him/her or the outcome
of a disciplinary hearing
by completing form Annexure E.”
23
No similar right is
accorded to SARS, as the employer, in terms of the collective
agreement. However, there seems to be no legal
impediment on the part
of SARS, as an organ of State
24
,
to challenge the outcome of the disciplinary hearing by way of a
judicial review ‘on such grounds as are permissible in
law’.
25
[36] In my view, the
commissioner properly applied his mind when he ordered the
reinstatement of Chatrooghoon. He concluded, correctly
so in my view,
that ‘SARS is a countrywide organisation and [Chatrooghoon] may
be redeployed to any station if need be.’As
an organ of State
with centres all over the country, it could not plausibly be said
that, in the light of the particular facts
of this case, his
continued employment had become intolerable at all SARS offices
throughout the country.
[37] On the totality of
facts in the present case, based on the evidential material presented
to the commissioner, I do not find
any reason to hold that the
decision reached by the commissioner was one which a reasonable
decision-maker could not reach.
26
Indeed,
it also seems to me that in its consideration of the facts and
circumstances of this case SARS completely disregarded, or
at least,
overlooked the apparent sincere sentiments expressed by Ms Chunilal
in her final letter of resignation dated 18 April
2006, referred to
above, which clearly confirmed Chatrooghoon’s
bona
fide
motives
and thus, in my view, considerably reduced his moral blameworthiness.
Therefore, the award issued by the commissioner does,
to my mind,
meet the constitutional standard of reasonableness as formulated in
Sidumo
.
27
The appeal must
accordingly fail and costs to follow the cause.
[38] In the result, the
appeal is dismissed with costs.
__________________________
Ndlovu JA
Zondi AJA and Musi AJA
concur in the judgment of Ndlovu JA
Labour Appeal Court of
South Africa
Appearances
:
For the appellant:
AdvocateTJBruinders SC
Instructed by: Eversheds
Attorneys, Sandton
For the respondent: Mr B
Macgregor
c/oMacgregor Erasmus
Attorneys, Glenwood
1
At
pp150-174 of the indexed papers
2
Clause
4 of the collective agreement
3
At
p264 of the indexed papers
4
Arbitration
award, at 21 of the indexed record.
5
Act
66 of 1965
6
(2003)
24 ILJ 355 (LAC)
7
(2010)
31 ILJ 1238 (LC)
8
Section
23 of the LRA
9
Clause
10.4.2 read with 10.3.3 of the disciplinary code
10
1974
(3) SA 506
(A)
11
Supra,
at 531
12
Clauses
10.3 and 10.4 of the disciplinary code
13
Arbitration
award, at p27 of the indexed papers
14
Kellaway,
Principles of Legal Interpretation: Statutes, Contracts and Wills,
at 144.(footnote omitted)
15
Clause
10.4.8 of the disciplinary code
16
Compare
BMW (SA) (Pty) Ltd v Van de Walt (
2000) 21 ILJ 113 (LAC) at
para 12.
17
Section
23of the LRA
18
(2003)
24 ILJ 355 (LAC)
19
At
para 19.
20
County
Fair Foods,
at para 23.
21
Para
15 of the judgment of the Court a quo
22
Clause
1 of the Disciplinary Code
23
Clause
11.1 of the Disciplinary Code
24
Section
239 of the Constitution of the Republic of South Africa Act 108 of
1996
25
Section
158(1)(h) of the LRA. See also:
Ntshangase v MEC for Finance:
Kwazulu-Nataland Another
(2009) 30 ILJ 2653 (SCA) at para 15.
26
Sidumoand
Another v Rustenburg Platinum Mines Ltd andOthers
(2007) 28 ILJ
2405 (CC);
[2007] 12 BLLR 1097
(CC).
27
Ibid,
at para 110