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[2014] ZALAC 7
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Palace Engineering (Pty) Ltd v Ngcobo and Others (LAC) [2014] ZALAC 7; [2014] 6 BLLR 557 (LAC); (2014) 35 ILJ 1971 (LAC) (5 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Case no: JA20/2012
Reportable
In
the matter between:
PALACE
ENGINEERING (PTY)
LTD
Appellant
and
THULANI
NGCOBO
First
Respondent
COMMISSIONER
SHAAM GOVENDOR N.O.
Second respondent
COMMISSIONER
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Third Respondent
Heard:
23 May 2013
Delivered:
05 February 2014
Summary:
Review of arbitration award emanating from dismissal of probationary
employee for poor work performance-
Labour Court substituting
commissioner’s award and finding that the dismissal was
procedurally fair but substantively unfair
Appeal: Reasons for dismissing
probationary employees less onerous but the dismissal must still be
for a fair reason that passes
muster against the entire provisions of
item 8(1) of the Code of Good Practice. Appeal dismissed.
JUDGMENT
MOLEMELA AJA
Introduction
[1]
This is an appeal against the order of the labour Court (Reddy AJ),
which found that
the first respondent’s dismissal was
substantively unfair and ordered the appellant (“employer”)
to pay the first
respondent (“employee”) compensation in
an amount of R300 000,00 plus costs.
[2]
The employee referred an unfair dismissal dispute to the third
respondent (“the
CCMA”), alleging that his dismissal on
the grounds of poor work performance was both procedurally and
substantively unfair.
The dispute was arbitrated by the second
respondent (“the commissioner”) under the auspices of the
third respondent.
The commissioner found that the dismissal was both
procedurally and substantively unfair and awarded the employee
compensation
amounting to R600 000.00, which represented six months’
salary. The employer then applied to the court
a quo
for the
review of the commissioner’s award on the grounds that the
latter had not conducted a balanced and equitable assessment
of all
the evidence, had failed to take material evidence into account and
also failed to correctly apply the law, resulting in
her making a
decision that no reasonable decision-maker could reach. The court
a
quo
found that the employee’s dismissal, although not
procedurally unfair, was substantively unfair and replaced the
commissioner’s
award with one ordering the employer to pay the
employee compensation in the amount of R300 000,00 which represented
three months’
salary, plus costs.
Summary
of salient facts
[3]
On 19 June 2008, the employer employed the employee as a Chief
Operations Engineer
on a three year contract, commencing on 1 July
2008, at a salary of R100 000.00 per month. The employer was in the
business of
consulting and construction-monitoring of projects
involving roads, bridges, housing and water. In terms of the
employment contract,
the employee would be under probation for a
period of six months. The employment contract further stipulated that
during the probation
period, the employee’s performance
progress would be monitored on a monthly basis and if there was no
substantial progress
at the end on the second month, the employer
would review the appointment. The employment contract also contained
a clause setting
a performance target of R100 million per annum for
the employee, inclusive of cost of sales.
[4]
In terms of the employment contract, the key performance area of the
employee was
the securing of new infrastructure projects. Subsequent
to the conclusion of the employment contract, the chairman of the
employer
company, viz Mr Dlamini, indicated that before the employee
could commence his employment, he (employee) first had to submit a
business plan showing how he (the employee) would reach the agreed
upon target of R100 million per year. The employee did not submit
such a business plan. He was subsequently advised not to report for
duty. After intervention of the employee’s attorney,
the
employee reported for duty on the scheduled day for the commencement
of employment, i.e. 1 July 2008. The employer held a meeting
with the
employee and provided him with a document, with the heading “Annexure
“C”, setting out varying monthly
targets that totalled
the agreed upon annual target of R100 million. The employer
instructed the employee to sign Annexure C, which
was to form part of
his employment contract. The employee refused to sign this document
but sent an e-mail in which he agreed that
the amounts reflected on
Annexure C could be used for performance management to assist in
reaching intended targets. In terms of
Annexure C, the total fees to
be generated by the employee for the first three months of employment
was an amount of R1 million
per month, followed by an amount of R4m
per month for the next two months.
[5]
On 15 July, the employee was informed that his first performance
evaluation would
be held on the first of August 2008. Further
performance evaluations were held for the months of August and
September 2008. In
September 2008, a meeting was held during which
the employee’s performance for the month of August was
evaluated. It was
noted that the employee had failed to reach his
monthly targets. After three monthly performance evaluations, an
enquiry pertaining
to poor work performance was held. The chairperson
of the enquiry recommended that the employee be granted time until
March 2009
to achieve a percentage of his target. The employer did
not accept this recommendation and instead gave the employee until
the
end of December 2008 to meet 22% of his annual target. When this
did not materialise, the employee was dismissed.
[6]
It is common cause that the employee’s employment was subject
to probation for
a period of six months. The relevant clauses of the
employment contract stipulated that during the probation period, the
employee
would,
inter alia
, be evaluated on his willingness to
conform to the company ethos, standards and rules.
The
arbitration proceedings
[7]
At the arbitration hearing, the employee conceded that a target of
R100 million per
annum was achievable. He also conceded that by the
time of his dismissal, he had personally only generated an amount of
R375 000.00
for the employer’s company. He testified that the
reason he could not bring any new business to the employer was due to
the
lack of tools of the trade like up to date computer software,
business cards, telephone and fax facilities, office furniture,
operating
budget and a lack of human resources in the form of
engineers. He testified that the afore-mentioned resources would have
assisted
him in reaching his target. He further testified that one of
the factors that hamstrung him in his performance was the fact that
a
tender process could take approximately five months to complete. He
conceded, under cross-examination, that the fact that he
was using an
older version of MS Word programme did not, in itself, prevent him
from bringing in new business. He testified that
his main obstacle
was being provided with additional personnel. Under
cross-examination, he conceded that the lack of tools of
trade
accounted for only 10% of his problems.
[8]
The employer contended that although there were problems with a fixed
telephone line
in the employee’s own office, the employee had
access to other personnel’s offices which had a fixed line and
all the
necessary office equipment. It was also pointed out that if
the employee was not content to use the fixed line in the managing
director’s office, he could have used his personal cellular
phone and then claimed the cost of such calls from the employer,
as
the employment contract made provision for submission of a claim for
a refund in respect of any business use of the employee’s
personal cellular phone. Mr Dlamini testified that the standard
industry practice was only to obtain additional engineers and
technologists once the award of a tender had been obtained. The
employer testified that monthly targets were necessary because the
company would not be sustainable if it allowed the employee to
achieve his annual target only on the last day of the year. The
company needed to generate income that would sustain its operations
throughout the year. The employee was placed on a six month
probation
period so that the company could not be exposed to a risk for the
full term of the contract. As at the time of the arbitration,
no
projects had emanated from the employee’s division at all. The
employer would not have dismissed the employee if he had
failed to
reach his targets but generated reasonable levels of income.
According to the employer, the employee’s monthly
of R100 00.00
per month was based on the employee achieving the annual target that
he agreed to. The employee had represented that
since he was
“well-connected”, he would be able to achieve that
target.
[9]
Under cross-examination, the employee conceded to having drawn up a
business plan
in which he personally reflected his target for the
month of August as R1 million. This was after the employee had become
aware
of the challenges in respect of tools of trade and human
resources. In a subsequent business plan, he again reflected his
target
for the month of September as R1 million.
[10]
In her award, the commissioner found that the lack of tools of trade
and lack of human resources
collectively impacted on the employee’s
performance. She also found that the employer had “failed to
challenge the
applicant’s claim with regards to tools of trade”
She further stated that “the onus was on the employer to
conduct
a due diligence before employing such an expensive employee.”
She also found that the employee’s work was dependant
on
various factors, i.e. available contracts, capacity to apply for
contracts and that the employer’s business lacked the
capacity
to attract big contracts. She further found that the employer was
unconcerned about obtaining a fair outcome to the performance
evaluations that were held.
The
findings of the court a quo
[11]
In its judgment, the court
a quo
considered the employer’s
contention that the employee, being a senior employee, did not need
the degree of regulation or
training that lower skilled employees
required to perform their functions. It also considered the
employer’s submission that
an employer’s duty to avoid a
dismissal of an employee that is not performing to standard is less
onerous when the employee
in question is still under probation. The
court
a quo
found that “whilst the employer may be
afforded some leeway insofar as the reason for the dismissal during
the probationary
period, there remains a duty to effect a
substantively fair dismissal.”
The
appeal
[12]
The basis of the appellant’s appeal is that the court
a quo
erred in finding that there was no justification for interfering with
the commissioner’s finding in respect of substantive
unfairness
of the dismissal. According to the appellant, the commissioner’s
conclusion resulted from her failure to take
material evidence into
account, particularly regarding the fact that the employee was an
experienced senior employee who had agreed
to the targets set for him
by the appellant but failed to achieve them. Furthermore, that the
court
a quo
failed to consider that since the employee was
still within the six month probationary period at the time of his
dismissal, the
grounds for dismissal were less compelling than would
ordinarily be the case of a dismissal that occurred after the
employee had
already completed the probationary period.
Analysis
of arguments
[13]
It was argued on behalf of the employer that the court
a quo
erred in finding that the commissioner’s award warranted no
interference. It was further argued that the court
a quo
erred
in failing to acknowledge the commissioner’s failure to
consider Mr Dlamini and Mr Rashid’s evidence to the effect
that
the employee would not have been dismissed if he had only managed to
generate reasonable levels of income instead of the agreed
target. It
was also contended that the court
a quo
had failed to realise
that there was no legal basis for finding that the employee’s
evidence was more probable than the corroborated
version of the
employer.
[14]
Furthermore the employer argued that the court
a
quo
erred
in finding that “for interference to be justified the
commissioner’s conduct during the proceedings must be so
irregular so as to prevent a fair hearing of the matter”.
Placing reliance on the case of
Herholdt
v Nedbank,
[1]
the employer argued that the court
a
quo
ought to have found that the applicant would have to establish no
more than that the award may (and not would) have been different
if
the commissioner had properly acquitted himself.
[15]
It is trite that a court hearing a review is not called upon to
decide whether the commissioner
acted correctly, but whether the
commissioner committed misconduct, gross irregularity or exceeded his
powers within the meaning
of section 145 of the Labour Relations Act
66 of 1995 (“LRA”). The court in the case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
found that the
question that a court faced with the review of an arbitration award
needs to ask is whether the decision made by
the arbitrator is one
that a reasonable decision-maker could not reach on the available
material. As to what constitutes gross
irregularity, the court in
that case stated the following:
'[W]here
a commissioner fails to have regard to the 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 by s 145(2)(a) (ii) of the
LRA. And the ensuing award falls to be set aside not
because the
result is wrong but because the commissioner has committed a gross
irregularity in the conduct of the arbitration proceedings.'
[16]
The
Sidumo
test
has been aptly restated as follows in a recent judgment of this
court:
[3]
“
Sidumo
does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in
Sidumo
was
at pains to state that arbitration awards made under the Labour
Relations Act
[4]
(LRA) continue
to be determined in terms of s145 of the LRA but that the
constitutional standard of reasonableness is “suffused”
in the application of s145 of the LRA. This implies that an
application for review sought on the grounds of misconduct,
[5]
gross irregularity in the conduct of the arbitration proceedings,
[6]
and/or excess of powers
[7]
will
not lead automatically to a setting aside of the award if any of the
above grounds are found to be present. In other words,
in a case such
as the present, where a gross irregularity in the proceedings is
alleged, the enquiry is not confined to whether
the arbitrator
misconceived the nature of the proceedings, but extends to whether
the result was unreasonable, or put another way,
whether the decision
that the arbitrator arrived at is one that falls in a band of
decisions to which a reasonable decision-maker
could come on the
available material.”
[17]
The court
a quo’
s view that the employer’s
intention from the outset was to dismiss the employee and that he was
set up for failure from the
very beginning of the employment
relationship must be viewed in the context of the conspectus of the
evidence. The following undisputed
evidence is very significant, in
my view. The employee agreed to a target of R100 million per annum
and believed it to be achievable.
This target was set out in Annexure
C and was attached to the employment contract signed in June 2008. On
his first day at the
workplace (1 July 2008) he was required to sign
a document with the heading “Annexure C” (second Annexure
C), which
embodied monthly targets. He refused to sign this document
and pointed out that signing it would be tantamount to signing a new
contract whereas he had already signed a contract embodying the first
Annexure C. He nevertheless agreed that the monthly targets
embodied
in the second Annexure C could be used by the employer for
performance management. Whereas the second Annexure “C”
stipulated the target for July 2008 as R1 million, Mr Dlamini
admitted that he told the employee that he had to generate a fee
of
R2.8 million per week for that month. At the arbitration proceedings,
the employer’s managing director, Mr Rashid, conceded
that such
a target was unrealistic.
[18]
One of the employee’s key performance areas was the acquisition
of new projects totalling
R100 million, especially from
municipalities. In the eight months preceding the employee’s
employment, the employer had not
been awarded any contracts and had
lost business due to lack of capacity. New business from
municipalities was, in the main, acquired
by being awarded a tender.
It took an average of five months for a tender to be awarded. From 25
October 2008, the employer no
longer had a valid tax certificate. All
tenders had to be submitted together with a valid tax certificate. In
order for the employer
to be considered as a company having capacity
to attract big business, it had to have at least three engineers in
its employ.
[19]
The employee emphasised that human resources was the most important
resource he needed. There
were no technologists in the employer’s
employ. While Mr Rashid was a qualified engineer, he was not a
registered engineer
and his role was apparently confined to that of a
managing director in the company. The only other engineer in the
company had
resigned shortly after the employee’s appointment.
The employee further pointed that he was hamstrung in his achievement
of the targets because he lacked tools of the trade. His frustrations
regarding the general administration of the employer’s
company
are evident from the record. Fixed lines were sometimes not
operational due to non-payment of the service provider’s
account. The employee’s evidence that it was a hassle for his
cell phone claim to be processed is undisputed. Under
cross-examination,
he conceded that the lack of the tools of trade
was minor. It accounted for 10% of his challenges and did not in
itself preclude
him from acquiring new business. He pointed out that
apart from tools of trade, he also needed access to a marketing
environment,
an operational budget and human resources. The evidence
that the amount of R2000.00 that the employee personally paid for
tender
documents was not refunded to him is also uncontested.
[20]
It is apposite to refer to the following exchange between the
employee and the employer’s
counsel (Vol 5 p463 line13 - p 468
line 16):-
“
Mr
Cook: No, Mr Ngcobo, what
you are trying to do is make up feeble excuses for your dismal
failure and these are not valid excuses, you had a working cell
phone, your laptop was provided to you, all these excuses are just
excuses. You constantly use this word tools of trade as if it has
some heavy importance, when you break it down it is nothing more
than
feeble excuses. …You were a senior person being paid
R100 000.00 per month, these are not valid reasons
for you
not achieving your targets.
Mr
Ngcobo: I gave you the total package of the
reasons, I did not give you one by one, that is why I put
them
together to say to you for example to go and get a contract you do
not need a cell phone per se but you need human resources,
cell phone
is part of it- they form a minor part for example, you know, but the
biggest issues, that is what I’m trying to
say, that you were
trying to choose- you are trying to separate things that are not
separated, these things are just together.
Mr
Cook:
So
you will concede this is a minor part?
Mr
Ngcobo: No, it is not- as compared to a Human
Resource it is a minor part if you compare them, you know.
Mr
Cook: Now, the Human
Resource element, you heard the evidence of Mr Rashid quite
clearly
that in this business you do not hire 50 engineers and hope to get a
project, you first get the work then you hire the
engineers.
Mr
Ngobo: That is not correct. Mr
Rashid does not even understand the local conditions from
Tanzania,
for example. Mr Dlamini is from Swaziland, both of them are not
nationals- they do not understand the environment we
are working in.
Here in South Africa we have very stringent procedures and
regulations, we do not- corruption although it is here,
we try to- we
do not do those things because we do not first sell a project and
then when you get the money go and buy one, what
you do there you go
and say look I have got a company of attorneys here and I want work
from the government. They will come and
have a look- report there
because they just want to give you work, at least you must have a
basic minimum, not to have 50, at least
you must have three.
Mr
Cook: Let us work on
your analogy there... A firm of attorneys, a one man practice,
they
get approached by a multinational corporation, that multinational
corporation, that firm of attorneys are not going to have
50
attorneys on brief waiting for this contract, when they get the
contract, that attorney who has got the network and the contracts
will then brief the 50 advocates and will do the work, do you
understand that analogy?
Mr
Ngcobo: No, you are putting words in my- let
me be clear to you. It is not 50, I am talking about 3.
Mr
Cook: Well three.
Mr
Ngcobo: Let us for example, for argument’s
sake if you go to the government, Department of public
works or
Department of Homes, you say I want to do these homes here in Market
street, they will ask you how many engineers have
you got, if you say
we do not have an engineer they will not give you the job because I
cannot do it.
Mr
Cook: Are you an
engineer?
Mr
Ngcobo: Yeas, I am.
Mr
Cook: Is Mr Rashid an
engineer?
Mr
Ngcobo: Yes
Mr
Cook: So at the time
you were there how many engineers were there working with
you?
Mr
Ngcobo: Mr Rashid was not working as an
engineer. He was working as…
Mr
Cook: Was he?
Mr
Ngcobo: No, no…
Mr
Cook: Is he an
engineer?
Mr
Ngcobo: He was not employed there as an
engineer.
Mr
Cook: Is he an
engineer?
Mr
Ngobo: Yes, but working as an
engineer, he is not now going to be now the President of South,
I am
there working as the president of the country. What I am trying to
say Mr Rashid was not there as an engineer, he was there
as a
managing director first then he was the head, he was more of a
manager, playing a manager’s role. The same with me,
I was
reporting to him. Under me, I am supposed to have an engineer
reporting to me.
Mr
Cook: Was there no
other engineer who resigned?
Mr
Ngcobo: There is an engineer who resigned.
That is the only engineer who was there.
Mr
Cook: No, no. Was
there another engineer that resigned?
Mr
Ngcobo: Not another one. The only one.
Mr
Cook: No, no, your
interpretation. Mr Rashid is an engineer. You are en engineer
and
there was somebody else that was an engineer.
Mr
Ngcobo: No, no, Mr Rashid was not, never did-
I will tell you why he never did, there are several reasons
for that.
In our profession we do not use engineers to do small jobs, it
becomes too expensive for clients.
Mr
Cook: Now when you…
Mr
Ngcobo: Mr Rashid was there as a manager, a
senior manager.
Mr
Cook: When you joined
the company did you know how many people were working there?
Mr
Ngcobo: Yes, I did ask them so many times. In
fact I asked them several times.
Mr
Cook: And you knew.
Did they lie to you about how many people were…
Mr
Ngcobo: They lied, I only found that when I
went in.
Mr
Cook: What did they
say?
Mr
Ngcobo: They said they had nine engineers.
Mr
Cook: Yes, and this
was put to our witnesses.
Mr
Ngobo: They said they had
nine
engineers and went I went in there was one engineer.” (
sic)
[21]
I am of the view that the evidence adduced at the arbitration hearing
justified the commissioner’s
finding that the employer’s
business was dependant on various factors, including available
contracts and capacity to apply
for contracts and that the shifting
of goal posts, insufficient support staff and lack of tools of trade
collectively impacted
on the employee’s ability to bring in new
projects. The employer’s contention that the court
a quo
placed excessive weight on evidence relating to the employee’s
alleged difficulties in obtaining tenders, arising from an
alleged
lack of human resources and operating and marketing budget is thus
unfounded.
[22]
With regards to probationary employees, Item 8(1)(e) of the Code of
Good Practice: Dismissal
(“the Code”) stipulates that
during the probationary period, the employee's performance should be
assessed and an employer
should give an employee reasonable
evaluation, instruction, training, guidance or counselling in order
to allow the employee to
render a satisfactory service. Item 8(1)(h)
of the Code enjoins the employer to dismiss an employee or extend the
probationary
period only after the employer has invited the employee
to make representations and has considered any representations made.
Item
8(1)(j) of the Code provides that ‘any person making a
decision about the fairness of a dismissal of an employee for poor
work performance during or on the expiry of the probationary period
ought to accept reasons for dismissal that may be less compelling
than would be the case in dismissals effected after the completion of
the probationary period.’
[23]
The conspectus of the record shows that the performance appraisals
that were held by the employer
deviated from the norm. While the
employee’s employment contract stipulated 12 key
performance/evaluation areas, his alleged
non-performance was based
on the assessment of only one key performance area, i.e. the
achievement of the set target. The employee
had complained about the
format of the evaluation form, pointing out that it did not make
provision for the listing of the aspects
that he considered to be
hampering his performance and was not measurable. Notwithstanding the
recommendations of the chairperson
of the hearing that was held in
October 2008, the employer did not change the format. The latter’s
recommendation that a
third person should be involved in such
evaluations fell on deaf ears. Only Mr Dlamini was invited to observe
the process. It is
clear from this evidence that the performance
evaluations conducted by the employer do not qualify as reasonable
evaluations intended
to allow an employee an opportunity to render a
satisfactory service as contemplated in item 8(1)(e) of the Code of
Good Practice.
Neither did the employer pay any serious consideration
to the representations made by the employee at the enquiry that
investigated
his alleged poor performance.
[24]
Although a senior employee is indeed expected to be able to assess
whether he is performing according
to standard and accordingly does
not need the degree of regulation or training that lower skilled
employees require in order to
perform their functions, an employer is
not absolved from providing such an employee with resources that are
essential for the
achievement of the required standard or set
targets. The acceptance of less compelling reasons for dismissal in
respect of a probationary
employee as contemplated in item 8(1)(j) of
the Code does not, in my view, detract from the trite principle that
the dismissal
must be for a fair reason. Even though less onerous
reasons can be accepted for dismissing a probationary employee, the
fairness
of such reasons still needs to be tested against the
stipulations of item 8(1)(a)-(h) of the Code of Good Practice. At the
end
of the day, the
onus
rested on the employer to prove that
the dismissal was substantively fair. The conspectus of the evidence
proved the opposite,
that the dismissal was substantively unfair.
[25]
I am satisfied that the court
a quo’
s remark that “the
perpetual changing of targets and the refusal to provide the employee
with an efficient office in all probability
were meant to frustrate
the employee’s future in the company…” was not
unfounded and has been borne out by the
evidence which amply
demonstrates an acrimonious relationship. It is evident from the
commissioner’s award and the court
a quo’
s
findings that the employee’s failure to achieve targets was
attributed to the employer. The court
a quo
correctly accepted
that the employee’s access to contacts was thwarted by the
numerous challenges he faced. Under such circumstances,
he could not
be expected to reach the monthly targets that he agreed to be
evaluated upon.
[26]
The employer made much of the fact that the court
a quo
disregarded Mr Dlamini and Mr Rashid’s evidence that the
employer would not have dismissed the employee if he had generated
“reasonable levels of income”. This evidence cannot be
considered in isolation and must be viewed against the whole
conspectus. In my view, this evidence is simply improbable,
considering that despite the challenges highlighted by the employee
at the poor performance enquiry held in October 2008, the employer
disregarded the chairperson’s recommendations and continued
to
expect him to generate 22% of the annual target by 11 December 2008,
which was significantly higher than the R13 million total
fees for
July-December 2008 as indicated in Annexure “C”.
Furthermore, given the damning, undisputed evidence canvassed
in
paragraph 17 - 20 above, I cannot agree with the employer’s
contention that there was no basis for preferring the employee’s
version.
[27]
I do agree that the court
a quo
’s comment (that “there
is much to be said against companies that are awarded tenders but do
not have the capacity to
fulfil the tender mandate due to lack of
resources, the result being that work is outsourced to other skilled
entities and the
initial cost of the project is increased which the
tax payer bears”) was not supported by any evidence. This
unjustified
comment was clearly made in passing and does not, in my
view, constitute a reviewable irregularity.
[28]
Having considered all the afore-mentioned circumstances, I cannot
agree with the contention that
the arbitration award does not account
for all the evidence that was adduced or that the court
a quo
erred by placing too much emphasis on certain aspects of evidence. In
my view, the commissioner’s decision falls within the
range of
decisions that a reasonable decision-maker could reach. The court
a
quo’
s finding that the award pertaining to substantive
fairness warranted no interference is correct. Consequently, I am of
the view
that the appeal ought to be dismissed. There is no reason to
depart from the general rule that costs must follow the result. I
would therefore make the following order:
Order
[29]
The appeal is dismissed with costs.
________________
Molemela AJA
Acting Judge
of the Labour Appeal Court
I
concur.
______________
Waglay JP
Judge
President of the Labour Appeal Court
I
concur.
_________________
Francis AJA
Acting Judge
of the Labour Appeal Court
APPEARANCES
:
FOR
THE APPELLANT:
Mr
A L Cook
Instructed
by Fullard Mayer & Morrison Inc
FOR
THE FIRST RESPONDENT:
Mr P J L Venter
Instructed
by L J de Jager Attorneys
[1]
(2012) 33 ILJ
1789 (LAC).
[2]
(2007) 28 ILJ 2405
(CC);
[2007] 12 BLLR 1097
(CC) at para 268.
[3]
Goldfields
Mining
South Africa (Pty) Ltd (Kloof Gold Mine)
v
CCMA
and
Others
unreported case No JA2/12 (4 November 2013) at para 14.
[4]
66 of 1995.
[5]
S145(2)(a)(i) of the LRA.
[6]
S145(2)(a)(ii) of the LRA.
[7]
S145(2)(a)(iii) of the LRA.