About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 3
|
|
Independent Municipal And Allied Trade Union and Another v City of Johannesburg Metropolitan Municipality and Others (JA49/2013) [2014] ZALAC 3; [2014] 6 BLLR 545 (LAC) (4 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA49/2013
Not Reportable
In the matter between:
INDEPENDENT MUNICIPAL
AND
ALLIED First
Appellant
TRADE UNION
CHRISTIAN
LESOLANG Second
Appellant
and
CITY OF JOHANNESBURG
METROPOLITAN First
Respondent
MUNICIPALITY
THE SOUTH AFRICAN
LOCALGOVERNMENT
BARGAINING
COUNCIL Second
Respondent
ZARINA WANELE NO
Third
Respondent
Heard:
19 November 2013
Delivered:
04 March 2014
Summary:
Jurisdiction- reviewing court entitled to raise
mero motu
the
jurisdiction of the council or CCMA. Dismissal- fixed terms contract-
employer notifying employee of the date of termination
of his fixed
terms contract- employee referring dismissal dispute- notification
not dismissal- referral premature- council lacking
jurisdiction-
employee receiving bursary from employer beyond contract- bursary not
extending contract- no reasonable expectation
of renewal-
appeal dismissed with costs
CORAM: WAGLAY JP,
et
C J MUSI
et
FRANCIS AJJA
JUDGMENT
C J MUSI AJA
[1]
This is an appeal against the judgment of the Labour Court (Edmonds
AJ). The appeal is with the leave of the Labour Court.
[2]
The second appellant (Mr Christian Lesolang, “the employee”)
was employed by the first respondent (City of Johannesburg,
Metropolitan Municipality “the municipality”) from 13
December 2004 on a fixed term contract for a period of five years.
The contract was therefore supposed to terminate on 31 December 2009
but it was erroneously recorded that it will terminate on
31 December
2010.
[3]
The employee initially, for a period of two years, worked as an
office manager in the office of the executive head but was
subsequently moved to the ethics and discipline unit.
[4]
On 24 February 2009, the municipality and the employee entered into a
memorandum of Agreement (Subsidised Education for Council
Employers).
In terms of this agreement, the municipality would render financial
assistance to the employee during his studies towards
a two year
diploma in Labour Law. It is common cause that the qualification
would be obtained through block-release studies. The
parties agreed
that:
‘
4.2
In the event of the qualification being a Block-Release Course, i.e.
a qualification in respect
of which the Institution requires the
employee to attend lectures or to undertake practical work or to
attend practical demonstrations
during working hours for a total
period in excess of 3 (three) months during a year, irrespective of
whether or not the employee
obtains the qualification, he/she
undertakes not to leave the employee of the council as follows:
4.2.1
for a period of 1 (one) year in respect of each year in which
examination, study or special study leave
of up to and including 26
weeks in the year was granted, and...’
[5] They further agreed
that if the employee is suspended or abandoned his studies or failed
any course required for the obtainment
of the qualification for two
consecutive years or be refused permission, by the institution, to
continue his studies, he would
be obliged to repay the municipality
the full amount of the financial assistance granted. The employee
commenced his studies in
February 2009. He would therefore have
completed it in February 2011.
[6] Pursuant to a letter
dated 10 February 2009, Mr Netsianda, the Senior HR Manager: Human
Resource Emergency Management Services
of the municipality wrote the
following letter to the employee on 12 May 2009.
‘
The
letter dated 10 February 2009 refers. Kindly take note that I
have done some investigation regarding the termination date
of your
contract. I can confirm that the termination date stipulated in
your contract is 31 December 2010. However
it should have been
a typing error which happened during the time your FTC contract was
compiled (sic). The City does not
offer an FTC contract which
is for a period of six years. It should be noted that the SAP
print-out confirms that you were
employed on FTC as from 13 December
2004 and your contract terminated on the 12 December 2009.
Secondly, your appointment
letter dated 13 December 2004 indicates
that you are appointed on a Fixed Term five year contract as from the
13 December 2004
(sic). In view of the above evidence it should
be noted that your contract will terminate on the 12 December 2009
(sic).
The position will be advertised and you are welcome to apply
and compete should you desire to do so...’
[7] On 6 July 2009, the
employee referred an unfair dismissal dispute to the South African
Local Government Bargaining Council (second
respondent). He alleged
that the dispute arose on 12 May 2009 but that he was dismissed in
writing on 12 December 2009. The facts
of the dispute, according to
him, were that the contract was terminated before the termination
date.
[8] Conciliation failed
and the employee subsequently referred the dispute to arbitration.
[9] During the
arbitration proceedings the employee, who was the only witness,
testified that when he was moved to the ethics and
discipline unit he
was offered a new five year contract by the Director: Corporate
Services, which he accepted. His contract would
therefore have ended
in 2011 and not 2009.
[10] He also testified
that because he would complete his studies in 2011, he was, in terms
of the subsidised education agreement,
obliged to work an additional
two years for the municipality. His contract would therefore only
terminate in 2013.
[11] When he received the
letter dated 12 May 2009, he regarded it as a letter of termination
because it altered his contract of
employment to end during December
2009 instead of December 2010 as per the original contract. He had a
meeting with Mr Netsianda,
the author of the letter, who informed him
that his contract was for five years and not six years. He
demonstrated and told Netsianda
that it was normal for him to assume
that his contract was for six years. He also indicated to Netsianda
that he was obliged to
work for the municipality for two years after
completing his studies. He was told that the municipality sent him to
school he must
see it as an advantage which he should “take and
run.”
[12] The arbitrator found
that the contract of employment expressly stated that it was for five
years and destined to terminate
at the end of 2009 and not 2010 as
alleged by the employee. She found that the employee failed to prove
that a second contract
of employment was entered into when he moved
to the ethics and discipline unit. She however found that the
municipality created
a reasonable expectation of renewal when the
employee was granted a study subsidy that obliged him to remain in
employment of the
municipality for two years, after the completion of
his studies. She was of the view that the municipality’s
conduct, by
not renewing the contract of employment, fell within the
definition of a dismissal. She concluded that the employee’s
dismissal
was substantively and procedurally unfair.
[13] In terms of relief,
she was of the view that the employee would have studied for two
years (2009 – 2011) and would thereafter
have to work for two
years for the municipality (2011 – 2013).
[14] She issued an award
to the effect
inter alia
that the municipality must reinstates
the employee from 1 January 2010 and she extended the employee’s
contract of employment
until 28 February 2013. She also awarded the
employee back-pay to the amount of R44 564,24. The employee
subsequently on 6
May 2010, applied for the variation of the monetary
award from R44 564,24 to R131 216,99. The outcome of that
application
is unknown. In his answering affidavit, in the review
proceedings, he requested that the arbitration award be made an order
of
court subject to the variation of the monetary award.
[15] The municipality,
being dissatisfied with the award, launched a review application
wherein it challenged the arbitrator’s
findings that there was
a dismissal. Although it did not challenge the second respondent’s
jurisdiction to adjudicate the
dispute, the court
a quo mero motu
considered whether the second respondent had the necessary
vires
and concluded that it did not.
[16] The employee and the
first appellant (The Independent Municipal and Allied Trade Union
(IMATU)) took a point
in limine
to the effect that the review
application should be dismissed because it was brought in terms of
section 158(1)(g) instead of section
145 of the Labour Relations Act
66 of 1995 (the “Act”).
[17] The court
a quo
found that the review was properly before it in terms of section
158(1)(g) of the Act and therefore dismissed the point
in limine
.
[18]
The court
a
quo
found that the letter dated 12 May 2009 did not constitute notice of
termination as it was not necessary for the municipality to
give such
notice in terms of the contract. The court
a
quo
also found
en
passant
,
that if the letter dated 12 May 2009 constituted notice then the
employee was supposed to refer the dispute within 30 days thereafter
to the second respondent. It was only referred on 6 July 2009, which
is in excess of the 30 day period and therefore out of time.
The
second respondent could only adjudicate the dispute if the
application for condonation in terms of section 191(2) was granted.
In the absence of such application the second respondent did not have
jurisdiction to adjudicate the dispute.
[1]
The court
a
quo
also
found that the employee stated that his dismissal was to take place
on 12 December 2009, when he referred the dispute on 6
July 2009. The
court
a
quo
was of the view that the referral was premature and the second
respondent, for that reason too, had no jurisdiction to adjudicate
the dispute.
[19] The two appellants
challenged the court
a quo
’s findings on various
grounds. They submitted that the municipality brought the review, in
the court
a quo,
in terms of section 158(1)(g) of the Act
whereas it was supposed to utilize the provisions of section 145 of
the Act. According
to them the review application should have been
dismissed for this reason alone. They also contended that the court
a
quo
’s determination that the dispute referral was premature
is erroneous. According to them, the premature referral was not part
of the municipality’s case, and in any event so they argued,
the certificate of non-resolution having been issued the second
respondent had jurisdiction. It was further argued that the finding
that the dispute could not be adjudicated because of the late
referral was also erroneous.
[20]
Section 158(1)(g) of the Act states that the Labour Court may subject
to section 145, review the performance or purported performance
of
any function provided for in this Act on any grounds that are
permissible in law.
[2]
Section
51(8) of the Act provides that “unless otherwise agreed to in a
collective agreement, sections 142A and 143 to 146
apply to any
arbitration conducted under the auspices of a bargaining council”.
[21] The appellants
argued that there is no collective agreement governing this issue,
therefore the municipality was obliged to
bring the review in terms
of section 145. In my view the argument is without any force.
[22] Section 51(8) only
makes the sections mentioned therein applicable to arbitrations which
are conducted under the auspices of
a bargaining council. It does not
mean that all arbitrations conducted under the auspices of a
bargaining council should only be
reviewed in terms of section 145.
In terms of the last mentioned section any party to a dispute who
alleges a defect in any arbitration
proceedings under the auspices of
the Commission may apply to the Labour Court for an order setting
aside the arbitration award.
This section, therefore, only deals with
arbitration awards issued under the auspices of the Commission.
Section 51(8) seeks to
make section 145 applicable to awards issued
under the auspices of a bargaining council as well.
[23] An arbitration
conducted under the auspices of a bargaining council is a function
provided for in the Act. In terms of section
127 bargaining councils
are accredited by the commission to conciliate and where the Act
requires it, to arbitrate disputes.
[24] A section 158(1)(g)
review is permissible subject to section 145. The phrase “subject
to” was considered in
S v Marwane,
where Miller JA,
writing for the majority, stated that:
‘
The
words ‘subject to the provisions of this Consitution’ in
s 93 (1) of the Constitution clearly govern the provision
that laws
in operation immediately prior to the commencement of the
Constitution are to continue in operation. The purpose of the
phrase
‘subject to’ in such a context is to establish what is
dominant and what subordinate or sub-servient; that to
which a
provision is ‘subject’ is dominant- in case of a conflict
it prevails over that which is subject to it.
Certainly, in the
field of legislation, the phrase has this clear and accepted
connotation. When the legislator wishes to
convey that which is
now being enacted is not to prevail in circumstances where it
conflicts, or is inconsistent or incompatible,
with a specified other
enactment, it very frequently, if not almost invariably, qualifies
such enactment by the method of declaring
it to be ‘subject to’
the other specified one. As Megarry J observed in
C
and J Clark v Inland Revenue Commissioners
(1973) 2 All ER 513
at 520:
‘
In
my judgment, the phrase ‘subject to’ is a simple
provision which merely subjects the provisions of the subject
subsections
to the provisions of the master subsections. When there
is no clash, the phrase does nothing: if there is collision, the
phrase
shows what is to prevail. See also
Rennie
NO v Gordon and Another NO
1988
(1) SA 1
(AD) at 21D-G.’
[3]
In this matter there is
no conflict because the review was brought within the time stipulated
in section 145 and based on the review
grounds stipulated therein.
[25]
It has been said that in terms of section 158(1)(g) the Labour Court
is given power, despite section 145, to review the performance
or
purported performance of any function provided for in the Act.
[4]
I agree.
[26]
Although the lack of jurisdiction was not one of the municipality’s
grounds of review, the court
a
quo
was entitled to consider this issue
mero
motu
.
The court
a
quo
had to be satisfied that on the objective facts, the second
respondent had jurisdiction to adjudicate the matter.
[5]
The second respondent had or it did not have jurisdiction, as a
matter of law, to adjudicate the dispute. In
CUSA
v Tao Ying Metal Industries and Others,
it was said that:
‘
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged
mero
motu
,
to raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on an
incorrect
application of the law. That would infringe the principle of
legality.’
[6]
[26] The court
a quo
as stated above, found that the employee referred his dismissal
dispute on 6 July 2009 alleging that his dismissal was to take
place
on 12 December 2009. The court
a quo
found that the referral
was premature and the second respondent therefore lacked jurisdiction
to hear the matter because there
was no dismissal at the time of the
referral.
[27]
The court
a
quo
adopted a very strict approach to determine this issue. It did not
endeavour to ascertain what the true dispute was, considering
the
history of the matter.
[7]
I do
not blame the court
a
quo
because the appellants’ case, on the papers and evidence, is
difficult to understand.
[28] I agree with the
court
a quo
that on the one interpretation of the referral and
evidence, it is clear that the employee referred the dispute
prematurely without
there being a dismissal, because he was of the
view that his contract will be terminated in December 2009 whilst his
contract was
only destined to terminate in December 2010. It is for
that reason that he indicated that the outcome he required was
“contract
to continue as per contract” and that he will
be dismissed on 12 December 2009. His summary of the facts of the
dispute that
“contract terminated before end date as per
contract” is also indicative of the fact that he viewed
December 2010 as
the termination date of his contract of employment.
[29] The employee,
however, also endeavoured to use the existence of the subsidised
education agreement to indicate that the contract
of employment was
varied and secondly that the letter dated 12 May 2009 constituted a
notice that his contract will not be renewed.
His case was therefore
also based on the fact that he was dismissed because the municipality
did not review the fixed term contract
when he reasonably expected it
to renew it.
[30] In terms of section
186(1)(b) of the Act, a dismissal means that an employee reasonably
expected the employer to renew a fixed
term contract of employment on
the same or similar terms but the employer offered to renew it on
less favourable terms or did not
renew it.
[30] Section 190(2) which
determines the date of dismissal in section 186(1)(b) situations
provides that if an employer has offered
to renew on less favourable
terms, or has failed to renew a fixed term contract of employment,
the date of the dismissal is the
date on which the employer offered
the less favourable term or date on which the employer notified the
employer of the intention
not to review the contract.
[31] On the totality of
the evidence, it is clear that the employee regarded the letter of 12
May 2009 as notification of the municipality’s
intention not to
renew the fixed term contract.
[32]
The employee bears the
onus
to establish that he was dismissed.
[8]
He must therefore prove on a balance of probabilities that he
reasonably expected his employer to renew the fixed term contract
of
employment on the same terms and that the employer refused to do so.
The employee had to adduce evidence which, objectively
considered,
established a reasonable expectation. The test to establish the
reasonableness of the expectation is an objective one.
In
SA
Rugby Players Association & Others v SA Rugby (Pty) Ltd &
Others; SA Rugby (Pty) Ltd v SA Rugby Players Union and Another
the test was formulated thus: would a reasonable employee in the
circumstances prevailing at the time have expected the employer
to
renew his or her fixed term contract on the same or similar terms.
[9]
[33] It goes without
saying that if the employee laboured under an unreasonable,
unjustified or far-fetched expectation, section
186(1)(b) would be of
no assistance to him/her. Likewise the expectation must relate to the
renewal of the employment contract
and not based on a wrong
assumption that another contract or instrument has varied the
employment contract and thereby extended
or renewed it.
[34]
When assessing whether an expectation is reasonable all the
surrounding facts and circumstances should be considered including
the terms of the contract of employment, promises made by the
employer – regardless of contractual terms which gainsay what
the employer promised and the general conduct of the parties.
[10]
[35] In my view the
employee did not succeed in proving that he was dismissed. I
say so because the letter of 12 May 2009,
properly contextualised,
did not constitute and was not intended to constitute a notice that
the contract will not be renewed.
The letter was clearly written
after the discrepancy relating to the dates came to light and because
the employee was of the view
that his contract of employment will
terminate, by effluxion of time, in 2010 and not 2009. Netsianda went
and investigated the
whole matter and reported his findings to the
employee. Having informed him what the true state of affairs were he
informed him
what the consequences of the fixed term contract were.
This is clear because he states: “In view of the above evidence
it
should be noted that your contract will terminate on the 12
December 2009 (sic)...”
[36] In my view, it would
be far-fetched and absurd to read more into the letter than what is
clearly stated herein. The fact that
the letter states that the
position will be advertised and that the employee would be welcome to
apply therefore, after the termination
of his contract, should he
desire to do so, is also of no moment. It is just an explanation as
to what would happen after the termination
of the employee’s
contract. The employee’s contention that the explanation or
clarification constitutes the act of
dismissal is absurd. If it is
upheld it would mean that an employee’s engagement on a fixed
term contract and his/her dismissal
will always coincide if the
employer, on the day of engagement, explains to the employee what
would happen at the end of the contract.
[37] There is no evidence
that the municipality considered and decided against the renewal of
the employee’s contract. There
is likewise no evidence that his
contract was reviewed by the municipality. His contract in any event
clearly states that it shall
endure for five years and terminate
automatically when that period lapses. Clause 3.3.1 of the contract
of employment also clearly
states that the failure to review or
extend the contract period shall not constitute a dismissal. There
was no need or obligation
to give him any notice of termination.
[38] In my view, the
wrong termination date that appeared, on the contract
viz
31
December 2010 instead of 31 December 2009, could also not give rise
to a reasonable expectation that his contract would be extended
to 31
December 2010. The contract is clear that it shall endure for five
years only and terminate automatically. In any event a
patent error
cannot in my view give rise to a reasonable expectation.
[39] Did the
municipality, by entering into the subsidised education agreement
with the employee, create a reasonable expectation
that his contract
would be extended or renewed? Allied to this question is the question
whether the subsidised education agreement
varied the employment
contract. I deal with the second question first.
[40] The contract of
employment contains a clause governing variations, which reads as
follows:
“
Except
by resolution of the Municipal Council, no variation, modification or
waiver of any provision of this agreement, or consent
to any
departure there from, shall in any way be of any force or effect
unless confirmed in writing and signed by the parties and
then such
variation, unification, waiver or consent shall be effective only in
the specific instance and for the purpose and to
the extent for which
it was made or given.”
[41] The subsidised
education agreement is not and was never intended to be a variation
of the contract of employment. The subsidised
education agreement is
a benefit that the municipality gave to all its employees who
qualified therefor. Qualifying employees who
make use of the benefit
incur certain obligations. The fact that an employee made use of the
benefit does not
ipso facto
mean that his/her employment
contract is varied or extended; neither does it mean that the
municipality is obliged to retain the
employee in its employ, beyond
the clear stipulations of the employment contract.
[42] According to the
appellants, there is, by virtue of the subsidised education
agreement, an inferred obligation on the municipality
to keep the
employee in its employ. This is a senseless argument. If this was so,
it would mean that the subsidised education contract
would be the
basis of the employment relationship and trump the contract of
employment. This, in turn, would mean that the employee
will
practically be immune to discipline and dismissal during that period.
That cannot be. The subsidised education contract is
a separate and
distinct benefit that the employee gets by virtue of the existence of
an employer-employee relationship which is
governed by the contract
of employment. In my view the subsidised education agreement did not
vary the contract of employment.
[43] The argument that
the subsidised education agreement gave the employee a reasonable
expectation that his contract would be
extended until 2013 is
unsound. The employee’s case is that there was a failure to
renew the contract whereas he had a reasonable
expectation that it
would be renewed. There was no evidence whatsoever that there was an
expectation created by the municipality
that the contract of
employment would be renewed.
[44] The employee’s
entire case was based on the subsidised education agreement that has
no bearing on the contract of employment.
A failure to renew a
contract presupposes a failure to renew the contract of employment on
the same terms and conditions as previously
enjoyed. That was not the
employee’s case. His case was that his contract of employment
was extended to 2013 by the subsidised
education contract. That in my
view is totally misplaced and wrong. The appellants failed, on all
permutations of their case, to
prove that there was a dismissal.
[45] My conclusion
renders it necessary to decide, in this matter, whether a certificate
of non-resolution gives the CCMA or Bargaining
Council jurisdiction
to arbitrate a dispute. That point was also not the reason why the
court
a quo
found that the Bargaining Council had no
jurisdiction to adjudicate the matter.
[46 It is axiomatic that
there was no need, in view of its finding, for the court
a quo
to consider the request that the arbitration award should be varied.
[47] In my view, the
requirements of the law and fairness dictate that a costs order be
made in this matter.
[48] I accordingly make
the following order:
a.
The appeal is dismissed.
b.
The appellants are ordered to pay
the first respondent’s costs jointly and severally, the one
paying the other to be absolved.
______________
C J Musi AJA
Waglay JP and Francis AJA
concurred with the judgment of Musi AJA.
APPEARANCES
FOR THE APPLICANTS:
Adv Van Staden
Instructed by Savage
Jooste & Adams Pretoria
FOR THE FIRST
RESPONDENT:
Adv Redding SC
Instructed by Norton Rose
Buth Africa Sandton
[1]
Section
191
of the
Labour Relations Act 66 of 1995
reads as follows:
“
(1)
(a) If there is a dispute about the fairness of a dismissal, or a
dispute about an unfair labour practice, the dismissed employee
or
the employee alleging the unfair labour practice may refer the
dispute in writing to-
(i)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii)
the Commission, if no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within-
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer making a final decision
to dismiss or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is
a later date,
within 90 days of the date on which the employee became aware of the
act or occurrence.
[Sub-s.
(1) substituted by
s. 46
(b) of Act 12 of 2002.]
(2)
If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after
the
relevant time limit in subsection (1) has expired.
[Sub-s.
(2) substituted by s. 46 (c) of Act 12 of 2002.]
(2A)
Subject to subsections (1) and (2), an employee whose contract of
employment is terminated by notice, may refer the dispute
to the
council or the Commission once the employee has received that
notice.
[Sub-s.
(2A) inserted by s. 46 (d) of Act 12 of 2002.]
(3)
The employee must satisfy the council or the Commission that a copy
of the referral has been served on the employer..
53
See flow diagrams 10, 11, 12 and 13 in Schedule 4
53
See flow diagrams 10, 11, 12 and 13 in Schedule 4.”
[2]
Section
145 of the Act reads as follows:
“
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply
to the
Labour Court for an order setting aside the arbitration award-
(a)
within six weeks of the date that the award was served on the
applicant, unless the alleged defect involves the
commission of an
offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so
far as it relates to the aforementioned offences)
of Chapter 2 of
the
Prevention and Combating of Corrupt Activities Act, 2004
; or
[Para.
(a) substituted by
s. 36
(1) of Act 12 of 2004.]
(b)
if the alleged defect involves an offence referred to in paragraph
(a), within six weeks of the date that the
applicant discovers such
offence.
[Para.
(b) substituted by s. 36 (1) of Act 12 of 2004.]
(1A)
The Labour Court may on good cause shown condone the late filing of
an application in terms of subsection (1).
[Sub-s.
(1A) inserted by s. 34 of Act 12 of 2002.]
(2)
A defect referred to in subsection (1), means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner
as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner's powers; or
(b)
that an award has been improperly obtained.
(3)
The Labour Court may stay the enforcement of the award pending its
decision.
(4)
If the award is set aside, the Labour Court may-
(a)
determine the dispute in the manner it considers appropriate; or
(b)
make any order it considers appropriate about the procedures to be
followed to determine the dispute.”
[3]
1982
(3) SA 717
(A) at 747G – 748A.
[4]
See
Reddy
v Kwa-Zulu Natal Department of Education and Culture
[2003] 7 BLLR 661
(LAC) at para [17].
[5]
See
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v SA Rugby Players Association
(2008)
28 ILJ 2218 (LAC).
[6]
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at para
[68]
.
[7]
National
Union of Metalworkers of South Africa v Bader Bop (Pty) Ltd and
Another
[2002] ZACC 30
;
2003
(3) SA 513
(CC) at para 52.
[8]
See
section 192(1) of the Act.
[9]
(2008)
29 ILJ 2218 (LAC) at para 44.
[10]
See
Mediterranean
Woollen Mills (Pty) Ltd v South African Clothing and Textile
Worker’s Union
1988
(2) SA 1099
(SCA).