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[2014] ZALAC 121
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Independent Municipal and Allied Trade Union & Another v City of Johannesburg Metropolitan Municipality & Others (JA49/2013) [2014] ZALAC 121 (4 March 2014)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Not Reportable
Case no: JA49/2013
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).