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[2015] ZALAC 20
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Western Platinum Refinery Ltd v Hlebela and Others (JA32/2014) [2015] ZALAC 20; [2015] 9 BLLR 940 (LAC); (2015) 36 ILJ 2280 (LAC) (3 June 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
JA 32/2014
WESTERN PLATINUM
REFINERY
LTD
Appellant
and
HLEBELA,
ARNOLD
First Respondent
VAN WYK,
NO
Second
Respondent
CCMA
Third Respondent
Heard:
07 May 2015
Delivered:
03 June 2015
Summary: Review of
arbitration award – principle of derivative misconduct
reconsidered – employee under a duty of good
faith to disclose
knowledge of employee/s responsible of wrongdoing towards employer –
employee failing to discharge his
duty committing misconduct
–employee may be dismissed if employee fails to disclose actual
knowledge of relevant information.
Employee dismissed for not
disclosure of his personal financial information which employer
suspected would implicate him in irregular
wealth acquisition sourced
from culpable involvement in wrongdoing against the employer ie, the
theft of platinum from the employer
– personal financial
information is not information of wrongdoing– such information
is not knowledge about the
theft – an appropriate way to
discipline an employee for non-dislosure of actual knowledge of
wrongdoing towards employer
is to charge employee with breach of a
duty of good faith, alleging the actual knowledge relied upon and
that non- disclosure is
culpable
Cross- appeal on
remedy – Labour Court refusing reinstatement and ordering
compensation because employee dishonest –
such factual finding
not borne out by the evidence – Labour Court judgment partially
upheld and substituted with an order
to the effect that the employee
is reinstated with full benefit and back pay.
Coram:
Landman, Sutherland JJA and
Mngqubisa-Thusi AJA
JUDGMENT
SUTHERLAND JA
Introduction
[1]
In this matter, an Arbitrator held that the
dismissal of the first respondent, Arnold Hlebela by the appellant
employer was fair.
A review of the award brought by Hlebela resulted
in the Labour Court reversing that finding and declaring that the
dismissal was
substantively unfair, but further finding that
reinstatement was inappropriate, whereupon compensation equivalent to
12 months’
wages was granted. The appellant has appealed
against the decision setting aside the award, and, Hlebela, in turn,
has cross-appealed
against the compensation order, seeking a
substituted order of reinstatement.
[2]
On review, the sole real issue was the
substantive fairness of a conviction of misconduct allegedly
perpetrated by Hlebela. The
misconduct for which he was dismissed was
framed as:
‘
It
is alleged that you have knowledge of the enormous losses of PMGS at
PMR but you have made no full and frank disclosure to PMR
about what
you know that could assist PMR in its investigations herein.’
The
reference to PMR means the employer, and PMG is a reference to
“Platinum Group Metals”, a short-hand term from several
related precious metals, which it is the business of the appellant to
refine. The “losses” refer to unexplained losses
of stock
over several years.
[3]
Hlebala had initially been charged and
tried in a disciplinary enquiry on an additional charge of culpable
participation in the
theft of PMGs. On this charge, he had been
acquitted for lack of evidence.
The nature of the
charge
[4]
Before addressing the facts, it is
appropriate to deal first with the concept of “derivative
misconduct” alluded to
in the award and in the judgment on
review, and in particular, the non-disclosure species of that
concept, because, as shall be
made plain, serious confusion existed
among those responsible for instituting the disciplinary process
about the concept and how
to apply it appropriately.
[5]
The
phrases “derived justification” and “derived
violation of trust and confidence” were
coined
by Cameron JA (as then he was in the LAC) in
Chauke
and Others v Lee Service Centre CC t/a Leeson Motors
(
Leeson
Motors
).
[1]
Later, the label “derivative misconduct” has tended
to prevail in several awards given in the CCMA and was used
in the
judgment of Pillay J in
RSA
Geological Services (A Division of De Beers) v Grogan N.O (RSA
Geological Services
)
[2]
.
a review of an award reported
as
NUM and 7 Others v RSA Geological Services (A Division of De
Beers).
[3]
[6]
In
Leeson
Motors
, the critical issue was the
reliable identification of the persons who committed several acts of
sabotage over a period of time.
The management were unable to
pinpoint the culprits. A request to the staff to disclose information
pointing towards the perpetrators
drew no response. Eventually, an
ultimatum was issued that any further sabotage in respect of which
the individual culprits remained
unidentified would result in the
dismissal of all. So it came to pass. The dismissal was upheld in the
Industrial Court and on
appeal. On the facts, the Labour Appeal Court
held that it was properly to be inferred that the 20 workers were all
culpably involved
in the “primary misconduct”, ie the
actual acts of sabotage. By this, I understand the judgment to mean
that the evidence
did not warrant a conclusion that each and every
worker physically sabotaged a vehicle in the workshop, but that all
had associated
themselves with the sabotage; an instance of common
purpose.
[7]
In an
obiter
observation, the court addressed the generic dilemma which confronts
an employer faced with clear evidence of misconduct, but is
unable to
identify the specific culprits. Upon the premise that to tolerate
such a problem by inaction was itself intolerable,
the court
recognised the propriety of an employer addressing the dilemma based
either on the operational needs of the business
or based on
misconduct. Cameron JA then stated:
‘
[31]
In the second category [ie misconduct cases], two lines of
justification for a fair dismissal may be postulated.
The
first is that a worker in the group which includes the perpetrators
may be under a duty to assist management in bringing the
guilty to
book. Where a worker has or may reasonably be supposed to have
information concerning the guilty, his or her failure
to come forward
with the information may itself amount to misconduct.
The
relationship between employer and employee is in its essentials one
of trust and confidence, and, even at common law, conduct
clearly
inconsistent with that essential warranted termination of employment
(
Council
for Scientific & Industrial Research v Fijen
(1996)
17 ILJ 18 (A)
at
26D-E). Failure to assist an employer in bringing the guilty to book
violates this duty and may itself justify dismissal.
[32]
This rationale was suggested, without being decided, in
Food
& Allied Workers Union & others v Amalgamated Beverage
Industries Ltd
(1994)
15 ILJ 1057 (LAC)
(
FAWU
v ABI)
.
There a large group of workers had assaulted a 'scab' driver, leaving
him severely injured. The company was unable to prove which
of those
present at the workplace at the time actually perpetrated the
assault. All those who had clocked in and who were thus
in the
vicinity of the incident when it occurred were charged with the
assault. None came forward at the workplace hearings
or in the
Industrial Court to affirm their innocence or to volunteer any
evidence about the perpetrators. Nugent J, sitting with
assessors
John and Satchwell, suggested at 1063B that:
'In the field of
industrial relations, it may be that policy considerations require
more of an employee than that he merely
remained passive in
circumstances like the present, and that his failure to assist in an
investigation of this sort may in itself
justify disciplinary
action.'
[33]
This approach
involves a
derived justification,
stemming from
an employee's failure to offer reasonable assistance in the detection
of those actually responsible for the
misconduct.
Though the
dismissal is designed to target the perpetrators of the original
misconduct, the justification is wide enough to encompass
those
innocent of it, but who
through their silence make themselves
guilty of a
derivative violation of trust and confidence.
[34] In
FAWU v ABI
,
the court held that, on an application of evidentiary principles, the
failure by any of the workers concerned to give evidence,
either in
the workplace hearings or in the Industrial Court, justified the
inference that all those present at the workplace on
that day 'either
participated in the assault or lent it their support' (at1064B-C).
There were other inferences compatible with
the evidence. But the
inference of involvement was the most likely since (at 1064E):
'This is pre-eminently a
case in which, had one or more of the appellants had an innocent
explanation, they would have tendered
it, and in my view their
failure to do so must be weighed in the balance against them.'
[35]
On the same basis, the court rejected the unattested suggestion that
the appellants may have declined to come forward because
of intimidation or from a sense of 'collegiality' (at 1064E-F).
The court concluded, in effect from the absence of evidentiary
self-absolution, that it was 'probable that all the appellants were
indeed present when the assault took place and either participated
therein or lent their support to it' (at 1064H).’
[4]
(emphasis added)
[8]
Several important aspects of these
dicta
require clarification. Important to
appreciate is that no new category of misconduct was created by
judicial
fiat
.
The effect of these
dicta
is to elucidate the principle that an employee bound implicitly by a
duty of good faith towards the employer breaches that duty
by
remaining silent about knowledge possessed by the employee regarding
the business interests of the employer being improperly
undermined.
Uncontroversially, and on general principle, a breach of the duty of
good faith can justify a dismissal. Non-disclosure
of knowledge
relevant to misconduct committed by fellow employees is an instance
of a breach of the duty of good faith. Importantly,
the critical
point made by both
FAWU v ABI
and
Leeson Motors
is that a
dismissal
of an employee is
derivatively justified
in relation to the
primary misconduct
committed by unknown others, where an employee, innocent of actual
perpetration of misconduct, consciously chooses not to disclose
information known to that employee pertinent to the wrongdoing.
[9]
Leeson Motors
does
not elaborate on certain other dimensions of a justified dismissal
for non-disclosure in such circumstances. I mention those
that seem
to be axiomatic.
[10]
The undisclosed knowledge must be actual
not imputed or constructive knowledge of the wrongdoing. Proof of
actual knowledge is likely
to be established by inferences from the
evidence adduced but it remains necessary to prove actual knowledge.
The moral blameworthiness
intrinsic in the non-disclosure implies a
choice made not to tell, which is incompatible with actual ignorance
of relevant facts
as a result of incompetence or negligence.
[11]
The non-disclosure must be deliberate. In
my view, this too, follows logically from the value-choices intrinsic
in the concept of
a duty of good faith.
[12]
More problematically, whilst the duty to
disclose is uncompromised by the degree of seriousness of the
wrongdoing, ie it ought to
apply to late-coming as much as to theft,
in my view, whether, in a given case the non-disclosure warrants
dismissal, would be
related, in part, to the degree of seriousness of
the wrongdoing and to the effect of non-disclosure by a person in the
position
of that employee on the ability of the employer to protect
itself against the given wrongdoing.
[13]
The rank of the employee is irrelevant to
culpability, but higher rank might be material to the degree of
blameworthiness and to
the appropriate weight to be given to
circumstances which might reasonably be taken into account as
mitigation, given the role
fulfilled by the given employee as regards
security and adherence to procedures.
[14]
Perhaps obvious, but important to stress in
relation to the facts of this case, the disclosure of information
relevant to the wrongdoing,
pursuant to the duty of good faith, ought
not be dependent upon a specific request for relevant information;
often the wrongdoing
per se
might not be known to the employer. Mere actual knowledge by an
employee should trigger a duty to disclose. Where a request for
information about known wrongdoing or suspected wrongdoings has
indeed been made, culpability for the non-disclosure is simply
aggravated.
[15]
Furthermore, the anterior premise of these
considerations is that an employee is a witness to wrongdoing not a
perpetrator. The
misconduct lies within the bosom of a general duty
of good faith to rat on the wrongdoers, not on culpable
participation, even
in a lesser degree than other perpetrators. The
employee is thus not a person who has made common cause with the
perpetrators.
A disinclination to disclose the wrongdoing from a
sentiment of worker solidarity or some other subjective sentiment of
solidarity,
falling short of common purpose is likely to be a typical
explanation for non-disclosure, but is
per
se
not a defence to a charge of a
breach of a duty of good faith.
[16]
Grogan A, in
National
union of Mineworkers and 7 Others v RSA Geological Services (Supra)
addressed the issue and used the label “derivative misconduct”.
After citing
Leeson Motors
and
FAWU v ABI,
he held:
‘
[29]
None of the applicant employees was expressly charged with failing or
refusing to assist the respondent in its efforts to bring
the
perpetrators to book. I accept, however, that wilful non-cooperation
by employees with their employer's efforts to investigate
serious
misconduct, which has either been perpetrated (vide
ABI
)
or is being currently perpetrated (vide
Leeson
Motors
) can in the labour context
constitute 'association' with the culprits of a type sufficiently
close to be covered by the charges.
In any event, a refusal to
disclose information relating to an offence can in certain
circumstances make a person an accessory.
I accordingly accept that
if any of the individual applicants deliberately withheld information
relating to the scam from the respondent,
he or she would be guilty
of residual misconduct of the kind contemplated in
ABI
and
Lesson Motors
.
[30]
There are two requirements for proof of derivative misconduct: first,
that the employee knew or could have acquired knowledge
of the
wrongdoing; second, that the employee failed without justification to
disclose that knowledge to the employer, or to take
reasonable steps
to help the employer acquire that knowledge.’
[5]
[17]
These remarks in paragraph [30], in my
view, require qualification. The notion that a breach of good faith
occurs if an employee
“could have acquired knowledge of
wrongdoing” seems to me to too broadly or loosely stated. In my
view, negligent ignorance
of circumstances of which an employee ought
to have been aware should found a basis for culpability within the
compass of negligence
itself rather than intrude into the realm of
breaches of good faith. Furthermore, if as I have stated, actual
knowledge is required
to trigger the duty to speak up, the employer
must prove actual knowledge not merely putative knowledge, and no
room exists for
considerations of negligent ignorance. Secondly, the
notion that a refusal to disclose, pursuant to a duty of good faith,
might
be capable of justification in order to avoid
guilt
of a breach of the duty of good faith,
seems to me to be incorrect. Logically, there is no room for such a
defence. As alluded to
above, the explanation for non-disclosure may
afford, in a given case, mitigation of the culpability, but it would
not stretch
to a defence to the charge.
[18]
In the review of that award, Pillay J in
remarking upon the nature of derivative misconduct stated that:
‘
In
the opinion of this court, derivative misconduct may diminish
the culpability of the employee for the principal misconduct.
In
no way does it diminish the standard of proof. The employer must
prove on a balance of probabilities that the employees knew
or must
have known about the principal misconduct and elected without
justification not to disclose what they knew. If the employer
discharges this onus then it may well, as in this case, also
discharge the onus of justifying the dismissal on the principal
misconduct
of participating in, lending support to or associating
themselves with the offence. In this case all the employees were
charged
with participating in the principal misconduct. On the facts
the court must infer that all the employees participated in the
principal
misconduct in the absence of their evidence to the
contrary.
Derivative
misconduct may therefore be an appropriate charge if employees who
participated in the principal offence can be distinguished
from those
who knew about it.
That distinction cannot be made in this case. As the employees failed
to discharge the burden of rebuttal, the court must find
that they
all probably knew about the scam and participated in it.’
[6]
[19]
The remarks of Pillay J albeit not drawing
attention to these qualifications mentioned above are to the same
effect. Again, it is
worthy of note, that the case was decided
ultimately against the employees without resort to the concept of
derivative misconduct.
[20]
In my view, an appropriate way to
discipline an employee who has actual knowledge of the wrongdoing of
others or who has actual
knowledge of information which the employee
subjectively knows is relevant to unlawful conduct against the
employer’s interests
would be to charge that employee with a
material breach of the duty of good faith, particularising the
knowledge allegedly possessed
and alleging a culpable non-disclosure.
This observation does not mean that the gravamen of such a charge
might not also be articulated
in another way, provided it is plain
what is alleged and why it is alleged to be culpable.
[21]
In the present case, there was an absence
of an appreciation of these considerations.
The Facts and the
merits of the case against Hlebela
[22]
Hlebela was an operator in the appellant’s
platinum refinery. He was not a person of interest in the on-going
losses of stock
which had been experienced at the refinery for
decades until, ostensibly, out of the blue, the SAPS informed the
appellant that
Hlebela was a person of interest in police
investigations. Significantly, the police gave no information about
Hlebela being engaged,
to their knowledge, in particular nefarious
acts. Instead, the police gave the appellant information about the
“wealth”
of Hlebela and his immediate family. The family
possessed a house worth some R582,000, bonded for R200,000 and
another house acquired
for R14,000 which had been substantially
improved, and four cars. He was also the owner of a business, Ceba
Construction CC. Hlebela
earned R14,000 per month. Apparently, it was
thought that such wealth might be the proceeds of theft of PMGs
because it was not
plausible that he could have earned accumulated
such a sum of capital from that salary.
[23]
As a result, the very sophisticated
security apparatus of the appellant was focussed onto Hlebela.
Apparently one in four employees
fulfils a security function.
[24]
One line of enquiry was to use the police
information to track down the assets known to be possessed by Hlebela
or members of his
family. The other step taken was to examine the
employer’s clocking security system.
[25]
A sophisticated clocking system was in
place which records employees clocking in and out of the various
sections of the plant. Every
swipe of an access card is time and
place recorded and a pattern of movement throughout the plant is
captured on record. A compendium
of Hlebela’s movements on
several days was compiled. This reflected frequent movements through
several sections of the plant,
including sections in which
ostensibly, so it was alleged, he had no apparent reason to be. It
was not explained why an employee
should be in possession of a swipe
card that allows him access into places where he is, ostensibly,
forbidden to be. The data so
compiled was thought to justify an
inference that the movements were suspicious.
[26]
Thus it was that Hlebela was charged, in
the terms described above, with culpable involvement in theft and of
non-disclosure of
information about wrongdoing.
[27]
The disciplinary enquiry outcome was that
the evidence of his wealth did not prove his culpable participation
in theft. He was however
found guilty of the non-disclosure charge.
The “information” not disclosed, relied upon to convict
him, was information
specified in demands, made to him
after
he had been charged
, to reveal details
of his personal financial affairs. He refused, claiming he did so on
union advice that he was under no obligation
to do so.
[28]
It is difficult to grasp what the
prosecutors in the disciplinary enquiry could have had in mind when
the charge was put to Hlebela,
if what was relied on to substantiate
it, was a refusal to respond to
ex post
facto
demands. Moreover, the
undisclosed information relied on to substantiate the charge was not
about wrongdoing and consequent stock
losses, but about his personal
finances. In my view, the demands made to reveal personal information
were in the nature of a demand
for discovery of information to be
used in the enquiry. Even assuming, without deciding, that this
information was pertinent to
the enquiry and appropriate to demand
from an employee, this information is not of the species of
information that could form the
substance of culpable non-disclosure
pursuant to a duty of good faith. If a right to discovery in those
terms existed, it ought
to have been ventilated in the disciplinary
enquiry, or at least in the arbitration. No attempt to do so was
made. It was argued
that had Hlebela ‘confessed’, in
response to these demands, to the effect that his assets were
acquired with the proceeds
of bribes or rewards for other nefarious
services rendered by him to other employees or strangers, such data
could have been useful
to detect the manner of the thefts and other
culprits. There can be no doubt that this notion must be true on its
own terms, but
the contention does not address the real issue. Even
an unreasonable refusal to disclose the employee’s personal
finances
and a reasonable inference that he did so to conceal the
manner of their acquisition is not capable of being logically linked
to
the fact that he has actual knowledge of wrongdoing by others.
When the employer is thwarted by a non-disclosure to procure
information,
it cannot be argued that the employer can infer proof of
what it suspects.
[29]
Hlebela denied knowledge of how the losses
occurred in both the disciplinary enquiry and the arbitration. The
cross-examination
of Hlebela addressed several issues but no evidence
that he had actual knowledge was put to him; indeed, no evidence to
substantiate
such a contention was adduced. It must be inferred that
had the appellant possessed such evidence to substantiate such a
contention,
the evidence would have been adduced and the
cross-examiner would have material with which to challenge Hlebela.
Ironically, the
cross-examination served to elicit answers which went
some way to explaining that the so-called wealth was the fruits of
the efforts
of not only himself but also his wife, his mother and the
occupants of a house who contributed to the bond payments on the
house.
The explanations may have been evasive, and also inadequate,
but it is manifestly plain that the inadequacy of evidential material
implicating Hlebela seriously undermined the prosecution of the case.
Even cross-examiners need more than straw if they are asked
to make
bricks,
[30]
The evidence about his movements around and
about the plant also established nothing of value as no complementary
evidence was adduced
that he was in places he ought not to have gone
to or that he had an opportunity to steal when he was up and about.
To the extent
he was challenged, he protested he was going about his
work and no rebuttal was offered. The high watermark of the evidence
about
his “suspicious”; movements was the unsubstantiated
opinion (not evidence) offered that his travels around the workplace
were to “network” with other co-conspirators. This was
complete speculation.
[31]
In short, there simply was no case made
against him. The award convicting him is one to which no reasonable
arbitrator could have
come upon a proper appreciation of the evidence
adduced. It must be set aside.
The Relief and the
cross-appeal
[32]
The Labour Court, after setting aside the
award, thereupon ordered compensation. That order is the subject of
the cross-appeal.
[33]
The sole basis relied on by the Labour
Court to refuse reinstatement is the view taken of a portion of the
cross-examination of
Hlebela, in which, according to the judge
a
quo
, Hlebela manifested mendacity. A
reading of the record shows this conclusion to be flawed.
‘
MR
VENTER
….Besides having been employed
as an operator, did the
applicant have any outside business interests, like a business that
he ran?
INTERPRETER:
That he had?
MR VENTER:
Did he have like an outside business, anything?
INTERPRETER:
A business like what?
COMISSIONER:
Any other business, he has no business? Basically, does he have
any other means of income except his salary?
INTERPRETER:
During the hearing I said I did not have
MR VENTER:
I put to
the applicant he is …. (intervenes)
COMMISSIONER:
Excuse, ask him to answer the question. He was not asked what
happened in
the hearing. He asks him indeed a very simple
question.
INTERPRETER:
The answer is no.
MR. VENTER:
I put to the applicant that he is either the
owner or co-owner of
Ceba Construction Projects CC.
INTERPRETER:
What is the name of the company?
COMMISSIONER:
Why do you say that thing? Just help me out.
MR. VENTER:
Mr. Commissioner, I have not started leading evidence on page 43
(page 551). I am asking ancillary questions and I put to the
applicant whether or not he has earned any outside outcome or
does he
have any business, and he said no. And I have now put to him
that he is either the owner or the co-owner who has
a vested interest
in Ceba Construction and Project CC. I would like him to
answer.
COMMISSIONER:
So is he a member, a co-owner?
MR. VENTER:
Member, co-owner of Ceba Construction and Project
CC.
COMMISSIONER:
Is the CC reflected somewhere on this one?
MR. VENTER:
No, I am not leading evidence on page 43 yet, I have just asked to
open there so long.
COMMISSIONER:
Okay.
INTERPRETER:
Through you, Mr. Commissioner, the applicant is not
answering the question. I am the owner.
MR. VENTER:
All right. Then why two questions before
that, does he say no,
now he says, “Yes, I am the owner?” Why does he do that?
INTERPRETER:
Maybe it is the way you have put your question according to what you
said, when you opened this page, you asked me if I am the owner or I
am in the kind of business, so maybe it is because of the
way you put
your question.
MR. VENTER:q
How does the applicant fund Ceba Construction and Project
CC?
INTERPRETER:
It depends on the job, when there is any job that I get.”
[Record: v5/460 –
462]:
[34]
The taking of the evidence in this matter
was significantly muddied by what seems to be poor and inept
interpretation, constant
interjections from the arbitrator and
abundant repetitions of questions which sowed confusion about what
was being asked, and what
supposed question was being supposedly
answered. The cited passage is a splendid example of the mess that
resulted.
[35]
Upon a reading of this exchange, the Labour
Court held that Hlebela contradicted himself by denying he had a
business but when the
name of Ceba Construction Products CC was put
to him, he admitted he was the owner. Thus, so it was held, Hlebela
lied and when
caught out was forced to retract his lie. However, in
my view, on this record of the evidence, it cannot be concluded that
Hlebela
lied; the factual finding is incorrect.
[36]
The confusion about what is being asked,
what the answers were supposedly addressing and the confusion, in
turn, about what was
meant is painfully apparent. In my view, the
answer “no” is probably given to the question about what
means other than
his wages does he have, and was not offered to the
question about having another business. Later counsel, confused by
the exchange
assumed,
bona fide,
but incorrectly, that he has solicited an answer “no” to
having no outside income
and
to not having a business. Of course, it is conceivable that the
answer given meant what counsel contended it meant, but it is unsafe,
on this record, to conclude that this understanding should be the
preferred reading.
[37]
In this regard, it is apposite to remark
that it is the function and responsibility of arbitrators to oversee
the taking of evidence
in a manner that avoids this sort of morass. A
disciplined exchange of questions and answers is essential to produce
an intelligible
body of evidence that accurately records what
witnesses mean to say and from which inferences can safely be drawn
when an adjudicative
analysis is performed.
[38]
Once the factual foundation relied upon by
the Labour Court falls away, the order self –evidently must be
set aside. Accordingly,
no case exists why the default outcome of
re-instatement should not follow.
Costs
[39]
Both parties sought costs. Despite that
stance, I am of the view that it would be inappropriate to order
costs. Hlebela was represented
by the union throughout the
arbitration, the review and the appeal. The union and Hlebela, in
terms of the order made by this Court,
have a continuing relationship
with the appellant. In the interests of promoting that relationship,
no costs order shall be made.
[40]
The parties took up the stance during the
review application that it was worth squabbling about the costs
incurred by the appellant
in filing a practice note in the review
application, whereas it was Hlebela’s responsibility to do so.
The Labour Court indulged
that pettiness and ordered Hlebela to pay
those costs. That order of the Labour Court shall remain undisturbed
as a memento for
the parties of a tangential frivolity.
The order
[41]
The Appeal is dismissed.
[42]
The cross-appeal is upheld.
[43]
The order of the Labour Court awarding
compensation is set aside and substituted with an order that the
first respondent:
43.1.
be reinstated from the date of his
dismissal,
43.2.
be paid the remuneration he would have been
paid, but for the dismissal, such payment to be effected within 30
days of the date
he reports for work.
[44]
The first respondent shall report for work
not later than the first working day after one clear calendar month
after the date upon
which this judgment is delivered.
_____________
Sutherland JA
Landman JA and
Mngqubisa-Thusi AJA concurred.
APPEARANCES:
FOR THE APPELLANT:
Adv M Van As,
Instructed by Cliffe
Dekker Hofmeyr Inc
FOR THE FIRST RESPONDENT:
Adv J S Mphalani
Instructed
by M M Baloyi Attorneys,
[1]
(1998)
19 ILJ 1441 (LAC).
[2]
(2008)
29 ILJ 406 (LC).
[3]
(2004)
25 ILJ 410 (ARB).
[4]
Leeson
Motors
at
paras 31-35.
[5]
At
paras 29-30.
[6]
RSA
Geological Services
at
para 49.