About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2015
>>
[2015] ZALAC 125
|
|
Schwartz v Sasol Polymers and Others (JA46/2014) [2015] ZALAC 125 (5 October 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 46/2014
In
the matter between:
JPJ
SCHWARTZ Appellant
and
SASOL
POLYMERS First
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE
CHEMICAL
INDUSTRY Second
Respondent
W
DE J STAPELBERG
N.O. Third
Respondent
Heard:
18
August 2015
Delivered:
5
October 2015
Summary:
Appellant guilty of breaching employer’s Code of Ethics by
receiving benefits from employer’s service providers. At
arbitration dismissal found to be procedurally and substantively
unfair and appellant reinstated with final written warning valid
for
12 months. Labour Court confirmed dismissal unfair but substituted
reinstatement with order of 12 months’ compensation.
Appeal
against compensation order and cross-appeal against finding of
procedural and substantive unfairness. Held: Employee’s
misconduct constitutes serious dishonesty which leads to a breakdown
in the trust relationship. Sanction of dismissal appropriate.
Finding
of procedural unfairness unreasonable on material before arbitrator.
Appeal dismissed with costs. Cross-appeal upheld with
costs.
Coram:
Waglay JP, Ndlovu JA
et
Savage AJA
JUDGMENT
SAVAGE
AJA
[1]
The
appellant, Mr JPJ Schwartz, with the leave of the court
a
quo
, appeals against the judgment of the Labour Court (Van As AJ)
which upheld on review the award of the arbitrator that his dismissal
for misconduct was procedurally and substantively unfair but
substituted his retrospective reinstatement with an order of 12
months’
compensation. The first respondent, Sasol Polymers
(‘Sasol’), cross-appeals against the Labour Court’s
finding
that the dismissal was unfair and the compensation order
made.
[2]
At
the outset of the hearing both the appeal and the cross-appeal were
reinstated. This followed both applications having been deemed
to
have been withdrawn due to the record not having been filed within
the time periods provided in rules
5(17)
[1]
and
5(19) of the Labour Appeal Court Rules
[2]
with
no e
xtension
of the period within which to do so having been granted by the Judge
President. A letter signed by the Registrar of this
Court purportedly
granting an extension of the period within which to file the record
was of no force and effect given that the
Rules provide that it is
the Judge President that may grant such extension.
[3]
The
appellant, who was employed by Sasol for 20 years, was charged at a
disciplinary hearing with corruption in obtaining “
personal
advantage in the form of monetary sponsorships/gifts/money in
connection with business activities with multiple service
provider
s”
thereby undermining his “
objectivity in making business
decisions in Sasol’s best interests as a result of the conflict
of interest with service providers
”. In the alternative, he
was charged with a breach of Sasol’s Code of Ethics in failing
to disclose monetary sponsorships,
gifts or money received by him
from service providers.
[4]
Sasol’s
Code of Ethics applies to all employees and emphasises
responsibility, integrity, honesty and fairness on the basis
of “
zero
tolerance of unethical conduct irrespective of whether the
consequences for Sasol resulting from the unethical conduct are
big
or small
”. The Code expressly prohibits bribery and
corruption and provides at paragraph 4.1.1 that:
‘
Sasol
will not engage in, nor tolerate, any corrupt or dishonest practices
such as bribery. It is unacceptable to directly or indirectly
offer,
pay, solicit or accept bribes in any form. No employee shall directly
or indirectly request, accept, offer or grant a personal
advantage in
connection with a business activity
…’
[5]
Paragraph
2.1.2 concerns the giving and receiving of gifts and entertainment
and states:
‘
Efficient
business transactions require objectivity and decisions in the best
interest of the company. Employees should accordingly
not give or
accept gifts, entertainment, or any other personal benefit or
privilege that could in any way influence, or appear
to influence,
their objectivity in the execution of their duties…Gifts and
entertainment exceeding a nominal value should
only be given or
accepted with the approval of a member of group management. The
acceptance or giving of such gifts or entertainment
and the value
thereof shall be recorded in an official record book kept by each
business unit. These records shall be available
for auditing.
The
giving and receiving of gifts and entertainment of more than a
nominal value may only be approved by a member of group management
in
exceptional circumstances if such gifts are clearly in the best
interest of the company
…’
[6]
Sasol’s
revised Gifts and Entertainment Policy defines gifts of a nominal
value to be those up to R500 and provides that non-compliance
with
the policy “
will result in disciplinary action and could
lead to dismissal
”.
[7]
On
30 October 2009, the appellant was found guilty of both corruption
and the alternative charge of a breach of the Code of Ethics
on
evidence that he had not disclosed his receipt of a number of gifts,
sponsorships and money from certain Sasol service
providers. The
appellant was dismissed from his employment and, after his dismissal
was confirmed following an internal appeal,
the appellant referred an
unfair dismissal dispute to the second respondent for determination.
[8]
The
evidence at arbitration was that the appellant had received from
Sasol’s service providers three cycling sponsorships
of R7500,
R1000 and R3000 for his wife; at least R1000 to participate in the
Argus Cycle Tour; gifts given to his wife of perfume,
earrings, an
ice cream maker, frying pan and DVD player; a box of whisky; a BMW
jacket valued at R5000; work undertaken without
charge on his wife’s
titanium bicycle; and two BMW helmets for the price of one and
various sums of money. In a telephone
conversation recorded by his
ex-wife, the transcript of which was placed into evidence, the
appellant acknowledged that “…
waar oor die geskenke
en goed gaan kan hulle my oor die vingers tik en dit is dit
”
and that his failure to disclose receipt of money from service
providers “…
gaan nog vir my ge-fire kry
”.
[9]
The
arbitrator found the appellant’s dismissal procedurally unfair
in that he had not received sufficient details of the misconduct
he
had allegedly committed and the chairperson “
should have, as
a fair and neutral chairman, suggested that the matter be postponed
and they be given the documents that they requested
”. In
addition, the chairperson was found not to have understood either
the
onus
or the meaning of an alternative charge,
with the result that the appellant was found “
guilty on both
charges with dismissal as the sanction in both instances. This
clearly shows procedural unfairness
.”
[10]
The
arbitrator also found the dismissal of the appellant substantively
unfair. While the corruption charge was found not to have
been
proved, the appellant was nevertheless found to have failed to
disclose the receipt of gifts and sponsorships from service
providers. Somewhat inexplicably, this was in spite of the
arbitrator’s finding that: the rule requiring disclosure was
not well known; had not been communicated nor was understood by the
appellant; no rule required that gifts to spouses be disclosed;
and,
no employees had made such disclosures between 2005 and 2007. The
arbitrator found the sanction of dismissal inappropriate
and the
appellant was given “
a final written warning for failure to
enter gifts and sponsorships into the Gift Register”
. In
doing so the arbitrator noted: that reinstatement is the primary
remedy for unfair dismissal; that the appellant’s senior,
Mr
Braam Louw, had no problem working with the appellant if he was not
guilty of corruption; and two employees (Mr Van Zyl and
Mr Dolf
Binneman) had both received sanctions short of dismissal for fraud
and failing to disclose a sponsorship respectively.
[11]
Aggrieved
with the arbitrator’s award, Sasol took the matter on review to
the Labour Court. The Labour Court found no reason
to disturb the
arbitrator’s finding that the dismissal was procedurally unfair
on the basis that the appellant had not been
furnished with
sufficient particulars of the charge so as to allow him to properly
prepare for his disciplinary hearing having
regard to the fact that
“…
corruption is a complex offence with specific legal
requirements
.”
[12]
Mr
Pretorius
submitted
for Sasol, correctly in my view, that the arbitrator took an overly
formalistic and technical approach to the issue of
procedural
fairness and, in so doing, committed a reviewable irregularity.
Viewed holistically, I am persuaded that the appellant
received a
fair hearing. He was notified in writing of the allegations
against
him,
albeit
in general terms but sufficiently clear for him to understand what
the misconduct was he was being accused of. The charges
were also
explained by the chairperson at the outset of the hearing;
additionally, the appellant had been made aware of the content
of the
allegations during the internal investigation. That the appellant
clearly understood the misconduct charges is also evident
from the
fact that he had secured, at the hearing, the attendance of service
providers who had been party to the wrongdoing to
testify on his
behalf. It followed that the appellant was sufficiently aware of the
substance of the allegations of misconduct
levelled against him and
there is no indication that he was prejudiced in the manner in which
he conducted his defence. The record
indicates that he made no
request for the hearing to be postponed and when asked by the
chairperson if he had had time to prepare
on the two charges, he
confirmed that he had and that his witnesses, which included Sasol’s
service providers, were present
to testify. In all respects, the
conduct of the internal disciplinary hearing therefore accorded with
the guidelines for procedural
fairness contained in item 4(1) of the
Code of Good Practice.
[3]
He
was informed of the allegations against him, was granted a
reasonable time to prepare a detailed response to the
allegations and a full opportunity to state his case at a
disciplinary hearing which considered in detail the substance of the
allegations against him.
[13]
Given
that the appellant had been made aware of the allegations against him
and was able to conduct his defence appropriately, it
follows that
the Labour Court erred in finding that the arbitrator’s
conclusion of procedural unfairness was correct. As
was stated
in
Avril
Elizabeth for the Mentally Handicapped
v
CCMA and Others
[4]
and
has been repeatedly emphasised by this Court, the balance struck by
the LRA recognises not only that managers are not experienced
judicial officers, but also that workplace efficiencies should not be
unduly impeded by onerous procedural requirements.
[14]
The
Supreme Court of Appeal in
Herholdt
v Nedbank
Ltd
(
Congress
of South African Trade Unions as Amicus Curiae
)
[5]
made
it clear that a review of an arbitration award is permissible if the
defect in the proceedings falls within one of the
grounds in section
145(2)(a) of the LRA:
‘
For
a defect in the conduct of the proceedings to have amounted to a
gross irregularity as contemplated by Section 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material errors of
fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient for an award
to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.’
[6]
[15]
This
Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold
Fields
)
[7]
stated
that:
‘
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 (LRA) continue
to be determined in terms of section 145 of
the LRA but that the
constitutional standard of reasonableness is “suffused”
in the application of section 145 of the
LRA. This implies that an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the
arbitration proceedings, and/or
excess of powers 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.’
[8]
[Footnotes
omitted]
[16]
A
determination as to the substantive fairness of a dismissal for
misconduct requires a decision-maker to have regard to item 7
of the
Code of Good Practice and to consider whether the employee was aware
of the workplace rule allegedly breached or can reasonably
be
expected to have been aware of the rule; whether the rule has been
consistently applied; whether it has been breached; and whether
dismissal is an appropriate sanction to be imposed for breach of the
rule. It is apparent that the Labour Court misconstrued the
proper
approach to such a determination when it considered the substantive
fairness of the appellant’s dismissal as one distinct
from a
determination of the appropriate sanction.
[17]
Nevertheless,
the Labour Court in my view correctly found that the arbitrator had
failed to take into account the appellant’s
“
disturbing
conduct
” in the form of -
‘
19.1
the employee’s insistence that he was unaware of the Code’s
requirement that he record gifts
and benefits in the register;
19.2
the employee’s assertion that gifts or benefits received by his
ex-wife, Ms Schwartz, did not
have to be recorded in the register;
19.3
the employee’s failure to display remorse or appreciation of
wrongfulness during his disciplinary
enquiry or the arbitration
proceedings;
19.4
the telephone conversation between the employee and Ms Schwartz
whilst he was on suspension pending
the finalisation of his
disciplinary enquiry in which the employee warns Ms Schwartz that he
may be dismissed if she disclosed
monies which he received from a
service provider
.’
[18]
The
Court noted that whilst the arbitrator had alluded to entrapment when
evaluating the taped conversation between the appellant
and his
ex-wife, the arbitrator had correctly allowed the evidence yet “…
did
not attach sufficient weight to the various damning statements which
the employee made during this conversation.”
Having
been allowed, it was only reasonable that the evidence as a whole be
considered by the arbitrator. The Court therefore correctly
concluded
that a reviewable irregularity had been committed. This was so in
that the arbitrator failed to attach weight to the
damning statements
made by the appellant and the nature and impact of the misconduct
which was ‘…
hardly the conduct of a senior
employee who is guilty of no more than contravening a policy which
the [appellant], in any event
and to the knowledge of the employee,
does not strictly enforce. This behaviour is more in keeping with an
employee who has committed
serious and dismissible misconduct which
he is seeking to conceal from his employer
.’
[19]
The
Labour Court cannot be faulted for finding that the failure to take
this “
serious and incriminating behaviour into account
”
when awarding retrospective reinstatement resulted in the imposition
of a sanction which a reasonable decision-maker could
not have
reached.
[20]
The
employment relationship obliges an employee to act honestly, in good
faith,
[9]
and
to protect the interests of the employer so as to avoid conflicts of
interest that may arise which may breach this duty.
[10]
The
appellant was employed in a senior position as an engineering
manager. His calculated silence in the face of a duty to
speak
amounted to a fraudulent non-disclosure or concealment of the true
state of affairs
[11]
in
circumstances in which gifts and benefits earned secretly fell to be
disgorged by him with “…
little
room…to avoid that consequence
”
.
[12]
His
conduct was by its nature dishonest in circumstances in which he was
obliged to act with honesty, diligence and good faith towards
his
employer and not to allow his own interests to prevail over those of
Sasol.
[21]
Yet
the Labour Court, in my view, did not properly apply the review test
as enunciated most recently by this Court in
Gold Fields
in
substituting the appellant’s retrospective reinstatement with
an order of compensation equal to 12 months remuneration.
This is so
in that, having correctly found that the result was unreasonable on
the material before the arbitrator, the Labour Court’s
conclusion that the dismissal was substantively unfair was patently
incorrect given its own findings as to the serious nature of
the
appellant’s dishonesty which subverted the interests of Sasol.
The appellant’s dishonesty, even in his evidence
on an issue
such as the time employees departed their work place on Fridays,
clearly had a direct and destructive effect on the
trust
relationship.
[22]
Mr
Rhoodie
contended
for the appellant that the arbitrator’s decision to order
reinstatement as the primary remedy in terms of
s193 of the LRA was
not a decision that a reasonable decision-maker could not have
reached. I am unable to agree. The conclusion
on sanction reached by
the arbitrator was manifestly inappropriate given the appellant’s
dishonest conduct. It did not fall
within the band of reasonable
decisions to which a reasonable decision-maker may have come if
proper regard had been had to the
nature of the appellant’s
misconduct.
[23]
The
evidence of Mr Louw that there was ‘a chance’ that he
could work with the appellant if he was found not guilty of
corruption (‘…
daar
is ‘n kans dat ek my mind change as al die teendele bewys
word
’
)
was not evidence that the trust relationship had not broken down
given the proof of the appellant’s dishonest conduct. Rather,
Mr Louw’s evidence that the trust relationship had been eroded
as a consequence of the appellant’s dishonesty stood
to be
accepted. Similarly, the sanctions previously imposed on Mr Van Zyl
and Mr Binneman did not support a conclusion that the
appellant had
been treated unfairly or inconsistently. While our law requires that
discipline should be neither capricious nor
selective and that
employees who have committed similar misconduct should not be treated
differently or unequally punished,
[13]
this
applies within reasonable bounds and subject to the proper and
diligent exercise of a discretion in each individual case
with
fairness remaining a value judgment.
[14]
This
Court in
Gcwensha
v CCMA and Others
,
[15]
confirming
the decision of
Irvin
& Johnson,
[16]
made
it clear that while disciplinary consistency is the hallmark of
progressive labour relations the gravity of the misconduct
committed
must be taken into account when considering whether the sanction
imposed by the employer is fair.
[24]
The
extent and gravity of the appellant’s misconduct permit the
sanction imposed upon him fairly to differ from that imposed
on other
employees such as Mr Binneman who had not disclosed a once-off
sponsorship which had been received from a service provider
but who
had admitted the wrongdoing (unlike the appellant). Fairness does not
dictate that Sasol treat the two employees in the
same manner given
these distinctions. Similarly, the fact that Sasol previously gave an
employee a final written warning for dishonest
conduct can be of no
assistance to the appellant given that the distinct nature and extent
of his own misconduct.
[25]
While
I agree with Mr
Pretorius
that
the lack of remorse shown by appellant is relevant, even if genuine
remorse had been shown by him,
this
would only have been a factor to be considered in his favour in
determining sanction and would not have barred his dismissal,
remorseful or not, having regard to the seriousness of the misconduct
committed.
[17]
In
Mutual
Construction Company Tvl (Pty) Ltd v Ntombela NO
and
Others
[18]
it
was stated:
‘…
It
was also significant that the third respondent elected not to own up
to his misdemeanour. In other words, he showed a complete
lack of
remorse or contrition for what he did. Instead, he attempted to shift
the blame to the site manager whom the third respondent
apparently
induced to signing the falsified time sheet. He had only 2½
years of service with the appellant. Even if he had
a much longer
service that would not (and should not) have spared him in the
circumstances of this case
.’
[19]
[26]
Similarly,
Schwartz’s long period of service, while a mitigating factor,
was but one of the factors to be considered. As was
stated by this
Court in
Toyota
SA Motors (Pty) Ltd v Radebe and Others:
[20]
‘
...
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty
…’
[21]
[27]
A
disciplinary code does not substitute an employer’s discretion
to impose a fair and appropriate sanction with due regard
to the
circumstances of a particular matter. Deviations from disciplinary
sanctions provided in such a code are not only permissible
but
necessary where these are warranted.
[22]
To
find differently would be to unduly limit the discretion retained to
shape appropriate disciplinary responses to the circumstances
of
particular disciplinary infractions.
[28]
In
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
, it was
emphasised that –
‘
In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given the power to
consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a decision
a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must consider all relevant
circumstances.
’
[23]
[29]
The
Constitutional Court noted that the commissioner in
Sidumo
found
the absence of dishonesty and the absence of losses to be significant
factors in favour of the application of progressive
discipline rather
than dismissal and while -
‘…
Mr
Sidumo did not own up to his misconduct and his denial that he
received training are factors that count against him. His years
of
clean and lengthy service were certainly a significant factor. There
is no indication that the principle of progressive discipline
will
not assist to adjust Mr Sidumo’s attitude and efficiency. In my
view, the Commissioner carefully and thoroughly considered
the
different elements of the Code and properly applied his mind to the
question of the appropriateness of the sanction
.
’
[24]
[30]
In
the current matter, the dishonest nature of the appellant’s
misconduct which was of such a nature as to make continued
employment
intolerable and dismissal “
a
sensible operational response to risk management”
.
[25]
It
would be fundamentally unfair and unjust to expect an employer to
retain in its workplace a senior employee who has shown himself
guilty of dishonesty in the manner of the appellant.
[26]
The
high
premium on honesty in the workplace and
the
presence of dishonesty makes the restoration of trust, which is at
the core of the employment relationship, unlikely.
[27]
[31]
It
follows that the arbitration award was not justifiable in relation to
the reasons given for it and fell outside of the range
of decisions
which a reasonable decision-maker could have made on the material
before him. In the circumstances, the award falls
to be set aside and
replaced with an order that the appellant’s dismissal of
Schwartz was both substantively and procedurally
fair.
[32]
There
is no reason in law or fairness as to why costs should not follow the
result and as much was conceded by Mr
Rhoodie
for
the appellant in argument.
Order
[33]
In
the result, the following order is made:
1.
The appeal is dismissed with costs.
2.
The cross-appeal is upheld with costs.
3.
The order of the Court
a quo
is
set aside and replaced with the following order:
‘
(1)
The arbitration award issued by the second respondent is reviewed
and set aside; and replaced with the order that the dismissal
of the
applicant was both substantively and procedurally fair.
(2)
There is no order as to costs.’
Savage
AJA
I
agree
Waglay
JP
I
agree
Ndlovu
JA
APPEARANCES:
FOR
THE APPELLANT: Mr
J Rhoodie of Bester & Rhoodie Attorneys
FOR
THE FIRST RESPONDENT: Mr D O
Pretorius of Fluxmans Inc.
[1]
Rule
5(8) states: ‘
The
record must be delivered within 60 days of the date of the order
granting leave to appeal, unless the appeal is noted after
a
successful petition for leave to appeal, in which case the record
must be delivered within the period fixed by the court under
rule
4(9)
.’
[2]
Rule
5(19) states: ‘
If
the respondent delivers a notice of intention to prosecute a
cross-appeal, the respondent is for the purposes of subrule (8)
deemed to be the appellant, and the period prescribed in subrule (8)
must be calculated as from the date on which the appellant
withdrew
the appeal or on which the appeal was deemed to have been
withdrawn
.’
[3]
Item
4, Schedule 8: Code of Good Practice on Dismissal, LRA.
[4]
[2006]
9 BLLR 833
(LC).
[5]
2013
(6) SA 224
(SCA);
[2013]
11 BLLR 1074
(SCA);
(2013) 34 ILJ 2795 (SCA).
[6]
At
para 25.
[7]
(2014)
35 ILJ 943 (LAC) with reference to
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC)
(
Sidumo
).
[8]
At
para 14. With reference to s145(2)(i), (ii) and (iii) of the LRA.
[9]
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998)
19 ILJ 784 (LAC) at para 7;
CSIR
v Fijen
[1996]
6 BLLR 685
(AD)
691;
Murray
v Minister of Defence
[2008]
ZASCA 44
;
[2008]
3 All SA 66
(SCA);
[2008]
6 BLLR 513
(SCA);
2009
(3) SA 130
(SCA);
2008
(11) BCLR 1175
(SCA);
(2008) 29 ILJ 1369 (SCA)
at
para 6.
[10]
Robinson
v Randfontein Estates Gold Mining Co Ltd
1921
AD 168
at
177-178.
[11]
BMW
(South Africa) (Pty) Ltd v Van der Walt
[2000]
2 BLLR 121
(LAC)
at para 7.
[12]
Volvo
(Southern Africa) (Pty) Ltd v Yssel
2009
(6) SA 531
(SCA)
at para 14.
[13]
Chemical
Energy Paper Printing Wood & Allied Workers Union and Others v
Metrofile (Pty) Limited
(2004)
25 ILJ 231 (LAC)
at
paras 36-37;
National
Union Metalworkers of SA v Haggie Rand Ltd
(1991)
12 ILJ 1022 (LAC) 1029G-H.
[14]
National
Union of Metalworkers of SA and Others v Henred Fruehauf Trailers
(Pty) Ltd
(1994)
15 ILJ 1257 (A) at 1264A-D;
SACCAWU
and Others v Irvin & Johnson (Pty) Ltd
(1999)
20 ILJ 2302 (LAC) at para 29;
Cape
Town Council v Masitho and Others
(2000)
21 ILJ 1957 (LAC) at para 14.
[15]
[2006]
3 BLLR 234
(LAC)
at para 36.
[16]
(1999)
20 ILJ 2302 (LAC) at para 29.
[17]
Absa
Bank Limited v Naidu and Others
[2015]
1 BLLR 1
(LAC);
(2015) 36 ILJ 602 (LAC).
[18]
[2010]
5 BLLR 513
(LAC).
[19]
At
para 37.
[20]
[2000]
3BLLR 243 (LAC).
[21]
At
para 15.
[22]
Solidarity
obo S W Parkinson v Damelin (Pty) Ltd and Others
[2014]
ZALCJHB 480 (4 December 2014).
[23]
[2007]
12 BLLR 1097
(CC);
2008
(2) SA 24
(CC);
(2007) 28 ILJ 2405 (CC)
[2007]
ZACC 22
;
;
2008
(2) BCLR 158
(CC)
at para 79.
[24]
At
para 117.
[25]
De
Beers Consolidated Mines Ltd v CCMA and Others
[2000]
9 BLLR 995
(LAC)
at para 22.
[26]
Standard
Bank SA Limited v CCMA and Others
[1998]
6 BLLR 622
(LC)
at paras 38-41;
Shoprite
Checkers (Pty) Ltd v CCMA and Others
[2008]
ZALAC 9
[2008] ZALAC 9
; ;
[2008]
9 BLLR 838
(LAC)
at para 16;
Lahee
Park Club v Garratt
[1997]
9 BLLR 1137
(LAC)
at 1139;
Leonard
Dingler (Pty) Ltd v Ngwenya
(1999)
20 ILJ 1171 (LAC) at para 78;
De
Beers Consolidated Mines (supra)
at
para 22;
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v NUM and Others
(2001)
22 ILJ 658 (LAC) at para 22;
Matsekoleng
v Shoprite Checkers (Pty) Ltd
[2013]
2 BLLR 130
(LAC)
at para 48.
[27]
Miyambo
v CCMA and Others
[2010]
10 BLLR 1017
(LAC);
(2010) 31 ILJ 2031 (LAC) at para 16
;
Toyota SA (Pty) Ltd v Radebe supra;
and
Hulett
Alliminium (Pty) Ltd v Bargaining Council for the Metal
Industry
[2007]
ZALC 93
;
[2008]
3 BLLR 241
(LC)
at para 42.