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[2016] ZALAC 51
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Blinkwater Mills (Pty) Ltd v Kgalegi (JA67/2015) [2016] ZALAC 51 (22 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 67/2015
In the matter between:
BLINKWATER
MILLS (PTY) LTD
Appellant
and
PATRICK
KGALEGI
Respondent
Heard:
23 August 2016
Delivered:
22 November 2016
Summary: Respondent’s
dismissal on grounds of operational requirements found by the Labour
Court to be procedurally and substantively
unfair. Retrospective
reinstatement ordered into previous position, alternatively into
position of Area Controller. On appeal
judgment of Labour Court
upheld save for amendment to reinstatement order. Respondent
reinstated with retrospective effect into
previous position of human
resources clerk based at appellant’s head office. No order as
to costs.
Coram: Landman JA, Savage
et
Phatshoane AJJA
Judgment
SAVAGE AJA
[1]
This
is an appeal against the judgment and orders of the Labour Court
(Nkutha-Nkontwana AJ) in terms of which the dismissal of the
respondent, Mr Patrick Kgalegi, on grounds of operational
requirements was found to be procedurally and substantively unfair
and
the respondent was retrospectively reinstated into his employment
with the appellant. The appeal is with the leave of the Court
a
quo
.
Reinstatement of appeal and
condonation
[2]
At
the outset of the hearing of the matter, the appellant, Blinkwater
Mills (Pty) Ltd, sought the reinstatement of the appeal following
its
failure to file the appeal record within 60 days of leave to appeal
having been granted as required by the Rules of this Court.
[1]
There
is no dispute that the appeal record was filed 11 days late. The
respondent refused to consent to an extension of time within
which to
file the record and that the appellant failed to apply to the Judge
President of this Court for an extension of time to
file its record
in the manner required.
[2]
It is trite that in the absence of an extension either consented to
by the respondent or granted by the Judge President and where
the
time period within which the appellant is obliged to file its record
has lapsed then, in terms of the Rules, the appeal is
deemed to be
withdrawn.
[3]
The
appellant is nonetheless entitled to file its record after the
prescribed period, as it did in this matter, and apply for the
reinstatement of the appeal.
[3]
It
was submitted for the appellant that the limited delay in filing the
appeal record was caused by the receipt by the transcribers
of the
audio recording of proceedings before the Labour Court only four days
before the appeal record was to have been filed. Given
the limited
extent of this delay, it was submitted that no prejudice had been
suffered by the respondent. As a result, having regards
to the merits
of the appeal, the appellant sought an order reinstating the appeal.
The respondent, while acknowledging that he
had not suffered any
prejudice in the limited delay which had arisen, persisted in his
opposition to the application on the basis
that the Rules of the
Court provided for time periods to be adhered to and that the
appellant failed to do so at its own peril.
[4]
Having
regard to the limited delay, the reasons for it and the merits of the
matter, there is in my mind no reason as to why, given
the limited
delay and the reasons for it, the appeal should not be reinstated and
the late filing of the appeal record condoned.
[5]
The
appellant also sought condonation for the late delivery of the notice
of appeal in this matter. While this notice was to have
been
delivered before Friday, 11 September 2015 in terms of the Rules, it
was filed with the Registrar on 10 September 2015 but
only served on
the respondent on Monday, 14 September 2015. Having regard to the
limited delay of one day, the merits of the matter
and the absence of
any prejudice caused to the respondent, condonation is granted for
the late filing of the notice.
Factual background
[6]
On 1
June 2009, the respondent was employed by the appellant in the
position of Human Resources Clerk based in Stoffberg. Some 12
years
after the appellant moved its head office from Stoffberg to
Middelberg, it was decided to move the human resources function
based
in Stoffberg to head office. The respondent was the only person
affected by this move.
[7]
On 17
January 2011 the respondent was provided with a notice of the
contemplated restructuring of the Admin/Finance department,
under
which his position fell, and of his possible retrenchment. He was
then invited to a consultation meeting on 21 January 2011.
He was
informed that a change in the focus of the department had culminated
in a decision to move from a decentralised personnel
office at
Stoffberg Mill to a centralised corporate model and that his was the
only position likely to be affected.
[8]
At
the consultation meeting held on 21 January 2011, the reasons for the
restructuring were stated as communication problems between
head
office and Stoffberg which caused delays in decision-making and
control; possible future restructuring; and that the workload
of the
respondent’s position did not justify full-time employment.
Alternatives to retrenchment were considered, including
that of Depot
Auditor. Having worked as a wage clerk many years before, the
respondent agreed to take a short test to determine
whether he was
suitable for an accounting-related post. He scored very poorly on the
test. Nevertheless, by agreement, he was given
the opportunity to
work in the Depot Auditor position so as to assess his on-the-job
suitability for the post. The respondent indicated
that as a last
option he would be willing to move to Burgersfort in the position of
Area Controller. During the course of this
meeting, the retrenchment
of other employees and the “bumping” of the respondent
into another position, together with
the application of the LIFO
principle, were discussed.
[9]
At a
second consultation meeting held on 3 March 2011 the respondent was
informed that he lacked the requisite knowledge and experience
required for appointment to the Depot Auditor post. In addition, he
was informed that given his lack of accounting experience,
a
financial appointment into a position such as Cashbook Clerk was not
an option. The respondent indicated that he would consider
the Area
Controller post in Burgersfort, the salary for which post was
approximately two-thirds of that which he received as Human
Resources
Clerk. The minutes of this consultation meeting recorded that Mr
Raymond Le Roux, the appellant's financial manager,
stated at the
meeting that the person currently employed as Area Controller
“…
indicated
that he wanted to keep being employed by the employer despite his
medical condition. The employer is waiting on the final
medical
report”
.
It was further recorded that the incumbent of the Area Controller
post had told the respondent that the appellant wanted to keep
him
on. The minutes indicated that the consultation stood down until the
result of the Area Controller’s medical examination
had been
received and considered.
[10]
One
week later, on 10 March 2011, the respondent's services were
terminated on the basis of the appellant’s operational
requirements.
At the time of the termination of his employment, he
earned a gross salary of R7 560.00 per month. In the letter of
termination,
the respondent was informed that the appellant was
unable to indicate whether the Area Controller position would become
available
in that feedback from the provident fund was awaited.
[11]
Aggrieved
with his dismissal the respondent referred an unfair dismissal
dispute to the Commission for Conciliation, Mediation and
Arbitration
(CCMA) for conciliation. When the matter was not resolved, the
dispute was referred on 27 July 2011 to the Labour Court
for
determination.
Proceedings before the Labour Court
[12]
In
his statement of case the respondent took issue with the substantive
and procedural fairness of his dismissal and sought his
retrospective
reinstatement into the same or similar position without any loss of
benefits. In addition, compensation in an amount
equivalent to 12
months’ salary was sought and costs.
[13]
The
appellant opposed the respondent’s claim, stating that the
dismissal of the respondent was both procedurally and substantively
fair. The appellant recorded that the respondent lacked financial
experience and/or qualifications to occupy the position of Depot
Auditor which was therefore not a reasonable alternative; and that
the Area Controller position was not suitable as the respondent
would
have to move to Burgersfort and that such position remained vacant in
that the appellant had decided not to fill it due to
its further
operational requirements.
[14]
In
his evidence, Mr Le Roux stated that the respondent's position did
not warrant a full-time post and that he was found to have
spent some
time while at work socialising and viewing pornographic internet
sites. Although Mr Le Roux stated that the respondent’s
tasks
following his retrenchment were given to Ms Cindy du Plessis at head
office, he also stated in evidence that her role in
undertaking
cashbook functions as well as daily transfers “
was
taken away from her when
[the respondent’s]
filing
was given to her”
and the cash book function “
was
moved to head office and it was given to the new appointment”
.
[15]
In
cross-examination, Mr Le Roux indicated that the services of Mr
Mogoani, the Area Controller, were terminated on 24 November
2010 in
spite of the recordal in the minutes of the meeting of 3 March 2011
that “
the
person currently employed in that position indicated that he wants to
keep being employed by the employer despite his medical
condition.
The employer is waiting on the final medical report
.”
Mr Le Roux could not explain the discrepancy between his evidence and
the appellant’s pleaded case. His evidence
was that the
appellant could not employ the respondent in the post of Area
Controller in that the outcome of the medical report
from the
provident fund was awaited to determine whether Mr Mogoani could be
placed back into the position. The appellant’s
pleaded case was
that the post had not been filled because of further operational
requirements. It was not disputed that following
his dismissal in
2010, Mr Mogoani was ultimately medically boarded during 2013.
[16]
The
respondent testified as to the procedural and substantive unfairness
of his dismissal, stating that his position was not redundant
in that
his duties were given to another employee at head office.
Furthermore, alternatives to retrenchment were not offered to
him,
which included his appointment into the Area Controller post, which
post was suitable, remained vacant and was a position
in which he was
prepared to work. The respondent’s evidence was that following
his dismissal he remains unemployed, although
he undertook some
private work for the South African Police Services (SAPS) from July
2012 to July 2013.
[17]
The delay of
more than three years before the matter was finalised by the Labour
Court was, according to the respondent, caused
by difficulties which
had arisen with the signature of the pre-trial minute. In this
regard, the respondent expressed the view
that being unrepresented
the appellant had tried to bully him and that the appellant’s
attorneys had undertaken to secure
the assistance of a judge to
finalise the minute but appeared to have delayed doing so. In
addition, the matter did not proceed
on 22 August 2013 as the notice
of set down was not received by both parties causing the matter to be
removed from the roll and
postponed by agreement.
Judgment of Labour Court
[18]
On 26
March 2015, the Labour Court found that the restructuring of the
department in which the respondent worked should ordinarily
have
resulted in the respondent relocating with the department; and that
the evidence showed that the respondent’s job was
not redundant
but “
was
given to someone else unduly”
.
The attempt by the appellant to justify the termination of the
respondent’s employment by reference to allegations of his
misconduct ought to have resulted in a disciplinary hearing instead
of retrenchment as a no-fault termination. The appellant was
found
not to have afforded the respondent an opportunity to work part-time
or in a manner which would avoid retrenchment. While
accepting that
the retaining of the appellant into a position which required a
financial qualification would have been burdensome,
the Area
Controller position was found to be suitable with no reason provided
for not appointing the respondent into the position
which was vacant
at the time. The appellant was found to have acted unfairly in
exiting the consultation process without consensus
having been
achieved and to have frustrated every available opportunity to avoid
the respondent’s retrenchment.
[19]
Turning
to the procedural fairness of the respondent's dismissal, the Labour
Court found no evidence that the appellant had complied
with the
provisions of section 189(2) of the Labour Relations Act 66 of 1995
(LRA). The appellant was found to have not engaged
in a meaningful
joint consensus-seeking process when it bailed out of the
consultation process. The dismissal of the respondent
was accordingly
found to be procedurally and substantively unfair and the appellant
was ordered to reinstate the respondent into
his former post
retrospective to 10 March 2011 on the same terms and conditions of
employment and with no loss of remuneration
or benefits. In addition,
the appellant was ordered to offer the respondent the position of
Area Controller as an alternative to
retrenchment. No order of costs
was made.
Grounds of appeal
[20]
The
numerous and wide-ranging grounds of appeal raised by the appellant
in its notice of appeal can be condensed to a complaint
that the
Labour Court erred in the following respects:
20.1
in
finding that the retrenchment of the respondent was substantively
unfair while accepting that there existed an acceptable operational
imperative to restructure the department in which the respondent was
employed;
20.2
in
finding that the respondent’s job functions were “unduly”
taken over by another employee based at head office
while the
operational imperative to restructure the department had been
established;
20.3
in
finding that the retrenchment of the respondent was procedurally
unfair when available alternatives had been appropriately considered
and rejected; and
20.4
in
ordering the retrospective reinstatement of the respondent into his
former position in spite of the extensive period of time
which had
elapsed since his retrenchment, the fact that the post no longer
existed and when it was also ordered that he be reinstated
into the
distinct position of Area Controller.
Submissions of the parties
[21]
Both
parties filed extensive heads of argument in this appeal. In argument
counsel for the appellant placed reliance on the Labour
Court’s
acceptance of the decision to restructure. This, it was submitted,
permitted the respondent to move the limited job
functions of the
respondent to another employee at its head office. The appellant,
having consulted with the respondent on three
alternative positions
as possible alternatives to retrenchment, was not obliged to place
the respondent in a position he could
not perform; nor could the
appellant be forced to fill a position which has remained vacant for
more than four years when there
is no operational need to fill the
post.
[22]
In
spite of this, Mr
Grundlingh
accepted that the appellant had acted with undue haste in terminating
the respondent’s employment before reverting on whether
the
Area Controller post would be offered to him as an alternative. It
was recognised that the Area Controller post should properly
have
been offered to the respondent given that the employment of the
previous incumbent had been terminated in 2010. The appellant
relied
on the offer of 12 months’ compensation made to the respondent
“with prejudice” by the appellant. The
appellant
contended that given the delay which had arisen in the prosecution of
the matter, the order of retrospective reinstatement
made was not
appropriate, nor was the order that the respondent be employed in a
post which the appellant does not require operationally.
[23]
The
respondent, who ably represented himself both in the Labour Court and
this Court, opposed the appeal on the basis that his dismissal
was
premature in that the alternative position of Area Controller was on
the table and it had not been resolved whether such position
provided
a suitable alternative to retrenchment. Furthermore, the respondent
took issue with the appellant’s pleaded case
that the Area
Controller position was not filled following the dismissal of Mr
Mogoani due to its further operational requirements
when at the time
of his retrenchment this was not the reason why he was not offered
the post.
[24]
The
respondent refused the offer of compensation on the basis that he
seeks to be reinstated into his employment in the position
of the
Area Controller. With regards to the delay in the prosecution of the
matter, the respondent stated that this was caused
by a dispute as to
the terms of the pre-trial minute; and by an error on the part of the
Court in notifying the parties of the
set down of the matter as a
result of which the parties agreed to its postponement. Furthermore,
the appellant's attorney failed
to seek the assistance of a judge to
aid the parties to achieve signature of the pre-trial minute after
having undertaken to do
so.
Evaluation
[25]
The
term “operational requirements” is defined in s213 to
mean “requirements based on the economic, technological,
structural or similar needs of an employer”. For a dismissal on
grounds of operational requirements to be substantively fair,
the
rationale underlying the dismissal must be founded on the
bona
fide
operational needs of the business, or put differently, its economic,
technological, structural or similar needs.
[4]
To be fair, an employer must prove on a balance of probabilities the
cause or reason for the dismissal; the defined operational
requirements that the dismissal was based on; the facts upon which a
finding that the dismissal was substantively fair can be made;
and
that a fair procedure in accordance with s189 had been complied
with.
[5]
[26]
Section
188 read with s189 recognises the employer’s right to dismiss
on grounds of its operational requirements where there
is a fair
reason for the dismissal and the dismissal is undertaken in
accordance with a fair procedure. A fair reason is one that
is
bona
fide
and rationally justified,
[6]
informed by a proper and valid commercial or business rationale.
[7]
The enquiry is not whether the reason put up is one which would have
been chosen by the court but whether the reason advanced considered
objectively is fair.
[8]
[27]
The
appellant put up evidence of a
bona
fide
commercial rationale which justified restructuring its operation so
as to locate the respondent’s job function at its head
office.
In issue was what was to become of the respondent’s post as a
consequence of such restructure. Mr Le Roux’s
evidence was that
the respondent’s job functions were not of such a nature as to
warrant a full-time post and that his functions
were as a result
given to another employee, Ms Du Plessis, to perform. However, this
evidence was contradicted by Mr Le Roux when
he testified that Ms Du
Plessis’ cashbook functions and work with daily transfers “
was
taken away from her when
[the respondent’s]
filing
was given to her”
and the cash book function “
was
moved to head office and it was given to the new appointment”
.
What is apparent from this evidence is that when the respondent’s
job functions were added to another employee’s role
this
required not only a further restructuring of job functions but led to
the appointment of a new employee. The result was that
the
respondent’s job functions were not of such a nature that they
could be tagged on to another employee’s tasks without
causing
further restructuring and a new appointment.
[28]
It
follows that the Labour Court cannot be faulted for its finding that
the respondent’s functions were “
given
to someone else unduly
”
without the respondent being offered a transfer to head office in
order to perform his tasks.
[29]
Having
contemplated retrenchment the appellant gave notice in writing to the
respondent in terms of section 189(3) inviting him
to a consultation
as the only employee in his department likely to be affected by
restructuring. In this notice, the information
provided to him
included the reason for his proposed dismissal and alternatives to be
considered before proposing dismissal. During
the course of the
ensuing consultations with the respondent, three alternative
positions were discussed and considered.
[30]
Section
189(2) requires that the consultation process takes the form of a
“meaningful joint consensus-seeking process”
inter
alia
to avoid dismissal or seek alternatives to it where these are
available. To be meaningful, the consultation must be genuine and
may
not be a sham with the purpose of seeking alternatives to dismissal
being to avoid dismissal if reasonably possible.
[9]
Counsel for the appellant correctly accepted at the hearing of this
appeal that the consultation process had been concluded prematurely
when the respondent’s employment was terminated on 10 March
2011. The respondent was not consulted as to the option of moving
to
the appellant’s head office in Middelburg into his position as
human resources clerk in which he could continue to perform
his job
functions, when the evidence showed that the appellant continued to
require the respondent’s job functions to be
performed at head
office. Furthermore, having discussed the Area Controller position,
and with the position vacant, the failure
to offer the vacant
position to the respondent as an alternative to retrenchment was
unfair. It follows that the Labour Court correctly
found that the
dismissal of the respondent was substantively unfair.
[31]
The
finding of procedural unfairness can equally not be faulted given the
evidence that the appellant failed to comply with the
provisions of
section 189(2) of the LRA in not engaging in a meaningful joint
consensus-seeking process when it bailed out of the
consultation
process.
[32]
Turning
to the relief granted by the Labour Court, the appellant takes issue
with the order of retrospective reinstatement on the
basis that the
respondent’s job functions are performed by other employees at
the head office and it does not operationally
require the alternative
position of Area Controller to be filled. For this reason, the
appellant stated that it made an offer of
twelve months’
compensation to the appellant.
[33]
Section
193(1) confers a discretion on a court or arbitrator to order
reinstatement “from any date not earlier than the date
of
dismissal”. Section 193(2) provides that the court or
arbitrator “must require the employer to reinstate or re-employ
the employee unless-
‘
(a)
the employee does not wish to be
reinstated or re-employed;
(b)
the circumstances surrounding
the dismissal are such that a continued employment relationship
would
be intolerable;
(c)
it is not reasonably practicable
for the employer to reinstate or re-employ the employee;
or
(d)
the dismissal is unfair only
because the employer did not follow a fair procedure.’
[34]
Where
a dismissal for operational requirements is found to be unfair, the
Court in terms of s 193(3) “…in addition
may make any
other order that it considers appropriate in the circumstances.”
[35]
It
was emphasised in
Equity
Aviation Services (Pty) Ltd v CCMA and Others (Equity Aviation)
[10]
that the use of the word “must” in s 193 “clearly
intended that upon the finding in a given case that the employee
concerned was substantively unfairly dismissed, such employee
must
be reinstated, if the employee so wished, unless either or both of
the conditions referred to in paragraphs (b) and (c) of subsection
(2)” existed.
[11]
The underlying enquiry is that of fairness between the parties which
“…
ought
to be assessed objectively on the facts of each case bearing in mind
that the core value of the LRA is security of employment.”
[12]
[36]
In
Elliot
International (Pty) Ltd v Veloo and Another,
[13]
this Court found that a factual finding was to be made as to whether
any of the conditions referred to in paragraphs (b) and (c)
of
subsection (2) existed such as would render an order for the
reinstatement inappropriate. It is trite that this Court may not
lightly interfere with the Labour Court’s discretion as the
trial court on a factual finding unless such finding is based
on a
misdirection or is clearly wrong.
[37]
The
respondent sought reinstatement into his position or an alternative
position with the appellant. With retrenchment a no-fault
dismissal
founded on the employer’s operational requirements and not on
the conduct or capacity of the employee, there was
no evidence before
the Court
a
quo
which allowed a finding that a continued employment relationship
would be intolerable between the parties. Furthermore, no evidence
was placed before the Court indicating that it was not reasonably
practicable for the appellant to reinstate the respondent. It
followed that the conditions referred to in s193(2)(b) and (c) did
not exist. With evidence that the job functions of the respondent’s
position as Human Resources Clerk remained in existence following the
appellant’s restructure, the Court
a
quo
did
not err in ordering the respondent’s reinstatement into the
Human Resources position.
[38]
I
take no issue with the Court
a
quo
’s
finding that the order of reinstatement should be made retrospective
to the date of dismissal, more so when the long delay
in the
prosecution of the matter was not attributable to the unrepresented
respondent. The appellant failed to obtain assistance
in reaching
agreement regarding the pre-trial minute in the manner it is
undertaken to do. Furthermore, the required notice of
set down of the
matter was not served in the manner required due to no fault of
either of the parties.
[39]
The
Court
a
quo
exercised its discretion on the retrospective reinstatement of the
respondent taking into account relevant factors and having regard
to
consideration of fairness to both parties. Having regard to the date
and circumstances of the respondent’s dismissal,
the date of
his reinstatement by the Labour Court, the reasons for the delay in
the hearing of the matter by the Labour Court,
the respondent’s
failure to secure alternative employment and having had regard to the
offer of twelve months’ compensation
made to the respondent, I
am satisfied that the order of retrospective reinstatement in this
matter was fair.
[14]
[40]
As
was made clear in
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and Others
[15]
under the previous
Labour Relations Act, but
applicable as much to
the current statute, the appropriateness of reinstatement is to be
judged at the time the matter was adjudicated
by the trial court and
it would be “unjust and illogical” to allow delays caused
by an appeal to render an order of
reinstatement inappropriate on
appeal.
[41]
In
Equity
Aviation
,
it was made clear that:
‘
The
ordinary meaning of the word “reinstate” is to put the
employee back into the same job or position he or she occupied
before
the dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes.
It is aimed at
placing an employee in the position he or she would have been but for
the unfair dismissal. It safeguards workers’
employment by
restoring the employment contract.’
[16]
(footnotes omitted)
[42]
In
ordering the restoration of the employment contract, the Labour Court
was entitled in terms of
s193(1)(a)
to order reinstatement “from
any date not earlier than the date of dismissal”.
[17]
With an order of retrospective reinstatement not compensation as
contemplated in
s193(1)(c)
or s
194
, the period of retrospectivity of
the reinstatement order is not limited to the maximum 12 months
compensation provided in the
LRA.
[18]
[43]
It
follows for these reasons that the respondent was not obliged to
compromise his claim to retrospective reinstatement in circumstances
in which reinstatement is the primary remedy for unfair dismissal.
The fact that the offer of compensation was both genuine and
made in
good faith placed no obligation on the respondent to accept the offer
and compromise his rights.
[19]
[44]
Having
regard to considerations of law and fairness, with the respondent
unrepresented both in this Court and in the Court
a
quo
there exists no reason to justify a costs order being made against
the appellant in this matter.
Order
[45]
In
the result, the following order is made:
1.
The
appeal is dismissed, with no order as to costs, subject to the
substitution of the order of the Court
a
quo
as follows:
‘
(1)
The
dismissal of the applicant is procedurally and substantively unfair.
(2)
The respondent is to reinstate the applicant, with retrospective
effect and no loss
of benefits, into its employment in the position
of human resources clerk located at its head office in Middelburg, or
into such
similar position as is available on the same or similar
terms and conditions of employment.
(3)
The respondent is to pay back pay to the applicant from the date of
his dismissal
until the date of his reinstatement to be paid to the
applicant within ten (10) days of this order.
(4)
There is no order as to costs.’
______________
Savage AJA
Landman
JA and Phatshoane AJA concur in the judgment of Savage AJA.
APPEARANCES:
FOR THE APPELLANT:
Mr R
Grundlingh
FOR
THE RESPONDENT:
In person
[1]
Rule
5(8) of the Labour Appeal Court Rules reads that: “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(17) of the Rules reads that: “If the appellant fails to
lodge the record within the prescribed period, the appellant
will be
deemed to have withdrawn the appeal, unless the appellant has within
that period applied to the respondent or the respondent's
representative for consent to an extension of time and consent has
been given. If consent is refused the appellant may, after
delivery
to the respondent of the notice of motion supported by affidavit,
apply to the Judge President in chambers for an extension
of time.
The application must be accompanied by proof of service on all other
parties. Any party wishing to oppose the grant
of an extension of
time may deliver an answering affidavit within 10 days of service on
such party of a copy of the application.”
[3]
Rule
5(17) of the Rules.
[4]
Section
213 of the LRA.
[5]
SACWU
and Others v Afrox Ltd
[1999]
10 BLLR 1005
(LAC) at para 38.
[6]
Johnson
& Johnson (Pty) Ltd v CWIU
[1998]
12 BLLR 1209 (LAC).
[7]
CWIU
and Others v Algorax (Pty) Ltd
[2003]
11 BLLR 1081
(LAC);
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
(2000) 21 ILJ 129 (LAC) at para 36.
[8]
BMD
Knitting Mills (Pty) Ltd v SACTWU
[2001] 7 BLLR 705
(LAC) at para 19.
[9]
SA
Clothing and Textile Workers Union and Others v Discreto A Division
of Trump and Springbok Holdings
(1998)
19 ILJ 1451 (LAC) at para 8;
Supergroup
Trading (Pty) Ltd v Janse van Rensburg
[2012]
ZALAC 7
(25 April 2012) at para 20.
[10]
[
2008]
12 BLLR 1129
(CC).
[11]
At
para 28.
[12]
Equity
Aviation
at
para 39.
[13]
(2015)
36 ILJ 422 (LAC) at para 53.
[14]
See
DB
Contracting North CC v National Union of Mineworkers and Others
[2015]
10 BLLR 973
(LAC); (2015) 36 ILJ 2773 (LAC) at para 52.
[15]
[1993] ZASCA 201
;
1994
(2) SA 204
(A) at 219H-I.
[16]
At
para 36.
[17]
See
too
NUMSA
and Others v Fibre Flair CC
t/a
Kango Canopies
[2000] 6 BLLR 631
(LAC);
Kroukam
v SA Airlink (Pty) Ltd
[2005] 12 BLLR 1172
(LAC) at paras 61-64.
[18]
Coca
Cola Sabco (Pty) Ltd v Van Wyk
[2015] 8 BLLR 774
(LAC) at para 17;
Equity
Aviation
at
para 42;
Billiton
A
;
Republican
Press (Pty) Ltd v CEPPWAWU and Others
[2007]
1001 (SCA);
2008 (1) SA 404
(SCA) at para 19.
[19]
VLC
Properties v Olwyn
[1998]
12 BLLR 1234
(LAC) at para 7.