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[2017] ZALAC 39
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James and Another v Eskom Holdings SOC Ltd and Others (CA8/16) [2017] ZALAC 39; (2017) 38 ILJ 2269 (LAC); [2017] 10 BLLR 979 (LAC) (13 June 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA 8/16
In
the matter between:
WILLIAM
JAMES
First
Appellant
THOMAS
BARRY
Second
Appellant
and
ESKOM
HOLDINGS SOC
LTD
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
MR
DANIEL DU
PLESSIS
Third
Respondent
Heard:
09 May 2017
Delivered:
13 June 2017
Summary: Jurisdiction
of the CCMA – employees dismissed for contravening employer’s
disciplinary code- stole watermelons
belonging to a client –
CCMA dismissing employees’ unfair dismissal claim –
employees on review challenging the
award on the validity of their
dismissal – employees now challenging the validity and
lawfulness of the general manager’s
decision to overturn the
chairperson of the disciplinary initial sanction- employees
contending that such decision contrary to
the collective agreement –
held that the jurisdiction of the CCMA should be established by
employees’ pleaded case
at the CCMA - that the information on
the referral form reveals that the employees referred a substantively
and procedurally unfair
dismissal dispute to the CCMA, thereby
clothing the CCMA with jurisdiction. Court deems it unnecessary to
deal with the validity
and lawfulness allegation as the
Constitutional Court in
Edcon
has not overruled the LAC’s
dictum
in the same Case – Appeal dismissed and Labour
Court’s judgment upheld.
Coram:
Tlaletsi AJP, Davis JA and Phatshoane AJA
JUDGMENT
TLALETSI
AJP
Introduction
[1]
This is an appeal against the judgment of
the Labour Court (per Steenkamp J) in terms of which the learned
Judge dismissed with
costs, an application by the appellants to
review and set aside an arbitration award issued by the third
respondent (“the
commissioner”), issued under the
auspices of the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”).
The appeal is with leave of the
court
a quo
.
[2]
The appellants sought to have the award
reviewed and set aside on the ground that the commissioner lacked
jurisdiction to determine
the dispute referred to the CCMA by them
because their employer, cited as the first respondent, (“the
respondent”)
acted in breach of a collective agreement. The
relief they sought was specific performance of their employment
contracts under
a common law remedy.
Factual
background
.
[3]
The salient facts necessary for the
adjudication of the appeal are common cause. The first respondent is
a national electricity
provider with various sub-divisions and
depots. The appellants were until their dismissal employed as senior
technicians. The appellants
were charged for contravention of
‘misconduct 2.8’ of the Eskom Disciplinary Code in that
“
while on duty conducts himself in
an improper or disgraceful manner or at anytime behaves in such a
manner, that he harms the image
of Eskom in that on 17 January 2013
you participated in the removal of watermelons from a farm in the
Rawsonville area without
permission of the farmer Mr Bok
”.
[4]
The factual basis for the misconduct is
simply that the appellants deviated from the farm where they were
supposed to work on the
electrical poles on that day, drove in their
Eskom vehicle some 19 kilometres to the farm of Mr Bok where they
were caught red-handed
by the owner stealing watermelons.
[5]
The appellants were found guilty by the
chairperson of the disciplinary enquiry and were summarily dismissed.
They did not tender
any evidence. Their union, National Union of
Mineworkers (NUM) lodged an internal appeal against their dismissal
on 14 August 2013.
The chairperson of the appeal tribunal changed the
sanction of dismissal to two weeks’ unpaid suspension
apparently on historical
inconsistency. The appellants resumed their
duties on 5 October 2013 after serving the sanctions imposed by the
appeal tribunal.
[6]
On 22 October 2013, the appellants were
informed that the General Manager had set aside the sanction imposed
by the appeal tribunal
and that they have been dismissed.
The Arbitration award
[7]
Aggrieved by the conduct of the respondent,
the appellants referred an “unfair dismissal” dispute to
the CCMA. On the
summary of the facts supporting the dispute, they
indicated that they were dismissed for allegedly stealing watermelons
and that
they wanted to be reinstated.
[8]
In the award, the commissioner was
satisfied that the appellants were guilty of the misconduct. As to
the General Manager changing
the sanction of two weeks’ unpaid
suspension imposed by the appeal tribunal, he found such conduct
inconsistent with the
Disciplinary Code and for that reason, the
dismissal of the employees was found to be procedurally unfair and
awarded each of them
R20 000.00 compensation payable by 30 September
2014.
[9]
The commissioner found the appellants to
have lied throughout the investigation and at the arbitration; that
although they were
not charged with theft or attempted theft, their
conduct satisfied all the elements of the said charge. He concluded
that the first
respondent cannot reasonably be expected to continue
with the employment relationship under such circumstances. A sanction
of dismissal
was found to be fair.
The Court
a quo
[10]
Further aggrieved by the award, the
appellants sought to review the award and that a declaratory order be
made to the effect that
their dismissal by the respondent is invalid
and of no force and effect. In support of the orders sought the
appellants contended
that:
9.1 there existed a
collective agreement between the appellants’ trade union, NUM,
and the first respondent regulating the
terms and procedures to be
followed in all disciplinary enquiries to be conducted by the first
respondent against its employees;
9.2 the collective
agreement formed part of the appellants’ employment contract
with the first respondent;
9.3 the collective
agreement and procedures outlined therein are binding on the first
respondent;
9.4 clause 8 of the
collective agreement granted the appellants the right of appeal
against their conviction and sanction by the
chairperson of the
disciplinary enquiry;
9.5 it is nowhere stated
in clause 8 or the entire collective agreement that the decision of
the appeal tribunal has the effect
or status of a recommendation to
the General Manager;
9.6 By implication, the
decision of the appeal tribunal is final and binding on the first
respondent and its managers.
Therefore, the argument
continues, the conduct of the General Manager was invalid/unlawful
and of no force effect because he contravened
the provisions of the
collective agreement which had been incorporated into the contracts
of employment of the appellants. That
being the case, it was
contended, there was no valid dismissal, and absent a valid
dismissal, the commissioner lacked jurisdiction
to arbitrate the
dispute.
[11]
It needs to be recorded that the appellants
deliberately did not base their review application on the Labour
Relations Act, 66 of
1995 (LRA), remedies and seek the review on the
merits and consequential relief. They solely relied on the breach of
the collective
agreement.
[12]
The first respondent contended that the
award was unassailable and the review application had to be
dismissed.
[13]
The
Labour Court, relying on the decision of this court
Edcon
v Steenkamp
[1]
held that the commissioner had jurisdiction to arbitrate the dispute
as they were dismissed for the purposes of the LRA and dismissed
the
review application with costs. The learned Judge also held that he
could not grant any relief to the appellants by virtue of
the alleged
breach of the collective agreement as the Labour Court had no
jurisdiction to do so.
The
Appeal
.
[14]
The appellants do not, in the current
proceedings, dispute the allegations of misconduct against them as
they view them irrelevant
for purposes of determining the issues on
appeal. Mr F Rautenbach, on behalf of the appellants, contends that
the review of the
award should have been granted for the following
reasons:
·
Their dismissal was unlawful, invalid and
of no force and effect as being in breach of the respondent’s
procedural code to
which it was bound, as it was incorporated in the
appellants’ contracts of employment.
·
An invalid dismissal is in law deemed as no
dismissal at all, also for purposes of the referral of an alleged
unfair dismissal dispute
under s191 of the LRA.
·
In the result, the CCMA had no jurisdiction
to hear the dispute arising out of their dismissal, the facts
grounding jurisdiction
having to be determined objectively.
[15] Mr F A Boda SC, on
behalf of the respondent, contends that the appellants were dismissed
for the purposes of the LRA definition
of ‘dismissal’.
The challenged decision qualifies as a dismissal for the purposes of
the LRA even though it may have
been contrary to a collective
agreement. Furthermore, he contends, the appellants accepted that the
decision of the manager constituted
a dismissal when they referred
the dispute as a dismissal dispute and are not permitted to change
course. Before the arbitrator,
the dismissal was a common cause fact
not placed in issue. He submitted that they should be restricted to
their LRA remedies and
not be allowed to now pursue a remedy outside
the LRA. Counsel submitted that no common law remedy is, in fact,
available as the
source of their case lies in a collective agreement.
[16]
The issue to be determined is whether the arbitrator had jurisdiction
to determine the dispute that was referred by the appellants
to the
CCMA. For the arbitrator to be clothed with jurisdiction, a dismissal
of the appellants by their employer should have been
established. The
test applicable is whether the facts placed before the commissioner,
objectively considered, clothed the commissioner
with jurisdiction to
arbitrate the dispute.
[2]
[17]
In Gcaba
v
Minister for Safety and Security and Others
[3]
the Constitutional Court authoritatively held that:
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa,and not the substantive merits of the case.
If Mr Gcaba’s
case were heard by the High Court, he would have failed for not being
able to make out a case for the relief
he sought, namely review of an
administrative decision. In the event of the Court’s
jurisdiction being challenged at the
outset (in limine), the
applicant’s pleadings are the determining factor. They contain
the legal basis of the claim under
which the applicant has chosen to
invoke the court’s competence. While the pleadings –
including in motion proceedings,
not only the formal terminology of
the notice of motion, but also the contents of the supporting
affidavits – must be interpreted
to establish what the legal
basis of the applicant’s claim is, it is not for the court to
say that the facts asserted by
the applicant would also sustain
another claim, cognisable only in another court. If however the
pleadings, properly interpreted,
establish that the applicant is
asserting a claim under the LRA, one that is to be determined
exclusively by the Labour Court,
the High Court would lack
jurisdiction. An applicant like Mr Gcaba, who is unable to plead
facts that sustain a cause of administrative
action that is
cognisable by the High Court, should thus approach the Labour
Court.”
[4]
The
same approach should apply to consideration of the jurisdiction of
the CCMA in disputes referred to it.
[17] The starting point
would be to investigate what was in fact referred to the CCMA. Put
differently, one should establish what
the appellants’ pleaded
case at the CCMA is. In the LRA Form 7.11 for referral of disputes to
the CCMA, the appellants indicated
their dispute as “unfair
dismissal”. As summary of the dispute, they wrote that “
members
were dismissed for [alleged stealing] of [watermelons]
’ and
that the dispute arose on 4 October 2013. The outcome they desired is
reinstatement. On the part to be additionally
completed for dismissal
disputes only, the appellants indicated that they were dismissed for
misconduct, that their ‘
dismissal
’ was
procedurally “
unfair”
because “
procedures
were not followed”
and that the dismissal was substantively
unfair because of an “
inappropriate sanction”
.
There is no doubt from the information on the referral form that the
appellants referred a substantively and procedurally unfair
dismissal
dispute to the CCMA. To them there was no doubt that they had been
dismissed and they accepted such state of affairs
as fact.
[18] An arbitrator faced
with the information referred to above is, in my view, entitled to
proceed with the arbitration of the
dispute. It would be remiss of
the arbitrator to ignore the factual material placed before him or
her and doubt that he or she
has jurisdiction to arbitrate the
dispute. There was nothing that suggested, at this stage, that
dismissal could be a contentious
issue when all the parties agreed
that there had been a dismissal. Furthermore, the evidence tendered
by the parties supported
their view that there had been a dismissal
and what was required of the commissioner was to determine the
fairness or otherwise
of the dismissal. At no stage during the
proceedings was any evidence tendered that could have created doubt
that the commissioner
lacked jurisdiction. If such evidence was
tendered it would have been required of the commissioner to
reconsider the jurisdictional
issue and to stop the proceedings for
lack of jurisdiction.
[19]
Section 186 of the LRA defines dismissal to mean,
inter
alia
,
that an employer has terminated a contract of employment with or
without notice. The ordinary meaning of “termination”
is
to bring to an end. In this
case
,
the respondent has through the action of the General Manager brought
the contracts of employment of the appellants to an end.
It does not
matter that the General Manager did so contrary to the collective
agreement. The appellants were in the circumstances
entitled to
approach the CCMA to challenge the fairness of the conduct of the
respondent as they did. Having done so, it is not
open to them to
abandon their arbitrated referred dispute, and claim that they had
not been dismissed. Nothing barred the appellants
from approaching
the CCMA for relief. It all depended on how they pleaded their case
to the CCMA. Termination of the contracts
of employment of the
appellants was a factual phenomenon which they themselves found to
constitute a dismissal that was unfair.
In Gcaba (supra) the
Constitutional Court warned that “
Once
a litigant has chosen a particular cause of action and system of
remedies (for example, the structures provided for by the
LRA) she or
he should not be allowed to abandon that cause as soon as a negative
decision or event is encountered
[5]
.
[20] For the above
reasons, I am satisfied that the facts that objectively clothed the
commissioner with jurisdiction had been established
and on this basis
alone the ground of appeal challenging the jurisdiction of the CCMA
cannot be sustained. Since there was no challenge
to the merits on
review in the Court a quo and in this Court, the award as well as the
order of the Court
a quo
should stand.
[21]
Section 23(1) of the Bill of Rights in the Constitution of the
Republic of South Africa, 1996 guarantees everyone the right
to fair
labour practices. Section 185 of the LRA which is enacted to give
effect to the rights in the Constitution provides that
every employee
has the right not to be (a) unfairly dismissed; and (b) subjected to
unfair labour practice. By following the procedure
provided for in s
191 of Chapter VIII of the LRA dealing with Unfair dismissals and
Unfair labour practices, the appellants were
asserting their
Constitutional and LRA rights and were seeking redress under the LRA.
That was, in fact, their cause of action
at the CCMA. In
Steenkamp
and Others v Edcon Limited,
[6]
Zondo J writing for the majority authoritatively held that:
‘
[105]
The LRA created special rights and obligations that did not exist at
common law. One right is every employee’s
right not to be
unfairly dismissed which is provided for in section 185. The
LRA also created principles applicable to such
rights, special
processes and fora for the enforcement of those rights. The
requirement for the referral of dismissal disputes
to conciliation is
one of the processes created by the LRA. The CCMA, bargaining
councils and the Labour Court are some of
the fora. The
principles, processes, procedures and fora were specially created for
the enforcement of the special rights
and obligations created in the
LRA. Indeed, the LRA even provides for special remedies for the
enforcement of those rights
and obligations. The special
remedies include interdicts, reinstatement and the award of
compensation in appropriate cases.
These special rights,
obligations, principles, processes, procedures, fora and remedies
constitute a special LRA dispensation.
[106] Section 189A falls
within Chapter VIII of the LRA. That is the chapter that deals
with unfair dismissals. Its
heading is: UNFAIR DISMISSAL AND
UNFAIR LABOUR PRACTICE. Under the heading appears an indication
of which sections fall under
the chapter. The sections are
reflected as “ss 185-197B”. The chapter starts off
with section 185.
Section 185 reads:
“
Every
employee has the right not to be—
(a) unfairly dismissed;
and
(b) subjected to unfair
labour practice.”
Conspicuous by its
absence here is a paragraph (c) to the effect that every employee has
a right not to be dismissed unlawfully.
If this right had been
provided for in section 185 or anywhere else in the LRA, it would
have enabled an employee who showed that
she had been dismissed
unlawfully to ask for an order declaring her dismissal invalid.
Since a finding that a dismissal is
unlawful would be foundational to
a declaratory order that the dismissal is invalid, the absence of a
provision in the LRA for
a right not to be dismissed unlawfully is an
indication that the LRA does not contemplate an invalid dismissal as
a consequence
of a dismissal effected in breach of a provision of the
LRA.
[107] This indication is
reinforced when one has regard to the definition of “dismissal”
in section 186(1). It
starts with what would ordinarily be
understood as a dismissal, namely, a termination of employment with
or without notice.
That encompasses the ordinary situation of
the employer giving notice under the contract of employment and a
summary dismissal.
But then in five further paragraphs it
extends the concept of dismissal far beyond its ordinary meaning.
Once again the absence
of any reference to an unlawful dismissal is
telling. It suggests that, if a dismissed employee wishes to
raise the unlawfulness
of their dismissal, they must categorise it as
unfair if they are to obtain relief under the LRA.
[108] Another indication
that the LRA does not contemplate an invalid dismissal is this.
In section 187 the LRA created a
new category of dismissals. It
called them “automatically unfair dismissals”. This
is a special category
of dismissals. What makes this category
of dismissals special is that the dismissals in this category are all
based on reasons
that we, as society, regard as especially
egregious. They include cases where an employee is dismissed
for his or her race,
gender, sex, ethnic origin, religion, marital
status, political opinion, membership of a trade union, participation
in a protected
strike, exercise of rights provided for in the LRA and
other such arbitrary reasons. Another factor that makes this
category
of dismissals special is that for those cases where an
employee’s dismissal has been found to be automatically unfair,
the
LRA provides the Labour Court with power to order the employer to
pay double the maximum compensation that the Labour Court would
have
had the power to order if the dismissal had not been found to be
automatically unfair but was found to simply lack a fair
reason or
was found to have been effected without compliance with a fair
procedure.
[109] Most, if not all,
of the reasons for dismissal that render a dismissal automatically
unfair as contemplated in section 187
are reasons that would
ordinarily render a dismissal unlawful and invalid. If the
Legislature had intended that under the
LRA there would be a category
of invalid dismissals, it would have been the automatically unfair
dismissals. The Legislature
must have deliberately decided that
the LRA would not provide for invalid dismissals but rather for
automatically unfair dismissals
instead. Put differently, the
Legislature deliberately provided in the LRA for unfair dismissals
and automatically unfair
dismissals to be outlawed and to attract a
remedy but did not make any provision for unlawful or invalid
dismissals. To understand
this choice by the Legislature, it is
necessary to look back at the legal position before the passing of
the current LRA.’
[Footnote omitted]
[22] Mr Rautenbach
referred us to the remarks by Zondo J from paragraphs 188 to 192 of
the Steenkamp matter which according to his
interpretation, tend to
support his submission that the Constitutional Court recognised the
existence of an invalid dismissal where
it held that an invalid
dismissal is not a dismissal in law and that an employee does not
require a reinstatement order pursuant
thereto. In those paragraphs,
the learned Justice held that:
‘
[188]
One of the factors on which the first judgment relies to reach the
conclusion that dismissal notices given, or, dismissals
effected, in
breach of the procedural requirements of section 189A(8) are invalid
is the proposition that the grant of an order
of reinstatement in the
case of an invalid dismissal is not automatic but discretionary.
Obviously, that implies that an
order of reinstatement is competent
in the case of a dismissal that has been declared invalid and of no
force and effect.
I am unable to agree with this proposition.
In my view an order of reinstatement is not competent where the
dismissal is
invalid and of no force and effect. To speak of an
order of reinstatement in that case is a contradiction in terms.
[189] An invalid
dismissal is a nullity. In the eyes of the law an employee
whose dismissal is invalid has never been dismissed.
If, in the
eyes of the law, that employee has never been dismissed, that means
the employee remains in his or her position in the
employ of the
employer. In this Court’s unanimous judgment in Equity
Aviation, Nkabinde J articulated the meaning of
the word “reinstate”
in the context of an employee who has been dismissed. She said, quite
correctly, it means to restore
the employee to the position in which
he or she was before he or she was dismissed. With that meaning in
mind, the question that
arises in the context of an employee whose
dismissal has been found to be invalid and of no force and effect is:
how do you restore
an employee to the position from which he or she
has never been moved? That a dismissal is invalid and of no
force and effect
means that it is not recognised as having happened.
It is different from a dismissal that is found to be unfair because
that
dismissal is recognised in law as having occurred.
[190] When a dismissal is
held to be unfair, one can speak of a reinstatement but not in the
case of an invalid dismissal.
This, therefore, means that an
order of reinstatement is not competent for an invalid dismissal.
An employer against which
an order has been made declaring the
dismissal of its employees invalid and who does not want to continue
or cannot continue the
employment relationship with those employees
will have to dismiss them again. Otherwise, they remain in its
employ and, if
they tender their services or are prevented by the
employer from performing their duties, will be entitled to payment of
their
remuneration.
[191] The distinction
between an invalid dismissal and an unfair dismissal highlights the
distinction in our law between lawfulness
and fairness in general
and, in particular, the distinction between an unlawful and invalid
dismissal and an unfair dismissal or,
under the 1956 LRA a dismissal
that constituted an unfair labour practice. At common law the
termination of a contract of
employment on notice is lawful but that
termination may be unfair under the LRA if there is no fair reason
for it or if there was
no compliance with a fair procedure before it
was effected. This distinction has been highlighted in both our
case law and
in academic writings.
[192] It is an employee
whose dismissal is unfair that requires an order of reinstatement.
An employee whose dismissal is
invalid does not need an order of
reinstatement. If an employee whose dismissal has been declared
invalid is prevented by
the employer from entering the workplace to
perform his or her duties, in an appropriate case a court may
interdict the employer
from preventing the employee from reporting
for duty or from performing his or her duties. The court may
also make an order
that the employer must allow the employee into the
workplace for purposes of performing his or her duties.
However, it cannot
order the reinstatement of the employee.’
[Footnotes omitted]
[23] In light of my
finding that the appellants knowingly referred an unfair dismissal
dispute to the CCMA, having accepted that
that tribunal had
jurisdiction to assert their Constitutional and LRA rights, that they
cannot at this stage after the process
has run its course abandon
that process and raise a new cause of action, it is not necessary in
these proceedings to decide the
validity or otherwise of the
appellants’ dismissal and what the majority could have meant in
the paragraphs referred to above.
However, one must also take note of
the fact that the majority was clearly responding to the view in the
minority judgment that
dismissals effected in breach of the
procedural requirements of s 189A(8) of the LRA are invalid because,
inter alia
, the grant of an order of reinstatement in the case
of an invalid dismissal is not automatic but discretionary. What the
majority
seem to have said is that one cannot talk of reinstatement
if there has not been a dismissal. The majority judgment was
not
necessarily stating that the LRA recognises an invalid or
unlawful dismissal.
[24]
It is also significant that the majority judgment does not seem to
have, either expressly or by implication rejected the LAC’s
conclusions in the
Edcon
v Steenkamp and Others
[7]
matter
at paragraphs [40] and [41] where it held that:
‘
[
40]
The implicit acceptance by the Appellate Division in
Schierhout
v Minister
of Justice that a wrongful
or “invalid” termination can in effect bring a contract
of employment to an end has however
persisted in our labour law. The
notion is comprehended in the definition of “dismissal”
in section 186 of the LRA
which defines a dismissal to mean inter
alia “an employer has terminated a contract of employment with
or without notice”.
The statutory concept of a “dismissal”
is not the equivalent of a lawful cancellation of a contract of
employment.
It encompasses much more. Besides the termination of a
contract of employment with or without notice, it includes the
failure to
renew a fixed term contract in certain circumstances, the
refusal to allow an employee to resume work after taking maternity
leave,
selective non re-employment and a resignation by an employee
where the continuation of the relationship has been rendered
intolerable
by the employer. The statutory concept of dismissal is
therefore not restricted to the contractual notion of lawful
cancellation
and recognises that contract law is an insufficient
instrument to regulate the modern employment relationship.
The
purpose of the wide definition of “dismissal” is to
extend the LRA’s scope to cover the effective dismissal
of
employees, whether or not by due termination of their contracts of
employment. A wrongful termination without notice which does
not
constitute a lawful cancellation or rescission of the contract may
therefore still constitute a dismissal in terms of the LRA
.
[41]
The definition of
dismissal is thus wide enough to include a wrongful or “invalid”
termination in violation of contractual
or statutory notice periods
within its ambit. The word “terminated” in section
186(1)(a) of the LRA should be given
its ordinary meaning of
“bringing to an end”. The ordinary meaning is not
coloured by the lawfulness, fairness or otherwise
of the action. The
fact that a remedy may exist to redress any wrongfulness or
unfairness does not per se alter the consequence
of an ending brought
about by the employer’s action. As a rule, a wrongful or unfair
termination will only be reversed (and
the contractual rights and
obligations restored) by the grant of the remedy of specific
performance or an award of retrospective
reinstatement at the
discretion of the court. The resultant legal position is not unlike
that prevailing in administrative law
where a declaration of
illegality will not have the inevitable consequence that wrongful
action will be declared invalid and set
aside
.’ [footnotes
omitted] [Emphasis provided]
[25]
The above conclusion by the LAC that, inter alia, the purpose of the
wide definition of “dismissal” is to extend
the LRA’s
scope to cover the effective dismissal of employees, whether or not
by due termination of their contracts of employment
should therefore
remain the default position in this Court
[8]
.
Having found that the employees were indeed dismissed and that the
CCMA had jurisdiction to entertain the appellants’ dispute
with
the respondent, it is not necessary to deal in any detail with the
contention that the appellants did not waive their rights
to
challenge the jurisdiction of the CCMA in circumstances where they
failed to do so during the arbitration proceedings; and whether
there
was a tacit agreement breached by the respondent rendering the
appellants’ dismissal invalid and unlawful at the stage
when
they were served with dismissal letters.
[26] In the result, the
appeal falls to be dismissed. Regarding costs, it shall be in
accordance with the requirements of the law
and fairness that there
be no order as to costs.
Order
.
The appeal is dismissed.
______________
Tlaletsi AJP
Davis
JA and Phatshoane AJA concur in the judgment of Tlaletsi AJP.
APPEARANCES:
FOR
THE APPELLANT: Mr F Rautenbach
Instructed
by Murray Fourie & Le Roux
FOR
THE RESPONDENT: Mr F A Boda SC
Instructed
by Norton Rose Fulbright S.A Inc
[1]
Edcon v
Steenkamp and Others
2015 (4) SA 247
(LAC);
[2015] 6 BLLR 549
(LAC); (2015) 36 ILJ 1469
(LAC).
[2]
SARPA
v SA Rugby (Pty) Ltd and Others
[2008]
9 BLLR 854
(LAC).
[3]
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) ; (2010) 31 ILJ 296 (CC)
; [2009] 12 BLLR 1145 (CC)
[4]
At
para 75.
[5]
At
para 57.
[6]
Steenkamp
and Others v Edcon Limited
(2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335
(CC); 2016 (3) SA 251 (CC).
[7]
[2015]
6 BLLR 549 (LAC).
[8]
In
Gcaba (supra) the Constitutional Court held “Lastly, in view
of the perceived tensions between Chirwa and Fredericks,
it may be
useful to keep the essential meaning of and the reasons behind the
doctrine of precedent in mind. Often expressed in
the Latin maxim
stare decisis et non quieta movere (to stand by decisions and not to
disturb settled matters), it means that
in the interests of
certainty, equality before the law and the satisfaction of
legitimate expectations, a court is bound by the
previous decisions
of a higher court and by its own previous decisions in similar
matters.” At para 58.