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[2019] ZALAC 34
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Maripane v Glencore Operations South Africa (Pty) Ltd (JA70/2017) [2019] ZALAC 34; [2019] 8 BLLR 750 (LAC); (2019) 40 ILJ 1999 (LAC) (7 May 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA70/2017
In
the matter between:
SIMON
MARIPANE
Appellant
And
GLENCORE
OPERATIONS SOUTH AFRICA (PTY) LTD
(LION
FERROCHROME)
Respondent
Heard:
26 February 2019
Delivered:
07 May 2019
Summary:
Review
of arbitration award – employee dismissed for insubordination
having refused to return to his work station after his
tenure as a
health
and safety representative
had
allegedly ended as a result of the election of new leadership- in
terms of an agreement concluded with the union, the employee
was
appointed as
health
and safety representative
–
subsequent to an election of the
leaderships a letter the name of the elected official were sent to
the employer- the employer construed
the letter to mean that the
employee was no longer its
health
and safety representative
–
employer instructed the employee to
return to his position as
Raw
Material
Operator
– the employee refused to heed to the instruction and was
consequently dismissed –
The
commissioner found the employee guilty of insubordination but ordered
as sanction a written, final warning and back pay –
the Labour
Court reviewed and set aside the award and dismissed the
cross-review.
On
appeal held
The
evidence before the Commissioner on the point does not establish,
even on a balance of probabilities, that the
employee
had
been replaced by NUM as HSR. The letter of 26 September 2013 does not
state that the
employee
has
been replaced. What it does seem to state, at best, is that there was
a newly elected leadership in a range of portfolios, including
that
Mr Riba was elected as Chairperson of Health and Safety and Ms
Leshaba as Secretary of Health and Safety.
Further
that b
y
insisting that the
employee
reverts
to his position as RMO, and, thus, cease to be HSR, prior to the
expiry of his term as HSR, the
employer
was
acting in breach of the agreement (which could reasonably be
construed as a
stipulatio
alteri
) or could reasonably be perceived to have evinced an unequivocal
intention not to be bound by its material terms. Consequently,
like
any innocent party to a contract, who finds itself in such a
situation, the
employee
was
not obliged to accept the repudiation, could resist it and insist on
specific performance
.
The
instruction, that the
employee
return
to his position as RMO before the expiry of his term as HSR, was
legally unenforceable and clearly unreasonable. And the
appellant’s
non-compliance cannot be said to have been unlawful, or in breach of
his contract of employment, or the agreement.
Appeal upheld
with costs and Labour Court’s judgment set aside.
Coram:
Coppin JA, Savage AJA
et
Murphy AJA
JUDGMENT
COPPIN
JA
[1]
This is an appeal against the whole judgment of the Labour Court
(Harper AJ) in terms
of which it reviewed and set aside part of an
arbitration award made by a Commissioner of the Commission for
Conciliation, Mediation
and Arbitration (‘the CCMA’).
Having found that the appellant’s dismissal by the respondent,
for alleged insubordination,
was substantially unfair, the
Commissioner reinstated the appellant retrospectively to the date of
his dismissal, with seven month’s
backpay.
Background
[2]
The appellant was employed by the respondent since 2006 as a raw
material operator
(‘RMO’). During April 2012, the
respondent and the National Union of Mineworkers (‘NUM’),
of which the
appellant was a member, entered into a written
health and safety agreement (“the agreement”) to provide
for the
regulation of health and safety issues as contemplated in the
Occupational Health and Safety Act
[1]
.
In terms of the agreement,
inter
alia
,
a full-time health and safety representative (“HSR”)
would be appointed at Lion Ferrochrome, one of the smelters operated
by the respondent, for a three-year period, after he or she had been
elected to that position by the NUM membership at the respondent.
[3]
Having been so elected, the appellant was appointed as the HSR at
Lion Ferrochrome
in 2012. In 2013, however, a NUM Branch Committee
(North East Region) held elections in which the appellant
participated. Following
those elections, the NUM Branch Committee
submitted a letter, dated 26 September 2013, reflecting a list of
their “newly
elected leadership” to the respondent. The
letter stated that this newly elected leadership was for the period
19 September
2013 to 19 September 2016. It then went on to list a
number of individuals who had been elected to various leadership
positions.
The list also indicated,
inter alia
, that one, Koos
Riba, had been elected as Chairperson - Health and Safety and that
one, Lebo Leshaba, had been elected as Secretary
- Health and Safety.
The appellant’s name was not on the list.
[4]
Following the receipt of this letter the respondent, being of the
persuasion that
the letter meant that the appellant had been replaced
as HSR, instructed him to resume his duties as RMO in the Raw
Materials Department.
The appellant did not comply with the
instruction, but engaged the respondent on the issue. The appellant
was, reportedly, instructed
twice more to resume his position as RMO,
to no avail.
[5]
On 31 December 2013, the respondent charged the appellant with gross
insubordination
relating to his failure to resume his position as
RMO. The charge alleged, in essence, that the appellant was guilty of
gross insubordination
in that he did not report to his place of work
at the Raw Materials Department “between 2 and 3 December 2013
and 11 and
30 December 2013 as notified and instructed by
management…”.
[6]
It is common cause that the respondent’s representative had met
with the appellant
where the appellant had been informed that he was
to report to the said Department with effect from 1 December 2013. At
that meeting,
the appellant had indicated that he would not be
returning. However, there are different versions as to what the
appellant precisely
said at that meeting and whether he gave any
particular reason for his refusal to return.
[7]
It is not an issue that another meeting between the respondent’s
representative
and the appellant was held on 23 December 2013 where
the appellant had,
inter alia
, been informed of the
consequences of his refusal to return to the Raw Materials
Department. As with the first meeting, there are
different versions
about what was exactly said there. However, it is common cause that
the appellant was still not prepared to
heed the instruction to
return to his position as RMO and had maintained that he was still
the HSR.
[8]
On 28 January 2014, a disciplinary hearing was held. At its
conclusion, the appellant
was found guilty of the charge of gross
insubordination and a sanction of dismissal, which was found
appropriate, was imposed.
The appellant was accordingly dismissed
from his employment on 7 February 2014. The appellant unsuccessfully
appealed against the
findings and sanction of the disciplinary
hearing and, consequently, referred an unfair dismissal dispute to
the CCMA.
[9]
At the conclusion of the arbitration proceedings in the CCMA, the
presiding commissioner
issued an award in the following terms:
Firstly, he found that the dismissal of the appellant was
substantively unfair. Secondly,
he ordered the respondent to
retrospectively reinstate the appellant by no later than 7 September
2014 to the position of raw material
operator on the same terms and
conditions that applied as at the date of the dismissal. Thirdly, the
Commissioner ordered that
the respondent was, no later than 7
September 2014, “to reinstate all benefits that were applicable
to the [appellant] as
raw material operator”. Fourthly, the
Commissioner ordered that on that same date the respondent was to
give the appellant
a final written warning that would be effective
for a period of 12 months from the date of its issue. And lastly, the
Commissioner
ordered the respondent to pay the appellant backpay in
the sum of R 60,296 – 04, being equivalent to the appellant’s
salary for a period of seven months. The payment was to be made no
later than 7 September 2014. The capital sum was declared to
attract
interest as contemplated in
section 143(2)
of the
Labour Relations
Act of 1995
, meaning that interest, at the same rate as the legally
prescribed rate applicable to a judgment debt, accrued on the sum
awarded
from the date of the award until payment of the amount.
[10]
In September 2014, the respondent brought an application in the
Labour Court to review and set aside
the award to the extent that the
Commissioner had found that the appellant’s dismissal was
substantively unfair, that the
sanction of dismissal was
inappropriate, and in respect of the relief granted consequentially.
The respondent sought to have the
Commissioner’s award
substituted with one in terms of which the appellant’s
dismissal is declared to have been substantively
fair and the
dismissal is found to have been appropriate in the circumstances. In
the alternative, it sought to have the matter
referred back to the
CCMA for a fresh hearing.
[11]
It is not in dispute that on 2 February 2015, together with his
answering affidavit in those proceedings,
the appellant filed a
cross-review, with a condonation application, in which he only sought
to review and set aside the Commissioner’s
finding that he was
guilty of gross insubordination.
[12]
The court
a quo
granted the review, and dismissed the
cross-review. It held,
inter alia
, that “
even if the
instruction had been issued on a single occasion dismissal would be
justified. The disciplinary code , inter alia, stipulated
that
possible sanctions was merely a guideline
”. The court
a
quo
further found that in concluding that the disciplinary code
constituted a collective agreement, the Commissioner committed a
reviewable
irregularity as there was no evidence before him that it
was indeed a collective agreement.
[13]
Concerning the appellant’s perceived unhappiness with the way
the NUM (supposedly) dealt with
him, the court
a quo
held:
“
38. In these circumstances and when a collective agreement
is operative, an employee who is aggrieved with the decision of a
Union
is not entitled to breach these conditions of employment in
order to vent his opposition to the outcome of an election process
conducted by the Union. He is obliged to return to his position in
accordance with these conditions of employment and the collective
agreement… 39. He can concurrently challenge the outcome of
the election by seeking advice and where appropriate seeking
to
implement corrective measures. He however needed to address that
issue with NUM in the first instance… 40. It was not
however
appropriate to disobey the instructions of his employer and he was
obliged to assume his work duties while he pursued his
complaint
”.
[14]
The court
a quo
found that the dismissal was justified, not
only because an instruction for the appellant to return to work had
been issued by
the employer on three occasions, or because there was
a single offence, but because the appellant “
deliberately
continued to disobey the instructions
”. It also found that
an award of compensation (i.e. presumably the backpay) was
unjustified in the circumstances, because
“
an employee
should not be awarded compensation where he has repeatedly refused to
assume his work duties
”.
[15]
In conclusion, the court
a quo
upheld the review application,
set aside the Commissioner’s finding of substantive unfairness,
and substituted the Commissioner’s
award with an order
dismissing the appellant from his employment with the respondent as
from 7 February 2014. It also dismissed
the appellant’s
cross-review, awarded no compensation and made no costs orders.
The
Appeal
[16]
In this Court, the appellant effectively sought to have the court
a
quo
’s order set aside and substituted with an order
dismissing the review and upholding his cross-review. He sought to
persuade
this Court to find that a reasonable Commissioner would not
have found that he was guilty of insubordination, and would have
found
that the respondent had no authority to instruct him to resume
his duties as RMO; that there was no valid reason for his dismissal;
that it was substantively unfair, and consequently, reinstating him.
In the alternative, the appellant contended that should it
be held
that he had been reasonably found guilty of insubordination, this
Court should merely confirm the award of the Commissioner.
On the
other hand, the respondent argued that the court
a quo
was
correct and, accordingly, sought dismissal of the appeal.
[17]
The salient points for consideration on appeal are accordingly, in
brief: firstly, whether a reasonable
Commissioner could, on the
facts, have found that the appellant was guilty of insubordination;
secondly, depending on the outcome
of the first enquiry, whether a
reasonable Commissioner would have reinstated the appellant; thirdly,
whether a reasonable Commissioner
would have awarded compensation;
and lastly, the question of costs. I shall deal with these issues in
turn.
Proof
of insubordination
[18]
The main argument on behalf of the appellant was that he could not
have been found guilty of insubordination,
because it could not have
been found on the evidence at the arbitration that the NUM Branch
Committee elections of 2013 had caused
the appellant to be replaced
by another employee as HSR. According to this argument, the elections
had nothing to do with the appellant
or his position as HSR, but
dealt with other positions. It was also argued that the letter from
the Committee, dated 26 September
2013, advising the respondent of
its “newly elected leadership”, did not advise the
respondent that the NUM had replaced
the appellant with someone else
as full-time HSR.
[19]
With reference to the contents of that letter, it was pointed out
that the position held by the appellant,
namely, HSR, was not
referred to and that the positions for health and safety referred to
in the letter were leadership positions
and did not refer to the
appellant’s position. This argument was buttressed by reference
to the agreement, which provides
for the appointment of a full-time
HSR (clause 7.1), who is to be democratically elected for appointment
to the position by the
employees in the workplace (clause 9.5), and,
significantly, specifically states that the term of the office of the
HSR will be
for a three-year period (clause 10.1).
[20]
It was further submitted on behalf of the appellant that the HSR
could only be removed from that position
in terms of the agreement,
particularly clause 14, and that none of the circumstances
contemplated in that clause pertained in
the case of the appellant.
It was also emphasised that the NUM, the respondent and the appellant
were parties to the agreement
and were bound by its terms and that
there was no evidence that the Union had notified the appellant that
his appointment as HSR
had been terminated.
[21]
The argument for the appellant then proceeded as follows: that
insubordination is a blatant disregard
for authority; that the
appellant did not disregard the respondent’s authority, but
engaged it on his recall and his position
as HSR, with the object of
showing that its perception, that he had been replaced by the NUM
with someone else, was wrong. It was
submitted that the respondent’s
instruction to the appellant, being based on a misperception, was
unfair and unlawful and
that in those circumstances the appellant did
not commit misconduct by not complying.
[22]
It was also submitted on behalf of the appellant that the
Commissioner and the court
a quo
erred in not carefully
considering the evidence relating to alleged termination of his
tenure as HSR and in concluding that he
was guilty of the misconduct,
because of the stance that he had adopted toward the respondent’s
instruction that he reverts
to his position as RMO.
[23]
The respondent’s argument proceeded from the premise that it
was indeed the appellant’s
position as HSR that had been
affected by the 2013 NUM Branch Committee elections and that
(notwithstanding the provisions of the
agreement) he had been
replaced by Mr Koos Riba as HSR. The evidential basis for this was
the letter dated 26 September 2013 from
the NUM to the respondent
informing the latter of its newly elected leadership. The respondent
had averred, in its answering affidavit
to the appellant’s
cross-review application that the evidence before the Commissioner,
that the appellant had been replaced
as HSR, was undisputed.
Elsewhere in that same affidavit, it was averred by the respondent
that the evidence before the Commissioner
“demonstrated, on
balance of probabilities” that the appellant’s
appointment as HSR was terminated in terms of
the agreement. The
respondent also contended there that the Commissioner did not have to
interpret the provisions of the agreement,
in particular, relating to
the appointment and termination of the incumbent’s tenure as
HSR.
[24]
At the hearing in the CCMA, the appellant was represented by an
official of the NUM. His case there
was that he refused to comply
with the respondent’s instruction because it was unreasonable
and invalid and that his refusal
was in those circumstances
excusable. In the alternative, his case was that if insubordination
was to be found then the sanction
of dismissal was inappropriate and
he should merely have been given a final written warning. It is
apparent from the evidence of
the only witness called by the
respondent, Mr Colleen Tema, for its conclusion that the appellant
had been replaced as HSR, the
respondent solely relied on the letter
of 26 September 2013, and interpreted the letter to mean that the
appellant had been replaced
by Mr Riba as HSR. The NUM official, who
represented the appellant at the hearing, put it to Mr Tema that by
insisting that the
appellant return to his position as RMO, before
the expiry of his term as HSR (i.e. as per the agreement), it was the
respondent
who “forcefully removed [the appellant] from
office”. The respondent relied on no other communication from
the NUM
for its inferences and conclusion that the appellant had been
replaced; and showed scant regard for the terms of the agreement
detracting from those inferences and conclusion, even though it
relied on the provisions in the agreement that obliged the appellant
to revert to his position as RMO if he was not re-elected as HSR.
[25]
The appellant’s questioning by his representative at the
hearing proceeded on the basis that
it was the respondent that had
removed him from the position of HSR. The appellant admitted
participating in the elections that
were held in 2013, and that the
elections pertained to the position of HSR. But he explained that he
participated because he thought
that if he was successful in that
election his term of office as HSR, which was to end in 2015, would
automatically have continued
for another three-year period. He also
mentioned that the elections were for the branch committee of the NUM
and not for a full-time
HSR. According to the appellant, both the NUM
and the respondent were bound by the agreement which, according to
him, “covered”
him for a period of three years as HSR.
For the appellant, both the NUM and the respondent had a duty to
settle what had become
a problem - the respondent was to call a
formal meeting with the NUM and himself in order to settle the issue,
but that never occurred.
[26]
The Commissioner’s conclusion on the reasonableness of the
instruction was that, if the appellant
admitted that he was told to
report to the Raw Material Section and he knew that if he was not
re-elected he was to return to his
previous position, “his
contention that the instruction was unreasonable is inconceivable”.
Further, according to the
Commissioner, if the evidence that was led
for the respondent was not disputed, then its version was probable.
Accordingly, the
Commissioner found that the instruction was not
unreasonable. This reasoning and conclusion was attacked in the
appellant’s
cross-review, and rightly so.
[27]
The Commissioner appears to have overlooked the essential aspects of
the appellant’s case, namely,
that the instruction was
unreasonable, because he had not been replaced as HSR and that his
term of office was only to have come
to an end in 2015; that by
insisting that the appellant returns to the position of RMO, before
expiry of his term, it was the respondent
who was forcing him out of
that office prematurely and contrary the terms of the agreement. It
also ignores the appellant’s
reasons for participating, in what
he termed, NUM branch elections. If the appellant’s entire
version had been taken into
account, the contention of
unreasonableness would not have been “inconceivable”.
[28]
There was an
onus
on the respondent to show that the dismissal, which was common cause,
was fair. This would have included showing, on a balance
of
probabilities, that the appellant was guilty of the misconduct
[2]
with which he had been charged and for which he had been dismissed.
To justify dismissal the insubordination must be gross, meaning
that
the insubordination “must be serious, persistent and
deliberate”.
[3]
[29]
Whether the refusal to obey an instruction amounts to insubordination
also depends on various factors,
including the employee’s
conduct before the alleged insubordination, the wilfulness of the
employee’s refusal to obey,
and the reasonableness of the
instruction.
[4]
The
reasonableness of any instruction also depends on its lawfulness and
enforceability.
[5]
It seems
axiomatic, that any instruction to do what is unlawful, or in breach
of a contractual term is not reasonable.
[30]
The evidence before the Commissioner on the point does not establish,
even on a balance of probabilities,
that the appellant had been
replaced by the NUM as HSR. The letter of 26 September 2013 does not
state that the appellant has been
replaced. What it does seem to
state, at best, is that there was a newly elected leadership in a
range of portfolios, including
that Mr Riba was elected as
Chairperson of Health and Safety and Ms Leshaba as Secretary of
Health and Safety. On the admitted
facts the appellant was never
chairperson or secretary of health and safety. He was merely elected
in terms of the agreement as
health and safety representative (HSR)
of his workplace.
[31]
Further, it is clear from the agreement that there was not only one
health and safety representative,
and that the appellant was one of
several health and safety representatives. In terms of clauses 6.1
and 6.2 of the agreement,
several work areas are contemplated, each
with its own health and safety representative per shift. In terms of
the agreement, one
full-time HSR was to be appointed for Xstrata
Merafe PSV Lion Ferrochrome (clause 7). Clauses 9.1, 9.6, 10 and 20
(
inter alia
) confirm that every workplace, or work area, had
its own health and safety representative. It is further clear from
the agreement
that there is a Health and Safety Committee to whom the
health and safety representatives are to report disputes relating to
the
disclosure of information (clause 18). Clause 19 prescribes the
circumstances and the manner in which this committee’s meetings
must be held. Even though the agreement does not expressly provide
for the appointment of a chairperson for that committee, it
is
conceivable that, for the effective and efficient functioning of the
committee, such an appointment, most conceivably following
an
election held by and amongst its members, would be necessary. In any
event, the letter of 26 September 2013 refers specifically
to a NUM
branch committee, and the persons designated in the letter are
officers in leadership of that branch committee.
[32]
Other factors that clearly militate against an interpretation of the
letter to the effect that the
appellant had been replaced, are the
very terms of the agreement, including the term that the appellant
was elected as HSR in 2011
for a three-year period. To find that the
letter communicated a replacement of the appellant would of necessity
mean that the NUM
had acted unlawfully in (gross) breach of the
agreement. Such an assumption cannot be lightly made. There is no
evidence that the
respondent did anything more to establish for
itself the true facts from the NUM – despite the ambiguity of
the letter of
26 September and the gross violation of contractual
rights that one would have to assume in order to conclude that the
appellant
had been replaced as HSR.
[33]
The test whether a contract is made for the benefit of a third party
(a
stipulatio
alteri
)
is whether, by adopting the contract the third party can become a
party to it.
[6]
Because of its
terms and the way in which it is structured, the agreement is capable
of being construed as a contract made for
the benefit of a third
party(-ies), such as the health and safety representatives envisaged
in it. By standing for and being elected
to the position of HSR, they
adopt the agreement and a
vinculum
iuris
is created between the elected HSR, the NUM and the employer (i.e.
the respondent). As a result they (individually and respectively)
come into the agreement as a party with one of the parties to the
agreement, are bound by it and may enforce its terms insofar
as those
terms relate to them.
[7]
These
would include the terms relating to their qualifications (clause 8),
their appointment (clause 9), their term of office (clause
10), their
conditions of employment (clause 11), including their reporting
obligations (clause 11.1), their remuneration (clause
11.2), their
hours of work (clause 12), their facilities (clause 13), the
termination of their appointment (clause 14), and the
manner in which
they must perform their functions (clause 15), the obligations of the
respondent, including its obligation to inform
the health and safety
representatives of inspections, accidents, etc. (clause 16), the
obligations of secrecy (clause 17), the
dispute procedures regarding
disclosures of information (clause 18), and the training of health
and safety representatives (clause
20).
[34]
It is established that one way of breaching a contract is for a party
thereto to do something expressly
or impliedly forbidden by the
contract, or inconsistent with the terms of the contract.
[8]
It is also established that there may be repudiation of a contract if
a party to the contract insists on the performance of a term
that
does not form part of the contract.
[9]
[35]
By insisting that the appellant revert to his position as RMO, and,
thus, cease to be HSR, prior to
the expiry of his term as HSR, the
respondent was acting in breach of the agreement, or could reasonably
be perceived to have evinced
an unequivocal intention not to be bound
by its material terms. Consequently, like any innocent party to a
contract, who finds
itself in such a situation, the appellant was not
obliged to accept the repudiation, could resist it and insist on
compliance with
agreement, or its specific performance.
[10]
[36]
Even though it may be difficult to conclude that there was
illegality, it is clear that by acting as
it did the respondent was
in contravention of the terms of the agreement. The instruction, that
the appellant return to his position
as RMO before the expiry of his
term as HSR, was legally unenforceable and clearly unreasonable. And
the appellant’s non-compliance
cannot be said to have been
unlawful, or in breach of his contract of employment, or the
agreement.
[11]
[37]
On the evidence, a reasonable Commissioner could not have found that
the respondent had proven (even
on a balance of probabilities) that
the appellant was guilty of gross insubordination. The Commissioner’s
award is thus subject
to correction insofar as it concluded that the
appellant was guilty of the misconduct he was charged with.
[38]
The court
a quo
, similarly, appears not to have sufficiently
taken into consideration the appellant’s cross-review which
would have necessitated
a closer analysis of the facts. It erred in
finding that the appellant was indeed guilty of the misconduct. The
finding that the
appellant was obliged to return to his position as
RMO, failed to take into account the contractual implications and the
real prospect
of the appellant losing his remedy of enforcement of
the agreement if he complied with the instruction.
The
Sanction
[39]
In light of the conclusion that the court
a
quo
erred in its finding that a
reasonable arbitrator would not have found that the dismissal was
unfair and would not have reinstated
the appellant with backpay, and
in light of the conclusion above that the finding of substantive
unfairness of the dismissal was
reasonable, albeit for a different
reason, there is no need to deal in detail with the sanction.
[40]
The court
a quo
’s
determination of the issue of the sanction flows from its conclusion
regarding the finding of substantive unfairness of
the dismissal. In
terms of
section 193(1)
read with
section 193(2)
of the LRA, the
Commissioner was bound to require the employer to reinstate the
appellant, unless any of the circumstances identified
in
section
193(2)(a)
to (d) were applicable. It has not been shown that the
Commissioner erred in the exercise of the discretion given to him in
terms
of
section 193(1)
, and, specifically, in requiring the
reinstatement of the appellant and awarding him backpay.
The
Costs
[41]
Taking into account all facts and circumstances, including the law
and fairness, there is no reason
why the costs in the court
a
quo
and the costs of this appeal should
not follow on the result.
The
Order
[42]
In the result, the following is ordered:
42.1
The appeal is upheld with costs;
42.2
The entire order of the court
a quo
is set aside and is
replaced with the following order:
“
1.
The review application is dismissed;
2.
The cross-review is upheld, and the award of the commissioner is
amended by the
deletion of that part of the award that suggests that
the respondent (Mr Maripane) was guilty of misconduct and requiring
the applicant
(Glencore) to give the respondent a final written
warning.
3.
The applicant (Glencore) is to pay the costs of the review and the
cross-review.”
42.3
The appellant is to report for duty within fourteen (14) days of this
order.
P
Coppin
Judge
of the Labour Appeal Court
Savage
and Murphy AJJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR
THE APPELLANT:
M.
E. S. Makinta of E. S. Makinta Attorneys
FOR
THE RESPONDENT:
D.
Masher of Edward Nathan Sonnenbergs, Inc.
[1]
Act
85 of 1993.
[2]
See,
inter
alia
,
Schedule 8 Item 7 (a) of the Code of Good Conduct: Dismissal of the
Labour Relations Act 66 of 1995
.
[3]
John
Grogan
Workplace
Law
9ed (2007) at 175 and the cases cited there.
[4]
Workplace
Law
(above) at 175 and the cases cited therein fn. 125.
[5]
Cf.
Mlaba
v Masonite (Africa) Ltd and Others
[1998] 3 BLLR 291
(LC) at 296I-297G and
SACCAWU
and Others v Mahawane Country Club
[2007] ZALC 66
;
[2002] 1 BLLR 20
(LAC) (”
Mahawane
Country Club
”)
at para 7.
[6]
See:
GB Bradfield
Christie’s
Law of Contract in South Africa
7ed. (
LexisNexis
2016)
(“
Christie’s
”)
at 266 and the cases referred to there, including
Crookes
v Watson
1956 (1) SA 277
(A) at 291C; and
Joel
Melamed and Horwitz v Cleveland Estates (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A) at 172A – F.
[7]
See
:
inter alia, McCullough v Fernwood Estates Ltd
1920 A.D. 204
at 206, cited in
Christie’s
(above) at 310.
[8]
See:
Christie’s
(above) at 585.
[9]
See:
Christie’s
(above) at 612 and the cases cited there in fn. 235.
[10]
See:
Christie’s
(above) at 619 and
Farmer’s
Co-Op Society (Reg) v Berry
1912
AD 343
at 350.
[11]
See:
Mahawane
Country Club
(above) at para 7.