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[2012] ZALCJHB 46
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NUMSA obo Maifo and Others v Ulrich Seats (Pty) Ltd (J 3156/1998) [2012] ZALCJHB 46; (2012) 33 ILJ 2918 (LC) (24 May 2012)
Reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: J 3156/1998
In the matter between:
NUMSA
obo Maifo and 16 Others
…................................................
Applicants
and
ULRICH
SEATS (PTY) LTD
…........................................................
Respondent
Heard
:
14,
15 and 16 November
2011 and 18 April 2012
Delivered
:
24
May 2012
Summary: Claim of automatically unfair dismissal and operational
reasons. Appropriate relief – delay in prosecuting the matter-
Compensation appropriate relief even where dismissal substantively
unfair.
JUDGMENT
Molahlehi J
Introduction
There are two questions which this Court has to determine in this
matter which has taken a considerable time, of over 12 years,
before
reaching trial. The applicants have contributed significantly, as
would appear latter in this judgment, to the delay.
They firstly
filed their statement of claim late and secondly delayed the
prosecution of the claim. The two main questions to
consider are:
Was the dismissal of the applicants automatically unfair?
Was the dismissal of the applicants for operation reasons both
procedurally and substantively fair?
The relief sought by the applicants is reinstatement. Some of the
applicants were reemployed after their dismissal and others
have
passed away since the launching of these proceedings.
Background facts
The respondent is involved in the business manufacturing seats in
the transportation industry, in particular the bus industry.
It is common cause that the industry in which the respondent
operates in was, like other employers in the industry, faced with
a
protected strike by members of NUMSA during September 1998. In this
respect and towards the end of August 1998, the NUMSA shop-stewards
addressed a letter to the respondent informing it of the
commencement of the national strike.
On 31 August 1998 which may have been two days before the
commencement of the strike, the respondent convened a meeting with
the entire workforce where Mr Britz, the marketing manager sought to
persuade the employee not to participate in the strike because
of
the consequences that that would have on the business. There is some
indication that Mr Britz offered a 6% increase provisionally
pending
the outcome of the negotiations at the bargaining council. The
version of the respondent is that the employees were informed
at
this meeting that a consultation process would be arranged with the
shop steward regarding the financial situation of the
respondent.
The national strike commenced on 1 September 1998. On 3 September
1998, the respondent addressed a notice to all the employees
informing them amongst others that:
‘
Due to
the extremely poor economic conditions in the bus industry this year
the company has reached the stage where it has no option
but to
reduce is operating costs in line with its current workload in order
to maintain financial viability. This means a reduction
of 30% in the
hourly paid workforce through retrenchment, effective from 7
September 1988.’
The following day the respondent addressed a letter to NUMSA
informing them about the above notice. The employees were dismissed
on 4 September 1988.
Automatically unfair dismissal
The issue concerning the alleged automatically unfair dismissal has
to do with whether the dismissal of the applicants falls
within the
ambit of section 187 (1) (a) alternatively section 187 (1) (d) (i)
for (1) of the Labour Relations Act of 1995 (the
LRA).
1
It is trite that in the case of an alleged automatically unfair
dismissal the onus rests on the employees to prove that their
dismissal was automatically unfairly. This was the reason why at the
beginning of the trial the court ruled that the applicant
had the
duty to begin.
The enquiry to conduct when dealing with the issue of an alleged
automatically unfair dismissal was set out in
Kroukam v SA Link
(Pty) Ltd,
2
where the Court at paragraph 102 of the judgment held that:
‘
Having
regard to the reason(s) that I have found to have been the dominant
or principle reason(s) for the appellant’s dismissal
and the
provisions of the Act that I have referred to above which I have
found the respondent to have breached in dismissing the
appellant, I
am satisfied that the appellant’s dismissal was automatically
unfair.
’
In
SACAWU and Others v Afrox Ltd
3
,
the Court held that:
‘
The
enquiry into the reason for the dismissal is an objective one, where
the employer's motive for the dismissal will merely be
one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I can
see no reason
why the usual twofold approach to causation, applied in other fields
of law, should not also be utilised here...The
first step is to
determine
factual
causation: was participation or support, or intended participation or
support, of the protected strike a
sine
qua non
(or
prerequisite) for the dismissal? Put another way, would the dismissal
have occurred if there was no participation or support
of the strike?
If the answer is yes, then the dismissal was not automatically
unfairly. If the answer is no, that does not immediately
render the
dismissal automatically unfair, the next issue is one if
legal
causation, namely whether such participation or conduct was “main”
or “dominant”, or “proximate”,
or “most
likely” cause of dismissal.’
The applicants in support of their allegations that their dismissal
was automatically unfair rely on the evidence of two witnesses.
The
applicants called only two witnesses after it was agreed that all
the other witnesses will not be necessary because they
would be
repeating what the two would have already said.
The first witness of the applicants, Mr Mashaba, who at the time of
the dismissal was a shop-steward, testified that the first
time they
heard about the possible retrenchment was at the beginning of the
national strike. He also stated that he was not retrenched
and that
he remained as shop- steward. He also testified that some people
were re-employment after the retrenchment.
Initially at the beginning of the cross-examination, Mr Mashaba
contended that it was only NUMSA members who participated in
the
strike. He did not however dispute that the respondent employed 100
employees and 20 of whom did not participate in strike.
He later
conceded during cross-examination that even SEAWUSA members were
dismissed. He also conceded that some of the NUMSA
members were
re-employee.
Mr Mashaba further conceded that it was not only NUMSA members who
were dismissed. In answering the question that it was not
only NUMSA
members that were dismissed, Mr Mashaba stated that their complaint
was about the manner in which the employees were
dismissed.
The second witness of the applicants was Mr Marabe who testified
that during July 1998, the respondent indicated that it intended
to
increase wages by 6%. This was apparently during the national wage
negotiations.
During evidence in chief when asked as to why he thought he was
dismissed Mr Marabe stated that he thought it was dismissed because
he was vigorously active during the strike and therefore the
assumption by the respondent was that he was the one influencing
the
strike. When asked further as to why these proceedings were
instituted he stated that: ‘my complaint is that the employer
dismissed me without consultation whilst on strike.’
The respondent's only witness was Mr Britz, the director and the
chairperson of the respondent, testified that because of structural
changes in the public/private partnership in the industry, its
business was negatively affected. As a result of this challenge
a
meeting was held with the shop-stewards on 24 February 1998 where a
host of other issues were discussed including the depressed
business
situation. It is recorded in the minutes of that meeting that:
‘
8
WORKLOAD
AND ORDERS
Management and project that the
level of orders received for the year has declined dramatically. This
was due to a large extent
because the main bus body builders are not
achieving the applicant output targets, to the extent that we have
been unable to do
deliveries (sic) of some orders. If this situation
does not improve, it may be necessary to work shot-time in March to
allow the
body builders to clear the backlog of behind schedule
production.’
Mr Britz further testified that the respondent addressed a letter to
NUMSA on 6 March 1998 where is it is stated that:
‘
NOTICE:
SHORT TIME
You are hereby notified that
due
to extremely poor market conditions
in the bus industry,
the company will be working short-time days during the month of
March 1998…’
The On 24 March 1998, the respondent issued a general notice to the
employees, informing them that the short-time arrangement
would end
on 27 March 1998.
Another meeting was held on 11 June 1998 where the issue of the
workload was discussed. The minutes of the meeting are also not
sign. It is however recorded under the heading; and “Workload”
that:
‘
The
workload and new orders for April and May has been satisfactory but
sufficient workload for July and August may be a problem
due to
market conditions and slow production, at our customers. This
situation will you review at the end of the month for possible
reduced work hours (short-time).’
Mr Britz further testified that the meeting of 31 August 1998 was to
inform employees about the impending strike and its implication
on
the respondent's business. Another meeting was according to him held
on 2 September 1998 where the respondent made an interim
offer to
grant the employees an increase of 6% which was to be effective
pending the outcome of the national negotiations.
As concerning the reasons for the dismissal, Mr Britz testified that
the approach was adopted in order to minimise the economic
depression of the respondent and cut costs which included human
resources. The total number of employees who were retrenched
was
according to him 30; comprising 11 non-unionised employees, 2
SEAWUSA members of and the rest were NUMSA members. It was
on this
basis that he contended that the dismissal was not intended or
directed at NUMSA members only.
Evaluation of automatically unfair dismissal
There can be no doubt when consideration is had to the evidence
summarised above that the applicant failed to make out a case
that
the dismissal was automatically unfair. There is insufficient or put
the other away, there is no evidence that connects
the reason for
the dismissal to the motive or strategy of intending to get rid of
the NUMSA members by the respondent by reason
of them being members
or being affiliated to NUMSA. In other words, it cannot be said that
the dominant impression or the main
reason why the applicants were
dismissed was because of the membership of NUMSA.
Mr Lengane, for the applicants challenged the testimony of Mr Britz
regarding the assertion that 78 people participated in the
strike on
the basis that that information was not pleaded by the respondent.
This does not seem to me to advance the case of
the applicants in
any manner. The material facts relevant to the determination of the
issue of an alleged automatically unfair
dismissal are the
following:
A number of employees were retrenched some of them are NUMSA
members, others are SEAWUSA and the rest of them was non-unionised.
Some of the retrenched employees were re-employed after the
retrenchment including NUMSA members.
After the strike, NUMSA members also went back to work and were not
prevented from resuming their duties.
The essence of the testimony of the two witnesses who testified in
favour of the applicants is that their complaint is essentially
that the respondent in retrenching them failed to follow a fair
procedure.
It is also important to note that the two witnesses did not submit
any evidence that the retrenchment was used as a smokescreen
and
that the motive for the retrenchment was to get rid of NUMSA
members. The other important factor to note is the fact that
the
issue of automatically unfair dismissal was only raised in the
amended statement of case.
As indicated earlier, Mr Mashaba in his testimony initially said
that he was only aware of NUMSA members who participated in
the
strike. This does not advance the case of an automatically unfair
dismissal if regard is had to the totality of the facts
of the case
and in particular the facts are stated above – being the total
number of employees retrenched, the re-employment
of NUMSA members
after the retrenchment and the return of NUMSA members after the
strike.
It is thus my view that there is no basis upon which it can be
concluded that the respondent dismissed the applicants because
they
were NUMSA members or that they participated in the strike.
Substantive unfair dismissal
In terms of section 188
4
read with section 192
5
of the LRA the employer bears the onus of showing that the dismissal
was for a fair reason.
It is trite that employers are entitled to dismiss employees for
“operational requirements” based on economic,
technological or structural needs.
6
However, as a general principle, the law discourages the employers
from a quick resort to retrenchment if it can be avoided.
7
The essential criterion is whether the retrenchment was
bona fide
and economically rationale. The other principle is that in addition
to showing the existence of economy rationality for the
retrenchment, the employer has to show that the retrenchment was
unavoidable.
In
SACWU v Afrox Ltd
,
8
the court held that:
‘
If an
employer wishes to show that it considered appropriate options other
than dismissal it must present evidence to that effect
and explain
why it chose a particular course and not another. If an employee
wishes to challenge that evidence it must do so by
proper
cross-examination on the relevant issues and, if considered
necessary, by leading rebutting evidence. If this shows up the
untenability of the employer's position, it will have a material
effect in the final assessment of fairness… As assessment
on
"moral" considerations not based on evidence led at the
trial will be impermissible.’
The evidence that the respondent was faced with economic
difficulties from the beginning of the year in 1998 up to towards
the end thereof has not been seriously challenged. During March
1998, the respondent introduced short-time as part of addressing
its
economic difficulties. Again during June 1988, the respondent
communicated to the employees and informed them that there
has been
some improvement in its business and that it further predicts that
the same would apply during July and August.
It is apparent from the above analysis that the respondent was faced
with economy difficulty as a result of the depression in
the market.
Although it appears from the analysis that there was a valid reason
to anticipate retrenchment, that is not the end
of the investigation
in as far as the determination of the fairness or otherwise of the
dismissal is concerned.
A further enquiry as indicated in the
Afrox’s
case is
whether there is evidence that shows that the respondent considered
other options to dismissal and that none of them
were viable.
In the present instance except for the minutes of the meetings which
were held with the shop-stewards and the notices given to
them about
the retrenchment there is no evidence as to the rationality of the
retrenchment. There is no evidence that the respondent
considered
any alternatives before resorting to dismissal. There is in
particular no evidence as to why short-time was not implementing
as
was the case earlier. The respondent rushed to retrench the
applicant without applying its mind to reasonable and possible
alternatives to dismissal.
There was also no evidence led by the respondent as to the fairness
of the selection criteria. The law requires that where the
parties
cannot agree to selection criteria the employer has to apply a fair
selection criterion. In the present instance, there
was no
consultation on the selection criteria and therefore there was no
agreement in that regard. In the absence of an agreed
criterion, the
respondent had a duty apply a criterion that is fair and objective.
There is no evidence to this effect. The dismissal
is thus unfair
due to both failure by the respondent to consider other alternatives
to dismissal and proof that the selection
criteria was fair.
Procedural unfairness of the dismissal
The respondent conceded that the dismissal was procedurally unfair.
It is for this reason that I do not deem it necessary in
this
judgment to discussion or analyse the issue of procedural fairness
of the dismissal in light of the concession by the respondent.
The relief
The issue that remains for determination after concluding that the
dismissal was substantively unfair, concerns the determination
of
the relief. The issue of relief to be made at the end of a case is
governed by section 193 (1) and (2) of the LRA which provides:
‘Remedies for unfair dismissal and unfair labour practice
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may –
(a) order the employer to re-instate the
employee from any date not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work
in which the employee was employed before the dismissal or
in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissals; or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the 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.’
It is clear from the above that in the absence of the factors listed
in (a) to (c) above, the Court or the arbitrator as the
case may be
must require the employer to reinstate or re-employ the employee
where the dismissal has been shown to be substantively
unfair. It is
for this reason that the courts have interpreted section 193 of the
LRA to be saying that the primary remedy in
an unfair dismissal case
is reinstatement or re-employment.
9
The underlying consideration for this approach is set out in the
case of
Kylie v Commission for Conciliation, Mediation and
Arbitration and Others
as follows
:
10
‘
The
central purpose of dismissal legislation is to provide work security
... [and] reinstatement or re-employment is the primary
remedy.
In the present matter, the applicants prayed for reinstatement. The
issue that then arises is whether any of the factors listed
in
section 193 (1) of the LRA exists, which may in terms of the
principles of fairness require the court to make an order that
is
less than reinstatement.
It was submitted on behalf of the respondent that because of the
period it has taken to finalise this matter reinstatement would
not
be the appropriate remedy more particularly because other people
have been employed and that if reinstatement was to be ordered
it
would mean having to retrench them. The submission accordingly as I
understand it is that consideration should be given to
whether it
would be reasonably practicable for the respondent to reinstate or
re-employ the applicants.
In weighing the appropriate relief, in this matter it would seem to
me that the most important factor to consider in this regard
is the
delay in finalising the matter. There has been a significant delay
from the time of the dismissal to the time this matter
was served
before this Court.
The issue of the appropriate remedy received
attention under the previous LRA of 1956 in
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and Others
,
11
case quoted with approval by the Constional Court in the
matter of
Billinton Aluminium SA Ltd t/a Hillside Alluminium v
Khanyile.
12
In that case (
Performing Arts
) the court in dealing with the
issue of the appropriate relief held that:
‘
Whether
or not reinstatement is the appropriate relief, in my opinion, must
be judged as at the time the matter came before the
industrial
court.’
The key issue which the court had to deal with in that case was the
contention of the employer that reinstatement was not appropriate
in
light of the delay in finalising the matter. The delay was on the
main caused by the late filing of the appeal. The court
held that it
would be unjust and illogical to allow delays caused by unsuccessful
appeals, to the various levels of appeal processes,
to render
reinstatement inappropriate.
In
Equity Aviation Services (Pty) Ltd v Commission for
Concilition, Mediation and Arbitration
13
,
the employer contended that reinstatement was in appropriate where
the employees had failed to mitigate their losses after their
dismissal. The principle finding of the court, which has now become
trite law, is that reinstatement is a primary remedy in cases
where
the dismissal has been found to have been unfair. In that case in
dealing with this issue the court held:
‘
It is
trite law that the power to grant a remedy in s 193 is by its nature
discretionary and that discretion must be exercised judicially
by a
court that enjoys that unfettered discretion.’
In
Billinton Alluminium SA
the Constitutional Court held that
the approach to be adopted in awarding remedies in terms of section
193 of the LRA was that
which had been inunciated in
Equity.
The
court further held that:
‘
After
Equity
Aviation
there,
can be no doubt that reinstatement is the primary remedy in unfair
dismissal disputes and that section 193 (one) (A) of the
LRA confers
a discretion on the Commissioner or court to determine the extent of
retrospectivity of the reinstatement.’
14
In
Equity Aviation,
the Court held that:
‘
On
the contrary, the context, supports the view that the ordinary
meaning of s 193(1)(a) does not offend the right to fair labour
practices. Fairness 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. In this regard, it is important to bear in mind that
where a court or Commissioner has decided that reinstatement
is the
appropriate remedy, it will also have to be decided that the worker
has been unfairly dismissed. The worker will thus have
been deprived
of
wages, unfairly, as a result of the conduct of the employer.’
15
[Footnote
omitted]
It would seem to me that in considering whether the remedy of
reinstatement is just and equitable, account should be taken of
the
following:
the
outcome of the enquiry into the fairness or otherwise for the
dismissal
the
core value of the LRA being security of employment.
16
the
period between the dismissal and trial or the arbitration hearing.
the
impact that the delays between the date of the dismissal and the
date of the hearing may have on the fairness of the relief
to be
made.
that
the employees were without income during the period of dismissal.
In the present matter, there can be no doubt that there has been
considerable delay between the date of the dismissal and the
matter
reaching trial. In light of that and having found the dismissal to
have been unfair, the question is whether reinstatement
is a just
and equitable relief in those circumstances.
The delays in processing and prosecuting Labour dispute before the
relevant dispute resolution bodies have received attention
in a
number of cases both before the Supreme Court of appeal and the
Constitutional Court.
17
Froneman J in
Billinton Alluminium
referred to the delays
that occur in the processing and prosecuting of the Labour disputes
under the L RA as “systematic
delays.” The court in that
case identified the players in “system delays,” as being
‘employers and employees,
their representatives (legal or
otherwise) of the officials tasked with conciliation, and
arbitration in CCMA and last but not
least, the judges in the Labour
court Labour appeal court the supreme court of appeal and this
court.’ (para 45)
At paragraph [21] of the judgment Froneman J observed that:
‘
The
constitutional
issues raised in this Court are no doubt important in the context of
the remedies available under the LRA. They concern
what impact, if
any, systemic delay should have on the appropriateness or otherwise
of reinstatement as a remedy for unfair dismissal.’
And at paragraph [46] of the judgment the Learned judge held:
‘
There
is no magic in relying on “systemic delay” in order to
justify the development of the law. What is needed is to
scrutinise
the role of each of the actors in the system to determine how and to
what extent each may have contributed
to the
problem that is said to have been caused by the delay…’
As stated earlier, the delay in this matter is excessive. The brief
background to the delay is as follows: The application for
a case
number was made on 6 October 1998. The Registrar issued the case
number according to the applicant on 27 October 1998.
The matter was
referred to the Court on 6 February 1999 outside the prescribed
timeframe required by the law. This necessitated
an application for
condonation for the late filing of the statement of case which was
done on 27 October 2000. The condonation
application was granted on
6 March 2001.
It would seem nothing happened between 6 March 2001, after the
condonation was granted until 21 August 2006 when the respondent
launched an application in terms of rule 11 of the Rules of the
Court seeking to have the applicants’ claim dismissed for
want
of prosecution.
It further would appear from the cover file that the Rule 11
application was set down for March 2008 and on that day the matter
was removed from the roll. It appears that the parties would not
agree on convening or finalising a pre-trial minute and thus
the
matter had to be enrolled for a pre-trial conference in February
2010. On that day the pre-trial minutes were finalised and
the
presiding judge directed that the matter be enrolled for trial.
The matter was enrolled for 9 May 2011, but was postponed with no
indication as to the reason. The matter was postponed to 14,
15 and
16 November 2011.
It is apparent from the above that the applicants significantly
contributed to the delay in bringing the matter to finality.
It
would in those circumstances be unfair to impose the primary relief
envisaged in section 193 of the LRA. The most appropriate
relief in
light of the unfair dismissal of the applicants is the maximum
compensation envisaged in section 194 of the LRA.
The remaining issue to consider is costs. In terms of section 162 of
the LRA, the Court may make an order as to costs in accordance
with
the requirements of the law and fairness.
18
In considering the issue, I have in addition to taking into account
the facts and circumstances of this case taken into account
the
offer which the respondent had made in terms of rule 22A of the
Rules of the Labour Court.
19
Conclusion
In conclusion, I find that the applicants have failed to make out a
case for automatically unfair dismissal and accordingly their
claim
in as far as that is concerned stands to fail. The respondent has
however failed to show that the dismissal of the applicants
for
operation reasons was both procedurally and substantively fair. The
applicants’ claim in this respect stands to succeed.
However
taking into account the facts and the circumstances of this case, I
do not belief costs should be allowed to follow the
results.
Order
In the premises, the following order is made:
The claim for the alleged automatically unfair dismissal is
dismissed with no order as to costs.
The respondent is ordered pay those of the applicants who were
not reemployed 12 months compensation calculated at the
salary
they received at the time of their dismissal,
The respondent is ordered to pay the estates of the deceased
applicants 12 months compensation calculated at the salary
they
received at the date of the dismissal and payment shall be
effected upon production of the letters either from the
administration or the Master of the High Court.
For those of the applicants who were re-employed, the respondent
is ordered to pay 12 months compensation calculated at
the salary
they received as at the date of their dismissal, less the salary
they received as at the date of their reemployment
and only if
the salary at the time of the reemployment is less than what they
received before their dismissal.
There is no order as to costs.
_______________________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES
FOR THE APPLICANTS: K Lengane instructed by Matukane Attorneys
FOR THE RESPONDENT: F Venter instructed Johannes De Beer Inc.
1
Section187
(a) and (d) of the LRA provides:
‘Automatically unfair dismissals (1) A dismissal is
automatically unfair if the employer, in dismissing the employee,
acts contrary to section 5 or, if the reason for the dismissal is-
(a) that the employee participated in or supported, or indicated
an
intention to participate in or support, a strike or protest action
that complies with the provisions of Chapter IV; (d) that
the
employee took action, or indicated an intention to take action,
against the employer by- (i) exercising any right conferred
by this
Act; or (ii) participating in any proceedings in terms of this Act.’
2
[2005]
12 BLLR 1172
(LAC) at para 102.
3
[1999]
10 BLLR 1005
(LAC) at para 32
.
4
Section
188 of the LRA provides as follows: ‘
188.
Other unfair dismissals (1) A dismissal that is not automatically
unfair, is unfair if the employer fails to prove- (a) that
the
reason for dismissal is a fair reason- (i) related to the employee's
conduct or capacity; or (ii) based on the employer's
operational
requirements; and (b) that the dismissal was effected in accordance
with a fair procedure.’
5
Section
192 of the LRA provides: ‘Onus in
dismissal disputes (1) In any proceedings concerning any dismissal,
the employee must
establish the existence of the dismissal. (2) If
the existence of the dismissal is established, the employer must
prove that
the dismissal is fair.’
6
Section
213 of the LRA provides:
"operational
requirements" means requirements based on the economic,
technological, structural or similar needs of an
employer.’
7
See
Chapter 16 of John Gragan
Workplace Law
10
th
ed
(Juta 2010) page 271.
8
(1999)
10 BLLR 1005
(LAC) at para 43.
9
See
National Union of Mineworkers and Others v Chrober Slate (Pty)
Ltd
(2008) 29 ILJ 388 (LC).
10
(2008)
29 ILJ 1918 (LC) at para 68.
11
[1993] ZASCA 201
;
1994
(2) SA 204
(A) at 219 H.
12
2010
(5) BCLR 422
(CC).
13
[2008] ZACC 16
;
2009
(1) SA 390
(CC) at para 48.
14
Billinton
Alluminium SA a
t para 26
15
Equity
Aviation
at para 39.
16
See
National Education Health and Allied Workers Union v University
of Cape Town and Others
2003 (3) SA 1
(CC) where the Court in
dealing with the values of the LRA had the following to say:
“Security of employment is a core value
of the LRA and is dealt with in chap[ter] VIII. The chapter is
headed ‘Unfair
Dismissals’. The opening section, section
185, provides that ‘[e]very employee has the right not to be
unfairly dismissed’.
This right is essential to the
constitutional right to fair labour practices . . . . [I]t seeks to
ensure the continuation of
the relationship between the worker and
the employer on terms that are fair to both. Section 185 is ‘a
foundation upon
which the ensuing sections are erected.’
17
Strategic
Liquor Services v Mvumbi NO and Others
(2009)
30 ILJ 1526 (CC)
; Zwane and Others v Alert
Fencing Contractors CC
(2010) 31 ILJ 2825
(CC
); N
etherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO and Others
[2009]
6 BLLR 517
(CC); and
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2009)
30 ILJ 829 (SCA).
18
Section
162 provides:
(1) ‘The Labour Court may make an order for the
payment of costs, according to the requirements of the law and
fairness.
(2) When deciding whether or not
to order payment of costs, the Labour court may take into account –
(a) whether the matter referred
to the court ought to have been referred to arbitration in terms of
this Act and, if so, the extra
cost incurred in referring the matter
to the court; and
(b) the conduct of the parties –
(I) in proceeding with or
defending the matter before the Court; and
(ii) during the proceedings
before the court.
’
19
Rule
22A (7) of the Rules of the Labour Court provides that an offer may
be taken into account when making an order as to costs.