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[2015] ZALCJHB 84
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Jarvis v Airports Company South Africa (JS 941/12) [2015] ZALCJHB 84 (4 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS
941/12
DATE: 04 MARCH
2015
Not Reportable
BOIPELO SHIRLEY
JARVIS
................................................................................................
Applicant
And
AIRPORTS COMPANY
SOUTH
AFRICA
........................................................................
Respondent
Heard: Stated
case
Delivered:
4 March 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This matter was by agreement, determined on
the basis of the parties’ pleadings, the agreed bundle and
written heads of argument.
The applicant had approached the court to
seek an order that;
(i)
The settlement agreement concluded on 4
June 2012 be made an order of Court;
(ii)
Payment of such amount it was found was not
paid by the respondent to the applicant when giving effect to the
back-pay due to her
in terms of the settlement agreement concluded on
4 June 2012;
(iii)
Declaring the termination of the
applicant’s employment on 31 August 2012 to be an unfair
dismissal;
(iv)
An order of reinstatement.
Background:
[2]
The respondent operates both the terminal
and customer care departments at the OR Tambo International Airport.
It employed the applicant
with effect from 1 July 2007 until 31
August 2012 in the position of Head of Department – Terminal
Operations. The termination
of the applicant’s services was as
a result of operational requirements.
[3]
The respondent took a decision to realign
the two departments, which exercise commenced in February 2011. The
aim of this exercise
was simply to avoid duplication of functions
between the two departments and was not aimed at reducing the number
of staff employed
in those departments. It is common cause that no
proceedings in terms of section 189 of the LRA were undertaken during
this initial
process.
[4]
The effected employees were offered
alternative positions within the realigned structure. It is common
cause that the applicant’s
position was redundant as a result
of the re-alignment, and that she had refused to accept an
alternative position that was offered
to her. It was not in dispute
that the alternative position was on the same status level and
remuneration rate. She had rejected
the alternative position on the
grounds that she considered it to be a demotion.
[5]
The applicant referred an Unfair Labour
Practice Dispute to the CCMA under case number GEAK 6902/11. The
respondent thereafter gave
the applicant notice of its intention to
engage in section 189 consultations as a result of which the
applicant’s employment
was eventually terminated on 14 October
2011. As a result of this dismissal, the applicant had referred
another dispute to the
CCMA under case number GEAK 7060/11. The two
disputes were subsequently consolidated under case number GEAK
7060/11 and were resolved
by way of a settlement agreement signed at
the CCMA on 4 June 2012. The terms of the settlement agreement
were as follows;
(i)
The applicant is reinstated with
full benefits without loss of income and benefits from the date of
dismissal.
(ii)
The applicant would be remunerated her
lost salary from the date of dismissal to the date of reinstatement
.
[6]
By agreement between the parties, the
applicant was supposed to report for duty on 5 June 2012. This was
however extended to 12
June 2012. The applicant was however called to
a meeting on 11 June 2012 where she was informed that her previous
position as Head
of Department: Terminal Operations had been made
redundant as a result of the realignment, and accordingly the
respondent wished
to engage with her in terms of section 189 of the
LRA.
[7]
This retrenchment process was initiated by
way of issuing the applicant with a formal section 189(3) notice in
the meeting of 11
June 2012. In the notice, it was reiterated that
her position and those of her subordinates had become redundant as a
result of
the realignment process. She was further informed that as
her previous position was at level 4, she was to be offered four
alternative
positions at that level.
[8]
On 12 June 2012 the applicant was placed on
special leave with full remuneration, and informed that she did not
have to report for
duty except for purposes of engaging in
consultation processes. The consultations with the applicant were due
to commence on 12
June 2012 and to continue on 18; 19 and 20 June
2012. It is common cause that the applicant did not attend any of the
consultation
meetings despite reminders from the respondent.
[9]
On 20 June 2012, the Respondent resolved to
offer the applicant the Duty Manager position. Correspondence was
sent to her on 21
June 2012 advising her that she had failed to
report for duty. She was further advised of the decision to offer her
the Duty Manager
position, which was at the same remuneration grade
and at the same level as her previous post. This was the only vacant
position
at her level that could be offered to her. She was requested
to respond to the offer by 22 June 2012 and informed that if she
declined
the position, the retrenchment process would follow. On 22
June 2012 the applicant again failed to report for duty.
[10]
The applicant was of the view that the
respondent had not properly reinstated her because she had not been
placed in her previous
position as per the settlement agreement, and
accordingly the respondent could not engage in section 189
consultations. The respondent
averred that it was impossible to place
her in that position as it had been made redundant and no longer
existed in the current
structure, which the applicant was aware of,
and further contended that it had complied with the settlement
agreement. It was in
the light of this position that the applicant
launched an application on 29 June 2012 in terms of section 158 (1)
(c) of the LRA
to make that settlement an order of court. This
respondent opposed this application.
[11]
On 23 July 2012, the applicant sent an
e-mail to the respondent, advising it that she was denied access to
her employment area;
that she was still not reinstated and further
that she would avail herself for the consultation process once
properly reinstated.
She further rejected the offer of the position
of Duty Manager.
[12]
On 25 July 2012 the applicant was advised
in writing that she had declined to attend consultation meetings or
make any representations.
She was again invited to a further meeting
to be held on 30 July 2012, and another one scheduled for the next
day. She again failed
to attend those meetings.
[13]
It is common cause that the applicant was
issued with a retrenchment letter on 31 July 2012 notifying her that
her employment would
be terminated on 31 August 2012. The letter
further advised that due to her unreasonable refusal to accept a
reasonable alternative
position within the respondent’s
structure she would not be paid a severance package.
The submissions:
(i)
Should the settlement agreement be made an order of court?
[14]
In her statement of claim, the applicant’s main contentions
were that despite being paid her outstanding salary, the
respondent
nevertheless failed to reinstate her in her position even though she
had reported for duty. She contended that she was
simply placed on
special leave and informed to avail herself for consultation
meetings. Her view is that the respondent failed
to comply with the
terms of the settlement agreement, and that the agreement was not
entered into on the understanding that the
respondent would engage
with her in terms of section 189(3). She contended that she could not
be engaged in section 189 proceedings
in the absence of full
compliance with the settlement agreement.
[15]
Submissions further advanced on behalf of the applicant were that
after the conclusion of the settlement agreement, and when
the
respondent informed her that her position no longer existed, it
repudiated the settlement agreement, and consequently, she
was
entitled to approach the Court in terms of section 158 (1) (c) of the
LRA. Thus, it was submitted that once her position no
longer existed,
she could no longer be reinstated in that position and therefore the
respondent could not fully comply with the
settlement agreement.
[16]
It was further submitted an employer could not negotiate with an
employee in terms of section 189 in circumstances where that
employee’s position no longer existed and that employee was not
reinstated in terms of a settlement agreement. It was contended
that
any engagement with the applicant in restructuring or re-alignment
procedures was not “
bona fide
” as she was
subsequently demoted with an offer of the alternative position. This
was evident from the fact that in terms
of the new position, a number
of employees who previously reported to her were elevated to higher
levels, and thus no one reported
to her. Furthermore, the new
position entailed a loss of benefits she previously enjoyed.
Evaluation:
[17]
Section 158 (1) (c) of the LRA simply provides that the Labour Court
may make an arbitration award or any settlement agreement
an order of
Court. It is trite that
section
158 (1)(c) must be read with and subject to s158 (1A)
[1]
.
As
the Labour Appeal Court in
Greef
v Consol Glass (Pty) Ltd
[2]
stated, section 158(1A) describes what settlement agreements are
being referred to in s158(1)(c), and thus properly interpreted,
in
terms of s158(1)(c), read with s158(1A), the Labour Court may make
any arbitration award an order of court and may only make
settlement
agreements, which comply with the criteria stated in s158(1A), orders
of court.
[18]
Flowing from the decision in
Greef
,
it follows that not
every
settlement
agreement will be made an order of court, even if
that
settlement agreement complies with the criteria’s stated in
s158(1A). Ultimately, whether an order in terms of section
158 (1)
(c) of the LRA will be granted or not is at the discretion of the
court, which discretion must be exercised in a judicial
manner,
taking into account all the relevant facts and circumstances.
[19]
In this case, I did not understand the respondent’s argument to
be that there was a dispute about the settlement agreement
itself.
The only issue is whether it had complied with its terms or not by
reinstating the applicant.
The
LRA does not define what the term ‘reinstatement’ is. It
can however be accepted that
the
Constitutional Court judgment in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[3]
,
is authority on what it is meant by reinstatement. Nkabinde
J (as he then was) in giving meaning to the term within
the context
of section 193 (1) (a) of the LRA held that;
‘
The
ordinary meaning of the word 'reinstate' is to put the employee back
into the same job or position he or she occupied before
the
dismissal, on the same terms and conditions. …. It is aimed at
placing an employee in the position he or she would have
been but for
the unfair dismissal. It safeguards workers' employment by restoring
the employment contract. Differently put, if
employees are reinstated
they resume employment on the same terms and conditions that
prevailed at the time of their
dismissal. As the language of s
193(1)(a) indicates, the extent of retrospectivity is
dependent upon the exercise of
a discretion by the court or
arbitrator.
[4]
[20]
The respondent’s contention was that whether it had complied
with the agreement or not needs to be assessed within the
context
leading to the agreement of 4 June 2012. In this regard, the
Respondent submitted that the settlement had been entered
into
pursuant to an accepted settlement proposal it had made to the
applicant and her representatives in its correspondence of
29 May
2012, wherein the following was stated:
“
When
it became evident by September 2011 that your client would not accept
redeployment to a position in the realigned structure,
which in the
opinion of our client was a reasonable redeployment, it realised that
the realignment process may, notwithstanding
its best endeavours and
intentions, result in the possible dismissal of your client and gave
your client notice on 23 September
2011 of its intention to engage
your client in consultation regarding her possible operational
dismissal. Your client did not participate
in those operational
dismissal consultations as she, in her view, still had an outstanding
grievance which had to be resolved.
Whilst our respective clients
have different views as to whether our client was entitled not to
participate in the consultations
regarding her possible operational
dismissal, our client is prepared to reinstate your client on the
same terms and conditions
employment that regulated her
employment at the time of those consultations
to
afford her the opportunity of engaging our client fully in
consultation regarding her possible operational dismissal on account
of her position as Head of Department: Terminal Operations having
become redundant as a result of the realignment
of
existing function dealing with customer care in the Customer Care and
Terminal Departments
.”
(Underlining own emphasis).
[21]
In the light of the above, the respondent holds the view that it had
fully complied with the settlement agreement, and that
there was no
basis for the court to make that settlement an order of court. It
contended that it could however not reinstate the
applicant in her
previous position as it no longer existed. On 1 June 2012, the union
representing the applicant had responded
to the correspondence and
the proposed settlement by stating that; -
“
This
serves to confirm that our member will accept your reinstatement
without loss of benefits…”
.
[22]
In the light of this response, it was contended that the court should
not turn a blind eye to the context of the settlement
agreement and
the correspondence between the parties. It was further submitted that
the union’s acceptance of the offer of
settlement was
unconditional, and no reservations were recorded therein. To that
end, it was the respondent’s contention
that the parties
clearly understood that when the applicant would be reinstated, the
respondent would have the right to revisit
the retrenchment process
[23]
In
SAPO
, the LAC had further held that;
“…
..In
exercising the discretion, the Court must take relevant facts and
circumstances into account, such as are necessary to satisfy
the
demands of the law and fairness. Necessarily, each case must be
decided on its own facts and circumstances. There is, otherwise,
no
closed list of factors to be taken into account….”
[5]
[24]
In this case, a number of factors militate against a discretion being
exercised in favour of the applicant for the following
reasons;
(a)
The respondent’s attorneys’
correspondence of 29 May 2012 outlining the proposed settlement of
the dispute is detailed,
and more importantly, it indicated that the
proposal was made against the background of the realignment process,
with emphasis
being placed on the fact that the respondent did not
intend to dismiss the applicant or any other employee as a result of
the realignment
(b)
In the above correspondence, it was made
abundantly clear that the applicant’s previous position had
become redundant as a
result of the realignment exercise.
(c)
The applicant’s union in response
simply accepted the offer, and failed to raise any concerns
surrounding the terms of the
reinstatement. At no point in the
acceptance letter was it disputed that the applicant’s position
had not become redundant,
nor was there any issue raised in regards
to the realignment exercise. Thus the offer was accepted without any
reservations.
(d)
There is nothing that indicates that the
applicant could have had a different understanding of the basis of
terms and conditions
of the settlement agreement, and I am in
agreement with the submissions made on behalf of the respondent that
the Court cannot
ignore the background against which the settlement
agreement was entered into and blindly grant the applicant her
wishes.
(e)
The fact that the underlying basis for the
settlement is not specified with any particularity in the agreement
itself does not detract
from the fact that the applicant and her
union were indeed aware of the basis of the settlement, more
particularly the fact that
her previous position was redundant and
the retrenchment process was anticipated. It can thus also not be
correct that when the
applicant was informed that her position had
been declared redundant, the respondent had repudiated the agreement.
The applicant
was well aware of that fact, and the correspondence of
the respondent was merely to reiterate that fact.
(f)
When the applicant reported for duty on 12
June 2012, it was not practically possible to reinstate her in
exactly the same position
that she previously occupied as that
position had been declared redundant. She was however reinstated as
per the settlement agreement
and however placed on special leave
pending the finalisation of the consultation process.
(g)
Nothing can be read into the fact that she
was placed on special leave, as it was apparent that her position was
redundant, and
she could not be allocated any tasks whilst the
retrenchment process and the offer of an alternative position was up
for consideration.
The fact that she was placed on special leave does
not imply that she was not reinstated at all.
(h)
It was not disputed that the applicant was
offered reinstatement in an alternative position, which was at the
same level as her
previous one. Her refusal to accept the alternative
position in the light of her previous one having been declared
redundant was
grossly unreasonable. A reinstatement could clearly not
be feasible on the terms dictated by the applicant when such terms
were
clearly unreasonable.
(i)
The applicant’s demand that she be
reinstated at a higher position when she was not suitably qualified
for it was equally
unreasonable and unrealistic.
(j)
As
the LAC in
SAPO
observed, the purpose of making an agreement or award an order of the
Labour Court is to compel its enforcement, or enable its
execution
and not for some other purpose
[6]
.
In this case, it appears that the applicant seeks not only to be
reinstated in a position that does not exist, but for the Court
to be
party to her elevation to a position which she is not suited for. The
court cannot countenance an abuse of its process.
(k)
No purpose would be served in making the
settlement agreement an order of court when it is apparent that the
applicant cannot be
reinstated in a position, which does not exist,
or where there was compliance as the respondent had reinstated her in
a reasonable
alternative position, which the applicant had declined.
(l)
Inasmuch as reinstatement implies the
restoration of the status quo, where this is not possible as a
consequence of changes necessitated
by operational requirements of an
employer, the latter cannot be found to be at fault where the
employee as in this case, unreasonably
declines a reasonable
alternative position, which does not in any manner prejudice her.
(m)
There is no merit in applicant’s
contentions that the alternative position is a demotion. In these
circumstances, it cannot
be said that the respondent failed to comply
with the terms of the settlement agreement, and accordingly her
application in terms
of section 158 (1) (c) of the LRA should be
dismissed.
(ii)
The dispute surrounding the fairness
of the dismissal:
[25]
The respondent’s main contention was that the applicant was
given an opportunity to make representations as to why her
position
prior to the realignment should not have been made redundant. She had
however failed to make submissions relating to the
reason her
previous position should not have been made redundant, and further
refused to accept the alternative position offered
to her.
[26]
It was further submitted on behalf of the respondent that during the
realignment exercise, a number of the applicant’s
previous
subordinates were promoted into positions in the new structure that
were at the same level as the alternative position
offered to her.
The applicant accordingly held the view that the position was not
appropriate but that she should have been offered
the position of
Manager: Customer Care, which was at a higher level than the
alternative position offered to her. The respondent
however held the
view that the position of Manager: Customer Care was not suitable for
her as
inter alia,
it was at a higher level, and her
qualifications and experience were not sufficient for the
requirements of the position.
[27]
The respondent further contended that the applicant was informed of
the need to retrench as per its notice of 11 June 2012
to her, and
complied fairly with the retrenchment criteria as outlined in that
correspondence. It also contended that it was not
precluded by virtue
of the settlement agreement to engage the applicant in retrenchment
consultations. In regards to the selection
criteria, the respondent
further submitted that there was no one else that ought to have been
retrenched, and that the applicant
did not at any stage contend that
anyone else should be retrenched.
[28]
The applicant submitted that her dismissal on account of operational
requirements was both substantively and procedurally unfair
on the
basis that she was not reinstated properly in accordance with the
terms and conditions of the settlement agreement.
[29]
She further held the view that there was no general need to retrench,
and that the respondent ought not to have engaged her
in terms of
section 189, as she was not properly reinstated. Furthermore, she
also contended that the respondent did not follow
the required
retrenchment process in terms of section 189 to terminate her
employment. The applicant further held the view that
there was no
selection procedure followed, and that to the extent that she was no
reinstated, the respondent could not have engaged
her in a
retrenchment process
Evaluation:
[30]
The main issue for determination in this regard as per the parties’
pre-trial minute is whether the respondent was entitled
to engage the
applicant in retrenchment consultations when it did so. In this
judgment, it has been concluded that given the facts
of this case,
and following upon the settlement agreement of 5 June 2012, the
applicant was indeed reinstated in accordance with
that agreement. It
therefore follows that once there was reinstatement, the respondent
was entitled to engage the applicant in
regards to the retrenchment
process, and not simply on the terms as dictated by the applicant.
[31]
It is trite that for the purposes of retrenchment, an employee is
entitled to be properly consulted in terms of the provisions
of
section 189 (1) of the LRA, with a view of reaching consensus on the
items identified in section 189 (2) of the LRA. Furthermore,
it was
not seriously contested in this case that the notice issued to the
applicant on 11 June 2012 was in compliance with the
requirements
stated in section 189 (3) of the LRA.
[32]
The issue that arises in this case is what was to be expected of the
respondent in circumstances where the applicant flatly
and
unreasonably refused to engage with it in regards to the consultation
process. The Labour Appeal Court in
Johnson
& Johnson (Pty) Ltd v CWIU
[7]
dealt with this particular scenario in the following terms;
“
The
achievement of a joint consensus-seeking process may be foiled by
either one of the consulting parties. The employer may obviously
frustrate it by not fulfilling its obligations under s. 189(1), (3),
(5), (6) and (7). The other consulting party may do it by
refusing to
take part in any of the stages of the consultation process, or by
deliberately delaying the whole process.
It
may also appear that any one of the parties simply went through the
entire formal process with no intention of ever genuinely
reaching
agreement on the issues discussed.
These different
possibilities depend on the facts of each particular case.
The important
implication of this is that a mechanical, "checklist" kind
of approach to determine whether s. 189 has been
complied with is
inappropriate.
The
proper approach is to ascertain whether the purpose of the section
(the occurrence of a joint consensus-seeking process) has
been
achieved. If that purpose is achieved, there has been proper
compliance with the section. If not, the reason for not achieving
the
purpose must be sought. If the employer alone frustrated the process
in some way or another, there can be no compliance. If
the employer
was not at fault and did all it could, from its side, to achieve the
kind of consultation referred to above, the purpose
of the section
would also have been achieved.”
[33]
In this case, consultation meetings were scheduled for 12, 18, 19 and
20 June 2012; 16, 30 and 31 July 2012. The applicant,
clearly holding
an incorrect view that she had not been reinstated as per the
settlement agreement, had unreasonably refused to
participate in
those consultation meetings. It was further not in dispute that she
was made aware of the alternative positions
that the respondent had
offered her. She was equally aware that her previous position had
been declared redundant as a consequence
of the realignment exercise,
and that the alternative position of Duty Manager was offered to her.
Her contention that the alternative
position was a demotion was
clearly misplaced if not spurious in that the alternative position
was on the same level as the one
she had previously occupied save for
some changes necessitated by the realignment process. It is trite
that the fact that the alternative
position offered entails a
variation of the employee’s original terms and conditions of
employment does not justify a refusal
by the employee to accept the
offer
[8]
.
[34]
As it has been repeated throughout this judgment, the only basis upon
which the applicant had declined to participate in the
consultation
process was her incorrectly held view that she had not been
reinstated. Having steadfastly held on to that view, and
thus
persisting with her obstinate attitude, it cannot be said that the
respondent did not take all reasonable means to engage
meaningfully
with her in order to reach consensus on the retrenchment process.
[35]
Once it was apparent that the applicant had no intention whatsoever
to engage with the respondent on the consultation process,
and it was
further apparent that the alternative position had been rejected,
there was nothing
in
law nor in fairness that obliged the respondent to compel or convince
her to either avail herself to the consultation process
or to accept
the alternative position
[9]
. The
respondent took all reasonable steps in achieving consensus, and the
applicant unreasonably rebuffed those overtures. The
applicant made
her choices,
albeit
foolhardy, and must therefore come to terms with the consequences of
those choices.
[36]
The applicant’s obstinance therefore left the respondent with
no option but to effect her retrenchment. Her persistent
refusal to
participate in the consultation process clearly frustrated that
process, and in effect, it should be concluded that
she waived her
rights in that respect. She can therefore not run to this court and
complain about non-compliance with the provisions
of section 189,
when she had in fact turned her back on the very process envisaged in
terms of those provisions.
[37]
In the light of her refusal to either engage the respondent in the
consultation process, and further unreasonably refusing
to even
consider the offer of an alternative position which would have
slightly varied her original terms and conditions of employment,
it
follows that her retrenchment cannot be construed to be either
procedurally or substantively unfair, nor can she be entitled
to any
relief in that regards.
(iii) The issue
pertaining to payment of amounts due in terms of the settlement
agreement:
[38]
It is not clear on what basis the applicant alleged that payments in
terms of the settlement agreement were still due to her.
This issue
was not raised in the written heads of argument submitted on her
behalf. Furthermore, in her statement of case
[10]
,
the applicant averred that once she had launched her application in
terms of section 158 (1) (c) of the LRA, ‘
they
paid my outstanding salary but refused to reinstate me’
.
In its opposition to the applicant’s statement of claim, the
respondent averred that the applicant was informed on 6 July
2012
that all arrear payments would be made on the next payroll being 13
July 2012. The applicant chose not to attend to this averment
in her
replying statement.
[39]
In the parties signed pre-trial minute, one of the issues raised for
determination was whether the applicant had received payment
of the
amounts due to her in terms of the reinstatement order
[11]
.
However, this is at odds with the contents of paragraph 3.10 of the
same minutes where it is recorded that “
The
applicant was paid in lieu of notice and received payments due to her
up and including 31 August 2012”.
[40]
Other than the difficulties raised above, it is not clear from the
applicant’s allegations of non-payment as to what
these amounts
are neither are they quantified. Be that as it may be, the respondent
had made reference to Annexure 62 A that showed
that the applicant
was indeed paid remuneration until August 2012. In these
circumstances, there is no basis for a conclusion to
be reached that
there is merit in the applicant’s allegations that payments are
still due to her in terms of the settlement
agreement. Accordingly,
her claim should be dismissed.
[41]
The respondent had sought a cost order in the event that the
applicant’s claim failed. Having had regard to this issue,
even
though I am of the view that the application in terms of section 158
(1) (c) was clearly ill conceived, and there is clearly
no merit in
the applicant’s other claims, considerations of law and
fairness militate against such a cost order.
Order:
(i)
The applicant’s application in terms
of section 158 (1) (c) of the Labour Relations Act is dismissed.
(ii)
The applicant’s claim in respect of
alleged non-payments of amounts due in accordance with a settlement
agreement entered
into between the parties on 4 June 2012 is
dismissed.
(iii)
The termination of the applicant’s
employment consequent upon the respondent’s operational
requirements was procedurally
and substantively fair.
(iv)
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
Representatives
of record:
On
behalf of the Applicant: Mr. Steve Dawson (of WEPU)
On
behalf of the Respondent: Adv F A Boda
Instructed
by: Mervyn Taback Inc
[1]
Bramley
v John Wilde t/a Ellis Alan Engineering and another
[2003]
4 BLLR 360
(LC). The section provides that A settlement
agreement that may be made an order of court by the Labour Court in
terms of
s158(1)(c), must (i) be in writing, (ii)be in settlement of
a dispute (i.e. it must have as its genesis a dispute); (iii) the
dispute must be one that the party has a right to refer to
arbitration, or to the Labour Court for adjudication, in terms of
the LRA; and (iv)the dispute must not be of the kind that a party is
only entitled to refer to arbitration in terms of s22(4),
or s74(4)
or s75(7).
[2]
(2013)
34 ILJ 2385 (LAC) at para 19. See also
South
African Post Office Ltd v CWU obo Permanent Part-Time Employees
(2014)
35 ILJ 455 (LAC) where the LAC, per Wagley JP held at para 21 that
;
“
Section
158(1)(c) of the LRA provides that the Labour Court has the
jurisdiction to make any settlement agreement, concluded in
respect
of a matter arising within the scope of the LRA, an order of court.
This does not mean that the order is there for the
taking. The
Labour Court has a discretion to make it an order of court even if
it otherwise meets the criteria provided in section
158(1A), read
with section 158(1)(c) of the LRA”
[3]
2009
(1) SA 390 (CC)
[4]
at para 36
[5]
at para 22
[6]
At
para 22
[7]
[1998]
12 BLLR 1209
(LAC) at 1216J-1217A
[8]
See
Entertainment
Catering Commercial & Allied Workers Union of SA & others v
Shoprite Checkers t/a OK Krugersdorp
(2000) 21 ILJ 1347 (LC)
[9]
See
LC
Steinmuller (Africa) Ltd & others v Shepherd
(2005)
26 ILJ 2359 (LAC)
[10]
page 7 of index to pleadings
[11]
Para 4.5 of the pre-trial minutes