CVO School Vivo v Pretorius and Others; CVO School Vivo v Pretorius and Others (JR1006/15; JR1004/15) [2017] ZALCJHB 412 (6 April 2017)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 412
|

|

CVO School Vivo v Pretorius and Others; CVO School Vivo v Pretorius and Others (JR1006/15; JR1004/15) [2017] ZALCJHB 412 (6 April 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: JR 1006 / 15
In
the matter between:
CVO SCHOOL
VIVO
Applicant
and
CHRISTOFFEL DANIEL
PRETORIUS
First
Respondent
JOSIAS SELLO MAAKE N.O. (AS
ARBITRATOR)
Second
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third
Respondent
AND
:-
case
no: JR 1004 / 15
In
the matter between:
CVO SCHOOL
VIVO
Applicant
and
ANTOINETTE
PRETORIUS
First
Respondent
MATTHEWS RAMOTSHELA N.O. (AS
ARBITRATOR)
Second
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third
Respondent
Heard:
21
September 2016
Delivered:
6
April 2017
Summary:
CCMA
arbitration proceedings – Review of proceedings, decisions and
awards of arbitrators – Test for review –
Section 145 of
LRA – application of review test set out
Disciplinary proceedings –
requirements of fair hearing considered – employee entitled to
be heard on sanction –
proceedings entirely unfair – no
fair hearing took place – dismissal procedurally unfair –
award upheld
Misconduct – nature of
misconduct considered – conduct simply did not justify
dismissal – dismissal for misconduct
inappropriate and unfair –
dismissal substantively unfair – award upheld
Dismissal – substantive
fairness – gross procedural unfairness and complete failure of
process impacting on substantive
fairness of dismissal for misconduct
– dismissal both substantively and procedurally unfair –
award upheld
Retrenchment – procedural
fairness considered – complete lack of procedural fairness and
employee confronted by
fait accompli
– retrenchment
procedurally unfair – award upheld
Compensation – principles
considered – basis for interference with compensation awards of
arbitrators considered –
compensation properly awarded and no
basis for interference exists – compensation awards upheld
Review applications – no
review case made out by applicant – awards constituting
reasonable outcome – review applications
dismissed with costs
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This matter actually concerns two cases,
concerning a husband and wife employed by the same employer and then
simultaneously dismissed
by this employer, but for different reasons.
This led to two separate unfair dismissal disputes being pursued to
the CCMA, which
then came before two different arbitrators at the
CCMA. Individual arbitration awards were handed down in favour of
each of these
employees, and this led to two separate review
applications to the Labour Court by the employer, being the two
review applications
referred to above and which are now before me.
[2]
I intend to deal with both review
applications in one consolidated judgment.  For this reason, and
for ease of reference, I
will refer to the applicant in both matters
as “CVO School”.  I will refer to the first
respondent in the application
under case number JR 1006 / 15 as
“Christoffel”, and the first respondent in the
application under case number JR 1004
/ 15 matter as “Antoinette”.
The second respondent under case number JR 1006 / 15 will be referred
to as “arbitrator
Maake”, and the second respondent under
case number JR 1004 / 15 as “arbitrator Ramotshela”.
The third
respondent in both applications will be referred to as “the
CCMA”.
[3]
CVO
School has sought to apply to review and set aside both arbitration
awards, by arbitrator Maake and arbitrator Ramotshela, with
these
applications having been brought in terms of Section 145 of the
Labour Relations Act
[1]
(‘the LRA’).
[4]
As touched on above, the two matters arose
from the dismissal of Christoffel by CVO School for misconduct, and
the dismissal of
Antoinette based on retrenchment, and both
dismissals were pursued as unfair dismissal disputes to the CCMA.
The disputes
respectively came before arbitrator Maake on 26 February
and 7 May 2015, and Arbitrator Ramotshela on 26 February and 6 May
2015.
Following completion of the arbitration proceedings, and
in an arbitration award dated 17 May 2015, arbitrator Maake found in
favour
of Christoffel, and determined that his dismissal by CVO
School was substantively and procedurally unfair.  Also,
following
the conclusion of the arbitration proceedings in respect of
Antoinette, arbitrator Ramotshela found in favour of Antoinette, and

in an award dated 13 May 2015, determined that her dismissal was
procedurally unfair.  As consequential relief pursuant to
these
two arbitration awards, Christoffel was awarded compensation of
R72 000.00, being an amount equivalent to 12 months’

salary, and Antoinette was awarded compensation of R46 400.00,
being an amount equivalent to 8 months’ salary.
[5]
CVO School received the two arbitration
awards respectively on 19 and 18 May 2015.  The two review
applications were then served
and filed on 6 July 2015.  These
applications have thus been timeously brought and is properly before
Court.  I will
now proceed deciding both these review
applications, by setting out one consolidated factual matrix
concerning both these matters.
The
relevant facts
[6]
CVO School is a rural school having
approximately 200 students, of which 36 students reside in a hostel
on the school grounds.
[7]
An advertisement was placed by CVO School
for a combined appointment of a
factotum
and a matron, who would reside together in accommodation provided on
the school grounds. For this reason, a married couple was
sought for
appointment, and this was a pre-condition for appointment. The two
persons so appointed would look after and maintain
the school grounds
and property, as well as take care of the students in the hostel.
[8]
Christoffel and Antoinette were such a
married couple that applied for these positions. Following an
interview, they were appointed
and commenced employment on 1 January
2014.  Christoffel was the
factotum
(handyman) and Antoinette was the matron.  Christoffel and
Antoinette each served a probation period of six months to 30 June

2014, and their permanent appointment was then confirmed, effective 1
July 2014.
[9]
On 24 October 2014, Christoffel was charged
with three charges. These charges were that he failed to maintain the
terrain lighting
to standard, that he did not properly repair the
drainage pipes at the hostel, and that the water tanks were not
properly controlled.
These charges seemed more akin to performance
complaints, than instances of misconduct. The hearing date was
scheduled for 1 November
2014 at 09h00. Christoffel was placed on
paid leave pending the hearing. The initiator of the disciplinary
hearing was the school
governing body chairperson, Stephanus Otto
(‘Otto’). The presiding officer of the disciplinary
hearing was also a member
of the school governing body, one Johan Van
Wyk (‘Van Wyk’).
[10]
Despite what is contained in the hearing
notificatinon, the hearing was moved up to 31 October 2014.
Christoffel asked for a postponement,
which was refused by Otto out
of hand.
[11]
In the disciplinary hearing, which then
convened on 31 October 2014, Otto presented the case for CVO School.
The first charge, which
Christoffel pleaded guilty to, concerned the
fact that the hall lights were not fixed for the annual prize giving,
and a contractor
had to be obtained in haste to fix it. The second
charge concerned an instruction given to Christoffel on 29 September
2014 to
repair a leak to the drain pipe at the hostel, which he did,
but the leak arose again a week after the school reopened.
Christoffel
tried to explain that he did his best to repair the leak,
but the pipes were old and not properly maintained in the past, and
he
intended to attend to the pipe again, but he had a lot of other
duties after the school opened, and it would take two days to repair

the pipe. The third charge related to the interruption of water
supply on 17 October 2014, coupled with the managing of the water

tank levels. The interruption of water supply was reported to
Christoffel at about 22h00, who investigated and found a water pipe

had burst. Christoffel repaired the pipe the following morning.
[12]
A conspectus of what happened in the
disciplinary hearing shows that the hearing unfolded on the basis
that Otto started by making
a statement, and then he and the
chairperson, Van Wyk, then proceeded to question Christoffel in a
manner which can only be called
cross examination, to get him to
admit to the charges. Van Wyk did the bulk of this questioning. And
then, at the conclusion of
the hearing and before any finding was
made, Otto told Christoffel that he must remember that he was
employed in a combination
post with Antoinette, and that should be he
found guilty it could lead to the termination of her employment based
on retrenchment.
Otto stated that the hearing outcome would be
provided on or before 4 November 2014, and proceedings adjourned.
[13]
On 3 November 2014, Van Wyk prepared a
written finding. He found Christoffel guilty of all three charges. He
then records in his
finding that where it comes to an appropriate
sanction to be imposed on Christoffel, the school governing body had
to decide. He
sent this finding to the school governing body, but not
to Christoffel. The school governing body then decided, by vote,
whether
to dismiss Christoffel without any representation from him.
Christoffel was not given any opportunity to address the school
governing
body, or Van Wyk as chairperson, on the issue of an
appropriate sanction.  All this is highly irregular, just on
face value
itself.
[14]
On 4 November 2014, Van Wyk called
Christoffel to a meeting. Van Wyk drafted a letter, on behalf of the
school governing body, informing
Christoffel that it had been decided
to terminate his employment with immediate effect.  Van Wyk
handed this dismissal letter
and his outcome of 3 November 2014 to
Christoffel in the meeting on 4 November 2014. Van Wyk actually
testified that he did not
decide a sanction for Christoffel, but left
this up the school governing body. This is the same governing body
chaired by Otto,
the initiator in the disciplinary hearing.
Christoffel is then also told that because he occupied a combined
post with Antoinette,
her employment would now also be terminated
based on retrenchment.
[15]
Antoinette is then called to the meeting on
4 November 2014. She was told of the judgment against Christoffel and
that he has been
dismissed. She was then told that her contract would
also be terminated, because of the combined appointment with
Christoffel.
She is also given a letter, erroneously dated 24
November 2014, stating that her employment terminated based on what
CVO School
called ‘Kontrak aflegging (Retrenchment)’. The
letter refers to her having been verbally told on 31 October 2014
that
her contract would terminate.  She was informed in the
meeting that her contract would end on 30 November 2014 and her last

working day would be 21 November 2014.
[16]
Christoffel and Antoinette were then both
instructed to vacate their accommodation by 15 December 2014, as an
‘indulgence’,
instead of in 7 (seven) days, as would
normally be the case.
[17]
Both Christoffel and Antoinette referred
unfair dismissal disputes to the CCMA on 5 November 2014. Otto
reacted to these referrals
by way of a letter to Christoffel,
accusing him of having no integrity, that he will ensure that costs
incurred in fighting the
matter will be recouped from Christoffel,
and that he felt personally insulted.
[18]
As stated above, the unfair dismissal
disputes pursued by Christoffel and Antoinette came before separate
arbitrators, who each
found in their favour, and awarded each of them
compensation. It is these awards that now form the subject matter of
CVO School’s
review applications. I will now proceed to decide
these review applications, by first setting out the relevant test for
review.
The
test for review
[19]
The
appropriate test for review is now settled. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
Navsa
AJ held that the standards as contemplated by Section 33 of the
Constitution
[3]
are in essence to be blended into the review grounds in Section
145(2) of the LRA, and remarked that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’
.
The learned Judge held that the threshold test for the reasonableness
of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...
’
[4]
[20]
Accordingly,
in every instance where the constitutionally suffused Section
145(2)(a)(ii) pursuant to the judgment in
Sidumo
is sought to be applied to substantiate a review application, any
failure or error of the arbitrator relied on must lead to an

unreasonable outcome arrived at by the arbitrator, for this failure
or error to be reviewable. In my view therefore, what the review

applicant must show to exist in order to succeed with a review is
firstly that there is a failure or error on the part of the
arbitrator. If this cannot be shown to exist, that is the end of the
matter. But even if this failure or error is shown to exist,
the
review applicant must then further show that the outcome arrived at
by the arbitrator was unreasonable. If the outcome arrived
at is
nonetheless reasonable, despite the error or failure, that is equally
the end of the review application. In short, in order
for the review
to succeed, the error of failure must affect the reasonableness of
the outcome to the extent of rendering it unreasonable.
In
Herholdt
v Nedbank Ltd and Another
[5]
the Court
said:
‘…
.
A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.’
[21]
As to
the application of the reasonableness consideration as articulated in
Herholdt
,
the LAC in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[6]
said:
‘…
.
in
a case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions a reasonable decision maker could
come to on the
available material.’
[22]
Accordingly,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[7]
This necessitates a consideration by the review court of the entire
record of the proceedings before the arbitrator, as well as
the
issues raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator.  In the end, it would only be if
the outcome arrived at by the arbitrator cannot
be sustained on any
grounds, based on that material, and the irregularity, failure or
error concerned is the only basis to sustain
the outcome the
arbitrator arrived at, that the review application would succeed.
[8]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[9]
it was held:
‘…
.
the reviewing
court must consider the totality of evidence with a view to
determining whether the result is capable of justification.
Unless
the evidence viewed as a whole causes the result to be unreasonable,
errors of fact and the like are of no consequence and
do not serve as
a basis for a review.
’
[23]
Against the above principles and test, I
will now proceed to consider the applications by CVO School to review
and set aside the
arbitration awards by both arbitrator Maake and
arbitrator Ramotshela, under separate headings hereunder.
Grounds
of review
[24]
In
order to properly decide a review application, it is also important
to identify the grounds of review upon which the application
is
founded. These grounds must be properly set out and identified in the
founding affidavit.  As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[10]
:
‘…
.
The
basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging the

reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
[25]
However,
and in the case of review applications, these grounds of review may
be supplemented, after the filing of the record, by
way of a
supplementary affidavit.
[11]
[26]
In the case of the review application by
CVO School in respect of the award of arbitrator Maake, a number of
review grounds are
made out in the founding affidavit, some of which
are simply repetitive of one another. I will therefore summarize the
gist of
the review grounds made out in the founding affidavit, as
follows: (1) The arbitrator committed a gross irregularity by
attributing
motives of bad faith and/or lack of independence to the
witnesses testifying for the school; (2) The arbitrator failed to
apply
his mind and misconstrued the evidence by finding that no
procedural fairness had been complied with by the school in
dismissing
Christoffel; (3) The credibility findings made by the
arbitrator was irregular; (4) The arbitrator ignored documentary and
oral
evidence in support of the charges against Christoffel and in
support of the prior sanctions meted out towards him; (6) The
arbitrator
misconstrued the evidence by deciding, based on the
discrepancy in dismissal dates in the documentary evidence and other
factors,
that the dismissal of Christoffel in this case was a forgone
conclusion; (7) The arbitrator committed misconduct in the execution

of his duties by concluding that the procedural unfairness in this
case was so gross that he did not need to separately decide
the issue
of substantive unfairness; (8) The arbitrator committed misconduct by
concluding that thereferral by the hearing chairperson
of the issue
of a sanction to the school governing body meant that the chairperson
did not consider the issue of a sanction and
was too afraid to do so;
(9) the arbitrator exceeded his powers and acted irrationally in
respect of the
quantum
of compensation awarded to Christoffel.
[27]
In the supplementary affidavit in respect
of the review application of the award of arbitrator Maake, CVO
School adds two further
review grounds, being: (1) The arbitrator
committed misconduct and misconstrued the evidence by finding that
the conduct of the
chairperson in the hearing showed he was biased;
and (2) there was no impropriety in Otto and Van Wyk being members of
the governing
body whilst being involved in the same hearing, as the
arbitrator had concluded.
[28]
Turning next to the review grounds made out
by CVO School in its founding affidavit, in respect of the
arbitration award by arbitrator
Ramotshela in favour of Antoinette,
the following summary reflects the gist of these grounds: (1) the
arbitrator committed misconduct
in relation to his duties by finding
that the school had not complied with Section 189 of the LRA in
dismissing Antoinette; (2)
the arbitrator disregarded relevant and
material evidence in failing to have proper regard to the nature of
the joint appointment
of Christoffel and Antoinette, and that her
employment terminated accordingly; (3) The arbitrator disregarded
material evidence
in failing to consider that any non-compliance with
Section 189 was permissible in the light of the exceptional
circumstances of
this matter; (4) the arbitrator exceeded his powers
and acted irrationally in respect of the
quantum
of compensation awarded to Antoinette. The supplementary affidavit
added nothing further to these review grounds.
[29]
I will now proceed to consider the
aforesaid review applications by CVO School, based on these principle
grounds of review, summarized
above, starting with the evaluation of
the case of Christoffel and the award of arbitrator Maake.
Evaluation:
the award of arbitrator Maake
[30]
It is
trite that any dismissal of an employee, in order to be fair, must
satisfy a prescribed requirement of procedural fairness
[12]
.
Whilst it is equally trite that a failure to comply with the
prescribed procedure in bringing about the dismissal of an
employee
could render a dismissal procedurally unfair, the critical question
in this instance is where the departure from what
must be complied
with in order to ensure the procedural fairness of the dismissal is
gross and excessive, could this kind of violation
competently spill
over into the substantive fairness consideration as well, rendering
the dismissal substantively unfair for this
reason.  This notion
was recognized by the Labour Appeal Court in
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[13]
where the Court said:
‘
It
bears mention that, often, too much is made of the distinction
between substantive and procedural unfairness. The distinction
is a
useful forensic tool, not a principle of law creating two separate
concepts. The distinction ought not to be made to do work
which
distorts its usefulness. … Sometimes a defective and thus
unfair procedure may taint an enquiry so as to prevent a
fair
decision on a substantive issue from being taken. Sometimes, an
unfair procedure does not get in the way of discerning a
substantively fair dismissal.
’
[31]
I am
of the view that the manner in which the dismissal of an employee was
brought about, even if it can later be said that the
employee may
have deserved dismissal, could still render that dismissal
substantively unfair. The former Industrial Court in
De
Villiers v Fisons Pharmaceuticals (Pty) Ltd
[14]
held:
‘…
Even
assuming for a moment that the decision to dismiss itself was
reasonable on its merits and that a hearing will not have had
a
different effect I am of the view that the manner in which the
applicant was dismissed is so unreasonably inadequate as to render

the decision itself unreasonable in the circumstances of the case. …
’
I
agree with these expressed sentiments. These sentiments as a matter
of necessity entail conducting an enquiry of dimension, being
to what
extent and in what manner did the employer depart from what was
required to be procedurally fair. The scope and extent
of such
departure from the norm is thus the critical consideration, in order
to determine if the failure of procedural fairness
also impacts on
the substantive outcome.  The Court in
Moodley
v Fidelity Cleaning Services (Pty) Ltd t/a Fidelity Supercare
Cleaning
[15]
similarly decided, where it was said:
‘…
Where
the purpose and methodological prescriptions of the process
envisioned by the statute are so evidently not understood, the

distinction between process and substance becomes blurred to the
degree that the dismissal cannot be held to have been for a fair

reason as required by s 188(1)
(a)
.
…
’
[32]
To
argue that because arbitration in the CCMA is a hearing
de
novo
and thus substantive fairness can be established and proven by way of
the evidence led in that forum, any gross irregularities
of failures
in the process that gave rise to dismissal in the first place cannot
have an impact on substantive fairness, is in
my view wrong. This
would entirely negate why the requirement of procedural fairness
exists in the first place, being to ensure
that the employee is dealt
with fairly prior to dismissal and that dismissal was always a fair
outcome in the first instance.
In Yichiho Plastics (Pty) Ltd v
Muller
[16]
the Court said:
‘…
Where
that act is the dismissal of an employee, it would seem to follow
that what is in issue is what the employer did, and not
what he might
have done in other circumstances. Any other approach would tend to
divest the employer of the responsibility to act
fairly, provided
only that he can later satisfy a court that his decision was in any
event the correct one …
’
[33]
It is
trite that as a matter of general principle, gross procedural
failures in the conduct of proceedings could in itself serve
to
vitiate the outcome of the proceedings, no matter what the merits of
the matter may be.
[17]
As said in
Satani
v Department of Education, Western Cape and Others
[18]
:
‘…
The
rules of natural justice dictate that parties be afforded a fair and
unbiased hearing, which consists of hearing both sides
in an
impartial manner. This rule finds expression in audi alteram partem
which is concerned with affording parties an opportunity
to
participate in a decision that will affect them. The participation of
parties in proceedings not only improves the quality and
rationality
of the decision but also enhances the legitimacy of the decision. The
audi alteram partem rule implies equal participation
of parties
during the proceedings. He/she must hear both sides; act impartially
and consistently to both parties irrespective of
the approach
adopted
’
The
same principle should in my view hold true where it comes to internal
disciplinary proceedings in an employer. Otherwise, what
would the
point of requiring such proceedings to take place in the first
instance, and prescribing standards of fair process to
such
proceedings?
[34]
The
importance of procedural fairness is especially evident where it
comes to the issue of deciding a fair and appropriate sanction,
in
circumstances where it can be justifiably said or accepted that the
employee indeed committed misconduct. Following the judgment
in
Sidumo
,
the decision whether the dismissal of an employee would be a fair
sanction is a value judgment
[19]
.
It is in my view obvious that such a value judgment can only be
properly made with full participation of the employee in the course

of arriving at such a judgment.  Further, and in the exercise of
this value judgment, the totality of circumstances must be

considered, with specific reference to a number of pertinent factors,
such as the importance of the rule that had been breached,
the reason
why the employer is seeking dismissal, the harm caused by the
employee's conduct, whether additional training and instruction
may
result in the employee not repeating the misconduct, the effect of
dismissal on the employee, the employees’ length of
service and
service record,
the
issue of the breakdown of the trust / employment relationship between
the employer and employee, the existence of dishonesty,
the
possibility of progressive discipline, the existence or not of
remorse, the job function and the employer’s disciplinary
code
and procedure.
[20]
[35]
It
follows in order to be fair, any disciplinary hearing process must
allow the employee an opportunity to properly participate
in the
decision of arriving at a fair sanction, and the employee must be
heard on this.
[21]
In particular, it is essential that the employee must be heard on the
Sidumo
considerations as set out above, and especially on issues such as the
trust relationship, remorse, and the applicability of progressive

discipline, by way of giving the employee the opportunity to make
submissions and lead evidence in this regard.  As was said
in
Schwartz
v Sasol Polymers and Others
[22]
:
‘
A
determination as to the substantive fairness of a dismissal for
misconduct requires a decision maker to have regard to item 7
of the
Code of Good Practice: Dismissal … and whether dismissal is an
appropriate sanction to be imposed for breach of the
rule. It is
apparent that the Labour Court misconstrued the proper approach to
such a determination when it considered the substantive
fairness of
the appellant’s dismissal as one distinct from a determination
of the appropriate sanction.
’
[36]
A
failure to afford an employee such an opportunity where it comes to
imposing a sanction would obviously constitute a procedural

irregularity and thus be procedurally unfair, but in my view it is
more than that. Such a failure could in fact have a direct and

material impact on the decision to dismiss, could detrimentally
influence the value judgment, and as such render dismissal to be
an
appropriate sanction, thus rendering it unfair.  It is trite
that a finding that dismissal is unfair because the sanction
of
dismissal is inappropriate, harsh or unfair is an issue of
substantive fairness.
[23]
[37]
The
basic tenets of what is needed for disciplinary hearings to be
considered to be procedurally fair is set out in
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation and Arbitration and Others
[24]
as
follows:
‘
When
the code refers to an opportunity that must be given by the employer
to the employee to state a case in response to any allegations
made
against that employee, which need not be a formal enquiry, it means
no more than that there should be dialogue and an opportunity
for
reflection before any decision is taken to dismiss. In the absence of
exceptional circumstances, the substantive content of
this process as
defined by item 4 of the code requires the conducting of an
investigation, notification to the employee of any
allegations that
may flow from the investigation, and an opportunity, within a
reasonable time, to prepare a response to the employer's
allegations
with the assistance of a trade union representative or fellow
employee. The employer should then communicate the decision
taken,
and preferably communicate this in writing.’
[38]
In the light of all of the above
principles, the reasoning of arbitrator Maake must be considered. He
reasoned firstly that the
issue of procedural unfairness in this case
would have what he called a ‘major role’ to play in
deciding whether the
dismissal of Christoffel is substantively
unfair.  Considering the legal principles I have set out above,
this reasoning is
in my view undoubtedly correct. Arbitrator Maake
properly and rationally appreciated that a material deviation from
what is required
for the dismissal of an employee to be procedurally
fair, could impact on a finding of substantive fairness. The point of
departure
of the arbitrator in deciding the case is thus beyond
reproach, and certainly entirely reasonable.
[39]
Having identified the requisite legal
principle for consideration, arbitrator Maake then turned to the
facts. He considered that
Otto was the chairperson of and thus the
most senior person of the school governing body and the complainant
in the disciplinary
hearing, whilst Van Wyk, the chairperson of the
disciplinary hearing, was also a member of the governing body but
more junior to
Otto.  Arbitrator Maake also considered the
manner in which Van Wyk went about questioning Christoffel in the
disciplinary
hearing, which according to the arbitrator went beyond
what could be considered appropriate. Accordingly, arbitrator Maake
concluded
that these issues created a reasonable perception of bias
on the part of Van Wyk as chairperson.
[40]
There
is in my view much merit in the reasoning of the arbitrator where it
came to his conclusion that a reasonable apprehension
of bias existed
in this case.   As he correctly identified, it is about a
reasonable apprehension of bias, or in other
words the ‘outward
perception’ of bias. The actual existence of bias need not be
proven. The principal test for bias
can be found in the judgment of
BTR
Industries SA (Pty) Ltd and Others v Metal and Allied Workers Union
and Another
[25]
where the Court said the following:
‘…
the
proper significance of the word- 'is to denote a departure from the
standard of even-handed justice which the law requires from
those who
occupy judicial office or those who are commonly regarded as holding
a quasi-judicial office'
.
In
BTR
Industries
the Court further determined that the kind of departure from the
standard would exist where a party can show a reasonable suspicion
of
bias, and further said:
[26]
‘…
.
Provided the suspicion of partiality is one which might reasonably be
entertained by a lay litigant a reviewing court cannot,
so I
consider, be called upon to measure in a nice balance the precise
extent of the apparent risk. If a suspicion is reasonably

apprehended, then that is the end of the matter’
[41]
And
in
SA
Commercial Catering and Allied Workers Union and Others v President,
Industrial Tribunal and Another
[27]
the Court held that:
‘
It
is, moreover, not only actual bias, but the outward appearance of
bias that may vitiate the decision of a body such as the tribunal
as
justice must be seen to be done.
’
[42]
Arbitrator Maake appreciated the fact that
because the complainant in the disciplinary enquiry was the
chairperson of the school
governing body whilst the chairperson of
the disciplinary hearing was a member thereof, seen together with the
manner in which
the chairperson then questioned the employee in the
disciplinary hearing, this would create such an outward reasonable
apprehension
of bias. This appreciation is in my view correct. I
accept that the fact that disciplinary hearing chairperson is in
essence junior
to the complainant and the manner in which the
questioning was conducted in the disciplinary hearing by the
chairperson, would
create a justified reasonable apprehension on the
part of Christoffel that he would not receive a hearing.  The
conclusions
of arbitrator Maake in this respect are unassailable. I
may add that even though not mentioned by arbitrator Maake in his
award,
the manner in which both Otto and Van Wyk were behaving in the
disciplinary hearing seemed to indicate that they were a tag team

each having a go at Christoffel, which can only add to this
reasonable apprehension of bias.
[43]
Much is made in the award of arbitrator
Maake of the discrepancies where it comes to reflecting the date of
the termination of employment
of Christoffel, in some of the
documents. The UI19 form reflects 31 October 2014, whilst the letter
of termination shows 4 November
2014.  There is also the
termination documents of Antoinette, where the UI19 also shows 31
October 2014.  CVO School
sought to explain in the arbitration
that this was simply an error.  Despite these discrepancies
being of some importance
to arbitrator Maake in deciding that the
dismissal of Christoffel was pre-determined, I do not believe much
turns on this. What
is after all true is that both Christoffel and
Antoinette were called to a meeting on 4 November 2014 and told they
were dismissed.
Considering the haphazard manner in which the
various CVO School functionaries dealt with the documents, as is
apparent from their
own evidence in the arbitration, it may well be
that what is contained in these documents were simply errors. I do
not intend to
belabour this issue further, because even if arbitrator
Maake should have accepted that the discrepancies were just mistakes,
this
change in finding simply has no impact on the ultimate outcome
in this matter.  So, and even if  CVO School is correct
in
respect of this ground of review, it simply does not assist CVO
School where it comes to the crux of the matter, which I will
next
deal with.
[44]
Arbitrator Maake was specifically alive to
the fact that when van Wyk found Christoffel guilty of the misconduct
with which he had
been charged, he made no finding on the issue of
sanction. What Van Wyk did instead, and without even reverting to
Christoffel
about such an intention, was to simply defer the issue of
a sanction to the school governing body to decide, which governing
body,
as stated, had Otto (the disciplinary hearing complainant) as
chairperson. What I also find particularly disturbing is that
Christoffel
is blissfully unaware of all that is happening in this
respect. The finding of Van Wyk dated 3 November 2014, finding
Christoffel
guilty of misconduct and deferring the issue of sanction
to the school governing body was not even given to Christoffel at the
time it was made, but was only presented to him along with his letter
of dismissal on 4 November 2014.  This is unexplainable
conduct,
and downright unfair.
[45]
So therefore, and in effect behind the back
of Christoffel, the school governing body chaired by Otto decided to
dismiss him. This
is done without affording Christoffel any
opportunity to even address the school governing body on an
appropriate sanction and
to in any way participate in the process in
coming to such a decision. This kind of behaviour is manifestly
unfair, and in my view
actually a travesty. It violates the basic
tenets of what can be considered to procedurally fair and proper.
Justice cannot be
seen to have been done in such circumstances. In
line with all the legal principles I have set out above, this is a
flagrant violation
of fair process that has a direct impact on the
issue of substantive fairness, where it comes to the determination of
an appropriate
and fair sanction. These failures had to mean that an
appropriate and fair sanction could not have been arrived at, and
that would
make any dismissal substantively unfair.
[46]
I feel compelled to highlight certain parts
of the evidence of the chairperson of the disciplinary hearing, Van
Wyk, so as to illustrate
the gravity of the flawed process. In giving
evidence in chief, Van Wyk conceded he did not recommend any
sanction.  Turning
to testimony that came out in the course of
cross examination, the following exchanges are pertinent:
‘
COMMISSIONER:
…
In
other words, after you had found him guilty and you had submitted
your report to the school governing body to consider a suitable

sanction, before the school governing body could impose the dismissal
sanctions, it did not invite him to put forward mitigating
factors. …
MR
VAN WYK:
I
was under the instruction of the school governing body after I
submitted the results, the verdict for dismissal. I was under that

instruction.  Yes it is true that I did not, I did not
(inaudible) mitigating at that time on 4 November, specifically on
4
November when I gave him the outcome of the verdict and subsequent
sanction. …
MR
STEMMET:
…
You
said you were under an instruction of the school governing body to
dismiss Mr Pretorius?
MR
VAN WYK:
That
was their sanction, yes.
MR
STEMMET:
When
did they instruct you?
MR
VAN WYK:
On
3 November.
’
As
to how this instruction was conveyed to Van Wyk, the following
exchanges are pertinent:
‘
MR
STEMMET:
Was
there a meeting?
MR
VAN WYK:
No,
it was via email.
MR
STEMMET:
But
how do they deliberate on this?
MR
VAN WYK:
(inaudible)
as email correspondence. …
MR
VAN WYK:
I
sent the verdict, after then I said to them I want a response on that
and then go on a vote, vote system to say yes, I agree to
the
dismissal or I do not agree to the dismissal …
’
This
entire exchange indicates that dismissal was actually a pre-decided
option, which only needed to be approved by the school
governing body
following Christoffel being found guilty of misconduct.  Who
actually made the decision to dismiss remains
unclear.  Van Wyk
concluded by saying that the vote to dismiss was unanimous. This kind
of situation is completely unacceptable,
especially considering Otto
was one of those who voted, and most likely the one that drove the
dismissal of Christoffel.
[47]
Further
to the legal principles I have set out above, I must mention the
following
dicta
from the judgment in
SA
Municipal Workers Union on behalf of Mahlangu v SA Local Government
Bargaining Council and Others
[28]
which is clearly directly apposite
in
casu
,
and where the Court found dismissal to be unfair:
‘
What
happened in this case is that the chairperson of the enquiry did make
a finding on Mahlangu's guilt on the charges but failed
to complete
his duties under the code by finalizing the sanction. Instead, he
contented himself with only making a recommendation
to the employer.
…
The
employer also did not invite any representations from the applicants
before it decided to take up the chairperson's invitation
to
determine the sanction itself. … In deciding to perform the
function which was entrusted to the chairperson, the employer
acted
in direct breach of the disciplinary procedure and exercised a power
it was not entitled to exercise in terms of that procedure.
…
What
the employer ought to have done was to point out to the chairperson
that he was obliged to make a decision on the sanction
as well in
terms of the code, and to ask him to do so.
’
[48]
What
makes what had happened in this case even more unpalatable is that
one does not even know what had been considered in deciding
to
dismiss Christoffel.  The high water mark of the evidence is
that he had some or other past transgressions and warnings,
but the
particulars about this are sparse and lacking in particularity. There
is no indication or evidence that any of the sanction
principles I
have set out above were even considered, and certainly the input of
Christoffel was not obtained on the same. Not
even at arbitration,
and on the evidence presented by the witnesses, did CVO School make
out a proper case why dismissal was appropriate.
I must confess that
considering what Christoffel is alleged to have done wrong, as it is
reflected in the charge sheet and elaborated
on by the witnesses for
CVO School, I would have difficulty in accepting that this justified
dismissal as a sanction. Otto in fact
testified that he charged
Christoffel because of poor performance, which scenario, even if it
for the purposes of argument is considered
to be misconduct
[29]
,
would require remedying discipline before dismissal. It seems to me
that this was a situation where proper progressive disciplinary
was
not only appropriate, but essential.  I
n
Timothy
v Nampak Corrugated Containers (Pty) Ltd
[30]
the Court
said:
‘…
Progressive
sanctions were designed to bring the employee back into the fold, so
as to ensure, by virtue of the particular sanction,
that faced with
the same situation again, an employee would resist the commission of
the wrongdoing upon which act the sanction
was imposed. The idea of a
progressive sanction is to ensure that an employee can be
reintegrated into the embrace of the employer's
organization, in
circumstances where the employment relationship can be restored to
that which pertained prior to the misconduct.
…’
[49]
In all of the above circumstances, it must
be beyond any doubt that the dismissal of Christoffel was at least
procedurally unfair.
The findings by arbitrator Maake to this effect
are simply not open to successful challenge, on any ground. Turning
to the issue
of substantive fairness, I consider it necessary to
quote directly from the arbitrator’s award:
‘
I
now turn to a consideration of the question I alluded to …
which is … it can be concluded that the procedural
irregularities
were of such a gross and grave nature, as to have
amounted to a vitiation of the substantive fairness of the dismissal,
in particular,
taking into account, the fact that such irregularities
point to the fact that the dismissal was indeed a foregone
conclusion.
The answer is clearly in the affirmative ….
’
I
cannot agree more. This is exactly what happened. All considered, in
the context of all the gross and material failures as set
out above,
it can only reasonably follow that the purported disciplinary
proceedings were nothing more than a sham in which lip
service was
paid to the requirement of procedural fairness in circumstances where
it had already been decided to dismiss Christoffel.
This is about as
fundamental a failure as one can get, rendering the dismissal
substantively unfair as well.
[50]
Considering what I have found above, there
is no need to address the further grounds of review advanced by CVO
School, as summarized
above.  The arbitration award of
arbitrator Maake is capable of being sustained as a reasonable
outcome on the above grounds
alone, meaning that CVO School simply
cannot satisfy the review test.
[51]
In summary therefore, the finding arrived
at by arbitrator Maake that the dismissal of Christoffel was both
substantively and procedurally
unfair is unassailable.  This
finding, based on the reasons advanced by the arbitrator, is actually
correct. Added to this,
and considering all that I have set out
above, such a finding would in any event resort well within the
bounds of what can be considered
to be a reasonable outcome. The
award must be upheld.
Evaluation:
the award of arbitrator Ramotshela
[52]
As set out above, arbitrator Ramotshela
dealt with the unfair dismissal case of Antoinette.  In her
case, CVO School seemed
to be unclear on why she was actually
dismissed.  But in the end, it was confirmed in evidence that
she was dismissed for
operational requirements (retrenchment).
In short, the basis for dismissal was that because her appointment
was a combined
(joint) appointment with Christoffel, his dismissal
meant that it was no longer operationally possible for CVO School to
keep her
employed, and this meant she had to be retrenched.
[53]
Arbitrator Ramotshela accepted that
Antoinette was appointed on the basis of a combined appointment with
Christoffel, and that in
this context, the dismissal of Christoffel
was a proper substantive reason for dismissing Antoinette based on
operational requirements.
The arbitrator thus accepted that the
dismissal was for a proper substantive reason relating to operational
requirements, and was
accordingly substantively fair. There is no
cross review in this case, and as a result this finding stands, and I
need to say no
more about it.
[54]
But where it came to procedural unfairness,
arbitrator Ramotshela sang a different tune.  He considered what
had happened in
this case, and in effect concluded that there was a
complete failure of process as contemplated by Section 189 of the
LRA, for
a number of reasons. He reasoned that CVO School sought to
approach this matter as a ‘contractual one’ and deemed it

unnecessary to apply any process in terms of Section 189, which
approach the arbitrator considered to be wrong. He concluded that

because Antoinette was retrenched, she needed to be consulted on how
to deal with what he called the ‘reality’ of her
husband
losing his job, but was instead just called to a meeting and told she
was dismissed.  Arbitrator Ramotshela consequently
held the
dismissal of Antoinette to be procedurally unfair.
[55]
As part of its review grounds, CVO School
indeed still contended that the employment agreement of Antoinette,
because it was a combined
appointment with Christoffel, in some or
other way contemplated an automatic termination of employment
scenario consequent upon
the termination of employment of
Christoffel, leading to the result that no process as contemplated by
Section 189 needed to have
been followed. This review ground can be
swiftly disposed of, and comfortably rejected, for a number of
reasons, which I will now
elaborate on.
[56]
At the time of effecting the
dismissal, CVO School never relied on automatic termination of the
employment contract of Antoinette,
and specifically dealt with her
termination of employment as one of retrenchment.  This was
evident from what Christoffel
was told in his disciplinary
proceedings, as well as the termination of employment documents given
to Antoinette, including her
letter of dismissal. Further, the
testimony that came out in the arbitration was that Antoinette was
indeed considered to have
been retrenched. Otto was specifically
asked when giving evidence in chief what the reason for the
termination of employment of
Antoinette was, and he answered:
‘
Yes
we did retrench her …’.
[57]
I also find it rather disingenuous for CVO
School to rely on the award of arbitrator Ramotshela to the effect
that the dismissal
of Antoinette was substantively fair based on
operational requirements on the one hand, but then in effect say in
the same breath
that the termination of employment was ‘contractual’
and no process needed to be applied. It is either one or the other.

The fact that it stands in terms of the finding of the arbitrator
that Antoinette was dismissed for operational requirements, a
process
as contemplated by Section 189 had to be followed.
[58]
There
is nothing in the actual employment contract of Antoinette that
prescribes automatic termination in the event that Christoffel
lost
his job.  However, and even if it can be contemplated that some
or other agreement exists that Antoinette can be retrenched
without
following process as contemplated by Section 189 if Christoffel loses
his job, such an agreement would have the objective
of contravening
and avoiding what is required by the LRA, and would  be invalid.
In
SA
Post Office Ltd v Mampeule
[31]
the Court
said:
‘…
I
am in agreement with the submission made by Mampeule's counsel,
supported by authorities, that parties to an employment contract

cannot contract out of the protection against unfair dismissal
afforded to an employee whether through the device of 'automatic

termination' provisions or otherwise because the Act has been
promulgated not only to cater for an individual's interest but the

public's interest (see Brassey
Commentary
on
the
Labour Relations Act
at A2-9 and A211;
SA
Eagle Insurance Co Ltd v Bavuma
1985
(3) SA 42
(A)
at
49G-H;
Bafana
Finance Mabopane v Makwakwa
[2006] ZASCA 46
;
2006
(4) SA 581
(SCA)
para
10 and
Denel
(Pty) Ltd v Gerber
(2005)
26 ILJ 1256 (LAC)
;
[2005] 9 BLLR 849
(LAC) at 24). The court a quo was thus correct when
it held at para 46 that:
‘
Provisions
of this sort, militating as they do against public policy by which
statutory rights conferred on employees are for the
benefit of all
employees and not just an individual, are incapable of consensual
validation between parties to a contract by way
of waiver of the
rights so conferred.
'
[59]
Next,
CVO School in effect contends that following a process would not
matter, as there is no manner in which the retrenchment of
Antoinette
could be avoided, and this constituted some of other exceptional
circumstance justifying departure from the process
required under
Section 189. This kind of argument has no merit, and
in essence
falls back on the no difference principle, soundly rejected more than
a decade ago.
[32]
It would always be required, in the context of a dismissal for
operational requirements under Section 189, that proper process
be
instituted and then followed as contemplated by that Section, before
any final decision to dismiss an employee is made. The
application of
the process under section 189 is an integral part of any fair
dismissal for operational requirements. The failure
on the part of
CVO School to follow such a retrenchment process is inexcusable.
In
Welch
v Kulu Motors Kenilworth (Pty) Ltd and Others
[33]
the Court
held:
‘
To
the extent that it was suggested by the respondents that barring a
financial miracle the applicant was aware that the closure
of the
business was obvious and inevitable, this did not serve to relieve
KMK of its obligation to consult the applicant. Even
if the outcome
may have seemed unavoidable to some, the required process of
consulting at the earliest opportunity and before closure
has
everything to do with at least giving those most affected an
opportunity to make proposals when they may still have an impact
and
be implemented.
’
The
same consideration, as set out this
dictum
,
would equally apply
in casu
.
[60]
Insofar
as CVO School may argue that the lack of vigorous protest from
Antoinette about what was happening to her could be seen
as some form
of acquiescence on her part, one can do no better than refer to what
happened in
Adams
v DCD-Dorbyl Marine (Pty) Ltd
[34]
,
where the Court dealt with a situation where the employer contended
that the employee ‘elected’ to be ‘released’

from employment, before any meaningful consultation took place, and
then held as follows:
‘
The
employer chose to accept that Adams had elected to 'be released' from
his employment before any meaningful consultation had
taken place,
despite all indications to the contrary. Its misplaced belief is not
borne out by the objective facts.
I
find that the dismissal was procedurally unfair. …
’
Similarly,
and in
Hodges
v Urban Task Force Investments CC and Others
[35]
the Court said:
‘
It
was suggested on behalf of the first respondent, when the matter came
before court, that the formalities to a retrenchment became

unnecessary because the parties had reached a mutual agreement. I do
not accept the submission. It is clear that the applicant
had
resigned himself to the fact that he was to be retrenched …
’
The
aforesaid circumstances are very similar to what happened in the
current matter. CVO School clearly mistakenly believed it was

entitled to act as it did.  That rendered the dismissal
procedurally unfair. All Antoinette could do was to resign herself
to
this reality. In fact, the complete lack of process of any kind
rendered the procedural unfairness, in my view, to be gross.
[36]
[61]
The
basic tenets of a fair process under Section 189 of the LRA are, at
the very least, a proper notice as contemplated by Section
189(3) of
the LRA being issued to the employee, the employee being given the
opportunity to prepare for the consultations to come
based on what is
contained in the Section 189(3) notice, and then be given an
opportunity to address the employer on these issues
in a meaningful
manner.  In
Moodley
[37]
the Court said:
‘
A
critical, if not the most central, ingredient of the consultation
process, is the requirement of written notice and the disclosure
of
information. Effective consultation requires employees to have an
opportunity to prepare for consultation by being given sufficient

advance notice, an agenda and adequate information. Without this, the
joint consensus-seeking process mandated by the legislature
is hardly
likely to be 'meaningful'.  To guide and assist the parties, s
189(3) spells out what normally should be included
in the written
notice and disclosure document. …
’
[62]
Where
it comes to the consultation process itself, one o
f
the most important reasons for having these kind of consultations is
the protection of employment.  In
Havemann
v Secequip (Pty) Ltd
[38]
the Court said:
‘
A
key purpose behind consultation is the protection of employment, with
security of employment being a core constitutional value
protected
through the LRA. In
Supergroup
Trading (Pty) Ltd v Janse van Rensburg
this
Court criticised the consultation undertaken by an employer as a
“charade” and “purposeless insofar
as it deprived
the Respondent of a chance to save his post or avoid his being
selected for retrenchment. His representations on
that score were to
be fruitless because restructuring was a
fait
accompli
.”
It was emphasised that –
‘…
the purpose
of consultation is to try and save a job or position. If this cannot
be done the next aim is to avoid dismissal
by placing the person,
whose post has become redundant, elsewhere. And if avoidance is not
possible consultation concerns the extent
to which the consequences
of the retrenchment can be mitigated.’’
[63]
The
nature of the consultation process must be that of joint consensus
seeking.
[39]
This means that the parties must engage one another in an open and
honest manner, before any decision is taken, and then
exchange their
respective views and positions, on at least the consultation topics
enshrined in Section 189(2)
[40]
of the LRA. An employer must listen to the proposals or suggestions
made by the employee in the course of the consultations, and
then
deal with the same. If the proposals or suggestions are not
considered by the employer to be sustainable, reasons must be

provided why this is the case. This is the only manner in which the
views of both parties can be fully ventilated with the objective
of
not only saving employment as a first prize, but also to, if
employment must be terminated, leave an employee with a perception

that he or she has been dealt with fairly.  In
Vermeulen
v Investgold CC and Another
[41]
the Court held:
‘
Section
189 is clear. It requires an employer and employees faced with the
prospect of retrenchment to engage in a joint consensus-seeking

process. This requires an honest and open engagement in which both
parties exchange views and proposals in relation to a contemplated

retrenchment. It requires an employer party, in particular, to give
serious consideration to proposals made by employees and their

representatives and to allow the fullest possible exchange of views.
It requires an employee party to participate actively in the
process
and to seek mutually agreed outcomes. …
’
[64]
All of the above objectives of Section 189
of the LRA, as well as the consultation process envisaged by it, are
entirely defeated
if an employee is confronted in the consultation
process with dismissal as a
fait
accompli
.  What is the point of
consulting where it can do nothing to avoid possible job loss and
where the mind of the employer is
not only completely closed to any
proposals or suggestions forthcoming from the employee, but the
employee is not even given an
opportunity to make proposals to the
employer in this respect.  This is exactly what happened to
Antoinette
in casu
,
for the reasons now set out.
[65]
Antoinette
was never given any notification as contemplated by Section 189(3).
This is a material failure of process. In
Moodley
[42]
the Court dealt a failure to provide any Section 189(3) notice to an
employee as follows:
‘…
Nothing
approximating a joint consensus-seeking process occurred in this
case. Firstly, the employer does not appear to have invited
any
employee representation in the consultation process as required by s
189(1). Secondly, at no stage prior to the selection of
the employees
for retrenchment did the respondent give written notice or disclose
in writing the reasons for retrenchment , the
alternatives considered
and rejected, the number affected and the categories, regions, areas
or departments in which they were
employed. Added to that, no fair
objective selection criteria were ever agreed, identified,
communicated or applied. And no severance
pay was proposed, discussed
or disclosed …
’
[66]
What
happened
in
casu
is as far from a fair consultation process as one can get. There was
no attempt of any kind by CVO School to initiate or conduct
a joint
consensus seeking process with Antoinette. She was confronted with a
fait
accompli
in the true sense of the word. On the facts, Christoffel was called
to a meeting and told he was dismissed. Having so informed

Christoffel, Antoinette is called to the same meeting and told that
because Christoffel had been dismissed, she must be retrenched.

And that was that. Antoinette was not even informed that she could
make proposals if she wanted to do so.  Of direct application
is
the following dictum from the judgment in
Robinson
and Others v PriceWaterhouseCoopers
[43]
where the Court said the following in finding the retrenchment of the
employees to be procedurally unfair:
‘…
The
applicants were not advised that they could, in terms of s 189,
negotiate on the need to retrench them, or on alternatives,
severance
pay and selection criteria. They were never made aware of, or could
have been aware of how to negotiate themselves out
of the fait
accompli.
’
[67]
It is
clear that by the time Antoinette was called into the meeting of 4
November 2014, the decision had already been made to retrench
her.
There was nothing she could say or do, or was even allowed to say or
do, to change this state of affairs. The only indulgence
she received
was a reprieve where it came to her eviction from the accommodation
on the CVO School property. In
Mthombeni
[44]
the Court held:
‘…
the
so-called consultation was nothing but a sham. A decision had already
been taken to restructure the position of the applicant
by the time
the so-called consultation commenced. Thus any consultation that
would follow after that decision of the board could
not be said to be
in compliance with the provisions of s 189 of the LRA. An interesting
aspect relating to the approval of the
structure which highlights the
underlying motive of the whole process is that Ms Stander invited the
applicant to a consultation
process on 21 November 2005 whereas the
board approved the structure on 24 November 2005. …
’
Similar
considerations apply
in casu
.
[68]
Comparable
examples where the Court considered the retrenchment of an employee
to be procedurally unfair can be found in
Solidarity
on behalf of Van Emmenis v Sirius Risk Management (Pty) Ltd
[45]
where the
employer only
considered the dismissal of the employee in a management discussion
on 9 February 2012, and then, without consultation
meetings,
presented the employee with a letter of dismissal on 15 February
2012.  Similarly, and in
Vermeulen
[46]
the
consultation process was commenced and concluded in less than two
hours, which the Court considered to be manifestly unfair.
What
happened to Antoinette is the same as has been aptly described in
Hodges
[47]
as follows:
‘…
At
no point, on the evidence before the Commissioner, did the first
respondent deal with the issues that should form the subject-matter

of consultation when a retrenchment is contemplated. Whatever
consultation took place was woefully deficient as to be non-existent:

the applicant was confronted with
a
fait
accompli
.
’
[69]
In the light of the aforesaid, the
conclusions of arbitrator Ramotshela are thus unassailable. These
conclusions of the arbitrator
are actually correct, both on the
facts, and on application of the relevant principles of law, and can
thus be comfortably be considered
to be a reasonable outcome. There
is no doubt that the dismissal of Antoinette was presented to her as
a
fait accompli
,
and was not preceded by any notice as contemplated by Section 189(3)
nor any form of consultation. There can be no justification
for this
failure. The dismissal by Antoinette by CVO School was thus
procedurally unfair, and the determination by arbitrator Ramotshela

to this effect must be upheld.
The
issue of relief
[70]
Considering
that the dismissal of Christoffel was thus substantively and
procedurally unfair, and the dismissal of Antoinette was
procedurally
unfair, they would both be entitled to relief.  Christoffel did
not seek reinstatement and the dismissal of Antoinette
was only
procedurally unfair, and thus compensation is the only appropriate
relief.
[48]
[71]
Arbitrator Maake awarded Christoffel
R72 000.00 (12 months’ salary), and arbitrator Ramotshela
awarded Antoinette R46 400.00
(8 months’ salary), as
stated above.  CVO School has specifically raised, as a ground
of review, that both these arbitrators
had acted irregularly in
determining the quantum of compensation awarded to Christoffel and
Antoinette.  The final question
to be answered in this judgment
is whether there is any substance in this ground of review.
[72]
Considering
the applicable legal principles first, when deciding on the quantum
of compensation to be awarded, a CCMA commissioner
would exercise a
judicial discretion.  In
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[49]
the Court said:
‘
To
compensate or not to compensate and if compensation is to be awarded
for what period, is a function of the judicious exercise
of the
discretionary power that an arbitrator or the court has in terms of s
194(1) of the LRA …
’
[73]
The
normal basis upon which this discretion is to be exercised is
enunciated in
Le
Monde Luggage CC t/a Pakwells Petje v Dunn NO and Others
[50]
,
as thus:
‘
The
compensation which must be made to the wronged party is a payment to
offset the financial loss which has resulted from a wrongful
act. The
primary enquiry for a court is to determine the extent of that loss,
taking into account the nature of the unfair dismissal
and hence the
scope of the wrongful act on the part of the employer. This court has
been careful to ensure that the purpose of
the compensation is to
make good the employee's loss and not to punish the employer.
’
[74]
But
central to any compensation award would be what is overall just and
equitable in all circumstances of the facts of that particular

matter.  As
said
in
Kemp
t/a Centralmed v Rawlins
[51]
:
‘…
The
court has to consider all the relevant circumstances and make such
order as it deems fair to both parties in the light of everything

...’
Further,
the concept of ‘considering everything’ as referred to in
Rawlins
must mean a consideration also of the scope and extent of the loss
suffered by the employee, the nature and extent of the deviation
from
what would normally be considered to be fair, whether there may exist
any justification for the conduct of any of the parties,
any
mala
fides
on the part of the employer, and the impact of the sum awarded, on
the employer or its business.
[52]
Also, compensation
for
substantive unfairness would normally attract a larger amount of
compensation that would the case with a dismissal that is only

procedurally unfair.  A pertinent example of where a maximum
compensation award was justified can be found in
Dunwell
Property Services CC v Sibande and Others
[53]
,
case where on the facts a proper basis for the dismissal of the
employee could not be made out, no proper process was followed
and
the employee not given opportunity to be heard.  The Court
said:
[54]
‘
To
my mind, the circumstances surrounding Sibande's dismissal were such
as to have violated any fair treatment to which an employee
is
entitled. Accordingly, I am of the view that the payment to Sibande
of the maximum compensation prescribed by the LRA would
be just and
equitable …
’
I
mention this matter specifically because of the similarities to the
cases now before me
in casu
.
[75]
It
must also be remembered that an award of compensation in the case of
a finding of procedural unfairness includes a
solatium
as a result of the infringement of the employee’s right to
procedural fairness.  In
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
[55]
the Court held:
‘
The
compensation for the wrong in failing to give effect to an employee's
right to a fair procedure is not based on patrimonial
or actual loss.
It is in the nature of a
solatium
for the loss of the right, and is punitive to the extent that an
employer (who breached the right) must pay a fixed penalty for

causing that loss.
’
[76]
More
recently, and in
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
[56]
the Court considered the objective of compensatory relief under the
LRA, and said:
‘…
it
is a payment for the impairment of the employee's dignity. This
monetary relief is referred to as a solatium and it constitutes
a
solace to provide satisfaction to an employee whose constitutionally
protected right to fair labour practice has been violated.
The
solatium must be seen as a monetary offering or pacifier to satisfy
the hurt feeling of the employee while at the same time
penalising
the employer. It is not however a token amount hence the need for it
to be 'just and equitable' and to this end salary
is used as one of
the tools to determine what is 'just and equitable'’
[77]
Finally,
and because an arbitrator when awarding compensation exercises a
discretion, this discretion should not be too readily
or easily
interfered with by this Court on review.  In
Rawlins,
[57]
the Court specifically said the following where it comes to what must
be considered when deciding whether such a discretion should
be
interfered with:
'From
the above it is clear that in the case of a narrow discretion - that
is a situation where the tribunal or court has available
to it a
number of courses from which to choose - its decision can only be
interfered with by a court of appeal on very limited
grounds such as
where the tribunal or court-
(a)
did not exercise a
judicial discretion; or
(b)
exercised its discretion
capriciously; or
(c)
exercised its discretion
upon a wrong principle; or
(d)
has not brought its
unbiased judgment to bear on the question; or
(e)
has not acted for
substantial reason (see
Ex
parte Neethling and others
1951 (4) SA 331
(A) at 335); or
(f)
has misconducted itself
on the facts (Constitutional Court judgment in the
National
Coalition for Gay and Lesbian Equality
case at para 11); or
(g)
reached a decision in
which the result could not reasonably have been made by a court
properly directing itself to all the relevant
facts and principles
(Constitutional Court judgment in
National
Coalition for Gay & Lesbian Equality
at para 11).’
[78]
In specifically dealing with
the discretion exercised by an arbitrator in awarding compensation,
the Court  in
Kukard
v GKD Delkor (Pty) Ltd
[58]
held:
‘…
the
court's power to interfere with the quantum of compensation awarded
by an arbitrator under s 194(1) of the LRA is circumscribed
and can
only be interfered with on the narrow grounds that the arbitrator
exercised his or her discretion capriciously, or upon
the wrong
principle, or with bias, or without reason or that she adopted a
wrong approach. In the absence of one of these grounds,
this court
has no power to interfere with the quantum of compensation awarded by
the commissioner. … It is, therefore, for
Delkor to persuade
this court that the quantum of compensation awarded by the
commissioner may be impugned on one of the narrow
grounds referred to
above. …
’
[79]
Considering
the principles as set out above, it is clear that where it comes to
the issue of procedural fairness, there was a significant
departure
on the part of CVO School from what was required for the dismissal of
Christoffel and Antoinette to be procedurally fair.
As stated above,
and in the case of Christoffel, the disciplinary process was
materially defective and he was given no opportunity
to address the
issue of an appropriate sanction. In the case of Antoinette, there
was no compliance with Section 189 at all and
her dismissal was
presented to her with a
fait
accompli
.
Such a material failure of process, and considering the issue of a
solatium
for the infringement of such a right, justifies a higher compensation
award. The same considerations as considered in
Dunwell
Property Services
[59]
equally apply in this instance.
[80]
Also, the
bona
fides
of CVO School are in question
where it comes to the dismissal of Christoffel. The complete lack of
consideration of progressive
discipline also detracts from the
existence of such
bona fides
.
I also consider the statement by Otto in the disciplinary hearing of
Christoffel, and before any finding was even made, that Antoinette

would also lose her employment if he is dismissed, as illustrating a
lack of
bona fides
.
All these factors smack of a pre-empted outcome and decision being
made behind the back of Christoffel, so to speak, which materially

affected his continued employment. This equally justifies a higher
compensation award.
[81]
The personal circumstances of Christoffel
and Antoinette must also be considered. They have passed what can be
described as a readily
employable age. When this matter was heard,
they were residing in a caravan in the back yard of Christoffel’s
sister. They
have lost everything. Christoffel had no gainful
employment, and Antoinette was employed as a nursery school teacher,
with both
of them living off her income. There was also evidence of
other financial hardship they suffered as a result of the dismissals.

It is also a consideration that they had less than a year’s
service with CVO School.
[82]
There was no evidence that the compensation
awarded could have such a prejudicial impact on CVO School so as to
constitute irreparable
harm.  Further, and considering the scope
of the wrongful conduct of CVO School, compensation cannot be seen to
be only a
token amount.  It must be more substantial than that.
[83]
Arbitrator Maake, in awarding maximum of 12
months’ salary, considered in his award that the dismissal of
Christoffel was
both substantively and procedurally unfair and that
the irregularities in this case were ‘gross’.  These
are indeed
proper considerations to be taken into account. Even
though the reasoning in this regard on the part of the arbitrator may
be somewhat
lacking considering all the principles that require
consideration, it is my view that an award of maximum compensation,
all considered,
is certainly justified, for the reasons I have
already set out above. The fact that Christoffel may have short
service cannot mitigate
against all these considerations. Overall,
there is simply no basis on the facts to interfere with the
discretion exercised by
the arbitrator where it comes to the
compensation awarded to Christoffel, and the award by arbitrator
Maake to this effect must
thus be upheld.
[84]
Turning then to the compensation awarded by
arbitrator Ramotshela to Antoinette, he considered that she suffered
some financial
hardship, and that she was dismissed in what the
arbitrator called a ‘brazen’ manner.  Again, these
are valid
considerations. But in the case of Antoinette, I do have
some difficulty with the quantum of compensation awarded.
Whilst
I accept that the procedural unfairness of her dismissal was
gross, the fact remains that the finding that her dismissal was
substantively
fair stands. Antoinette found suitable alternative
employment at a comparable salary in January 2015, and was paid to
end December
2014.  And finally in the case of Antoinette, I
cannot find the same lack of
bona fides
as in the case of Christoffel. I accept that CVO school genuinely
thought that because of the combined appointment, they entitled
to
deal with Antoinette as it did, and even though this turned out to
wrong, it was not
mala fide
.
[85]
I must also mention that in the
arbitration, when Antoinette was specifically asked as to what she
wanted as relief, she said 6(six)
months’ salary.
Overall, I do not believe that arbitrator Ramotshela exercised a
proper judicial discretion where is
comes to his award of
compensation equivalent to 8(eight) months’ salary. This
compensation award is excessive, and unduly
punitive to the CVO
School. Considering all the circumstances I have set out above, I
believe that a fair and equitable compensation
award to Antoinette
would be 4(four) months’ salary, and the compensation awarded
by arbitrator Ramotshela must thus be reviewed
and set aside and
replaced with such an award.
Conclusion
[86]
In conclusion, and based on all the reasons
set out above, I find that that the arbitration awards of arbitrators
Maake and Ramotshela
where it comes to the merits of the respective
cases, are simply not reviewable. I am satisfied that these
arbitrators conducted
the arbitration proceedings properly, and there
is nothing untoward or irregular in their evaluation and
determination of the evidence
as well as the relevant principles of
law. Insofar as the issue of the outcome arrived at by these
arbitrators may be considered
on the basis of it being reasonable or
unreasonable, there is in my view no doubt that the awards would
comfortably rest within
the bands of reasonableness as required, in
order to be sustainable on review. And where it comes to the
compensation awarded to
Christoffel, there has been simply no
sustainable basis made out to interfere with the discretion exercised
by arbitrator Maake
where it came to the determination of the quantum
of compensation awarded.
[87]
In the case of the compensation awarded to
Antoinette by arbitrator Ramotshela, I find that the arbitrator did
not exercise a proper
judicial discretion in awarding 8 (eight)
months’ salary as compensation, and this part of his award thus
falls to be reviewed
and set aside. I intend to substitute this part
of the award of the arbitrator with a determination that 4(four)
months’
salary be awarded to Antoinette as compensation,
amounting to R23 200.00.
[88]
This then only leaves the question of
costs. In terms of Section 162(1) and (2) of the LRA, I have a wide
discretion where it comes
to the issue of costs. When deciding the
issue of costs, I have to consider that these applications never had
much merit. It should
have been patently obvious to CVO School, at
the very least, that there was a complete failure of process. The
attempts to justify
this failure were in my view simply unreasonable.
I also consider that CVO School was legally assisted in the
arbitration and then
throughout these proceedings, and should have
been better advised. I do however also consider that in the case of
the review application
relating to Antoinette, CVO School was at
least partly successful in halving the compensation awarded.
[89]
Considerations of justice and fairness
where it comes to Christoffel, justifies that he should be entitled
to his costs. In the
case of Antoinette, the same considerations
justify that she should be entitled to 50% of her costs. Overall,
this was an instance
where CVO School, and pardon the pun, should
have considered the awards to be school fees for its conduct and
complied, and should
not have pursued the matter further. I shall
therefore award costs against the applicant in both applications, on
the basis set
out above.
Order
[90]
In the premises, I make the following
order:
1. The arbitration award of arbitrator
Josias Sello Maake dated 17 May 2015 under case number LP 8051 –
14, is upheld, and
the applicant’s application under case
number JR 1006 / 15 is dismissed with costs.
2. The arbitration award of arbitrator
Matthews Ramotshela dated 13 May 2015 under case number LP 8055 –
14, to the effect
that the dismissal of Antoinette Pretorius was
procedurally unfair, is upheld, and the applicant’s application
under case
number JR 1004 / 15 in this respect is dismissed.
3. The arbitration award of arbitrator
Matthews Ramotshela dated 13 May 2015 under case number LP 8055 –
14, to the effect
that Antoinette Pretorius was awarded 8(eight)
months’ salary in compensation, amounting to R46 400.00,
is reviewed
and set aside, and substituted with determination that
Antoinette Pretorius be awarded 4(four) months’ salary in
compensation,
amounting to R23 200.00.
4. The applicant is ordered to pay 50%
of the first respondent’s taxed costs under case number JR 1004
/ 15.
_____________________
S Snyman
Acting Judge of the Labour Court
Appearances:
For the Applicant: Advocate M Meyer
Instructed by: N C Gey Van Pitteus
Attorney
For both First Respondents: Mr J
Stemmet of Stemmet & Osman Inc
[1]
Act 66 of
1995.
[2]
(2007)
28 ILJ 2405 (CC).
[3]
Constitution
of the Republic of South Africa, 1996.
[4]
Id at
para 110.  See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at para
134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[5]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[6]
(2014) 35
ILJ 943 (LAC)
at
para 14.  The
Gold
Fields
judgment was followed by the LAC itself in
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[7]
See
Fidelity Cash
Management
(
supra
)
at para 102.
[8]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016) 37
ILJ 116 (LAC) at para 32.
[9]
(2015) 36
ILJ 1453 (LAC) at para 12.
[10]
(2010) 31
ILJ 713 (LC) at para 27.
[11]
See
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013) 34
ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27.
[12]
See
Section
188(1)(b) of the LRA.
[13]
(2016)
37 ILJ 655 (LAC) at para 33.  It must be added that the
Constitutional Court in
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2017) 38 ILJ 97 (CC) did not deal with this issue, as the appeal on
this question was abandoned.  The Constitutional Court
stated,
at para 34 of the judgement, that it was only dealing with the
consideration as to whether the relief of reinstatement
was being
appropriate relief.
[14]
(1991) 12
ILJ 1087 (IC) at 1092G-I.
[15]
(2005) 26
ILJ 889 (LC) at para 36.
[16]
(1994) 15
ILJ 593 (LAC) at 595G-H.
[17]
See
Sasol
Infrachem v Sefafe and Others
(2015)
36 ILJ 655 (LAC) at para 54;
Baur
Research CC v Commission for Conciliation, Mediation and Arbitration
and Others
(2014) 35 ILJ 1528 (LC) at para 20;
Premier
Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation
and Arbitration and Others
(2017) 38 ILJ 658 (LC) at para 38.
[18]
(2016) 37
ILJ 2298 (LAC) at para 16.
[19]
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
(2010)
31 ILJ 2475 (LC) at para 19;
Vodacom
(Pty) Ltd v Byrne NO and Others
(2012)
33 ILJ 2705 (LC) at para 9.
[20]
Sidumo
(
supra
)
at para 78;
Fidelity
Cash Management
(
supra
)
at para 94;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC) at paras 37 – 38;
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 34;
National
Commissioner of the SA Police Service v Myers and Others
(2012) 33
ILJ 1417 (LAC) at
para
82;
Eskom
Holdings Ltd v Fipaza and Others
(2013) 34
ILJ 549 (LAC) at para 54;
Msunduzi
Municipality v Hoskins
(2017) 38 ILJ 582 (LAC) at paras 29 – 30;
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013)
34 ILJ 912 (LC) at para 22;
Trident
SA (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
(2012)
33 ILJ 494 (LC) at para 16;
Taxi-Trucks
Parcel Express (Pty) Ltd v National Bargaining Council for the Road
Freight Industry and Others
(2012) 33 ILJ 2985 (LC) at para 18;;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2011)
32 ILJ 1189 (LC) at paras 26 – 27;
City
of Cape Town v SA Local Government Bargaining Council and Others (2)
(2011)
32 ILJ 1333 (LC) at paras 27 – 28.
[21]
See
Yichiho Plastics
(
supra
)
at 602G-H;
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2014) 35
ILJ 656 (LAC) 34;
Rennies
Distribution Services (Pty) Ltd v Bierman NO and Others
(2008)
29
ILJ
3021 (LC)
at
para 24;
Opperman
v Commission for Conciliation, Mediation and Arbitration and Others
(2017) 38 ILJ 242 (LC) at para 18;
Hillside
Aluminium (Pty) Ltd v Mathuse and Others
(2016) 37 ILJ 2082 (LC) at paras 71 – 72.
[22]
(2017) 38
ILJ 915 (LAC) at para 16.
[23]
For the
most recent judgments in this respect see
Baloyi v
Member of the Executive Committee for Health and Social Development,
Limpopo and Others
(2016) 37
ILJ 549 (CC) at paras 24 – 25;
Woolworths
(Pty) Ltd v Mabija and Others
(2016) 37 ILJ 1380 (LAC) at paras 14 – 15 and 28;
Bridgestone
SA (Pty) Ltd v National Union of Metalworkers of SA and Others
(2016) 37 ILJ 2277 (LAC);
Marthinussen
v Metal and Engineering Industries Bargaining Council and Others
(2016) 37 ILJ 2292 (LAC);
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
(2016) 37 ILJ 2313 (LAC);
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
(2015) 36 ILJ 1511 (LAC).
[24]
(2006)
27
ILJ
1644 (LC)
at
1654.  See also
Mathabathe
v Nelson Mandela Bay Metropolitan Municipality and Another
(2017) 38 ILJ 391 (LC) at para 22.
[25]
(1992) 13
ILJ 803 (A) at 817F-I.
[26]
Id at 822A-B.
[27]
(2001)
22
ILJ
1311 (SCA)
at
para
10.  See also
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd (Seafoods Division Fish Processing)
(2000)
21
ILJ
1583
(CC)
at paras 14 – 16.
[28]
(2011) 32
ILJ 2738 (LC) at paras 29 – 31.
[29]
There is of course a distinct difference between poor performance
and misconduct, and if the employee was ‘charged’
for
poor performance, the disciplinary process was the wrong process to
follow.  Incapacity proceedings should have been
instituted
under Schedule 8 clause 8(2) to (4) and clause (9) of the LRA.
The fact that the employer followed the wrong
process may in itself
be seen to be unfair – see
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others
(2013) 34
ILJ 2347 (LC)
at paras
75 and 78;
Transnet
Freight Rail v Transnet Bargaining Council and Others
(2011)
32
ILJ
1766 (LC)
at
paras 56 – 57.
[30]
(2010) 31
ILJ
1844 (LAC) at 1850A-C.
[31]
(2010) 31
ILJ 2051 (LAC) at para 23.  See also
Trio
Glass t/a The Glass Group v Molapo NO and Others
(2013) 34 ILJ 2662 (LC) at paras 33 – 34.
[32]
See
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
(2000) 21
ILJ 129 (LAC)
at
para 29;
Monyakeni
v Safety and Security Sectoral Bargaining Council and Others
[2015] JOL 33240
(LAC)
at para 49;
Banking
Insurance Finance and Allied Workers Union and Another v Mutual and
Federal Insurance Co Ltd
(2006) 27 ILJ 600 (LAC) at para 33;
National
Union of Metalworkers of SA and Others v Atlantis Forge (Pty) Ltd
(2005) 26 ILJ 1984 (LC) at para 158.
[33]
(2013) 34
ILJ 1804 (LC)
at para
39.
[34]
(2011) 32
ILJ 2472 (LC) at paras 71 – 72.
[35]
[2014]
JOL 32062
(LC) at para 39.
[36]
Compare
Magagane
v MTN SA (Pty) Ltd and Another
(2013) 34 ILJ 3252 (LC);
Piggot
v Silvercross Helicopter Charters (Pty) Ltd
(2011) 32 ILJ 972 (LC);
Airey
and Others v GE Security (Africa)
(2009) 30 ILJ 1068 (LC) where it comes to procedural violations
being considered as ‘gross’.
[37]
(
supra
)
at para 34.
[38]
(JA91/2014)
[2016] ZALAC 53
(22 November 2016) at para 28.  See also
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
(
supra
)
at para 32.
[39]
See
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
(1999) 20
ILJ 89 (LAC) 27;
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
(
supra
)
at para 18.
For
more recent applications of this principle see
Super
Group Supply Chain Partners v Dlamini and Another
(2013)
34 ILJ 108 (LAC) at para 24
;
Communication
Workers Union v Telkom SA SOC Ltd and Others
(2017) 38
ILJ 360 (LC) at para 38;
Banks
and Another v Coca-Cola SA — A Division of Coca-Cola Africa
(Pty) Ltd
(2007)
28
ILJ
2748 (LC)
at
para 15;
Association
of Mineworkers and Construction Union and Others v Shanduka Coal
(Pty) Ltd
(2013)
34
ILJ
1519 (LC)
at
para
27
;
National
Union of Mineworkers v Anglo American Platinum Ltd and Another
(2014)
35
ILJ
1024 (LC)
at
para 25;
Van
Rooyen and Others v Blue Financial Services (SA) (Pty) Ltd
(2010)
31
ILJ
2735 (LC)
at
para 19.
[40]
The
Section reads:  ‘
The
employer and the other consulting parties must in the consultation …
engage in a meaningful joint consensus-seeking
process and attempt
to reach consensus on- (a) appropriate measures- (i) to avoid
the dismissals; (ii) to minimise
the number of dismissals;
(iii) to change the timing of the dismissals; and (iv) to
mitigate the adverse effects of
the dismissals; (b)the method for
selecting the employees to be dismissed; and (c) the severance
pay for dismissed employees.’
[41]
[2015] 4
BLLR 447
(LC) at para 14.
[42]
(
supra
)
at para 35.  See also
Mthombeni
v Air Traffic and Navigation Services Ltd
(2008) 29
ILJ 188 (LC) at paras 50 – 51.
[43]
(2006) 27
ILJ 836 (LC) at para 18.
[44]
(
supra
)
at para 49
[45]
(2015) 36
ILJ 3175 (LC) at paras 30 – 31.
[46]
(
supra
)
at para 14.
[47]
(
supra
)
at para 38.
[48]
See Section 193(2)(a) and (d) of the LRA.  Section 194
prescribes maximum compensation of up to 12(twelve) months’

salary.
[49]
(2017) 38
ILJ 97 (CC) at para 50.
[50]
(2007)
28
ILJ
2238 (LAC)
at
para 30.
[51]
(2009) 30
ILJ
2677 (LAC) at para 27. The SCA in
Rawlins
v Kemp t/a Centralmed
(2010) 31
ILJ
2325
(SCA)
upheld
the findings of the LAC.
[52]
See
Rawlins
(
supra
)
at para 20;
SA Revenue
Service
(
supra
)
at para 52;
Ferodo
(Pty) Ltd v De Ruiter
(1993)
14
ILJ
974 (LAC).
[53]
(2011) 32
ILJ 2652 (LAC).
[54]
Id at para 35.
[55]
(1999) 20
ILJ 89 (LAC) at para 41.
[56]
(2015) 36
ILJ 2989 (LAC) at para 23.
[57]
(
supra
)
at para 21; see also
Media
Workers Association of SA and Others v Press Corporation of SA Ltd
(1992)
13 ILJ 1391
(A)
at 1397I-1398B.
[58]
(2015) 36
ILJ 640 (LAC) at para 35.  See also
Coates
Brothers Ltd v Shanker and Others
(2003)
24 ILJ 2284 (LAC)
at
para 5.
[59]
(
supra
).