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[2017] ZALCJHB 487
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Steenkamp and Others v Edcon Ltd (J294/16) [2017] ZALCJHB 487 (13 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 294/16
In
the matter between:
KARIN
STEENKAMP AND 1817 & OTHERS
Applicant/s
and
EDCON
LTD
Respondent
Heard:
14 December 2016
Delivered:
13 June 2017
JUDGMENT
MALINDI
AJ
Introduction
[1].
The
applicants apply for condonation for failure to comply with the
30 day time limit contemplated in section 189A(17)(a) of
the
Labour Relations Act.
[1]
The
power to condone such non-compliance is bestowed on this Court in
section 189A(17)(b) “on good cause shown”.
[2]
The application is opposed by respondent who will also be referred to
as Edcon.
[2].
This
application arises out of the applicants’ application in terms
of section 189A(13) of the LRA wherein the applicants
seek
compensation in terms of the provisions of section 189A(13)(d
)
[3]
as a result of the respondent’s alleged non-compliance with the
peremptory provisions of section 189 as well as section 189A,
which
resulted in their unfair dismissal.
[3].
The main application involves over 100
separate cases concerning 1818 former employees of the respondent who
were all dismissed
for operational reasons between April 2013 and
October 2015. It is alleged that the dismissals followed a
large-scale restructuring
which took place across various divisions
of Edcon throughout South Africa, which was effected over the course
of 2½ years.
The applicants were not all dismissed at the same
time, and were not given notices in terms of section 189 at the same
time.
[4].
The respondent has categorised the
applicants as follows:
4.1.
803 employees were not dismissed. 680 took
Voluntary Severance Packages (VSPs) and 123 took VSPs together with
retirement, with
two of the latter having been re-employed (“category
1”). Edcon contends that where an employee accepts a VSP, this
does not give rise to a dismissal under the LRA.
4.2.
1236 employees were party to a Commission
for Conciliation, Mediation and Arbitration (CCMA) facilitation
process. 952 in case number
HO164/14 and 284 in case number HO2861/12
(the non-unionised employees involved in the latter case all took
VSPs and/or early retirement)
(“category 2”). Edcon
contends that, insofar as employees were dismissed subsequent to this
process, such dismissals
were procedurally fair.
4.3.
278 employees, including Ms Steenkamp, were
retrenched without a dispute having been referred to the CCMA in
terms of section 189A(8)
(“Category 3”). Edcon
contends that these employees (as with all the applicants)
waived/abandoned their rights to bring
the current proceedings.
4.4.
248 employees fall within a miscellaneous
category. 1 was transferred, 27 contracts did not terminate, 2
contracts expired, 3 employees
deserted, 8 were dismissed for
misconduct, 23 resigned, 77 retired outside of the section 189
process, 67 are unknown, and 40 employees
are duplicate (“category
4”). Edcon contends that these employees have no case whatever.
4.5.
47 employees were re-employed (“category
5”). Edcon contends that they suffered no loss, and that their
claims should
be dismissed.
Background
[5].
The applicants allege that the respondent
failed in its legal obligation to dismiss the applicants fairly in
terms of the provisions
of section
189
as well as section 189A of the LRA. In particular, it is alleged, it
failed to:
5.1.
Consult with affected employees or their
representatives in terms of sections 189 and 189A;
5.2.
Implement fair selection criteria;
5.3.
Consult on the timing of the dismissals;
5.4.
Consult on severance pay;
5.5.
Consult on ways to mitigate the adverse
effects of dismissal:
5.6.
Implement consistent severance payments;
5.7.
Appoint a facilitator;
5.8.
Refer the matter for conciliation with
section 189A(8)(a) & (b);
5.9.
Provide obligatory written notices of
termination in accordance with section 189A(2)(a).
[6].
The applicants allege, and it is submitted,
that the respondent had:
6.1.
A legal duty to dismiss the applicants
fairly and in accordance with the peremptory provisions of section
189 and 189A inclusive
of sub-sections 189A(2)(a) and 189A(8)(a) &
(b) of the LRA.
6.2.
In a rushed, ill-conceived as well as
ill-advised dismissal strategy, designed to circumvent section 189A
and to shorten dismissal
proceedings at all costs, Edcon ignored and
discarded the provisions of section 189 and 189A. In the process the
entire exercise
devolved and collapsed into a retrenchment
characterised by gross irregularities, inconsistencies, one-sided
poor communications
and a general neglect of proper, HR and employee
relations management.
6.3.
As a result:
6.3.1.
the dismissal of the applicants was fraught
with irregularities, inconsistencies and unfair practices;
6.3.2.
some inconclusive facilitation processes
were initiated, then abandoned by Edcon;
6.3.3.
purported VSP’s were offered to some
applicants with no additional benefits whatsoever;
6.3.4.
others received a 3 week gratuity pay and
some not at all.
6.4.
The applicants submit that this Court
should not come to the assistance of the respondent, as a result of
its flagrant disregard
for the law and effectively coming to Court
with unclean hands, and in a
mala fide
manner.
[7].
They submit further that in terms of
section 189A(13) of the LRA, if the employer does not comply with a
fair procedure, a consulting
party may approach the Labour Court by
way of an application or an order:
7.1.1.
compelling the employer to comply with a
fair procedure (section 189A(13)(a);
7.1.2.
interdicting or restraining the employer
from dismissing an employee prior to complying with a fair procedure
(189A(13)(b);
7.1.3.
directing the employer to reinstate an
employee until it had complied with a fair procedure (section
189A(13)(b));
7.1.4.
make an award of compensation if an order
in terms of paragraphs (a) to (c) is not appropriate (section
189A(13)(d)).
[8].
The dismissals followed a large-scale
restructuring which took place across various divisions of Edcon
throughout South Africa,
which was effected over the course of 2½
years. The applicants were not all dismissed at the same time, and
were not given
notices in terms of section 189 at the same time.
[9].
Various disputes were referred to the
Labour Court, in respect of different “batches” or
categories of applicants. The
mostly comprised individuals from the
same area or department within Edcon. In total, 101 different cases
have been referred to
the Labour Court.
[10].
In respect of the following two cases, the
applicants’ attorney referred disputes of unfair dismissal to
the CCMA in terms
of section 191 of the LRA, and after conciliation,
a statements of claim were filed in the Labour Court, alleging
invalidity of
the dismissals, and substantive unfairness of the
dismissals:
10.1.
JS648/13 –
Karin
Steenkamp v Edcon
(“the
Steenkamp
referral”)
10.2.
JS51/14 –
Mzimkhulu
De Booi & 3 Others
.
[11].
In respect of these matters, Edcon filed
statements of response, in which the following defences were raised:
11.1.
Section 189A did not apply to the
dismissals, as some of the applicants “opted” for
voluntary severance packages; and
11.2.
The dismissals were substantively and
procedurally fair.
[12].
In the lead up to the pre-trial conference
in the
Steenkamp
matter,
the applicants allege, Edcon,
inter
alia
, conceded that section 189A of the
LRA was applicable to the retrenchment. In the light of this
admission and subsequent concessions
made by Edcon that section 189
was not followed, the statements of claim were amended to rely on
invalidity of the dismissals for
want of compliance with
section 189A.
[13].
In the pre-trial minute in the
Steenkamp
case, it is recorded that:
“
The
issues have been narrowed as a result of the amendment. The applicant
abandons all allegations that the dismissal was substantively
and
procedurally unfair under section 189”.
[14].
In respect of the remainder of the other
100 referrals, as apart from the
Steenkamp
case, statements of claim were brought in the Labour Court, in which
it was alleged that the dismissals were invalid for want of
compliance with the time periods contained in section 189. These
matters were not referred to conciliation in the light of the
cause
of action pursued.
[15].
The above claims were brought on the
invalidity of the dismissals. The applicants’ attorney’s
understanding of the law,
as advised by counsel he had consulted, was
that a litigant which had several causes of action arising out of the
same facts was
entitled to choose one and was not compelled to pursue
them all at once.
[16].
Edcon
then brought proceedings in the Labour Appeal Court, for various
declaratory relief, but effectively challenging the correctness
of
the LAC decisions in
De
Beers
[4]
and
Revan
[5]
on the interpretation of section 189A, and the effect of
non-compliance with the time periods in this section as being
unconstitutional.
As part of the challenge included a constitutional
challenge, Edcon joined the Minister of Labour, NUMSA and the
Minister of Justice
and Correctional Services in the application.
[17].
The
issue was argued before the Labour Appeal Court, and on 3 March 2015,
the LAC delivered its judgment, in which it
held that
De Beers
and
Revan
had
been wrongly decided, and that non-compliance with the provisions of
section 189A(2)(a) read with section 189A(8) did not result
in an
invalid dismissal.
[6]
[18].
The applicants (and NUMSA) noted an appeal
to the Constitutional Court against the decision of the LAC. Edcon
opposed the matter,
and the matter was argued on 8 September 2015 at
the Constitutional Court.
[19].
On 22 January 2016, the Constitutional
Court delivered a judgment, in which leave to appeal was granted, but
the appeal was refused.
[20].
The majority of the Court concurred with
the judgment of Zondo
J, in which he
held that non-compliance with the relevant provisions of section 189A
did not result in invalidity, but could
result in unfair dismissal.
[21].
The respondent attacks the applicants’
characterisation of the issues and background in paragraphs 28-32 of
its Heads of Argument.
The thrust of the argument is that:
21.1.
If the contents of the applicants’
attorney’s affidavit had been presented as a statement of
claim, it is so lacking
in particularity, that it would surely have
given rise to an exception. The respondent submits that Mr Whitaker’s
affidavit
simply does not make out a case that the dismissal of all
the applicants was procedurally unfair and that they are all entitled
to 12 months’ compensation. It comes nowhere near setting out
all the evidence that would be necessary to establish the applicants’
case in a trial, and therefore stands to be dismissed on this basis
alone.
Condonation
[22].
It
is common cause that the interest of justice is a determinative
element in considering applications for condonation.
[7]
Factors that are taken into account in order to determine whether it
is in the interests of justice to grant or not grant condonation
were
restated as follows in
Grootboom
at paragraph 50:
“
(a)
the length of the delay;
(b)
the explanation for, or cause for, the delay;
(c)
the prospects of success for the party seeking condonation;
(d)
the importance of the issue(s) that the matter raises;
(e)
the prejudice to the other party or parties; and
(f)
the effect of the delay on the administration of justice.”
[23].
A court is enjoined further to take into
account all relevant factors but to remain cognisant of the fact that
the various factors
are not individually decisive. The Court stated
the following in this regard:
“
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be left out of consideration in certain circumstances. For example,
where the delay is unacceptably excessive and there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period of delay is short and there is an
unsatisfactory
explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable
prospects of success, condonation may be refused where
the delay is excessive, the explanation is non-existent and granting
condonation
would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken
into account to arrive at a conclusion as to what is in the
interests of justice
.”
[8]
[24].
The
Court, having applied its mind to this test and the factors relevant
to its application exercises a discretion, which should
be
judiciously exercised, whether to grant condonation. Ultimately, the
particular circumstances of each case will determine which
of these
factors are relevant.
[9]
[25].
The
respondent remonstrates against the reliance placed in the Grootboom
case and contends that
Shaik
v South African Post Office Ltd and Others
[10]
is a more stringent test in this context. It was there said:
“
It
is trite that the primary objective of the LRA is to ensure that
labour disputes are effectively and expeditiously resolved,
particularly those involving individual dismissals, such as the
present case. This objective is not only in the interests of the
dismissed employee but also in the interests of the employer. Just
like the employee, the employer is entitled to have finality
in the
dispute. Either party is always likely to suffer prejudice if the
finalisation of the dispute is unduly and unjustifiably
delayed.”
[26].
The
LAC in
Shaikh
went on to find that it is more difficult to get condonation in the
Labour Court than it is in ordinary civil matters, and that
applications for condonation should thus be subject to a strict
judicial scrutiny test:
“
On
the basis of the aforementioned considerations, there needs, in my
view, to be a differentiation in approach between condonation
applications under labour law (the LRA), on the one hand, and under
civil law, on the other, in that it should generally be more
difficult to obtain the indulgence of condonation under the former,
especially in disputes involving individual dismissals (not
excluding
mass dismissals in appropriate cases), than under the latter. In
other words, condonation applications under the LRA
need to be
subjected to a strict judicial scrutiny tes
t.”
[11]
[27].
Reliance
on the
Shaikh
case is primarily on the basis that in the labour law context
expedition in disposing of disputes is important and that
inordinately
long and egregious delays “
in
non-compliance with the rules
”
should not be lightly condoned.
[12]
[28].
On
the basis of the
Shaikh
authority the respondent submits that in this instance where the
delays between the dismissals and the launching of the
section 189A(13)
application ranges from in excess of 2½
years to 10 months when it should have been brought within 30
days with it
should have been brought within 30 days of dismissal,
the Court should follow Van Niekerk J in
Karin
Parkinson v Edcon Ltd
[13]
where he stated:
“
T
he
fact that the applicant gave consideration to a remedy in terms of
s 189A(13) only at a late stage she did, or that she
was advised
that stage to pursue that remedy, cannot be the basis for an
explanation not to have brought the application timeously.
Even if I
were to grant to the applicant the benefit of the doubt in relation
to the explanation for the delay in bringing this
application, she
has no prospect of success on the merits. This court has made clear
on more than one occasion that the purpose
of s 189A(13) is one that
enables this court to supervise an ongoing retrenchment process or
one that has recently been concluded;
it is not a remedy that is
available well after dismissals have been effected. The section
intends to ensure that a fair process
is followed; it is not a means
to thwart retrenchment itself (see Insurance and Banking Staff
Association v Old Mutual Services
and Technology (2006)
27 ILJ 1026 (LC)). In the present instance, the applicant’s
date of dismissal, as I
have indicated, is 25 August 2014, a little
short of two years ago. The irresistible conclusion to be drawn is
that having abandoned
her unfair dismissal claim, the applicant seeks
redress in terms of s 189A (13), a provision ordinarily reserved for
urgent intervention
in a consultation process involving a significant
number of employees. There is no basis, in these circumstances, for
the court
to intervene in the present dispute, and the applicant’s
prospects of success are accordingly minimal, if they exist at all.”
[29].
In
Parkinson
Van Niekerk J had found that a delay of some five months in bringing
the section 189A(13) application was inordinately long.
[30].
Further attacks on the condonation
application are made upon the other factors to be taken into account.
Consideration
of the factors for condonation
[31].
The respondent’s primary attack upon
the application is that if the applicants had brought the application
timeously, Edcon
would have been afforded the opportunity of
remedying any procedural deficiency at the time – this in
keeping with the very
purpose of section 189A(13). To now award the
applicants 12 months’ compensation (or indeed any compensation)
would be to
wish away the fact that the delay was caused by them, and
their failed legal strategy.
[32].
The applicants’ response to this
submission is that in light of the legal position at the time the
applicants, legitimately
and properly, elected to pursue their
matters on the basis only of the invalidity of the dismissals that
resulted from the respondent’s
failure to comply with
section 189A. This cause of action was supported by
well-established and settled law at the time.
[33].
The
applicants submit that the reasons why the applicants have not
challenged the procedural fairness of their dismissals, is that
it is
common cause that, until 22 January 2016, the legal position was that
the failure to comply with the relevant time periods
in section 189A
resulted in the dismissals being invalid law, and that therefore the
question of unfairness did not come into consideration.
This had been
held by the LAC in
De
Beers
[14]
and
Revan.
[15]
[34].
They
submit that their non-compliance should therefore be reckoned from
22 January 2016 when the Constitutional Court
delivered the
judgment in
Steenkamp
and Others v Edcon Ltd
(National
Union of South Africa intervening)
.
[16]
The application was brought within 30 days of receipt of the judgment
of the Constitutional Court.
[35].
It appears to me that it would be grossly
unjust to bar the applicants from pursuing a remedy that although it
was available to
them, they had chosen to pursue a more favourable
remedy to them, which was competent at the time that they did, so,
which was
later found incompetent by the Courts. I find therefore
that in this case and the circumstances pertaining to it, this
constitutes
a significant factor that the applicants should be
permitted to pursue the lesser favourable remedy even at this stage.
[36].
As
Zondo J stated in
Steenkamp
:
[17]
“
Until
the decision of this Court, the employees acted on the strength of
decisions of the Labour Court and Labour Appeal Court whose
effect
was that in this type of case it was open to them not to use the
dispute resolution mechanisms of the LRA and not to seek
remedies
provided for in section 189A but instead to simply seek orders
declaring their dismissals invalid. It is arguably open
to them to
seek condonation and pursue remedies under the LRA.”
[37].
What remains therefore is to consider the
other factors.
[38].
I must point out that Van Niekerk J alluded
in
Parkinson
that had the application for condonation had prospects of success,
the lateness of the application would have been favourably considered
despite its lateness. In that case he found that the application had
no prospects of success and it would have defeated the purpose
of
condoning the application when it was doomed to fail on the merits.
Van Niekerk J therefore did not depart from the test of
“
in
the interests of justice
” after
considering all relevant factors and the peculiar circumstances of
each case.
[39].
In
as far as the period of delay is concerned, the applicants have
provided a plausible explanation why the section 189A(13) application
was not pursued from the outset. As stated above, the cause of action
that they first pursued would have resulted with reinstatement
if
successful. That would have been a major victory for the applicants.
Since the Constitutional Court outcome in
Steenkamp
,
that avenue was closed to them and were left with the unfairness of
the section 189A process as their cause of action. It is a
significant consideration whether the respondent will suffer great
prejudice if the section 189A(13) application is condoned. Whilst
such prejudice would follow if reinstatement were to be ordered, it
would not be so prejudicial if compensation, being the relief
sought
by the applicants, were ordered. Such compensation would have to be
just and equitable and therefore fair to both parties
in the
circumstances.
[18]
[40].
In regard to prospects of success, the
respondent has argued with great vigour that this factor disposes of
the application since,
inter alia
,
the applicants have not canvassed fully and satisfactorily that the
application has any prospects of success and that since the
applications’ affidavit is deposed to by their attorney who has
no personal knowledge of the facts deposed to, no regard
should be
given to it by the Court.
[41].
The respondent has referred me to the five
(5) categories of the applicants and submitted that category 3 stands
out as those who
have no prospects of success.
[42].
The applicants have referred me to the
Steenkamp
judgment at paragraphs [161] – [164] regarding section 189A(13)
where it was said:
“
[161]
If an employer has already dismissed employees without complying with
a fair procedure, the consulting party may apply to the Labour Court
in terms of subsection (13)(c) for an order reinstating
the
employees until the employer has complied with a fair procedure.
The significance of the remedy of reinstatement in subsection
(13)(c)
is that it is made available even for a dismissal that is unfair only
because of non-compliance with a fair procedure.
That is
significant because it is a departure from the normal provision that
reinstatement may not be granted in a case where the
only basis for
the finding that the dismissal is unfair is the employer’s
failure to comply with a fair procedure. In such
a case the norm is
that the Labour Court or an arbitrator may award the employee
only compensation.
[162]
Subsection (13)(d) provides that a consulting party may apply
to the
Labour Court for an award of compensation “if an order in
terms of paragraphs (a) to (c) is not appropriate”.
It
seems to me that the phrase “if an order in terms of paragraphs
(a) to (c) is not appropriate” constitutes a condition
precedent that must exist before the Court may award compensation.
The significance of this condition precedent is that its
effect is
that the Labour Court is required to regard the orders provided for
in subsection (13)(a) to (c) as the preferred remedies
in the sense
that the Labour Court should only consider the remedy in subsection
(13)(d) when it is not appropriate to make any
of the orders in
subsection (13)(a) to (c).
[163]
This is a reversal of the legal position that obtains in
the case of
dismissals for the employer’s operational requirements governed
by only section 189 where dismissal is only procedurally
unfair and
not substantively unfair as well. In these cases the Labour
Court is required not to order reinstatement at all.
So, in
making the remedy of reinstatement available for a procedurally
unfair dismissal and also making it one of the preferred
remedies in
subsection (13), the Legislature has gone out of its way to give
special protection for the rights of employees and
to protect the
integrity of the procedural requirements of dismissals governed by
section 189A.
[164]
The extensive remedies in subsection (13) provide at least
partial
compensation for the fact that in respect of disputes concerning the
procedural fairness of dismissals the employees have
been deprived of
the right to adjudication that other employees have. In part
the extensive remedies in subsection (13) for
non-compliance with
procedural fairness have been provided because of the importance of
the pre-dismissal process.”
[43].
In terms of these passages, should the
applicants be successful in their claim for unfair procedure on the
part of the respondent
they, would be entitled at least to relief
under section 189A(13)(d), if relief in terms of subparagraphs (a) to
(c) is not appropriate.
The applicants seek relief under subparagraph
(d). I agree with the statement that t
he
extensive remedies in subsection (13) provide at least partial
compensation for the fact that in respect of disputes concerning
the
procedural fairness of dismissals the employees have been deprived of
the right to adjudication that other employees have.
In part the
extensive remedies in subsection (13) for non-compliance with
procedural fairness have been provided because of
the importance of
the pre-dismissal process. This statement sets section 189A as very
important when dismissals are conducted thereunder.
This goes to all
of the considerations that the application of the section was fair,
that dismissals under section 189A are very
important and that the
employer must bear the burden of being prejudiced if reinstatement
were to be ordered under subparagraph
(a) pending the institution of
a fair procedure were it to be found that no fair procedure was
followed in effecting the dismissal.
I find therefore that this
provision satisfies the factor of the importance of the matter or
that it is of great public interest
that a matter such as this
warrants being fully ventilated in view of the legal meanders that it
has undergone to this point.
[44].
In
Parkinson
Van Niekerk J was clear that the lack of prospects of success was
because section 189A(13) was not designed to thwart retrenchment
itself but to ensure that a fair process was followed. His statement
that the section applies to “ongoing retrenchment process
or
one that has recently been concluded” and “is not a
remedy that is available well after dismissals have been effected”
must not be elevated to an
immutable
principle and apply it to
circumstances where an applicant had taken another legitimate course
during the ongoing retrenchment process
and/or within the permitted
time frames only to be
disavailed
of that cause of action later and after the lapse of the 30 day rule.
[45].
The respondent’s submissions
regarding the five categories to be considered and the submission
that all, in particular category
3 employees, have failed to make out
a case for the relief sought should be considered in the full context
of this matter. It being
so, each category or individual case must be
considered on its merits when the matter is fully ventilated. The
defences, if I may
call them that, in respect of each category remain
available to the respondent should the matter proceed by application
or trial.
[46].
I have considered the other factors and
have come to the conclusion that when considered together with the
ones that I have dealt
with pertinently, they aid rather than detract
from my inclination to grant condonation. For example the fact that
the applicants’
attorney attested to the affidavit should not
serve as a red herring. Much indicates from all affidavits that have
been filed that
the issues for determination and the applicable law
are common cause. At worst for the applicants, their attorney’s
affidavit
suffices for purposes of determining whether condonation
should be granted.
Costs
[47].
This is a case that requires that costs of
this application be reserved for later determination. The trial court
will, among others
determine these costs on the degree of success in
excluding some of the categories of employees in the five stated
categories.
A successful defence in each category may affect the
costs issue both in the application and the trial.
Conclusion
[48].
In the circumstances I make the following
order:
48.1.
The referrals to the Court under the case
numbers in annexure “NOM1” hereto are consolidated into a
single trial.
48.2.
The late filing of this application,
insofar as it pertains to the application for condonation for the
late filing of the application
for compensation in terms of
section
189A(13)(d)
of the
Labour Relations Act 66 of 1995
, is condoned.
48.3.
The application for compensation referred
to in paragraph 48.2 above in respect of procedural fairness under
section 189A
is referred to trial and consolidated with the main
action.
48.4.
Costs are reserved and are to be determined
in the main action.
______________________
G.
Malindi
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicants: Adv
Paul Pretorius SC & Adv Andrew Snider
Instructed by Mr K.
Whitaker of Whitaker Attorneys
For
the Respondent: Adv A.T. Myburgh SC &
F.A. Boda SC
Instructed by: Ms V.
Reddy of Norton Rose Fulbright South Africa Inc.
[1]
66
of 1995, as amended (LRA).
Section 189A(17)(a)
provides:
“
An
application in terms of subsection (13) must be brought not later
than 30 days after the employer has given notice to terminate
the
employee’s services or, if notice is not given, the date on
which the employees are dismissed.”
[2]
Section
189A(17)(b)
states:
“
The
Labour Court may, on good cause shown condone a failure to comply
with the time limit mentioned in paragraph (a).”
[3]
Section
189A(13)(d)
provides:
“
(13)
If an employer does not comply with a fair procedure, a consulting
party may approach the Labour
Court by way of an application for an
order—
. . .
(d).
make an award of compensation, if an order in terms of paragraphs
(a) to (c) is not appropriate.”
[4]
De
Beers Group (Pty) Ltd v National Union of Mineworkers
[2007] ZALC 96
;
[2011] 4 BLLR 318
(LAC). (
De
Beers
)
[5]
Revan
Civils Engineering Contractors and Others v National Union of
Mineworkers and Others
(2012)
33 ILJ 1846 (LAC). (
Revan
)
[6]
Edcon
v Steenkamp and Others
(2015) ZALAC 2; 2015 (4) SA 247 (LAC).
[7]
Grootboom
v National Prosecuting Authority & Another
(2014) 35 ILJ 121 (CC) at paras 50-1. (
Grootboom
)
[8]
Id
at para 51.
[9]
Id at paras 20 and 22.
[10]
[2013] ZALAC 18
at para 22.
[11]
Id
at para 25.
[12]
Id.
[13]
[2016]
ZALCJHB 540 at para 4. (
Parkinson
)
[14]
Above
n 3.
[15]
Above n 4.
[16]
(2016) 37 ILJ 564 (CC); (2016) 37 ILJ 564 (CC);
2016 (3) BCLR 311
(CC);
[2016] 4 BLLR 335
(CC);
2016 (3) SA 251
(CC).
(
Steenkamp
)
[17]
Id at 193.
[18]
Section 194
of the LRA