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[2017] ZALCJHB 432
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Mogale City Local Municipality v IMATU obo Visagie and Others (JR86/15) [2017] ZALCJHB 432 (20 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR 86/15
In
the matter between:
MOGALE
CITY LOCAL
MUNICIPALITY
First Applicant
and
IMATU
OBO HENIE
VISAGIE
First Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
COMMISSIONER
M.N.S. DAWSON
N.O.
Third Respondent
EDWARD
KHOLISILE
MOYIKWA
Fourth Respondent
Heard:
13 September 2017
Delivered:
20 November 2017
JUDGMENT
MAHOSI
J
Introduction
[1]
This is an application in terms of section 158(1)(g) of the Labour
Relations Act (LRA)
[1]
for an order
that the arbitration award dated 25
th
of November 2015, handed down by the second respondent acting under
the auspices of the third respondent, under case number GPD
041413 be
reviewed set aside and/or substituted by this Honourable Court,
and/or referred back to another commissioner of the second
respondent
other than the third respondent. In his award, the commissioner
found as follows:
‘
1.
The respondent is found to have committed an unfair practice by not
short-listing and
subjecting the applicants to an interview.
2.
The 1
st
respondent is hereby ordered to subject the applicant to protective
promotion with effect from 1
st
April 2014.
3.
The first respondent be and is hereby ordered to pay the costs of
this arbitration.
’
[2]
Before this Court is also the application for an order to stay the
enforcement of the arbitration award.
Background
[3]
The material facts giving rise to the application are summarised
thus. In January 2014 the applicant advertised the position
of
Superintendent: Waste Water Treatment for the appointee to be
deployed at Percy Steward and Magalisberg Plant. The first
respondent’s
member (Mr. Visagie”) allegedly applied for
the position, but did not make it to the shortlist. The applicant
shortlisted,
interviewed and appointed the fourth respondent to the
position.
Mr. Visagie had been successfully
interviewed for the same position in 2012. However, the SAMWU
objected to his appointment and
as a result he never occupied that
position.
[4]
Dissatisfied with the applicant's decision not to shortlist and
appoint him, the first respondent (“IMATU”), acting
on
behalf of Mr Visagie, referred an unfair labour practice dispute to
the second respondent. The dispute was conciliated unsuccessfully
and
the matter proceeded to arbitration. In the arbitration IMATU
submitted that the Mar. Visagie applied for the advertised position
and that the applicant’s decision not to shortlist and
interview him amounted to unfair labour practice. IMATU argued that
Mr. Visagie had applied for the same position in 2012 and that he
should have been appointed to the position, as he was qualified
for
it. The applicant disputed that Mr. Visagie applied for the
advertised position and submitted that he was therefore not entitled
to be interviewed, let alone to be appointed.
[5]
The commissioner arbitrated the matter and found that the applicant
had committed an unfair labour practice by not short-listing
and
subjecting the employee to an interview. The applicant was ordered to
grant the employee protective promotion with effect from
1
st
April 2014. The costs of arbitration were ordered against the
applicant. Dissatisfied with the award the applicant launched a
review application based on the grounds stated hereunder.
[6]
The review application was launched on the 28
th
January
2015, about 3 days out of the prescribed period. An application for
condonation of late filing of the review application
was considered
and granted by this Court on the 21
st
February 2017.
The
test for review and evaluation
[7]
The decision on the merits of an unfair labour practice disputes
stand to be reviewed in the light of whether they were decisions
that
no reasonable arbitrator could reach and the grounds listed in
section 145(2). The test for review which has been authoritatively
stated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo)
[2]
was reiterated in
Herholdt
v Nedbank Limited(Herholdt)
as
follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to
gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the enquiry or arrived
at an
unreasonable result. 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 particular
fact, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is
to render the outcome
unreasonable.’
[3]
[8]
The test for review is therefore whether the decision reached by the
commissioner is one that a reasonable decision-maker could
reach.
Section 186(2)(a) defines unfair labour practice as any act or
omission that arises between an employer and an employee
involving an
unfair conduct by the employer relating to the promotion, demotion,
probation or training of an employee or relating
to the provision of
benefits to an employee. It is trite that a promotion for the
purposes of section 186(2)(a) involves a move
by an existing employee
to a higher rank or position which carries greater status,
responsibility and authority.
[4]
[9]
An employee may challenge his/her failure to be promoted with
reference to the procedure adopted in appointing the successful
candidate and the reasons for failing to promote him/her. In
this case, at arbitration IMATU challenged the applicant’s
decision not to promote Mr. Visagie on the basis that he was not
shortlisted and interviewed for the position he had applied for
and
further that he previously was recommended to be appointed for the
same position in 2012. It is common cause that Mr. Visagie
was not
appointed in that position in 2012 because of an objection from a
union. As aforesaid, the commissioner found that the
applicant’s
failure to shortlist and interview the employee amounted to unfair
labour practice. It is this finding that the
applicant is
challenging.
Arbitration
[10]
Mr. Visagie attended the arbitration hearing in which he was
represented by Mr. Vuyo Mkhwibisi, an IMATU official. The applicant
was represented by its legal advisor, Mr. Enos Phidezulina. After
correctly classifying the dispute as an unfair labour practice,
the
commissioner found that the onus to prove that the conduct was not
unfair rests on the applicant.
[11]
The arbitration award records that the parties called several
witnesses and further that a hard cover exercise book was handed
in
by the applicant as an exhibit of the names of all the candidates who
applied for the position. The commissioner heard the evidence
and
ruled against the applicant.
Grounds
of Review
[12]
The applicant seeks to review the commissioner’s arbitration
award on a number of grounds. I will start with the ground
that the
commissioner did not properly apply his mind in his consideration of
the question of onus to prove the unfair labour practice.
In this
regard, the applicant argued that the commissioner misconceived the
nature of the enquiry and the issues to be decided.
The basis for the
commissioner’s ruling is encapsulated in the following passage
of his award:
‘
I
ruled that in view of the fact that the reason why the applicant was
neither shortlisted nor interviewed was in the personal knowledge
of
the respondent (in) that the respondent was in possession of the
reasons why the applicant was not shortlisted or interviewed.
The
onus rests with the respondent and the duty to begin was on the
respondent.’
[13]
IMATU submitted that the commissioner’s decision that the
applicant had the duty to begin was justifiable because: (a)
during
the initial deliberations at the arbitration, it became clear that
the dispute related to unfairness in the applicant's
failure to
shortlist, interview and promote the employee and further that all
the documents relating to the dispute were in the
applicant's
possession; (b) the applicant failed to readily make the requested
documents available to IMATU; and (c) the applicant’s
representative did not object to it. IMATU further submitted that
despite the commissioner’s ruling, the burden to prove
unfair
labour practice was discharged by IMATU.
[14]
It is trite that
the
onus to establish existence of a decision that constitutes an unfair
labour practice as provided in
section
186(2) rests on the applicant.
[5]
In
Department of
Justice v Commission for Conciliation, Mediation and Arbitration and
Others
[6]
the Court stated that:
‘
....
An employee who complains that the employer's decision or conduct in
not appointing him constitutes an unfair labour practice
must first
establish the existence of such decision or conduct. If that decision
or conduct is not established, that is the end
of the matter. If that
decision or conduct is proved, the enquiry into whether the conduct
was unfair can then follow. This is
not one of those cases such as
disputes relating to unfair discrimination and disputes relating to
freedom of association where
if the employee proves the conduct
complained of, the legislation then requires the employer to prove
that such conduct was fair
or lawful and, if he cannot prove that,
unfairness is established. In cases where that is intended to be the
case, legislation
has said so clearly. In respect of item 2(1)(b)
matters, the Act does not say so because it was not intended to be
so.’
[15]
In this case
,
IMATU had to show that the conduct or decision is one that falls
within the definition of unfair labour practice. Firstly, IMATU
had
to prove that Mr. Visagie applied for the position advertised in
2014, that he has been overlooked for promotion although he
possesses
qualifications or experience which the successful candidate does not,
and that the applicant cannot explain why he was
overlooked. If the
said conduct or decission is proved, the enquiry whether the conduct
was unfair can then follow.
It
is apparent that,
in
finding that the applicant had the duty to establish that the
employee was not subjected to an unfair labour practice,
the
commissioner committed an error of law. In so doing, he committed a
gross irregularity. The question is whether the error is
material to
an extent of having an effect to render the outcome unreasonable. In
Head of the
Department of Education v Mofokeng and Others
[7]
the LAC stated as follows:
‘
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the
final analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result. The reviewing judge must then have regard to the general
nature of the decision in issue; the range of
relevant factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether
a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered
by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to
the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial
of the
issues, with the result that the award may be set aside on that
ground alone. The arbitrator however must be shown to have
diverted
from the correct path in the conduct of the arbitration and as a
result failed to address the question raised for determination.’
[16]
The issue before the commissioner related to whether the applicant’s
failure to shortlist and subject the employee to
an interview
amounted to unfair labour practice. The law requires the employee to
show the existence of the conduct or decision
complained of and not
the other way round. It follows that Mr. Visagie had to prove that he
was not shortlisted for a position
that he not only applied for but
he also qualified for and further that the applicant’s conduct
or decision was unfair.
If that decision or conduct is not
established, that is the end of the matter.
[17]
Therefore, the commissioner’s ruling that the applicant has a
burden of prove is an indication of his failure to understand
the
provisions of section 186 of the LRA. It is apparent that, by
committing such a material error in law, the commissioner
misconstrued
the nature of the enquiry which led to an unfair
arbitration of the issues before him. In so doing, the commissioner
committed
a reviewable irregularity and the award stands to be
set-aside on this ground alone. I will consider the other grounds of
review
for the sake of completeness.
[18]
The other ground of review was that the commissioner’s
conclusion that the employee applied, and/or qualified for the
post
in question was not supported by the evidence placed before him.
Regarding Mr. Visagie’s qualification for the position,
the
applicant submitted that Mr. Visagie did not satisfy the
qualification requirements for the position in question. However,
IMATU submitted that this ground is without merit as there was
unchallenged evidence that Mr. Visagie had acted in the position
in
question for a significant period of time, he had been shortlisted
and scored the highest at the interview when the position
was
advertised in 2012. This was, according to the IMATU, evidence to
prove that Mr. Visagie qualified for the position. It was
not IMATU’s
submission that a legitimate expectation was created when Mr. Visagie
was allowed to act in the same position
for a considerable period.
Instead, IMATU submitted that Mr. Visagie’s performance during
the 2012 interview is enough to
prove that he qualified for the
position in question. IMATU contended that had Mr. Visagie been
shortlisted, he would have scored
the highest as he had done in 2012.
It is common cause that the advertisement stated the following as
requirements:
[8]
‘
Grade12.
Bachelors Degree/NQF level 6 in Chemistry/ Civil Engineering. 4 years
working experience in Wastewater Treatment.’
[19]
The record shows that the fourth respondent’s was an African
make and that his qualifications were Grade 12, BSC Chemistry
and
Botany and ND Chemical Engineering.
[9]
Mr. Visagie testified on his qualifications and stated as
follows
[10]
:
‘
MR
MASHOSHO: What were the requirements?
COMMISSIONER:
You see it is a simple thing, do you remember what the
individual requirements were or you do not
remember?
MR VISAGIE: NQF4,
5, you must know electrical, mechanical, experience, more than six
years experience, must know electrical and
mechanical, must at least
have the NQF qualification.
MR MASHOSHO: Do you
have one of those qualifications?
MR VISAGIE: I have
got…(indistinct) years experience on the sewage farm, I have
got NQF level 2 in that line, I do electrical
and mechanical.’
[20]
It is apparent from the above that, although Mr. Visagie had
experience did not have the required qualifications for the position.
Therefore, IMATU’s contention that Mr. Visagie would have
scored the highest, had he been shortlisted is baseless. In addition,
Mr. Visagie confirmed that SAMWU raised an objection to the
recruitment process which led to his non-appointment in 2012.
[11]
Nevertheless, the commissioner seem to have taken into consideration
the testimony of Mr. Makhaya, a recruitment officer, that
in 2008 the
Municipal Manager had given a direction that all people who had acted
in a position for more than one year should be
confirmed as permanent
in that position. The commissioner further considered that Mr.
Visagie had been recommended for the same
post in 2012 and that he
had previously acted in the position in question for 10 years. It was
for these reasons that the commissioner
concluded that the employee
qualified for the position.
[21]
The commissioner’s focus was on what transpired in 2012 as
opposed to the qualifications specified in the 2014 advertisement.
In
doing so, he clearly disregarded the evidence on the qualification
requirements as advertised in 2014; Mr. Visagie’s academic
qualifications and SAMWU’s objection leading to his
non-appointment in 2012. In
Transnet
Rail Engineering v Mienies and Others
[12]
the Labour Appeal Court
restated the principles of review as outlined in
Herholdt
and said the following:
‘
It
is important to bear in mind that the conclusion reached must account
for all the evidence adduced. No evidence may simply be
ignored. . .’
[22]
The commissioner’s failure to take into consideration all the
evidence that was adduced before him is a gross irregularity,
which
renders his outcome unreasonable. As such, the
commissioner’s outcome is not one that a reasonable arbitrator
could reach
on all the material that was before the him/her.
[23]
On the evidence to prove that Mr. Visagie applied for the position in
question, the applicant’s submission was that Mr.
Visagie's
name did not appear in the exercise books that were used by the
applicant as registers for the job applications (“the
registers”). In this regard, the commissioner rejected the
applicant’s evidence and stated as follows:
‘
The
applicant had asked for all the books where the names of applicants
were recorded for interviews and several books were brought
to the
arbitration, neither of the witnesses (were) able to testify to
exactly how many books were kept, in fact the way these
books were
written up leaves a lot to be desired.
The
books were in disarray, some of them had pages torn out,
approximately 3 books had entries of 2014 some of the books had
entries
for different years e.g. one book had entries of 2011, 2012,
2013 and 2014 and these were in no particular order.’
[24]
He then found as follows:
‘
In
considering all the evidence before me I am amazed that the security
guards who were the people who were to receive the CVs were
not
called to testify. It was blatantly clear that the respondent did not
conduct any investigations relating to these events and
from the
testimony before me the applicant was a suitable person for this
position and it was proven by what happened in 2012 when
he had
scored the highest and he was recommended for that position.’
[13]
[25]
The commissioner further found that none of the applicant’s
witnesses were able to state that they never received the
employee’s
curriculum vitae. It was on the basis of the above considerations
that the commissioner concluded that Mr. Visagie
had applied for the
position in 2014. In reasoning in this manner, the commissioner
committed an error of law, which was fundamental
to the conclusion he
arrived at. He drew an adverse inference against the applicant for
not calling the security guards to testify
on the receipt of
Mr. Visagie's curriculum vitae. In doing so, he placed the onus of
disproving an unfair labour
practice on the applicant
and thereby misconstruing the enquiry before him.
[26]
Mr. Visagie testified that he submitted his curriculum vitae and that
his name was written in an exercise book similar to the
one brought
to the arbitration by the applicant. He further testified that he was
with his supervisor, Ms. Elize Mare, when he
submitted his
application to the security guard at the entrance of the applicant’s
Human Resource section. Ms. Elize Mare
testified and corroborated Mr.
Visagie’s evidence. The commissioner accepted Mr. Visagie’s
evidence on the basis that
it was corroborated. The commissioner was
faced with two diametrically opposite versions. The technique
generally employed by courts
in resolving factual disputes was
summarized in
Stellenbosch
Farmers’ Winery Group Ltd and another v Martel et Cie and
others
.
[14]
In this case, the commissioner made no express credibility findings.
However, the reading of the award reveals that the commissioner
found
Mr. Visagie’s version that he applied for the position more
probable than that of the applicant. The question is whether
this
makes the commissioners’ decision reasonable.
[27]
The applicant further challenged the commissioner’s award on
the ground that the commissioner exceeded his powers in
so far as the
prerogative to appoint employees rests with the employer and must be
preceded by a proper selection procedure, including
an interview
where it is compulsory. In
Ncane
v R Lyster NO
[15]
the
court outlined an approach to be taken by the arbitrator when
arbitrating disputes concerning unfair labour practice as defined
in
section 186(2)(a) and stated as follows:
‘
[25]
When it comes to evaluating the suitability of a candidate for
promotion, good labour relations expect an employer
to act fairly but
it also acknowledges that this is not a mechanical process and that
there is a justifiable element of subjectivity
or discretion
involved. It is for this reason that the discretion of an arbitrator
to interfere with an employer’s substantive
decision to promote
a certain person is limited and an arbitrator may only interfere
where the decision is irrational, grossly
unreasonable or
mala
fides
.
See on this
Goliath
v Medscheme
(supra).
[26]
But where an employer provides that certain rules apply as regards
the decision to promote or to recommend
a candidate for promotion,
e.g. as in this case, the candidate who scores the most points must
be recommended by the panel, good
labour relations requires an
employer to be held to this. A failure to comply with the
rules may result in substantive unfairness.
[27]
In the case where another person has been promoted to the post then
the unsuccessful candidate must show
that this is unfair. And as
Wallis AJ (as he then was) said in
Ndlovu
v Commissioner for Conciliation, Mediation and Arbitration and
Others
:
“
That
will almost invariably involve comparing the qualities of the two
candidates. Provided the decision by the employer is
rational
it seems to me that no question of unfairness arises…
’
[Footnotes
omitted]
[28]
In this case, there was no evidence before the commissioner that the
applicant’s decision was irrational, grossly irregular
or
mala
fides.
Therefore, it cannot be said that Mr. Visagie should have
been promoted against the fourth respondent. As such, the protective
promotion is not warranted.
[29]
Further ground of review is that the commissioner had no factual or
legal basis upon which the ruling ordering the applicant
to
pay the costs of the arbitration was based. The
commissioner issued an order against the applicant on the basis
of
the reasons that appear from the award as follows:
‘
If
the 1
st
respondent had indeed investigated this matter and not just called
witnesses as a matter proceeded this matter should not have
proceeded
to arbitration and consequently the 1
st
respondent proceeded with reckless disregard of the relationship that
should be between the employer and the employee consequently
a cost
order against them would cause them to always consider that employees
should be treated with respect.’
[30]
The commissioner’s discretion to award of cost orders in
arbitration proceedings is regulated by section 138(10) of the
LRA,
which requires the commissioner to
make an
order for the payment of costs according to the requirements of law
and fairness in accordance with CCMA rules. In ordering
the costs,
the commissioner should, in terms of Rule 39(1) of the Rules of the
CCMA have regard to the following factors:
(a)
The measure of success that the parties achieved;
(b)
Considerations of fairness that weigh in favour of or against
granting a cost order;
(c) any
prejudice offers that were made with a view to settling the dispute;
(d) Whether a
party or the person who represented
that party
in the arbitration proceedings acted in
a frivolous and vexatious manner by proceeding with or defending the
dispute in the
arbitration proceedings, or in its conduct during the
arbitration proceedings;
(e) The
effect that a cost order may have on a continued employment
relationship;
(f) Any
agreement concluded between the parties to the arbitration concerning
the basis on which costs
should be awarded;
(g) The
importance of the issues raised during the arbitration to the parties
as well as to the labour community
at large;
h) Any
other relevant factor.
[31]
The cost orders where parties are represented in
the arbitration by a person contemplated by rule
25(1)(a), that
is persons other than legal representatives, is
regulated by Rule 39(2). These persons may be awarded reasonable
disbursements
actually incurred in the conduct of its case. A
commissioner who makes an award in terms of this provision is
required to
specify clearly the items and amounts in respect of which
costs are ordered. A commissioner may, in terms of Rule 39(3), make
an
award of costs in respect of the legal fees of a party that is
represented in arbitration by a legal practitioner, only if the other
parties to the arbitration were represented by a legal practitioner.
An award for costs in terms of sub-rule (3) is limited to
an amount
of R6 000.00 in respect of the first day of an
arbitration (including any arbitration concluded in
a single hearing)
and R4 000.00 in respect of each additional day of arbitration. These
amounts are inclusive of VAT.
[32]
In this case, there is no indication that the commissioner had regard
to the considerations mentioned in Rule 39(1). Instead,
the
commissioner took into consideration that the applicant failed to
investigate the matter without specifying what exactly the
applicant
was required to investigate and how the applicant recklessly
disregarded the existing working relationship. In addition,
the
commissioner failed
to clearly specify the
items and amounts in respect of which costs are ordered as required
in terms of Rule 39(2). As such, it cannot
be said that the
commissioner applied the requirement of law and fairness in arriving
at a finding that the applicant must pay
the costs of the
arbitration.
[33]
The applicant’s further ground of review was that the
commissioner was biased in that he unnecessarily argued with,
criticised and intimidated the applicant’s witnesses and their
representative and further refused to grant postponement on
the
ground that the applicant’s representative was hospitalized.
IMATU submitted that the commissioner’s participation
during
the arbitration demonstrated that he was alert to the evidence that
was presented before him. Further that there were no
complaints from
the applicant’s representative regarding intimidation of
witnesses and that the witnesses themselves were
more than willing to
engage with the commissioner.
[34]
There is nothing in the transcript of the
arbitration to show that there was any undue interference by the
commissioner in the arbitration
proceedings and with the testimony of
witnesses. Moreover, the applicant’s supplementary affidavit
does not provide specific
examples of this contention as contemplated
by Rule 7A(8). Therefore, there is nothing that becomes apparent from
the transcript
of the proceedings which could remotely convince me
that the first respondent conducted himself in a manner that could be
seen
to be biased. On the question of the commissioner’s
refusal to grant postponement, it is trite that granting of
posponement
is an indulgence which involves the exercise of a
discretion on the part of the commissioner. It’s refusal is
reviewable
if the discretion was not judicially exercised. I
can therefore find no irregularity that exists insofar as it relates
to
this ground of review .
[35]
In light of the above, I am of the view that the employer succeeded
in making out a case that the commissioner’s decision
was
unreasonable and that he committed a gross irregularity in
misconstruing the nature of the enquiry before him, disregarding
material evidence and committing material error in law. I do not deem
it wise to remit the dispute to the CCMA for fresh arbitration.
I
will determine the dispute in terms of section 145(4)(a) of the LRA.
It is apparent that Mr. Visagie failed to establish existence
of a
decision that constitutes an unfair labour practice. In light of the
decision in
Department of Justice v Commission for
Conciliation, Mediation and Arbitration and Others,
the enquiry
into whether the conduct was unfair does not follow.
[36]
With regard to costs, I am of the opinion that the requirements of
law and fairness dictate that there should be no order as
to costs.
Order
[37]
In the premise, I make the following order
a)
The arbitration award is reviewed and set aside and substituted with
the following
order.
(i)
The second respondent’s claim for unfair labour practice is
dismissed.
b)
No order as to cost.
__________________
Mahosi
J
Judge
of the Labour Court
Appearances
:
For
the Applicant:
Adv. H.W Sibuyi
Instructed
by Phungo Inc
For
the Respondent:
Mr V.G Mkwibiso (Union Official)
IMATU
[1]
Act 66 of
1995.
[2]
(
2007) 28
ILJ 2405 (CC).
[3]
At para 25.
[4]
Department
of Justice v CCMA & Others
[2004] BLLR
297 (LAC) 315
[5]
See
City
of Cape Town v SA Municipal Workers Union on behalf of Sylvester and
Others
(2013) 34 ILJ 1156 (LC) at para 19
[6]
(2004)
25 ILJ 248 (LAC) at para 73
[7]
[2015] 1 BLLR 50
(LAC) at para 33
[8]
page 116 of
the documentary record
[9]
page 126 of
the documentary record
[10]
page 382 to
383 of the transcribed record
[11]
line 14 of
page
288 of the transcribed record
[12]
[2015] 11 BLLR 1144 (LAC)
[13]
page 6 of
the arbitration award
[14]
2003 (1) SA
11
(SCA) at para 5. Also see
NUM
v Rusternburg Plutinum Mine
[2015] 1 BLLR 77
(LAC)
at para 43
[15]
[2017] 4
BLLR 350
(LAC) para 25 and 26