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[2019] ZALCJHB 41
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Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR1163/16) [2019] ZALCJHB 41; (2019) 40 ILJ 1625 (LC); [2019] 7 BLLR 703 (LC) (5 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
case
no: JR 1163 / 16
In
the matter between:
FIONA
KOCK
Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
JABULANI
JELMOND MASHABA N.O. (AS ARBITRATOR)
Second Respondent
ABSA
BANK LTD
Third Respondent
Heard:
29 August 2018
Delivered:
05 March 2019
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 –
determinations of arbitrator
compared with evidence on record –
commissioner’s decision regular and sustainable – award
upheld
Misconduct
– insubordination – principles considered –
employee clearly insubordinate – employee guilty
of misconduct
– award upheld
Misconduct
– final written warning for insubordination – final
written warning never challenged – warning must
stand and
cannot be challenged in later unfair dismissal proceedings
Misconduct
– final written warning for directly related offence –
consequences considered – dismissal based on
final written
warning fair
Review
application – no case for review made out – application
dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award given by the second respondent
in his
capacity as an arbitrator of the Commission for Conciliation,
Mediation and Arbitration (‘CCMA’). This application
has
been brought in terms of section 145 of the Labour Relations Act
[1]
(‘the LRA’).
[2]
This matter arose from the dismissal of the
applicant by the third respondent, for misconduct relating to
insubordination. The applicant
challenged her dismissal as an unfair
dismissal to the CCMA. This dispute came before the second
respondent for arbitration,
which arbitration proceedings took place
on 16 and 17 May 2016. Following conclusion of the arbitration
proceedings, and in an
arbitration award dated 27 May 2016, the
second respondent found in favour of the third respondent, and
determined that the applicant’s
dismissal by the third
respondent was both substantively and procedurally fair. The second
respondent then dismissed the applicant’s
claim. It is
this determination that gave rise to the current review application.
[3]
The
applicant’s review application was filed on 15 July 2016.
Considering that the arbitration award of the second respondent
was
served on the applicant on 6 June 2016, the review application was
thus brought within the 6 (six) weeks’ time limit
under section
145
[2]
of the LRA. The
review application is accordingly properly before this Court for
determination. I will therefore now
proceed to decide this
review application, by first setting out the relevant background
facts.
The
relevant background
[4]
The applicant commenced employment with the
third respondent on 6 December 2006, and was employed as a quality
assurance specialist.
She was dismissed on 25 September 2015 on a
charge of continuing insubordination. In the end, the relevant facts
in this matter
are straight forward.
[5]
The applicant, at the time when this matter
arose, reported directly to the quality assurance manager, Edward
Africa (‘Africa’).
In November 2013, when Africa joined
the team the applicant was working in, the employees in the team
worked three different staggered
working hours, being from 07h00 to
15h30, or from 07h30 to 16h00, or from 08h00 to 16h30. The
applicant’s working hours was
from 07h30 to 16h00.
[6]
It must be added that the actual prescribed
‘official’ working hours in the third respondent was from
08h00 to 16h30,
and the other two sets of working hours was a
privilege that was extended to employees by way of individual
arrangements. Of importance
in the current matter, and after Africa
joined the team, he discovered that the applicant was not sticking to
the alternative working
hours she had been permitted to do, and was
regularly arriving at work late. As a result, and in 2014 already,
this special dispensation
was taken away from her, and she was
required to work the normal and prescribed working hours from 08h00
to 16h30.
[7]
The applicant then in fact worked from
08h00 to 16h30, from October 2014 until early January 2015. She then
unilaterally decided,
for personal reasons, to revert back to working
from 07h30 to 16h00. She never informed Africa of this decision, or
that she had
done so.
[8]
Africa himself noticed in February 2015
that there was an issue with some employees sticking to the proper
official working hours.
In order to finally regularize the situation
where it came to working hours, vis-à-vis the whole team,
Africa sent an e-mail
notification to all the team members on 25
February 2015. This included the applicant. The e-mail could not have
been clearer.
It recorded:
‘
I
have noticed that some of the people in the team is coming in early
and leaving early.
There is no such
arrangement and this will stop immediately.
The
attached are the agreed working hours and needs to be adhered to
going forward.
’
A
list with individual employees’ names with accompanying working
hours was then indeed attached to the e-mail. The applicant’s
working hours were listed as 08h00 to 16h30. Africa testified that
this had all been earlier agreed with SASBO, of which the applicant
was a member.
[9]
The applicant did not adhere to this clear
instruction. She continued to work her own chosen working hours, from
07h30 to 16h00.
All the other employees in the team however complied
with the instruction, save for one other employee that had
transferred out
of the team, and thus this issue no longer applied to
her.
[10]
On 5 May 2015, Africa sent another e-mail
to the applicant. He indicated to her that the working environment
was not a shift or
flexi time working environment. He reiterated that
her working hours were from 08h00 to 16h30, and that there is no
exception to
this. He instructed her to stop immediately coming to
work when she chose to, and indicated that if she did not adhere to
the instruction
to work the prescribed working hours, the matter
would proceed to what he called ‘HR process’.
[11]
What followed was a flurry of e-mails
between the applicant and Africa on 5 May 2015. The applicant
answered Africa that she had
told him at the beginning of the year
that she would be working from 07h30 to 16h00 and he said she could
continue with it. Africa
stated that the previous arrangement
regarding her working hours lapsed ‘last year’. In order
to make matters clear,
however, he stated that ‘as of today’
she was not working from 07h30 to 16h00 but from 08h00 to 16h30 as
instructed.
The applicant replied that she was not comfortable with
this, and would speak to her representative. Africa responded that he
was
happy that she do this, but nonetheless her working hours were
from 08h00 to 16h30 which she had to comply with.
[12]
The applicant persisted with her refusal to
comply. As a result, Africa had a meeting with her on 13 May 2015,
and made it clear
to her that her working hours were form 08h00 to
16h30, once again. He specifically told her that if she did not
comply, proceedings
would be instituted against her. The applicant
responded by e-mail to Africa, concerning this meeting, suggesting
that he was rude
and disrespectful towards her. Africa answered that
this was not his intention, and then proceeded confirm the actual
content of
the discussion, which included that he told her if she did
not adhere to the working hours, action would be taken against her,
and that she answered ‘do what you want’.
[13]
The applicant remained unswayed in her
refusal to work from 08h00 to 16h30. She tried to immunize herself
from the instruction by
raising a long complaint to Africa by e-mail
on 17 August 2015, seeking to justify her refusal. Africa answered on
27 August 2015,
stating that he considered the applicant’s
contentions, but remained adamant that she will not be permitted to
work from
07h30 to 16h00, and that her working hours were form 08h00
to 16h30. On 2 September 2015, the applicant then demanded reason for
this instruction, which issue had long before been disposed of.
[14]
What was apparent is that this was all
going around in circles. The applicant had made it clear that no
matter how many instructions
she received concerning her working
hours, she was not going to comply, and would continue to work the
hours she decided.
[15]
On 16 September 2015, the applicant was
then notified to attend a disciplinary hearing to be held on 22
September 2015, on the following
charge:
‘
It
is alleged that you refuse to obey a reasonable and lawful
instructions.
A.
You were instructed on various occasions
since February to adhere to the official working hours as per the
standard hours of 08:00
to 16:30.
B.
You have persisted to arrive and leave your
working environment contrary to the instruction given.’
[16]
The disciplinary hearing then indeed took
place on 22 September 2015. The applicant pleaded not guilty to the
charge, insisting
that she was entitled to work the working hours she
had decided to work. She however did not dispute any of the
background facts
as set out above. The chairperson found the
applicant guilty of the charge against her, and proceeded to consider
the issue of
an appropriate sanction.
[17]
As part of the sanction consideration, it
became apparent that the applicant had received a final written
warning on 9 July 2015,
also for insubordination. In this instance,
and in sum, the applicant has refused to participate in a PAP
process, despite being
instructed to do so. She also behaved
disruptively in the course of such proceedings. This warning was
never challenged, either
internally, or as an unfair labour practice
to the CCMA.
[18]
In a written finding handed down on 23
September 2015, the chairperson recommended the dismissal of the
applicant. She was ultimately
dismissed in terms of this
recommendation on 25 September 2015.
[19]
The applicant then challenged her dismissal
as an unfair dismissal dispute to the first respondent in a referral
filed on 15 October
2015, and this dispute came before the second
respondent for arbitration. She challenged her dismissal as being
both substantively
and procedurally unfair.
[20]
The second respondent first dealt with the
issue of procedural fairness. He accepted that the applicant was
represented throughout
the disciplinary proceedings by an official
from SASBO, and had a proper opportunity to state her case. He
concluded that the applicant’s
dismissal was procedurally fair.
[21]
Turning then to substantive fairness, the
second respondent decided from the outset that he was not going to
enquire into the validity
or fairness of the final written warning of
9 July 2015, or the grievance outcome in respect of a grievance
brought by the applicant
against Africa. The second respondent held
that if the applicant was dissatisfied with any of this, she should
have pursued an
unfair labour practice dispute to the CCMA.
[22]
The second respondent accepted the third
respondent’s evidence that the official and ordinary working
hours in the third respondent
was from 08h00 to 16h30, and any
alternative working hours was an indulgence to individual employees.
He also accepted that whilst
the applicant has initially been the
recipient of such an indulgence, that was taken away from her in 2014
because of her continuous
late coming, and that she had as a result
indeed worked from 08h00 to 16h30 from October 2014 to January 2015.
[23]
The second respondent determined that the
applicant was fully aware of the fact that she had to work from 08h00
to 16h30, and had
consistently refused to obey Africa’s
instruction to do so. The second respondent also accepted that this
rule regarding
working hours was consistently applied to all
employees.
[24]
The second respondent then proceeded to
deal with the issue of an appropriate sanction. In this regard, the
second respondent considered
the applicant’s final written
warning of 9 July 2015, which he accepted was for a directly related
offence. The second respondent
also found that the misconduct was
serious, and that the applicant’s own conduct was deliberate
and repeated. According to
the second respondent, the applicant had
‘defied’ her manager.
[25]
Finally, the second respondent also
accepted that the applicant had been warned beforehand of the
consequences of her persistent
refusal to obey the instruction, but
had decided to continue with her defiance nonetheless. He accepted
that her behaviour continued
until her dismissal. Finally, the second
respondent also had regard to the third respondent’s
disciplinary code and procedure,
which provided for dismissal as an
appropriate sanction in this instance.
[26]
Pursuant to the above reasoning, and in the
arbitration award referred to above, the second respondent upheld the
dismissal of the
applicant as being fair. Hence the review
application now before me.
The
test for review
[27]
I
will only shortly touch on the appropriate test for review. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
the
Court held that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’,
and 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]
.
In
Herholdt
v Nedbank Ltd and Another
[5]
the
Court applied this reasonableness consideration as follows:
‘…
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.
’
[6]
[28]
What this means is a two stage review
enquiry. Firstly, the review applicant must establish that there
exists a failure or error
on the part of the arbitrator. If this
cannot be shown to exist, that is the end of the matter. Secondly, 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
or failure must affect the reasonableness of the outcome to the
extent
of rendering it unreasonable.
[29]
Further,
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, then the review application would succeed.
[8]
[30]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the arbitration award of the second respondent.
Grounds
of review
[31]
The
applicant’s case for review must be made out in the founding
affidavit, and supplementary affidavit.
[9]
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’
.
[32]
The
applicant, in addition to the founding affidavit, indeed filed a
supplementary affidavit.
[11]
I
will now summarize the actual grounds of review raised by the
applicant, as extracted from this set of pleadings.
[33]
The first ground of review relates to the
second respondent’s refusal to consider the validity of the
final written warning.
According to the applicant, the second
respondent was obliged to enquire into the same, and she was entitled
to raise it for consideration
even in the unfair dismissal
proceedings. The applicant added that the final written warning in
fact was evidence of a ‘pattern
of victimization’ of the
applicant by ‘people’ in the employ of the third
respondent. In short, the applicant
suggests that the second
respondent should have found that the final written warning
constituted an unfair labour practice which
would prove this
‘pattern’.
[34]
The second ground of review related to the
second respondent refusing to allow evidence and documents to be
presented by the applicant,
about the validity / fairness of the
final written warning. According to the applicant, this deprived her
of a full opportunity
to state her case.
[35]
The third ground of review then relates to
the second respondent’s decision on sanction. The complaint by
the applicant is
that several of the second respondent’s
findings on sanction was either not supported by the evidence before
him, or he relied
on inadmissible hearsay evidence. This includes his
findings about the nature of the misconduct, that the applicant’s
actions
were deliberate and repeated, and that the rule was
consistently applied. The applicant also contended that progressive
discipline
should have been applied, meaning she should not have been
dismissed.
[36]
I will consider the applicant’s
review application based only on these grounds of review. This of
course means that the second
respondent’s findings on
procedural fairness, and where it comes to the facts relating to the
actual misconduct committed
by the applicant, stand as uncontested.
In particular, the conclusion that the applicant did commit the
misconduct with which she
had been charged stand as uncontested. In
the end, it is only the sanction of dismissal that remains in issue.
[37]
I
also need to address a further difficulty with the manner in which
the applicant chose to present her case. In the applicant’s
heads of argument, the case advanced goes far beyond the grounds of
review as set out above. It is simply not permissible to raise
new
grounds of review in heads of argument, which were not pertinently
raised in the founding affidavit and/or supplementary affidavit.
[12]
In her heads of argument, the applicant has a full go at the entire
award. She challenges that there was a rule that she breached,
contends that there was an actual agreement that she work the
alternative working hours, and raises a number of issues she submits
was not considered by the second respondent when deciding an
appropriate sanction. This needed to have been specifically raised
and set out in the founding affidavit and supplementary affidavit.
For this reason, these new grounds of review should not be
considered, and I will have no regard to the same in deciding this
matter.
Analysis:
The Final Written Warning / Grievance
[38]
I will commence with what appears to be the
main thrust of the applicant’s review case, being the issue of
the challenge of
the final written warning. In this regard, a number
of pertinent facts were undisputed. The applicant was indeed issued
with a
final written warning on 9 July 2015 of which she was fully
aware. The final written warning was issued after disciplinary
proceedings
and on a charge of insubordination relating to a refusal
to obey an instruction from a manager. The final written warning was
current
and binding at the time of the disciplinary proceedings that
led to the applicant’s dismissal. And finally, the final
written
warning was never challenged, either by way of an internal
process, or by way of an unfair labour practice referral to the CCMA.
[39]
The
LRA draws a clear distinction between dismissal disputes, and unfair
labour practice disputes. In fact, and opposed to what
is considered
to be a dismissal as defined in section 186(1) of the LRA, section
186(2)(b) provides that an unfair labour practice
is any disciplinary
action short of dismissal.
[13]
This would obviously include a final written warning. What this means
is that the basic nature of the dispute in the case of a
dismissal
dispute, on the one hand, and an unfair labour practice dispute, on
the other, is simply not the same. By way of comparison
to illustrate
the point, a similar circumstance can be found in the difference
between an automatic unfair dismissal dispute under
section 187(1)(f)
of the LRA,
[14]
and a
discrimination dispute under section 10 of the Employment Equity
Act,
[15]
which can even both
arise out of the same factual matrix. In these instances, separate
disputes must be pursued by way of referrals
to conciliation, and it
does not follow that when the Court considers an automatic unfair
dismissal dispute, it can simply also
consider a discrimination
dispute in the absence of such specific referral of such dispute to
conciliation.
[16]
[40]
Therefore,
the clear difference in the nature of the dispute, where it comes to
an unfair dismissal dispute and an unfair labour
practice dispute,
has a consequence. This consequence is that each has its own distinct
dispute resolution process.
[17]
It follows that an unfair dismissal dispute must be pursued as such,
and an unfair labour practice dispute must also be pursued
as such.
It cannot be legitimately contended that when an unfair dismissal
dispute is pursued by way of a referral to the CCMA,
it would also by
implication include a challenge of an earlier final written warning,
even if that final written warning may have
a bearing on the
dismissal. The final written warning must be specifically challenged
as an unfair labour practice. This must be
done by a proper referral
to conciliation served on the employer, followed an unsuccessful
conciliation at the CCMA. In
National
Union of Metalworkers of SA
v
Intervalve
(Pty)
Ltd and Others
[18]
the Court said:
‘
In
determining the objectives of s 191, none of its provisions can be
ignored. They must all be taken into account. That includes
the
requirement in s 191(3) that the employee must satisfy the council
that a copy of the referral has been served 'on the employer'.
The
general purpose of s 191 provides the background against which the
specific purpose of s 191(3) must be understood. The subsection
ensures that the employer party to a dismissal or unfair labour
practice dispute is informed of the referral. The obvious objective
is to enable the employer to participate in the conciliation
proceedings, and, if they fail, to gird itself for the conflict that
may follow.’
[41]
In
the absence of a final written warning being challenged as an unfair
labour practice, it simply cannot be challenged in the course
of
subsequent unfair dismissal proceedings. Even under the former
LRA,
[19]
the erstwhile
Industrial Court recognized the necessity to distinguish between the
challenge of a final written warning and a dismissal,
and accepted
that a final written warning cannot be challenged in subsequent
litigation if it had not been specifically challenged
earlier. In
Paper
Printing Wood & Allied Workers Union and Another v Sappi Fine
Papers (Pty) Ltd
[20]
it was held:
‘…
previous
disciplinary actions are not necessarily in dispute at subsequent
hearings, even when taken into account for the purpose
of deciding
what further action should be taken against the employee. It is
also possible that long periods could have elapsed
between
disciplinary actions and the separate disciplinary enquiries held in
respect thereof. Furthermore, it is of real
importance that
disputes should be resolved as soon as possible. In view of
this, there is every reason to consider previous
disciplinary action
as separate disputes and to require that such disputes must
specifically be referred to conciliation boards
- if such actions are
still in dispute.'
[42]
The
former Labour Appeal Court followed a similar approach in
Agbro
(Pty) Ltd v Tempi
[21]
,
where it was
held that the Court was not entitled to enquire into the question as
to whether an earlier final warning had been justified, as
it was not
permitted to:
‘…
qualify
or derogate from the finality of the warning. If one did so it
would loose its force as a "final warning".'
[43]
Under
the current LRA, and in the reported award of
Subroyen
v Telkom (SA) Ltd
[22]
,
a
CCMA arbitrator referred with approval to the judgment in
Agbro
supra, and
held as follows:
‘
The
law in respect of the right of an employee to challenge prior
warnings on the basis that these warnings are used in assessing
a
proper and fitting sanction is clear. An employee may raise the
question of the fairness of these previous warnings at a subsequent
tribunal hearing only if he or she challenged the fairness of these
warnings at the time
…’
I
agree with this reasoning. It is in line with the prescribed dispute
resolution structure under the LRA and the clear distinction
drawn
between dismissals and unfair labour practices.
[44]
I
find further support for my view in the judgment of
Mining
Power Transfer t/a Driveline Technologies v Marcus NO and Others
[23]
,
where the Court was specifically called on to decide an argument by
an employee party that despite the employee never referring
a
separate dispute of an unfair labour practice where it came to a
final written warning, the fact that the employer itself elected
to
use such warning as an aggravating factor in order to secure the
employee’s dismissal, the employee was entitled to attack
the
merit of such warning in the unfair dismissal arbitration. The Court
held as follows in this regard:
[24]
‘
I
am not persuaded by the submission of Mr
Botha
.
The issue which fell to be determined by the arbitrator was whether
the dismissal of the third respondent on 11 February
2005 was
procedurally and substantively fair regard being had to the final
written warning given to the third respondent on 1 September
2003. In
Agbro
(
Pty
)
Ltd v Tempi
(1993)
2 LCD 24 (LAC) the court held that it was not entitled to enquire
into the question as to whether the final warning (which
had never
been challenged and reversed) had been justified as this would
qualify or derogate from the finality of the warning.
I am in
respectful agreement …’
[45]
It is not unusual that an employee receives
a final written warning, which is then challenged to the CCMA, and
that employee is
subsequently dismissed, which dismissal is also
pursued to the CCMA. As a matter of practice, these two separate
disputes may well
be consolidated at arbitration stage, especially
where the final written warning has a direct impact on the later
dismissal. But
the fact remains that there is a distinct and separate
referral of the final written warning as an unfair labour practice,
which
is always required.
[46]
In
casu
,
the applicant has conceded that she never referred an unfair labour
practice dispute to the CCMA to challenge the final written
warning.
This was specifically explored in the course of the arbitration, and
confirmed to be the case. This is further borne out
by her
conciliation and arbitration referrals in the unfair dismissal
dispute which was before the second respondent, which clearly
only
provide for the referral of the unfair dismissal dispute, and make no
reference at all to the final written warning. There
is no evidence
of any dispute being conciliated at the CCMA concerning the final
written warning.
[25]
As such,
the validity or fairness of the final written warning was not open
for consideration in the dismissal arbitration before
the second
respondent, and it stands.
[47]
There
is an important policy consideration underlying this principle that a
final written warning must be specifically challenged
beforehand as
an unfair labour practice. The purpose of the final written warning
is in essence to place the employee on final
terms. As a matter of
general principle, a final written warning is exactly what it says,
being that a repeat of the transgression
in a specified period will
result in dismissal. It is a last chance.
[26]
If the employee is unhappy with being given a last chance if the
first place, then the employee must challenge it, so it can be
determined if this is a legitimate last chance. If the employee does
not challenge it, then the employer should be entitled to
accept that
the employee is well aware that it is his or her last chance and
would adjust his or her behaviour accordingly. It
is then surely a
matter of common sense that if the employee transgresses again, and
is dismissed because of having spurned his
or her last chance, it
cannot be permissible to then attack the validity of the last chance.
In effect, such a challenge undermines
the very purpose of the final
written warning, and what it is intended to do. I thus agree with the
reasoning in
Agbro
,
Mining
Power Transfer
and
Subroyen
in this regard.
[48]
In the circumstances, the second respondent
simply cannot be faulted for his reasoning that it was not open for
him to consider
the validity or fairness of the final written warning
in the absence of an earlier challenge of the same by way of an
unfair labour
practice dispute. The second respondent was entitled to
accept, and then apply, the final written warning as it stood, in
deciding
the issue of a fair sanction. Similarly, the second
respondent was well within his rights to have declined the applicant
the opportunity
to lead evidence seeking to contradict the validity
or fairness of the final written warning. There is simply no
reviewable irregularity
committed by the second respondent on any of
these issues, and this ground of review of the applicant must fail.
[49]
The
only enquiry an arbitrator when dealing with an unfair dismissal
dispute is competent to make, where it comes to a pre-existing
unchallenged final written warning, is limited to determining whether
the final written warning was indeed issued to the employee,
the
employee was aware of it, whether it concerns related misconduct to
that which the employee was dismissed for, and finally
if it is still
binding. For example, if the evidence shows that the employee was
never issued with the final written warning, then
it can hardly be
said that the final written warning can be taken into account as the
last chance being afforded to the employee
to remedy his or her
behaviour.
[27]
Another example
where the final written warning may not lead to dismissal is where
the warning had expired by the time the further
misconduct had taken
place.
[28]
Evidence in this
respect thus does not serve to contradict the validity or fairness of
the final written warning. It serves, in
short, to decide if the
employee is actually on a last chance because of it.
[50]
One final issue that must be dealt with
where it comes to the final written warning. The applicant in essence
tries to sneak in
a challenge to the final written warning through
the back door, by contending the evidence relating to its merits and
whether it
was fair or not could serve to establish a pattern of
victimization of the applicant. In my view, this approach is
contrived. It
is the same kind of argument already rejected in
Mining
Power Transfer.
The problem with the
applicant’s refusal to work from 08h00 to 16h30 as she was
instructed to do, arose long before the events
giving rise to the
final written warning taking place at the end of June 2015. By May
2015, Africa was clearly threatening the
applicant with disciplinary
action if she did not comply with the instruction to work the
official working hours. There was no
change in circumstance from that
time. It is hard to comprehend how unrelated events of
insubordination in June 2015 can serve
to prove victimization of the
applicant relating to the working hours issue to the extent that it
would exonerate her of the misconduct
for which she was dismissed.
But in any event, what must put paid to this contention is that if
the applicant so strongly believed
the final written warning was
victimization, she should have challenged it, which she never did.
[51]
Therefore, the second respondent’s
findings concerning the final written warning are unassailable on
review, and all the review
grounds raised by the applicant relating
to the same must fail
Analysis:
The Sanction
[52]
As dealt with above, it was undisputed that
Africa had on several occasions in the period between February and
August 2015 instructed
the applicant to work from 08h00 to 16h30, and
she deliberately and persistently refused to do so. There can be no
doubt that the
applicant committed the misconduct with which she had
been charged. In any event, the conclusion that the applicant
committed the
misconduct is not challenged as part of the review
grounds properly raised. All that remains is to decide whether
dismissal was
a fair sanction.
[53]
In
deciding whether an employer acted fairly in deciding to dismiss an
employee, a variety of factors must be considered, as a whole.
These
are, in sum, the following: (1) the importance of the rule that had
been breached (seriousness of the misconduct); (2) the
reason the
employer imposed the sanction of dismissal; (3) The explanation
presented by the employee for the misconduct; (3) the
harm caused by
the employee's conduct; (4) whether additional training and
instruction may result in the employee not repeating
the misconduct;
(5) the service record of the employee; (6)
the
breakdown of the trust / employment relationship between the employer
and employee; (7) the existence or not of dishonesty;
(8) the
possibility of progressive discipline; (9) the existence or not of
remorse; (10) the job function of the employee; and
(11) the
employer’s disciplinary code and procedure.
[29]
In general terms, what requires consideration by an arbitrator was
articulated in
Vodacom
(Pty) Ltd v Byrne NO and Others
[30]
as
follows:
‘…
the
determination of the fairness of a dismissal required a commissioner
to form a value judgment, one constrained by the fact that
fairness
requires the commissioner to have regard to the interests of both the
employer and the worker and to achieve a balanced
and equitable
assessment of the fairness of the sanction …’
[54]
The
above being the applicable principles, what must next be done is to
apply the facts to these principles, and to consider the
actual case
of the applicant as to why the sanction of dismissal could be seen to
be unfair, in order to decide whether the second
respondent’s
ultimate determination that dismissal was a fair sanction in this
case, passes muster on review. As said
in
Wasteman
Group v SA Municipal Workers Union and Others
[31]
:
‘…
The
commissioner is required to come to an independent decision as to
whether the employer's decision was fair in the circumstances,
these circumstances being established by the factual matrix
confronting the commissioner. …
’
[55]
I
will first deal with the nature of the misconduct. The second
respondent considered it to be serious, and being misconduct of
the
kind that could competently lead to dismissal. This reasoning of the
second respondent cannot be faulted. In
Humphries
and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers
Union and Others
[32]
the
Court held as follows:
‘…
In
our view a disregard by an employee of his employer's authority,
especially in the presence of other employees, amounts to
insubordination
and it cannot be expected that an employer should
tolerate such conduct. The relationship of trust, mutual confidence
and respect
which is the very essence of a master servant
relationship cannot, under these circumstances, continue. In the
absence of
facts showing that this relationship was not detrimentally
affected by the conduct of the employee it is unreasonable to compel
either of the parties to continue with the relationship...’
[56]
The
misconduct
in
casu
is exacerbated by the fact that it was deliberate and repeated, in
the face of several efforts by Africa to simply secure
compliance.
[33]
In
Motor
Industry Staff Association and Another v Silverton Spraypainters and
Panelbeaters (Pty) Ltd and Others
[34]
,
the Court summarized the position in such circumstances as thus:
‘
It
is trite that an employee is guilty of insubordination if the
employee concerned wilfully refuses to comply with a lawful and
reasonable instruction issued by the employer. It is also well
settled that where the insubordination was gross, in that it was
persistent, deliberate and public, a sanction of dismissal would
normally be justified. … ‘
[57]
The
kind of insubordination committed by the applicant in this instance,
for the want of a better description, is such that it would
per
se
be destructive of the employment relationship, considering a number
of factors. First, she in fact knew her prescribed working
hours were
from 08h00 to 16h30. She conceded she had been so informed in 2014
already, and for a period of some four months in
fact worked those
hours. She then unilaterally decided to revert to working from 07h30
to 16h00, for personal reasons and without
any attempt to notify
Africa. Her conduct was of her own deliberate design. Secondly, the
instructions given to her were in writing,
and could not have been
more clear. The language used in the various e-mails from Africa
could not have left her in any doubt about
what she had to do, and
what the consequences would be if she did not. Thirdly, and instead
of complying the applicant did her
utmost not to comply. She tried to
rely on an agreement allegedly concluded with Africa that she could
work these alternative hours
which was false contention, she
threatened to involve her union representative (SASBO in any event
did nothing about the issue),
and lastly she tried to discredit
Africa by raising a grievance. The applicant, in short, made her
intentions clear – she
was not going to comply with her direct
manager’s instructions to work the proper working hours as
prescribed in the third
respondent. She consequently earned her
dismissal. An appropriate comparison can be found in the
following dictum in
Silverton
Spraypainters
[35]
:
‘
In
the present instance, Mr Van Jaarsveld wilfully, persistently and
publicly defied a lawful and reasonable instruction given to
him
by his employer, Mr Cronje, who was the sole director of the
company. On one of the occasions when Mr Van Jaarsveld defied
the
instruction it was in the presence of Ms Spaans, one of the company
employees. It is trite that mutual trust and respect constitute
a
fundamental pillar in every sustainable employer-employee
relationship. In my view, Mr Van Jaarsveld's unbecoming conduct
completely ruined his employment relationship with the company, which
rendered his dismissal justified. The misconduct was so serious
that
the sanction of dismissal would, in my view, have been justified.’
[58]
In my view therefore, and based on the seriousness
of the misconduct alone, the applicant earned her dismissal. The
conclusion the
second respondent arrived at in this regard must
therefore be upheld, as it would simply not be an irregular finding
and in any
event would be a finding that resorts well within the
bands of a reasonable outcome.
[59]
But there is even more to it
in
casu
. In this regard, there is also the
actual existence of the final written warning. This warning was also
for insubordination, and
was valid and binding on the applicant. It
was issued whilst the exchanges between Africa and the applicant
about her working hours
was still ongoing, and shortly before the
final exchange in August 2015. The issuance of the warning must have
made it clear to
her that she would face dismissal for continued
insubordination.
[60]
The
Court in
Transnet
Freight Rail v Transnet Bargaining Council and Others
[36]
specifically dealt with the very issue of the consequences of a final
written warning, and said:
‘
Usually, the
presence of a valid final written warning at the time of the
commission of the same or similar form of misconduct should
be
properly interpreted as aggravating in nature. The principles of
progressive discipline require such a re-offending employee
usually
to be considered irredeemable. …. I accept that the
purpose of a warning is to impress upon the employee the
seriousness
of his actions as well as the possible future consequences which
might ensue if he misbehaves again, namely that a
repetition of
misconduct could lead to his dismissal.’
And
in
Gcwensha
v Commission for Conciliation, Mediation and Arbitration and
Others
[37]
the Court held:
‘
I
accept that the purpose of a warning is to impress upon the employee
the seriousness of his actions as well as the possible future
consequences which might ensue if he misbehaves again, namely that
a repetition of misconduct could lead to his dismissal.’
[61]
The above puts paid to the applicant’s argument that further
progressive discipline
was warranted in this case. The misconduct for
which the applicant had been dismissed took place right off the back
of a final
written warning for the same kind of misconduct.
Ordinarily, and from there, there is no room for further progressive
discipline.
There was no evidence of any compelling reason why this
general principle that a dismissal should follow, should be departed
from,
other than a mere appeal for clemency, which was simply far too
little, too late. The situation was aptly described by Salty
Thompson,
the chairperson of the disciplinary hearing of the
applicant, who testified thus:
‘…
because of I had a final
written wanring on my file, I would pull my finger to keep my job.
But even after that she just did what
she wanted, worked the hours
she wanted …’
[62]
The applicant tried to distinguish the final
written warning from the current misconduct by contending that the
events giving rise
to her dismissal related to working hours / late
coming, whilst the events relating to the final written warning for
refusal to
participate in a PAP process. The purported distinction is
artificial. The different underlying events have little relevance in
justifying the drawing of the distinction the applicant seeks. At the
heart of it, and in both instances, the applicant refused
to obey
instructions from her manager. In the case of the final written
warning, she refused to comply with a company policy. In
the case of
the dismissal events, she refused to comply with an instruction
relating to working hours. It is birds of a feather.
Appreciating
this, the second respondent considered the final written warning as
directly applicable. His conclusions in this regard
are sound, and
certainly reasonable.
[63]
Therefore, and based on the final written warning,
the applicant’s dismissal was equally justified and fair. The
final written
warning was for the same behavioural offence she had
been dismissed for. Following the final written warning, she had a
last chance
to comply with the instruction from Africa to work from
08h00 to 16h30. She spurned this last chance. There was no reason, on
the
evidence, why her dismissal should not have followed as a result.
[64]
The
applicant never showed any remorse for her conduct. She remained
steadfast in her view that she did nothing wrong, and was in
effect
entitled to work the hours she chose to work. The second respondent
correctly recognized this in his award. Genuine remorse
contemplates
an unconditional acknowledgement of the wrongdoing, a plea for
forgiveness, and an undertaking that the misconduct
will not be
repeated if the employee is permitted to remain in the fold of the
employment relationship.
[38]
The applicant did none of this. She remained defiant to the end.
[65]
The
applicant argued that there was no evidence led by the third
respondent about the destruction of the trust / employment
relationship.
I must immediately mention that this was not
pertinently raised as ground of review, but even if considered, it is
my view that
the serious nature of the misconduct, as coupled with
the final written warning and complete lack of remorse would carry
the day
to justify dismissal. The point is that certain cases of
misconduct speak for themselves, and it is not always an imperative
to
lead evidence about the destruction of the trust relationship. As
pertinently said in
Impala
Platinum Ltd v Jansen and Others
[39]
:
‘
Since
Edcon
,
this court has repeatedly stated that where an employee is found
guilty of gross misconduct it is not necessary to lead evidence
pertaining to a breakdown in the trust relationship as it cannot be
expected of an employer to retain a delinquent employee in
its
employ.’
And
in
Woolworths
(Pty) Ltd v Mabija and Others
[40]
,
the Court held:
‘
The
fact that the employer did not
lead
evidence as to the breakdown of the trust relationship does not
necessarily mean that the conduct of the employee, regardless
of its
obvious gross seriousness or dishonesty, cannot be visited with a
dismissal without any evidence as to the impact of the
misconduct. In
some cases, the more outstandingly bad conduct of an employee would
warrant an inference that the trust relationship
has
been destroyed. …
’
[66]
The second respondent considered, and in my
view properly so, that the disciplinary code of the third respondent
prescribed dismissal
as a competent sanction for the misconduct in
this instance. It is true that the second respondent did not consider
the harm caused
by the employee's conduct; the job function of the
applicant, and the service record of the applicant. But none of these
factors
render the outcome ultimately arrived at by the second
respondent that dismissal was fair and justified in this instance, to
be
unreasonable. Considering all the other issues already referred to
and discussed above, it remains my view that the decision of
the
second respondent that dismissal was a fair sanction in this case
resorts well within the bands of a reasonable outcome.
[67]
I am therefore satisfied that the
conclusion of the second respondent arrived at to the effect that the
applicant’s dismissal
constituted a fair sanction in this
instance, was not irregular, would in any event constitute a
reasonable outcome, and as such,
must be upheld. It follows
that the applicant’s dismissal was fair, and the second
respondent’s finding that
this was indeed the case must equally
be upheld.
Conclusion
[68]
In
Gold
Fields Mining
[41]
the
Court said:
‘…
. The
questions to ask are these: … (ii) Did the arbitrator identify
the dispute he was required to arbitrate….? (iii)
Did the
arbitrator understand the nature of the dispute he or she was
required to arbitrate? .. (iv) Did he or she deal with the
substantial merits of the dispute? and (v) is the arbitrator’s
decision one that another decision-maker could reasonable
have
arrived at based on the evidence?’
In
casu
, all these questions must clearly
be answered in the affirmative, having the consequence that the
second respondent’s award
must be upheld.
[69]
Therefore, and based on all the reasons set
out above, I conclude that the second respondent’s arbitration
award is simply
not reviewable. I am satisfied that the second
respondent properly conducted the arbitration proceedings, and there
is nothing
untoward or irregular in his evaluation and determination
of the evidence. Insofar as the issue of the outcome arrived at by
the
second respondent may be considered on the basis of it being
reasonable or unreasonable, there is in my view no doubt that it
would
comfortably resort within the bands of reasonableness as
required, in order to be sustainable on review. The applicant’s
review application falls to be dismissed.
Costs
[70]
This
then only leaves the issue of costs. In terms of the provisions
of section 162(1) of the LRA, I have a wide discretion
where it comes
to the issue of costs. Even though
the
applicant was unsuccessful, I do not intend to burden her with a
costs order. I am also mindful of the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[42]
where
it comes to the issue of costs in employment disputes. The issue of
costs was in any event not pressed by either party when
the matter
was argued before me.
I
accordingly exercise my discretion as to costs in this matter by
making no order as to costs.
[71]
In the premises, I make the following
order:
Order
1.
The applicant’s review application is
dismissed.
2.
There is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Ms M Naydenova of Marina Naydenova Attorneys
For
the Third Respondent:
Ms T Rapuleng of Cliffe Dekker
Hofmeyr Attorneys
[1]
Act
66 of 1995 (as amended).
[2]
Section 145(1)(a) reads: ‘Any party to a dispute who alleges a
defect in any arbitration proceedings under the auspices
of the
Commission may apply to the Labour Court for an order setting aside
the arbitration award - (a) within six weeks of the
date that the
award was served on the applicant …’
[3]
(2007)
28 ILJ 2405 (CC).
[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]
See
also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14;
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]
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;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
(2015)
36 ILJ 1453 (LAC) at para 12.
[9]
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
[10]
(2010)
31 ILJ 713 (LC) at para 27.
[11]
This
is filed in terms of Rule 7A(8)(a).
[12]
Communication
Workers Union and Others v SA Post Office Ltd and Others
(2013) 34 ILJ 626 (LC) at paras 35 and 39; Brodie (supra) at para
34. See also the analyses in
Madondo
v Safety and Security Sectoral Bargaining Council and Others
(2015) 36 ILJ 2314 (LC) at paras 73 – 88.
[13]
The section reads:
Unfair
labour practice'
means
any unfair act or omission that arises between an employer and an
employee involving- … (b) the unfair suspension
of an
employee or any other unfair disciplinary action short of dismissal
in respect of an employee …’.
[14]
The section reads: ‘
(1)
A dismissal is automatically unfair if … the reason for the
dismissal is- … (f) that the employer unfairly
discriminated against an employee, directly or indirectly, on any
arbitrary ground, including, but not limited to race, gender,
sex,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, political opinion,
culture, language, marital status or family responsibility.
[15]
Act
55 of 1998.
In this regard, section 6(1) reads: ‘
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one
or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth or
on any other
arbitrary ground.’
[16]
See
SA
Airways (Pty) Ltd v Jansen van Vuuren and Another
(2014)
35 ILJ 2774 (LAC);
Evans
v Japanese School of Johannesburg
(2006)
27 ILJ 2607 (LC);
Bedderson
v Sparrow Schools Education Trust
(2010)
31 ILJ 1325 (LC);
Wallace
v Du Toit
(2006) 27 ILJ 1754 (LC);
Hibbert
v ARB Electrical Wholesalers (Pty) Ltd
(2013) 34 ILJ 1190 (LC).
[17]
Section
191
(1)(a)
of the LRA reads provides that if there is a dispute about the
fairness of a dismissal, or a dispute about an unfair labour
practice, the dismissed employee or the employee alleging the unfair
labour practice may refer the dispute in writing to the
CCMA or
applicable bargaining council. In the case of an unfair dismissal
dispute, the time limit to do so is 30 days (section
191(1)(b)(i)),
and in the case of an unfair labour practice 90 days (section
191(1)(b)(ii)). In addition, section 191(5)(a)(i)
provides for the
referral of an unfair dismissal dispute to arbitration, which
section 191(5)9a)(iv) provides for the referral
of an unfair labour
practice dispute to arbitration. Two distinctive processes are
clearly envisaged.
[18]
(2015)
36 ILJ 363 (CC) at para 47. See also
Mphahlele
v Ephraim Mogale Municipality
(2018) 39 ILJ 879 (LC) at para 8.
[19]
Act 28 of 1956.
[20]
(1993)
2 LCD 318 (IC) at paras 6 – 7.
[21]
(1993)
2 LCD 24 (LAC) at para 5.
[22]
(2001)
22 ILJ 2509 (CCMA) at 2521C-D.
[23]
[2008]
JOL 21764
(LC) at para 37.
[24]
Id at para 38.
[25]
Compare
September
and Others v CMI Business Enterprise CC
(2018)
39 ILJ 987 (CC) at para 56.
[26]
I do not say that that a final written warning always and without
exception must lead to dismissal in the case of a repeat
transgression. There may be unique circumstances where even the
existence of a final written warning may not lead to dismissal,
which the employee would of course has to show exists. But that is
an issue for the arbitrator considering the fairness of the
sanction
of dismissal to decide, based on the particular facts of the matter
and in conducting the holistic enquiry as discussed
below.
[27]
See
Sandvik
Mining and Construction RSA (Pty) Ltd v Molebaloa NO and Others
(2013)
34 ILJ 426 (LC) at para 30.
[28]
Compare
National
Union of Metalworkers of SA and Others v Atlantis Forge (Pty) Ltd
(2005)
26 ILJ 1984 (LC) at para 148.
[29]
Sidumo
(
supra
)
at
para 78;
National
Commissioner of the SA Police Service v Myers and Others
(2012)
33 ILJ 1417 (LAC) at
para 82;
Bridgestone
SA (Pty) Ltd v National Union of Metalworkers of SA and Others
(2016)
37 ILJ 2277 (LAC) at paras 17 – 18;
Woolworths
(Pty) Ltd v SA Commercial Catering and Allied Workers Union and
Others
(2016) 37 ILJ 2831 (LAC) at para 14;
Msunduzi
Municipality v Hoskins
(2017) 38 ILJ 582 (LAC) at para 30;
Eskom
Holdings Ltd v Fipaza and Others
(2013)
34 ILJ 549 (LAC) at para 54;
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 34;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC) at paras 37 – 38;
Fidelity
Cash Management (supra)
at
para 94.
[30]
(2012)
33 ILJ 2705 (LC) at para 9.
[31]
(2012)
33 ILJ 2054 (LAC) at 2057G-I.
[32]
(1991)
12 ILJ 1032 (LAC) at 1037F-H. See also
Commercial
Catering and Allied Workers Union of SA and Another v Wooltru Ltd
t/a Woolworths (Randburg)
(1989)
10 ILJ 311 (IC).
[33]
See
A
Mauchle (Pty) Ltd t/a Precision Tools v National Union of
Metalworkers of SA and Others
(1995)
16 ILJ 349 (LAC) at 359E-F.
[34]
(2013)
34 ILJ 1440 (LAC) at para 31. See also
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and Others
(2012)
33 ILJ 2117 (LC)
at paras 116 and 121.
[35]
Id at para 47. See also
Blitz
Printers
v Commission for Conciliation, Mediation and Arbitration and Others
[2015]
JOL 33126
(LC) at para 69.
[36]
(2011)
32 ILJ 1766 (LC) at para 42 – 43. See also
Builders
Trade Depot v Commission for Conciliation, Mediation and Arbitration
and Others
(2012)
33 ILJ 1154 (LC) at paras 45 – 46.
[37]
(2006)
27 ILJ 927 (LAC) at para 32.
[38]
De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2000)
21 ILJ 1051 (LAC)
at
para 25;
City
of Cape Town v SA Local Government Bargaining Council and Others (2)
(2011)
32 ILJ 1333 (LC) at para 2.
[39]
(2017)
38 ILJ 896 (LAC) at para 13. See also
Schwartz
v Sasol Polymers and Others
(2017)
38
ILJ
915 (LAC)
at para 30;
G4S
Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others
(2017)
38
ILJ
881 (LAC)
at para 30;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
(
supra
)
at para 19;
Rustenburg
Platinum Mines Ltd v United Association of SA on behalf of Pietersen
and Others
(2018) 39 ILJ 1330 (LC) at para 59.
[40]
(2016)
37
ILJ
1380 (LAC)
at para 21. See also
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration and Others
(2017) 38 ILJ 860 (LAC) at paras 34 – 35.
[41]
(
supra
)
at paras 20 – 21.
[42]
(2018)
39 ILJ 523 (CC).