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[2019] ZALCJHB 189
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Skinner and Others v Nampak Products Limited and Others (JS197/16) [2019] ZALCJHB 189 (20 June 2019)
the
labour court of South Africa, JOHANNESBURG
Reportable
case
no:
JS
197/16
In
the matter between:
PHIL
SKINNER AND 208 OTHERS
Applicants
and
NAMPAK
PRODUCTS
LIMITED
First
Respondent
MAIN
STREET 1301 (PTY)
LTD
Second Respondent
MAIN
STREET 1310 (PTY)
LTD
Third Respondent
SACKS
PACKAGING (PTY) LTD
Fourth Respondent
Heard
:
27 - 31 May 2019 (Further written submissions
made on 14 June 2019)
Delivered
:
20 June 2019
Summary:
Change in provision of post-retirement medical aid (PRMA) benefits
– breach of contract – interpretation of terms of
the
policy – exercise of discretion – whether reasonable or
not. Unfair labour practice – whether committed or
not -
remedies. Held: (1) The claims for breach of contract as well as for
unfair labour practice are dismissed. Held: (2) No order
as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
The task to
interpret a document, including a policy, remains that of the court.
This matter has its genesis at the Commission for
Conciliation,
Mediation and Arbitration (CCMA). The applicants referred a dispute
alleging an unfair labour practice in relation
to provision of
benefits. It turned out at the CCMA that the dispute also involves an
alleged breach of a contract of employment.
By virtue of the powers
bestowed on the CCMA Director in terms of section 191(6) of the
Labour Relations Act
[1]
(LRA),
the dispute was referred to this Court for adjudication. The Judge
President of this Court exercising a discretion in terms
of clause
11.1.2 of the Practice Manual
[2]
allocated the matter to me for case management. Given the number of
applicants involved, the parties agreed and this Court sanctioned
the
agreement to separate issues with regard to the alleged unfair labour
practice dispute. The Court was to adjudicate the alleged
substantive
unfairness aspect of the unfair labour practice dispute first.
[2]
Initially,
the applicants were 209 in number. This judgment only concerns 156
individuals.
[3]
In this
referral, the applicants firstly allege that the first respondent,
breached the provisions of the policy by capping their
PRMA benefits.
This claim was brought to this court under section 77(3) of the Basic
Conditions of Employment Act
[4]
(BCEA). Secondly, the applicants allege that by capping the PRMA
benefits and retaining the PRMA liability, the first respondent
committed an unfair labour practice in relation to provision of
benefits. Given what turned out in Court, the remaining respondents
would only feature in relation to the issue of a relief, if any. The
first respondent had sold portions of its business to these
respondents, accordingly, the provisions of section 197 of the LRA,
in particular subsections 6, 7 and 8, comes to play.
[3]
On the facts, both claims – breach of contract and unfair
labour
practice are predicated on the same set of facts. On the
contractual claim, the first respondent alleges that a term in the
policy,
if interpreted in its favour, entitled it to cap the benefit.
To this defence, the applicants replicated by stating that the first
respondent did not acquire unfettered discretion to cap. It had to
act reasonably and in good faith for its exercise of discretion
to be
upheld by this Court. On the unfair labour practice claim, the
applicants allege that the first respondent was bound to act
fairly
when it capped the benefit. The first respondent suggests that it
acted fairly and thus did not commit an unfair labour
practice.
[4]
Therefore, in this judgment, the Court shall deal with the
contractual
claim, by firstly engaging in an interpretation exercise,
whereafter, consider whether the exercise of discretion, if any, was
reasonable to be accepted by this Court. If the applicants come home
on the contractual claim, consider the issue of the remedy.
Should it
be necessary, gravitate to the unfair labour practice claim and its
remedies in the LRA.
[5]
At the
conclusion of evidence, the Court heard oral submissions from both
parties. Applicants’ counsel submitted written heads
in
addition. After hearing oral submissions, the Court indulged parties
to augment the oral submissions in writing should they
wish to do so
on or before 14 June 2019. The Court received very lengthy written
submissions
[5]
from the
respondents on the appointed date. On 18 June 2019, I received the
applicants’ further written submissions. The
Court takes this
opportunity to thank both counsel for the well-researched
submissions.
Background
facts
[6]
To a greater degree, facts pertinent to the breach of contract claim
are common cause. Therefore,
it is unnecessary to recount them in any
greater details. The first respondent has in place a policy named
Nampak Policy and Guidelines:
Medical Aid Society Contributions;
Employees and Pensioners Policy (Policy). This policy became part of
the terms and conditions
of employment of all the applicants before
me. On the applicants’ interpretation of the policy, they were
entitled to 100%
contribution post retirement, should an employee
complete 25 years in service and 10 years in membership of the
medical aid scheme.
Also, 50% entitlement for employees with less
than 25 years but with 5 years’ service and 5 years of being a
member of the
scheme. Around 2012, the in-house medical scheme was
taken over by Discovery Medical Aid Fund as it was, as testified,
costly to
operate it in-house.
[7]
After obtaining legal opinions, the first respondent introduced a
change to the benefits.
The applicants were notified in writing of
the change on 25 September 2014. The change was that the 100% or 50%
contribution as
at 30 September 2014 would be capped by a percentage
equal to the annual change in consumer inflation as measured by the
official
Consumer Price Index (CPI) published by Statistics South
Africa.
[8]
Subsequent thereto, the first respondent sold parts of its businesses
to the second and
third respondents but retained the PRMA liability.
The first respondent’s packaging business was sold to the
fourth respondent
together with the PRMA liability in respect of
certain of the applicants.
[9]
Aggrieved by the capping of the benefit, the applicants referred a
dispute to the CCMA.
After considering an application within the
contemplation of section 191(6) of the LRA, the dispute was referred
to this court
by the Director of the CCMA. Following that, the
applicants referred the dispute in terms of rule 6 of the Rules of
this Court.
As pointed out earlier, the applicants also referred a
civil claim under the rubric of section 77(3) of the BCEA.
Issues
to be decided by the Court.
[10]
On 19 December 2016, parties concluded a pre-trial minute and
identified the following issues as issues that
are to arrest the
attention of this Court:
‘
The parties agreed
that the Labour Court is required to decide the following issues:
10.1.1.1.1.1.
Whether the first respondent’s decision to cap the
post-retirement medical aid benefit with regard to
all the applicants
and retain liability thereof in respect of the applicants…
constitutes a breach of the applicants ‘conditions
of
employment in terms of their contracts of employment;
alternatively
10.1.1.1.2.
Whether the first respondent’s exercising of its decision
construe (
constitute
) an unfair labour practice relating to a
benefit.
10.1.1.1.3. Whether
the first, second, third and fourth respondents should implement the
post-retirement medical aid as it
was applicable before 1 June 2016
as a condition of employment of the applicants employed by the
respondents as listed…
10.1.1.1.4. Whether
the second and third respondents should take over the liability
regarding the post-retirement medical
aid benefit of the applicants
as listed… with effect from the date when the section 197
transfers were effected.’
Preliminary
ruling
[11]
Prior to
the commencement of the trial, Mr Snider, appearing for the
respondents raised a preliminary point of lack of jurisdiction
of the
Labour Court. He contended that a portion
[6]
of the alleged substantive unfairness of the unfair labour practice
claim was not conciliated and on the authority of the Constitutional
Court
[7]
and this Court
[8]
,
jurisdiction should not be accepted. This Court, on an
ex-tempore
basis, refused to uphold the contention
in
limine
.
Briefly, the reasons are; the nature of the objection required this
court to hear evidence in order to arrive at a legal conclusion.
The
issue of retention of the liability was not a self-standing unfair
labour practice claim. It was part and parcel of the benefits
dispute. A dispute which was required to be referred and or
conciliated upon is one involving an alleged unfair labour practice
relating to benefits. It is common cause that such a dispute was
referred and conciliated upon. This objection came as a surprise
to
the applicants, as it was literally sprung on them a day before. The
Court understood their astonishment because in the pre-trial
agreement, it became common cause that this Court has
jurisdiction.
[9]
I do accept
that where the Labour Court does not have jurisdiction, it shall not
exercise one simply on the basis of an agreement
between the parties.
In
casu
,
I am of a firm view that the Labour Court retained jurisdiction, in
respect of the unfair labour practice claim, under the provisions
of
section 191(6) of the LRA.
[12]
In any event, at the closing argument stage, I did not hear Mr Snider
persisting with the
objection. Also, in the written submissions, this
point is not dealt with. The issue is dealt with in this judgment
simply because,
I did not hear Mr Snider abandoning it.
Evidence
received
.
[13]
Owing to the fact that the applicants bore the
onus
in respect
of the two claims before court, the applicants led evidence first.
The evidence was carefully restricted to substantive
fairness in as
far as the unfair labour practice claim was concerned. In relation to
damages and or compensation, both parties
submitted actuarial reports
and a joint statement of both the experts.
Phillip
John Skinner
[14]
He is one of the applicants. He commenced employment in 1983 and
retired on 31 December
2015. With reference to the respondents’
defence on the breach of contract claim, he testified that his
maximum level was
set at 100% from 1983 and he has earned and or met
the conditions because he remained in employment for a period of 25
years. He
testified that there was no provision made in the policy
for the amendment of the set maximum level. He did not have knowledge
of the sale of the businesses of the first respondent. A letter of 25
September 2014 was received by him and the cap so introduced
was
effected from 1 January 2016. In that year, he had to effect
co-payments on the medical bills.
[15]
Officially, he heard about the sale of the businesses in April 2015.
He raised concerns
with Ms Kidd in various emails. He was made an
offer to purchase the liability. According to the calculation of the
actuary supporting
their case, there is a shortfall on the offer
made. Having earned the benefit, he believed that there was a breach
of the policy,
alternatively, an unfair labour practice being
committed. He gathered data of the other applicants for the actuary.
As a relief,
he and others sought reinstatement of the benefit
alternatively damages and or compensation. During cross-examination,
he was referred
to a contract of employment signed around the year
2001. He testified that some clauses he assented to under protest. At
the time
when the cap was introduced, he was not retired yet. He was
a future pensioner.
[16]
He disagreed with the version of Ms Kidd that the only way to keep
the medical aid scheme
alive was to put the cap. In his view, an
increase of the premiums was an option. When the businesses were
sold, the first respondent
became smaller and the proceeds were
ploughed into businesses in Africa, which did not support the PRMA
liability. This, to him
was reckless. When he joined the scheme, it
was compulsory to become a member. He was not aware that 75% of the
employees accepted
the cash offer that was made. He did not believe
it as true that the respondents were entitled to change and introduce
a cap without
their consent or agreement. He disagreed with the
version that if a lower option is selected at retirement, then the
maximum paid
will remain at the actual capped contribution for the
higher option, since the letter of 25 September 2014 indicated that
should
one switch to a lower cost option thereafter, the value of the
subsidy would be reduced.
[17]
In his testimony, the respondent did not encounter financial
difficulties. At the time
when the investments were injected into
Africa, the rest of Africa did not support the PRMA. That decision to
inject the investments
into Africa was a reckless business behaviour.
Lynne
Dorothy Kidd
[18]
She is employed by Nampak for over 21 years. She became aware of the
issue when the liability
grew in the balance sheet after the move to
Discovery Medical Fund. She gave evidence with regard to the history
of the scheme.
When she joined Nampak, in 1997, it had a staff
compliment of about twenty thousand. In 2019, the staff compliment
emaciated to
a meagre four thousand employees.
[19]
In terms of
the policy, clause 4 applied to current employees and not pensioners.
Around June or July 2014, legal advice was sought
and obtained in
order to introduce the capping. Later on, a proposal was prepared and
presented to the Board of Nampak
[10]
.
Following that, a letter was provided to the applicants informing
them of the capping. An offer to purchase the liability was
to saddle
Nampak with about R390 million. Such an offer was made to the active
employees and about 70% of them accepted the offer.
She gave an
explanation of how the offer would have penned out with regard to the
CPI. After realising that employees were upset
by the change, she
prepared and made a presentation
[11]
to the staff members. From 1 June 1996, the PRMA was removed as a
benefit and new entrants did not have it as a benefit.
[20]
According to her, Mr Skinner, having taken an early retirement, was
not disadvantaged by
the capping because, he received the benefit
earlier. Nampak took a knock financially and its share price
plummeted to R10 a share
from R45 a share. Although the figures she
testified about were not supported by financial documents, she had
amassed experience
in financial matters during her stint in the
banking industry. In her evidence, the first respondent was fortified
by clause 4.1
of the Policy to introduce the capping. She was part of
the team that drafted the proposal on the capping that was made to
the
Board. Prior to the issuing of the letter of 25 September 2014,
there was no discussion with the active employees. The retention
of
the liability was not disclosed to anyone since the deal had not been
concluded yet. She disagreed with a proposition that the
first
respondent acted in bad faith. In the presentation she made to the
employees, she clarified the issue of a lower option as
set out in
the letter of 25 September 2014. She also disagreed with a
proposition that an unreasonable offer was made. The offer
referred
to in the proposal made to the Board is not the cash offer made to
active employees as same was made after the decision
to cap was taken
by the Board.
Patrick
Niel O’Brein
[21]
A former employee of Nampak. He was part of the Board meeting that
considered the proposal
to cap the benefit. The proposal served at
the Board meeting around late August/September 2014. The Board was
appropriately manned,
with notable individuals, under the stewardship
of the current Minister of Finance, Honourable Tito Mboweni, who
served as a Minister
of Labour at some point. The discussions over
the proposal were robust. The Board raised concerns around the staff
morale and the
legalities of the proposal, which concerns were
addressed. In 2012, an attempt was made to sell some of Nampak’s
businesses
but there was no buyer. In 2013, a buyer was found. A
concern was raised by the buyer over the PRMA liability for reasons
that
it would not be able to sell further and that the liability was
open-ended and uncapped. The proceeds of the sale were injected
into
the plastic and metal divisions of the business. A strategic decision
was taken to explore expansion into Africa. No cash
injection was
made into the expansion strategy into Africa. The expansion was
funded through borrowings. In 2014, the Nampak Group
faced challenges
informed by the state of the South African economy in general,
stiffness of competition and rising of costs with
a drop in prices.
[22]
He confirmed that a legal opinion was sought and obtained. Minutes
were kept for the Board
meeting. He could not tell when the Policy
was put in place. There was no connection between the sale of the
businesses and the
capping of the benefit. Capping would still have
taken place even if the sale did not happen.
Evaluation
Is
the capping of the benefit a breach of contract?
[23]
In order to address this question, it is important for the Court to
engage in an interpretation
task. There is no dispute between the
parties that the Policy constituted a term of the employment
contract. This Court enjoys
concurrent jurisdiction with the civil
courts to hear and determine any matter concerning a contract of
employment. The applicants
allege breach of a term or terms of an
employment contract. The introductory part of the Policy provides
that the Policy is there
to deal with company medical aid
contributions in respect of membership for in-service employees and
continuation membership on
death or retirement. The clauses allegedly
breached are 3.3.3 and 3.3.5. They are similarly worded except for
the percentages and
the number of years in service and membership.
For the purposes of this judgment, clause 3.3.3 reads thus: -
‘
Subject
to the provisions of clauses 3.3.6, 3.3.7 and 4
[12]
,
the Company will pay 100% of the medical aid contribution where the
employee has at least 25 years’ continuous service in
the
Company and 10 years’ membership of a company acknowledged
Medical Aid Society at the date of retirement and was employed
prior
to 1.6.1996.’
[24]
The respondents’ case drew sustenance from their own
interpretation of clause 4.1,
which reads thus: -
‘
The Company may,
at its
sole discretion
,
in respect of
future
pensioners, set a maximum level
at which it is
prepared
to contribute towards medical aid society benefits. The pensioner
will be responsible for the
difference
between the actual medica
l
aid society
contribution
levied by the applicable medical aid society
and
the maximum level set by the Company.’
[13]
[25]
The
submission by Mr Snider is that the phrase “
subject
to”
introduce a limitation to clauses 3.3.3 and 3.3.5. There is merit in
this submission. In
Awumey
and Another v Fort Cox Agricultural College and Others
[14]
,
the
Court stated the following:
‘
In my view the
ordinary meaning that must be given to the words “
subject
to
”
in the context in which they are used is that any
appointment
is conditional upon
the approval of the Minister…’
[15]
[26]
In other
judgments, the phrase was interpreted to mean “
except
as curtailed by
”.
[16]
It is clear to me that the phrase means no more than that a
qualification or limitation is introduced. In
Premier,
Eastern Cape, and Another v Sekeleni
[17]
,
the Supreme Court of Appeal (SCA) reasoned that the subsections of
the section being interpreted by it contained an exception
to the
general rule. In my view, clauses 3.3.3 and 3.3.5 creates a general
rule that Nampak shall pay 100% contributions without
any conditions.
Clause 4.1 introduces an exception to the general rule. There is no
dispute in this matter that all the applicants
were, as at 30
September 2014, future pensioners. Therefore, clause 4.1 refers to
them. As an indication that clause 4.1 was inserted
to limit the 100%
or 50%, reference in it is made to a difference between what is
levied by a medical society and the maximum set
by the Company.
[27]
The SCA in
Intech
Instruments v Transnet Limited t/a SAPO
[18]
reconfirmed the position thus:
‘
[24]
The correct approach to the interpretation of contracts is well
established. We must give meaning
to the words used in the contract
applying the normal rules of grammar and syntax viewed with attendant
factual context, in order
to determine what the contracting parties
intended. In addition, contracts must be interpreted in a manner that
makes commercial
sense’.
[28]
It is beyond question in my mind that when the parties employed the
phrase
subject to
, they intended to create a condition upon
the contribution to be made by the company in the future. In search
for commercial sense,
in my view, it makes no commercial sense to
read clause 4.1 as not placing a limitation to the 100% or 50%
contribution. When the
company approbated to itself, the sole
discretion, the intention must have been to allow it to wiggle in so
far as its contribution
is concerned. It was, in my view, for this
reason that the word “
prepared
” was employed in
the clause. Any other interpretation would lead to absurdity. In
commercial parlance, contribution to a
medical aid is a financial
cost. Any company attracting a financial cost would create a room to
wiggle, given the unforeseen financial
quagmire that may manifest in
the not so distant future. That was the intention when clause 4.1 was
inserted.
[29]
Obligations
imposed by the terms of a contract are meant to be performed, and if
they are not performed at all, or performed late
or in a wrong
manner, the party on whom the duty of performance lay is said to have
committed a breach of the contract
[19]
.
Therefore, in order to succeed in a claim for breach of contract, the
applicants need to show that there was no performance or
there was
malperformance. In this matter, capping the benefit was not contrary
to the provisions of the contract between the parties.
I therefore
conclude that there was no breach of the terms of the contract. I do
not accept as a submission, the fact that the
clause is illegal and
thus severable. However, that is not the end of the enquiry. Since I
found that clause 4.1 applies, the question
I must turn to, is
whether the discretion exercised by the respondents is one that was
reasonably exercised. Should I find that
the discretion was exercised
unreasonably, I must conclude that such a discretion should not be
allowed to be exercised and the
general terms of 100% or 50% without
tampering should apply. I now turn to that question.
Is
the sole discretion unfettered?
[30]
Undoubtedly,
the discretion to tamper with the agreed contribution level lies
solely within the province of the Company. Van Der
Heever DCJ in
NBS
Boland Bank v One Berg River Drive and Others, Deeb and Another v
ABSA Bank Ltd; Friedman v Standard Bank of SA
[20]
carefully considered the issue relevant herein. After considering
various cases and the test in the Dutch law, the learned DCJ
concluded thus:
‘
[24]
In sum I am of the view that, save, perhaps, where a party is given
the power to fix his own prestation, or to
fix a purchase price or
rental, a
stipulation conferring upon a contractual party to
determine a prestation is unobjectionable.
Second, and has been
said above, there is an additional reason for holding that the clause
under discussion is valid. Of course,
in some cases providing a
discretional determination there may not be an enforceable contract
until the determination is made…
[25]
All this does not mean that an exercise of such a contractual
discretion is necessarily unassailable. It may
be voidable
at
the instance of the other party. It is, I think, a rule of our common
law that unless a contractual discretionary power was
clearly
intended to be completely unfettered
, an exercise of such
discretion must be made
arbitrio bono viri’.
[31]
Unfortunately, the learned DCJ did not provide guidance as to how a
Court of law determines
an intention for the discretion to be
completely unfettered. To my mind, the task is left to a Court of
law, applying the interpretation
tools to establish that clear
intention. In any event, interpretation rules are there to search the
ever so elusive intention of
the parties. In clause 4.1, the parties
employed the words “
in its sole discretion
”. The
grammatical meaning of the word
sole
is being the only one, of
or relating to only one individual or group; exclusive. A discretion
is unfettered when it is free from
any restraints or inhibitions or
it is liberating. To my mind, where a party is given an exclusivity,
it follows axiomatically
that such a party may act without any
restraints or inhibitions. I am of a view that it was the intention
of the parties that determining
contribution for future pensioners is
within the unfettered discretion of the Company.
[32]
Having
exercised the contractual discretion, there can never be any
objection from a common law point of view. The decision of
Coop
and Others v South African Broadcasting Corporation
[21]
,
although upheld on appeal
[22]
is not helpful to the applicants before me. There, the rules of the
SABC did not have a clause similar to clause 4.1. The SABC
simply
decided to withdraw the benefit with no proper legal basis to do so
as correctly found by the High Court and upheld by the
SCA.
[33]
In the
event that I am wrong in concluding that the discretion is
unfettered, I must then consider whether the discretion was exercised
arbitrio
bono vino
.
The learned DCJ pointed out that it is conceivable, albeit unlikely,
that a stipulation may be so worded that an absolute discretion
to
fix a prestation is conferred on one of the contracting parties. The
suggestion being that the situation where absolute discretion
is
conferred to one party does exist but it is unlikely. Unfortunately,
the learned DCJ did not say that it cannot happen but that
it is
unlikely. With that caution, this Court would rather err on the side
of caution. The question that immediately crop up is
who bears the
onus
to show that the discretion was not made like a good man? The general
principle is that he or she who alleges must prove. The burden
of
proving a fact rests on the party who substantially asserts the
affirmative of the issue and not upon the party who denies it.
[23]
The applicants are the ones that are alleging that the exercise is
not that of a good man. It is denied by the respondents. The
SCA in
ABSA
Bank Limited v Lombard
[24]
,
assumed without deciding that the submission made before it was
correct. The submission was to the effect that Lombard bore the
onus
of establishing an unreasonable exercise the discretion.
[25]
Botha
JA in
Basson
v Chilwan and Others
[26]
,
in
the context of a restraint of trade agreement said:
‘…
the
covenanter seeking to avert enforcement
is
required to prove on a preponderance of probability that in all the
circumstances of the particular case it will be unreasonable
to
enforce the restraint
…The
covenanter is burdened with the
onus
because
public policy requires that people should be bound by their
contractual undertakings’.
[27]
[34]
In
ABSA
[28]
,
the SCA
concluded that the evidence of Lombard constituted a
prima
facie
case
that the bank and its predecessor had acted unreasonably. Further, it
concluded that since the evidence of Lombard was not
rebutted, the
discretion in question was not exercised reasonably. In the present
matter, the evidence of Mr Skinner was that the
discretion was
exercised unreasonably and that evidence was rebutted by both
witnesses of the respondent. I conclude that the
onus
to prove on the preponderance of probabilities that the respondent
exercised the discretion not in
arbitrio
bono viri
lies
with the applicants.
[35]
The
determination of what is reasonable is largely a matter of discretion
and good sense and is therefore not capable of being subjected
to
hard and fast rules. The test for reasonableness is an objective one
and may be determined
ex
post facto
or
ex
tante
[29]
.
Grammatically, one is reasonable when one behaves in a fair and
sensible way
[30]
. On the facts
of this case, it is uncontested that before exercising the
discretion, the respondent took steps to establish the
legality of
its intended actions. Before proposing the capping to its Board it
engaged in an exercise that considered all angles
of its intended
action. Its Board, which is appropriately manned, robustly engaged
with the issue and considered all the angles
including the possible
termination for operational requirements had the discretion not been
exercised. To my mind, all these are
actions of a good man. A good
man, whilst appreciating the rights he has, considers the effect of
the exercise of the right towards
another man.
[36]
Both
counsel placed reliance on the decision of Du Plessis J in
Erasmus
and Others v Senwes Ltd and Others
[31]
.
Mr
Snider submitted that on the facts,
Senwes
is distinguishable from the facts of the present case. I agree. He,
however, agreed that it is an authority on point with regard
to the
legal principle under consideration. In the first place, the
Senwes
matter involved an application for an interim interdict pending an
action. In considering the reasonableness of the decision, the
learned judge said the following:
‘
The proposed
changes were not necessitated by any change in the medical scheme
market, such as the discontinuation of suitable options.
The
changes
were not necessitated by financial need on the part of Senwes
.
Considering the evidence as a whole, the proposed changes were
probably motivated by a desire to increase its profitability.’
[37]
In
casu
, I am unable to make similar observations, regard
being had to the evidence before me. It is true that the respondents
did not
present financial documents to support the escalating costs.
However, Ms Kidd presented objective evidence that the graphs set out
in the presentation demonstrated an escalation in costs. This
evidence was not seriously challenged. What the applicants attempted
to do was to introduce some media releases aimed at showing that the
respondents did not have financial difficulties. I ruled that
such
documents could be introduced at that late stage. At that time, the
applicants had closed their case. On the uncontested evidence,
I am
satisfied that in exercising its discretion, the respondent acted
reasonably. A good man would take steps to arrest a financial
situation that may have serious ripple effect – loss of
employment. I come to this conclusion after applying value judgment
and having had regard to the facts of this case. Mere evidence that
the first respondent did not face financial difficulties is
not
enough to discharge the
onus
that the first respondent acted
not like a good man.
[38]
One
more point to be made is that a contract of employment is like any
other commercial agreement and it is to be interpreted by
applying
the same principles applicable to interpretation of a contract.
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[32]
,
the SCA had aptly said the following:
‘
Interpretation
is the process of attributing meaning to words used in a document, be
it legislation, some other statutory instrument,
or contract, having
regard to the context provided by reading the particular provision in
the light of the
document as a whole
and the circumstances attendant upon its coming into existence.
Whatever the nature of the document consideration must be given
to
the
language used
in the light of the ordinary rules of grammar and syntax; the
context
in which
the provisions appear; the
apparent purpose to which it is directed and the material known to
those responsible for its production’.
[My underlining and
emphasis].
Du
Plessis, J in
Senwes
[33]
concluded that when interpreting an employment agreement, it must be
borne in mind that parties have certain protected constitutional
rights and thus the right to fair labour practices add impetus to the
general rule that a court should endeavour to enforce rather
than to
invalidate a contract. I respectfully part ways with this approach.
Section 23 (1) of the Constitution of the Republic
of South
Africa
[34]
, provides that
everyone has the right to fair labour relations. As it is trite by
now that where there is national legislation
dealing with a right in
the Bill of Rights, no direct reliance should be placed to a right in
the Bill and disregard the national
legislation. With that in mind,
where a party is seeking to enforce a common law right, it shall be
inappropriate, in my view,
to conflate the principles applicable to
interpretation of contracts with a right to fair labour practice as
set out in the Bill
of Rights. By way of an example, restraints of
trade clauses are often located in the contracts of employment.
However, when courts
interpret them, courts do not take into account
a right to fair labour practices. In my view, a contract of
employment ought to
be interpreted like any other contract. Section
39 of the Constitution, enjoins the courts to have regard to the Bill
of rights
when interpreting any legislation or developing the common
law. I doubt that when a court interprets a contract, it necessarily
develops the common law. In my view, it applies the common law as it
should. In
Juglal
N.O v Shoprite Checkers (Pty) Ltd
[35]
,
the SCA
cited with approval what Hurt J stated, which is:
‘
A Court should be
chary of developing the common law in a way which impinges upon
fundamental principles of contract such as the
freedom to contract on
properly consensual terms and the principle of
pacta sunt servanda
which I think can safely be said, are fundamentally consistent
with the Bill of Rights.’
[39]
I am in
full agreement with Hurt J. A similar issue received attention in
Potgieter
v Potgieter
[36]
,
Brand
JA, writing for the majority, stated amongst other things the
following:
‘
[31]
As the second basis for its authority to deviate from common law
principles, the court
a quo
relied on the majority judgment of
the Constitutional Court… According to the court
a quo’s
interpretation of that judgment, it provides authority for the
following propositions:
(a)
under our new constitutional dispensation, it is part of our contract
law that as a matter of
public policy, our courts can refuse to give
effect to the implementation of contractual provisions which it
regards as unreasonable
and unfair, and
(b)
the same principle should be applied in other spheres of private law.
[32]
I find the court
a qou’s
approach
fundamentally
unsound
… Reasonableness and fairness are not free-standing
requirements for the exercise of a contractual right…
[34]
Unless and until the Constitutional Court holds otherwise, the law is
therefore as stated by
this court, for an example, in the cases of
South African Forestry, Brisley, Bredenkamp
and
Maphango
which do not support the first proposition relied upon by the
court
a quo
… The outcome in any particular case will
thus depend on the personal idiosyncrasies of the individual judge …
if
judges are allowed to decide cases on the basis of what they
regard as reasonable and fair, the criterion will no longer be the
law but the judge.
[36]
…I do not believe that
the court
a quo
had
any option but to follow the tenets of common law
… I thus
find myself in agreement with Harms DP when he said…
“
A
constitutional principle that tends to be overlooked, when
generalised resort to constitutional values is made is the principle
of legality. Making rules of law discretionary or subject to value
judgment may be destructive of the rule of law.’
[40]
I, therefore conclude that the applicants’ claim of a breach of
contract must fail.
In exercising the contractual discretion in
clause 4.1, there is no evidence to gainsay the fact that the first
respondent acted
like a good man.
Did
the respondent commit an unfair labour practice in relation to
benefits?
[41]
It is common cause that the PRMA is a benefit within the
contemplation of the applicable
section. It is also common cause that
it arises
ex contractu
. In this part of the case, the question
that falls to be decided is whether in exercising its contractual
discretion to cap the
benefit, did the respondent act unfairly or
not? Section 186 (2) of the LRA defines an unfair labour practice to
be any unfair
act or omission involving unfair conduct by the
employer relating to, in this case, provision of benefits to an
employee. First
of all, there must be an act or an omission which is,
in itself, unfair. The substantive unfairness pleaded by the
applicants in
this matter is the following:
41.1
The decisions were exercised arbitrarily;
41.2
The decisions were exercised to accommodate the transfer of the first
respondent’s business
as going concerns to the second
respondent, the third respondent and the fourth respondent;
41.3
The decisions were exercised without considering the consequences to
the applicants;
41.4
The decisions were exercised without considering the contractual
rights of the applicants;
41.5
The decisions were exercised without considering the availability of
funds to secure the subsidizing
of the medical aid contributions.
[42]
In addition, Mr Kirsten, for the applicants, submitted that if the
respondents had a discretion,
they failed to exercise it in a
reasonable and fair manner because the first respondent sold off
divisions whilst it was planning
to cap the benefit. At no stage were
the applicants informed when the decision to cap the benefit was
taken, that there will be
a section 197 of the LRA transfer of their
employment, so the submission went. According to the applicants, the
respondents failed
to comply with clause 16 of the section 197 of the
LRA agreements.
[43]
A further
submission was made that the financial liability complained of was
due to the first respondent’s making. It lowered
the pension
age; sold divisions and kept liability; amalgamated the in-house
scheme with Discovery and mapped employees; failed
to limit the
liability since 1996 until 2004 and lost control of the liability
when there was an amalgamation. After a number of
judgments seeking
to give meaning to the word
benefit
,
which has been described as a vexed and thorny issue
[37]
,
the LAC in
Apollo
Tyres South Africa v CCMA and Others
[38]
somewhat resolved the issue. Some authors
[39]
are of the view that the LAC has not effectively resolved the issue.
However, as pointed out above, before me there is no dispute
that the
PRMA is a benefit within the contemplation of the section. In
Apollo
[40]
,
the LAC held thus:
‘
[51] … On
the other hand, where an employee wants to use the same remedy in
relation to the provisions of benefits such an
employee has to show
that he or she has a
right
or entitlement
sourced in a
contract
or statute
to such benefit
.’
[44]
In
casu
,
the applicants have a benefit sourced from a contract of employment.
That being the case, it is unnecessary, in my view, to look
at other
possible sources of the benefit. Based on my views above, what the
first respondent did, by exercising a contractual discretion,
was not
a breach of contract under the common law. The question is, in this
part of the case, whether the exercise of the discretion
to cap the
benefit may be seen as an unfair conduct or not? In
Apollo
[41]
,
the LAC said:
‘
[47] …
Therefore even where the employer enjoys a discretion in terms of a
policy or practice relating to the provisions
of benefits such
conduct will be subject to scrutiny, by the CCMA, in terms of section
186…When the appellant decided to
accelerate the existing
contractual benefits and retained a discretion to grant accelerated
benefits, the benefits would strangely
morph into something less than
benefits because according to the
Hospersa
approach she does
not have a contractual right to the accelerated retirement benefits.
The employer would then have licence to act
with impunity…
Clearly the notion that the benefits must be based on an
ex
contractu
or
ex lege
entitlement would, in cases like
this, render the unfair labour practice jurisdiction sterile.’
[45]
I therefore
understand the LAC
[42]
to be
saying that in cases like the one before me where the actions of an
employer are fortified by the contractual provisions,
the CCMA is
still empowered, where a discretion is exercised in relation to the
provision of benefits, to scrutinize the exercise
of the discretion.
In buttressing this point I am making, the LAC went on to say:
‘
[52] … It
is common cause that she did not have a contractual entitlement to
the early retirement benefits and that the benefits
were to be
granted at the employer’s discretion. The issue that remains to
be considered is whether that discretion was exercised
unfairly.’
[46]
Unlike in
Apollo
[43]
,
the discretion in this matter is sourced from the terms of a contract
of employment. From a common law point of view, the actions
of the
respondents are lawful. In my view, it as this point that the common
law sharply clashes with a right guaranteed in the
Constitution. This
is where the common law position is to be trumped by the LRA, being
the legislation passed to protect the rights
in section 23 of the
Constitution. As pointed out earlier, a court of law is
constitutionally empowered, when developing the common
law, to
promote the spirit, purport and objects of the Bill of Rights. By
acknowledging the right not to be subjected to an unfair
labour
practice, I shall be promoting
[44]
the labour rights as set out in section 23 of the Constitution.
[47]
The guiding
principle in labour law is fairness. In
Apollo
[45]
,
the LAC said:
‘
[53]
It has been said that unfairness implies a failure to meet an
objective standard and may be taken to
include arbitrary, capricious
or inconsistent conduct whether negligent or intended’.
[46]
[48]
Therefore, I am enjoined to measure the conduct – the capping
of the benefit and
the retention of liability – on the
objective standard. This is a difficult horse to ride. Arbitrary and
capricious means
being authoritative, baseless, dictatorial,
fanciful, groundless, impetuous, motiveless, purposeless, unduly and
whimsical. The
applicants allege that the decisions of the respondent
were arbitrary. In
Apollo
, the Court concluded that because
Hoosen was sent from pillar to post when she made enquiries, she
qualified to participate in
the scheme and was unfairly disallowed to
participate therein.
[49]
In the
matter before me, it is without doubt that the first respondent was
forced into the decision because of the financial costs
considerations. In other words, the respondents had, in my view, a
commercial rationale. Therefore, can it be said that where there
is
commercial rationality, there is unfairness? I reckon not. To borrow
from the jurisprudence developed in dealing with dismissal
for
operational requirements, the LAC reasoned thus, i
n
the matter of
BMD
Knitting Mills (Pty) Ltd v SA Clothing and Textile Workers
Union
,
[47]
:
‘…
Viewed
accordingly, the test becomes less differential and the court is
entitled to examine the content of the reasons given by
the employer,
albeit that the enquiry is not directed to whether the reason offered
is the one which would have been chosen by
the court. Fairness, not
correctness is the mandated test.’
[50]
I find no reason why this approach cannot be adopted in this regard.
It is not for this
Court to decide whether capping of the benefit and
retaining liability was the correct answer to the rising financial
costs. I
have already pointed out that even though there are no
supporting documents of the financial situation, the probabilities
support
a conclusion that the first respondent faced insurmountable
and or insuperable financial difficulties. The applicants, in
bolstering
the substantive unfairness claim, submitted that the
decisions were made to accommodate the transfer. In other words, the
first
respondent had ulterior motive. I do not believe that, that was
the case. On the unchallenged evidence of Mr O’Brein, even
if
the sale did not happen, the capping would have happened. Beside,
contractually, the first respondent was entitled to exercise
the
discretion in order to attract the needed sale of the non-performing
businesses. Further, a submission made is that the decisions
were
oblivious of the consequences to the applicants. Again this cannot be
correct. The presentation made by Ms Kidd cleared amongst
others the
issue of the consequences of moving to a lower option. She was
unchallenged when she testified that Mr Skinner was not
disadvantaged
because he took an early retirement.
[51]
It was submitted that the decisions were exercised without
considering the contractual
rights of the applicants. The evidence
before me does not bear this submission out. It is common cause that
before capping, the
first respondent sought and obtained legal
advice. Mr O’Brein was not challenged when he testified that
one of the concerns
raised by the Board of the first respondent was
the legalities surrounding the proposed move and the Board was
assured of the presence
of such legalities. It must follow
axiomatically that all of that was done in consideration of the
applicants’ contractual
rights.
[52]
A further
submission was made that the availability of funds to secure the
benefit was not considered. This seems to be bolstered
by the
evidence of Mr Skinner that he was informed
[48]
that the proceeds of the sale were injected into entities in Africa,
which do not support the liability. Allegedly an amount of
R 1.5
billion was planted there. This evidence was disputed. The
unchallenged evidence of O’Brein is that the expansion into
Africa was funded by borrowings. There is no concrete evidence that
the proceeds were planted into Africa as opposed to supporting
the
metal and plastic divisions as testified. It may have well been the
intention to plant the funds into Africa but there is no
evidence
that this was indeed done. Therefore, this Court cannot accept the
uncorroborated evidence of Mr Skinner, which in itself
is based on
hearsay evidence.
[53]
There is a further issue which seems to be part of the substantive
fairness claim. It appears
to be the applicants’ contention
that by retaining the liability in respect of certain applicants, the
first respondent committed
an unfair labour practice. In the written
submissions there lay a submission that the first respondent
attracted certain statutory
obligations in terms of section 197 of
the LRA, which the first respondent failed to discharge. Although
this issue was not pursued
with any vigour by Mr Kirsten during oral
submissions, it was never mentioned that it was abandoned. In
opposing the jurisdictional
attack, Mr Kirsten submitted, correctly
so, that this issue of retaining liability is not a stand-alone claim
but part of the unfair
labour practice claim. During the
cross-examination of Ms Kidd, it was suggested to her that by failing
to disclose the retention
of the liability to the applicants, the
first respondent acted contrary to subsections 6 and 7 of section 197
of the LRA. My reading
of those subsections do not reveal the
suggestion. In any event, section 186 of the LRA defines what an
unfair labour practice
is and nothing around section197 of the LRA is
being mentioned as a species of an unfair labour practice. For this
reason alone,
this contention is equally rejected.
[54]
It could be argued, as it was, that the first respondent, in order to
ensure fairness,
should have informed the applicants of the impending
decision to cap. The evidence demonstrated that without any warning,
on 25
September 2014, the applicants were informed of the decision.
Mr Skinner described this as a
fait accompli
. To my mind this
falls outside the issues to be decided at this stage, in as far as
the alleged unfair labour practice claim is
concerned. Therefore, I
shall leave the issue open and not decide it.
[55]
In
conclusion, I reach an irresistible conclusion that the applicants
failed to discharge their
onus
to show that there was substantive unfairness. As closing remarks on
this point, I fail to appreciate any harm to the applicants
when the
amount increases by a percentage equal to the annual change in
consumer inflation measured officially. The applicants
were informed
in no uncertain terms that the declining profitability in South
Africa was part of the reasons why it is incumbent
on Nampak
management to investigate ways of limiting the PRMA liability. I may
mention in passing that this Court and the LAC accepted
that it may
be fair to dismiss an employee for operational requirements if he or
she refuses to accept a change to the terms and
conditions of
employment
[49]
.
Concluding
remarks
[56]
In terms of
the agreement between the parties as sanctioned by this Court, this
judgment does not finally resolve the dispute between
the parties.
The parties may return to this Court for the determination of the
alleged procedural unfairness. That being a possibility,
it shall be
remiss of this Court not to make its views known on an issue argued
before it relating to the reports of the actuaries.
As pointed out
elsewhere in this judgment, both parties submitted actuarial reports
as well as a joint minute. Generally, the opinion
of expert witnesses
is admissible whenever, by reason of their special knowledge and
skill, they are better qualified to draw inferences
than the judicial
officer.
[50]
Where a judicial
officer is capable of drawing inferences, evidence of an expert
witness is futile.
[57]
Mr Kirsten, argued that in the event that this Court would consider
compensation as a remedy,
the opinions of the actuaries would come in
handy. I disagree. It is clear to me that the opinions were sought in
order to deal
with the cash offer made to the applicants in order to
purchase the PRMA liability. It follows axiomatically that the
numbers mentioned
by the actuaries are to be attached to the monetary
value of the liability. The remedy sounding in money that may be made
for any
unfair labour practice is referred to as compensation in the
LRA. First of all, it is capped and has to be just and equitable in
terms of the LRA. Secondly, it is computed with reference to a salary
of an individual. Thirdly, and most important it is a
solatium
.
[58]
It
is instructive to note what the LAC said in
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
.
[51]
It said:
‘
[22]
The compensation that an employee, who has been unfairly dismissed or
subjected to unfair labour practice,
may be awarded is not aimed at
making good the patrimonial loss that s/he suffered. The concept of
loss or patrimonial loss may
play a role to evince the impact of the
wrong upon the employee and thus assists towards the determination of
appropriate compensation,
but compensation under the LRA is a
statutory compensation and must not be confused with a claim for
damages under the common law,
or a claim for breach of contract or a
claim in delict.
Hence, there is no need
for an employee to prove any loss when seeking compensatory relief
under the LRA.
[23]
Compensatory relief in terms of the LRA is not strictly speaking a
payment for the loss of a
job or the unfair labour practice but in
fact a monetary relief for the injured feeling and humiliation that
the employee suffered
at the hands of the employer. Put differently,
it is a payment for the impairment of the employee’s dignity.
This monetary
relief is referred to as a
solatium
and it
constitutes a solace to provide satisfaction to an employee who’s
constitutionally protected right to fair labour
practice has been
violated. The
solatium
must be seen as monetary offering or
pacifier to satisfy the hurt feeling of the employee while at the
same time penalizing the
employer. It is not however a token amount
hence the need for it to be “just and equitable” and to
this end salary
is used as one of the tools to determine what is
“just and equitable”.
[24]
The
determination of the quantum of compensation is limited to
what is “just and equitable”.
The determination of
what is “just and equitable” compensation in terms of the
LRA is a difficult horse to ride…In
my view, and as I said
earlier, because compensation awarded constitutes
solatium
for
the humiliation that the employee has suffered at the hands of the
employer and not strictly a payment for a wrongful dismissal,
compensation awarded in unfair dismissal or unfair labour practice
matters
is more comparable to a delictual award for
non-patrimonial loss.
While a delictual action…for
non-patrimonial loss is fashioned as a claim for damages, it is no
more than a claim for a
solatium
because it is not dependent
upon patrimonial loss actually suffered by the claimant. Hence,
awards made under a delictual claim
for non-patrimonial loss may
serve as a guide in the assessment of just and equitable compensation
under the LRA. In
Minister of Justice & Constitutional
Development v Tshishonga
,
this court in an award of
solatium
referred to a delictual claim made under the
actio
iniuriarum
for guidance in what would constitute just and
equitable compensation for non-patrimonial loss in the context of an
unfair labour
practice
. It stated that since compensation serves
to rectify an attack on one’s dignity, the relevant factors in
determining the
quantum of compensation in these cases included but
not limited to:
“…
the
nature and seriousness of the iniuria, the circumstances in which the
infringement took place, the behaviour of the defendant
(especially
whether the motive was honourable or malicious),
the
extent of the plaintiff’s humiliation or distress
,
the abuse of the relationship between the parties, and the attitude
of the defendant after the iniuria had taken place…”
[25]
The above
dictum
should serve as an appropriate guideline
in determining what is just and equitable compensation that can be
awarded under s 194 (3) of the LRA.’
[59]
For reasons
set out above, I firmly take a view that the expert testimony of the
actuaries is of no use in a claim for unfair labour
practice. The
applicants placed reliance on the decision of this Court in
Minister
of Labour v PSA and Others
[52]
,
when it said that section 194 (3) of the LRA empowered a commissioner
to place the individual respondents in a similar financial
position
to what they would have been. In my view, this judgment is at odds
with the decision of the LAC above. It must have been
overruled by
the LAC. In any event, my conclusion on this point is more directed
to the value of the experts’ testimony.
[60]
With regards to costs, although elsewhere I held a view that in
section 77(3) of the BCEA
claims, this Court may act like a civil
court when it comes to costs, guided by section 162 of the LRA, I
conclude that an order
of costs is altogether unwarranted in this
matter.
[61]
In the results, I make the following order:
Order
1.
The
applicants have failed to show that the respondents breached their
contracts of employment.
2.
The
applicants also failed to show that the respondents substantively
committed an unfair labour practice.
3.
The
applicants’ claims as dealt with in this part of the trial are
dismissed.
4.There is no order as to
costs.
_______________________
GN Moshoana,
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants
: Advocate PH Kirsten
Instructed
by
: Marius Scheepers & Co Attorneys, Pretoria.
For
the Respondents
: Advocate AN Snider
Instructed
by
: Cliffe Dekker Hofmeyr Inc, Sandton.
[1]
Act
66 of 1995 as amended.
[2]
April
2013.
[3]
Amended annexure A to the amended statement of case.
[4]
Act 75 of 1977.
[5]
To be precise a 61 paged document was submitted.
[6]
Para 16.1 of the amended statement of case: “
and
the retention of the liability by the First Respondent in respect of
the applicant listed…”
[7]
September
and others v CMI Business Enterprise
CC
[2018] ZACC 4.
[8]
Tlou v
University of Zululand
(2018) 39 ILJ 1841 (LC).
[9]
Para 2.2
The
Labour Court has jurisdiction to resolve the applicants’
dispute
.
[10]
Issues specifically flagged in the proposal were that: No limit was
ever placed on the rand value of the subsidy Nampak would
pay for
individual pensioners. The
high
rate of increase in medical scheme contributions over the past
decade or more has resulted in the rand value of the subsidies
increasing significantly
.
In addition, with the sale of a number of businesses in recent
years, the cost of subsidies for pensioners of those businesses
has
remained with the group.
This
has placed financial strain on margins and weakened the competitive
position of the group.
(Own
underlining and emphasis)
[11]
Dated November 2014 appearing on pages 28-68 of volume 4.
[12]
Own underlining and emphasis.
[13]
Own underlining and emphasis.
[14]
2003 (8) BCLR 861 (Ck).
[15]
Page 874 of the judgment.
[16]
See
Hawkins
v Administrator of South-West Africa 1924 SWA 67 and Premier,
Eastern Cape, and Another v Sekeleni
2003 (4) SA 369 (SCA).
[17]
Id
n 16.
[18]
(1165/18)
[2019] ZASCA 79
(31 May 2019)
[19]
See Christie’s The Law of contract in South Africa 6
th
edition.
[20]
[199] 4 All SA 183 (A).
[21]
Case 2001/23604 (WLD).
[22]
[2006] 1 All SA 333 (SCA).
[23]
Ei
incumbit probation qui dicit, non qui negat
.
[24]
Case 178/04 dated 30 March 2005.
[25]
At
para
19 of the judgment.
[26]
1993 (3) SA 742 (A).
[27]
At pages 776H-J and 777A-B. Own underlining and emphasis.
[28]
Supra
n
24.
[29]
Determination from the perspective of a reasonable person in the
position of the defendant.
[30]
See
S v
Burger
1975 (4) SA 877(A).
[31]
2006 JOL 16483
(T).
[32]
[2012] 2 All SA 261 (SCA).
[33]
Supra
n
31.
[34]
Act
108 of 1996.
[35]
2004 (5) SA 248
(SCA).
[36]
(629/2010)
[2011] ZASCA 181
(30 September 2011).
[37]
Moshoana ‘The vexed concept of benefits’ (2004)
De
Rebus
47.
[38]
(2013) 34 ILJ 1120 (LAC)
[39]
Resolving the ‘benefits’ dilemma 2018 SA Merc LJ 91 by
Ms K Newaj
.
[40]
Ibid.
[41]
Ibid.
[42]
At paragraph 46 the court stated that: … The first is where
the employer fails to comply with a contractual obligation
that it
has towards an employee.
The
second is where the employer exercises a discretion that it enjoys
under the contractual terms of the scheme conferring the
benefit.
[43]
Id
n 38.
[44]
See:
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC) and
S
v Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) on the constitutional imperatives to develop
the common law.
[45]
Supra
n
38.
[46]
Du Toit et al:
The
Labour Relations Act
of 1995
2
nd
ed at 443.
[47]
(2001) 22
ILJ
2264 (LAC) at para 19.
[48]
In precise terms Mr Skinner was informed thus: I can mention that if
you attended the results presentation on 20 November 2014
you would
have heard Andre de Ruyter explain that the paper business had in
the past year achieved a profit margin of less than
5%, whereas the
funds from the sale of those businesses
could
be invested in businesses
in the rest of Africa, where profit margins were in excess of 18%.
[49]
See:
Maritime
Industries Trade Union of SA and Others v Transnet Ltd and others
[2002] 23 ILJ 2213 (LAC). See also
Numsa
and Another v Aveng Trident (JA25/18)
[2019] ZALAC 36
(13 June 2019
)
and
Mazista
Tiles (Pty) Ltd v NUM and others [2005] 3 BLLR 219 (LAC)
[50]
See: Hoffman and Zeffert: The South African Law of Evidence 4
th
Ed page 97.
[51]
[2015] 36 ILJ 2989 (LAC).
[52]
JR 2007/09 [2014] ZALCJHB 51 (25 February 2014).