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[2019] ZALCJHB 164
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Mosiane v CCMA and Others (JR2468/16) [2019] ZALCJHB 164 (27 June 2019)
the
labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no:
JR2468/16
In
the matter between:
GERSHON
MOSIANE Applicant
and
CCMA First
Respondent
COMMISSIONER
T MOLOTSI N. O Second
Respondent
THE
HEALTH PROFESSIONS COUNCIL OF
SOUTH
AFRICA Third
Respondent
Heard
:
21 June 2019
Delivered
:
27 June 2019
Summary:
Opposed review on relief granted – exceptions in section 193
of the LRA – if non-existent – denial of a primary
relief
amounts to an error of law – reviewable basically on the
principle of legality. Evidence must be led to demonstrate
existence
of the exception – unless
res ipsa loquitur
principle applies. Held: (1) The award is reviewed and set aside and
replaced with an order re-instating the applicant; (2) There
is no
order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
This review application was enrolled without other matters on the
roll
for reasons that it comprised of about eight lever arch files.
It is apparent that the Registrar formed a view that given the size
of the papers filed, the matter is complicated and deserves its’
own space on the court roll. Moreso, it was the only matter
on my
roll for the week commencing 18 June 2019. Unfortunately, it turned
out that the matter turns only on the issue of the relief
granted by
the commissioner.
[2]
This of course presents a difficulty. If this was known to the
Registrar,
she would not have given this matter the kind of special
attention it received much to the chagrin of other deserving matters
festering
at the Registrar’s office. This Court, particularly
the Johannesburg Court, is beset with an ever-growing backlog of
motion
matters. I venture to suggest that where the record is huge,
like in this present matter, parties should include a note addressed
to the Registrar in particular, to the effect that despite the size
of the record, a matter turns on a limited aspect and does
not
deserve a space of its own. Practice notes are addressed to a judge
hearing the matter and often times, parties file these
notes a day or
two before the allocated hearing date. If parties are consistent with
this suggested practice, the efficiency of
this Court would be
enhanced and the backlog would sooner rather than later dissipate.
Nonetheless, the application is before me
and it is opposed by the
third respondent.
Background
facts
[3]
Given the fulcrum of this review, it is not
necessary to punctiliously traverse the facts of this matter. It is
sufficient to mention
that this matter has a sorry history. This is
its’ second sojourn in this Court. The dismissal under attack
by the applicant
happened on 1 June 2010. In November 2012, my
brother Cele J entertained the matter and remitted it back to the
Commission for
Conciliation, Mediation and Arbitration (CCMA) to be
heard
de novo.
This
was after Commissioner Koekemoer had issued an award declaring the
dismissal to be unfair on 19 October 2012.
[4]
From
November 2015 up to and including 9 September 2016, the arbitration
de
novo
as ordered by Cele J took place. On 6 October 2016, the impugned
award was issued by Commissioner Molotsi. This review was launched
on
or about December 2016. The application was only heard two and half
years later. The picture painted above, over and above the
fact that
it is a deplorable one, is incongruent with the provisions of section
1 (d)(iv)
[1]
of the Labour
Relations Act
[2]
(LRA).
[5]
The applicant was employed as a legal
advisor –
pro forma
prosecutor effective 1 May 2004. During 2008, the applicant plied his
duties in a disciplinary matter involving one Dr Luke Gordon
(Gordon). It was in the course of the plying of his duties, that it
was alleged that he received an amount of R60 000 in the
form of
a bribe from Gordon. As a sequel, the applicant was arrested on 9
April 2008 and released on bail on 10 April 2008. Shortly
thereafter,
the applicant was placed on suspension. He was ultimately charged
with allegations of misconduct. Following a disciplinary
hearing,
which commenced on 15 September 2008, the applicant was found guilty
as charged and dismissed on 1 June 2010. Aggrieved
by his dismissal,
the applicant referred a dispute alleging unfair dismissal around 15
June 2010 to the CCMA. As pointed out above,
he was successful before
the first commissioner. Unfortunately for him the victory was
short-lived when Cele J reviewed the favourable
award.
[6]
In addition to his dismissal, the applicant
faced criminal charges. He was found not guilty and discharged. At
the second arbitration,
a finding was made by the second respondent
that the dismissal was substantively and procedurally unfair. The
applicant was denied
the primary remedy and was awarded compensation
of ten months’ salary. Aggrieved thereby, the applicant
launched the present
application.
Grounds
of Review
[7]
As depicted above, the challenge is mounted on the
relief granted by the second respondent. The applicant alleges that
the second
respondent committed a reviewable irregularity by not
awarding him the primary remedy. In denying him the primary remedy,
the second
respondent failed to apply his mind, in that he took into
account irrelevant considerations. He, the second respondent,
misinterpreted
section 193 (2) (b) of the LRA. Failure to award
arbitration costs was also challenged.
Evaluation
[8]
I must state upfront that in this review, in my
view, the applicable test is one of correctness as opposed to one of
reasonableness.
In denying the applicant the primary remedy, the
second respondent purportedly drew sustenance from the provisions of
section 193
(2)(b) of the LRA. Therefore, if his interpretation of
the enabling section is wrong, then he committed a material error of
law
which affects the outcome. Differently put, on proper
interpretation of the enabling section the second respondent was not
empowered
to deny the applicant the primary remedy. Before I deal
with the merits of this matter, I shall first deal with the
preliminary
points raised by the parties.
Defective answering
affidavit.
[9]
The applicant submits that the answering affidavit
by Khanyiso Dube should be disregarded due to the manifest defect in
it. The
defects being (a) that the deponent does not set out his or
her gender; (b) that the deponent does not state that he is
authorised
to depose to the affidavit, thus lacks the required
locus
standi
to depose to the affidavit; (c)
that he does not state that the facts fell within his personal
knowledge and (d) that the Commissioner
of Oaths failed to specify or
print his full names and designation.
[10]
Defects
(a), (c) and (d) are technical in nature. The Labour Court is a Court
of equity and as such, there is no room for technical
arguments in
this Court. I then shall, without hesitation, dismiss these
objections. In relation to (d), a deponent does not require
authority
to testify. Therefore, on the strength of the judgment of
Ganes
and Another v Telecom Namibia Ltd
[3]
,
this point must suffer the same fate. Accordingly, the preliminary
point is not upheld.
[11]
I hasten to say, in review proceedings what
matters is the record of the evidence placed before a commissioner.
Therefore, even
if I upheld the objection, it shall not axiomatically
follow that a review must be granted simply on the basis that it
stands “technically”
unopposed.
The relief sought in
the amended notice of motion.
[12]
This point was raised by the third respondent in
its heads of argument. Although not pressed with any vigour during
oral argument
by Mr Tsatsawane SC, appearing for the third
respondent, it was not mentioned by him that the point has since been
abandoned. The
point is simply that since the applicant did not in
his amended notice of motion seek reinstatement, he is not entitled
to it even
if the award is reviewed, corrected and set aside. Yet
again, this is a technical objection.
[13]
However, it is sufficient to mention that section
145(4) appropriates discretionary powers on the Labour Court to
determine the
dispute in the manner it considers appropriate. If it
is appropriate to order reinstatement, this Court is adequately
sceptered
to order it irrespective of what the notice of motion
states. What ignites this discretionary power is the setting aside of
the
arbitration award. Accordingly, this point is equally not upheld.
The Merits
[14]
The only relevant question at this juncture is
whether the provisions of section 193 (2) (b) arose?
[15]
Section 193 (2) (b) states: -
“
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee
unless –
(b)
The
circumstances surrounding the dismissal
are such that a
continued employment relationship would be intolerable.”
[16]
Recently,
the Constitutional Court in
SACCAWU
and others v Woolworths (Pty) Ltd
[4]
,
reaffirmed the position thus: -
“
[46]
Reinstatement
must be ordered
when a dismissal is found to be substantively unfair unless one of
the exceptions set out in s 193(2) applies…
[47]
As affirmed by this court previously, the fact that
a
significant period might have lapsed from the date of dismissal to
the date of the judgment is not a bar to reinstatement.
An employee whose dismissal is substantively unfair should not be
disadvantaged by the delays of litigation where she or he has
not
unduly delayed in pursuing the litigation.”
[5]
[17]
The second respondent sought to invoke the
provisions of subsection (2) (b). He concluded in his award thus: -
“
[96]
My finding is that reinstatement
would be intolerable under the
circumstances of this case.
The applicant was dismissed almost
six years ago. There has been protracted litigation between the
parties both at the CCMA and
the Labour Court. Mr Boikanyo who is
currently the chief operations officer of the Respondent gave
evidence which implicate the
Applicant in the possession of money,
shows that if the Applicant return back to work things might not be
good between the Applicant
and Boikanyo. Furthermore, the Applicant
is currently running his own practice as an immigration consultant.
Some of the evidence
of the Applicant about the money at Mugg ‘n
Bean is questionable. The Applicant was referred to page 701 Volume 2
where it
was stated that the Applicant will testify that the money
was a gift for advice given. The Applicant answer to the above is
said
that in hindsight after all evidence that they had in
preparation of trial they learned it was money. This was an
unacceptable
answer by the Applicant and his version here was
improbable. Furthermore, the Applicant’s evidence was that when
he was arrested
he was in possession of a motivational book but
cannot remember the author’s name. This is very suspicious….”
[18]
In court, Mr Tsatsawane correctly conceded that
the fact that Boikanyo was the current COO was an error of fact, thus
this fact
would not account for the denial of the primary remedy.
What is the meaning of
the exception in section 193(2) (b)?
[19]
The
section makes reference to the circumstances surrounding the
dismissal, so, it is those circumstances that should make
continuation
of employment relationship intolerable. To my mind, such
would mean circumstances confined to the dismissal itself. Therefore,
in my view anything not connected to the dismissal should not be a
factor. This Court in the matter of
New
Clicks SA (Pty) Ltd v CCMA and others
[6]
,
had an occasion to say the following: -
“
[8]
As a point of departure the section recognises that reinstatement is
a primary remedy…
[9]
In Mr Watt-Pringle’s submission, fact that the applicant’s
witnesses testified
that the dismissed employees were not to be
trusted is such circumstances contemplated in section 193 (2) (b)
which would render
continued employment intolerable. That being the
case, so the argument went, then the second respondent was precluded
by operation
of law to reinstate.
[10]
I do not agree…So if section 193 (2) (b) were to be
interpreted to mean that because at
one point, the employer has had a
strong suspicion that an employee is guilty of misconduct then such
renders continued employment
intolerable, then the primary remedy
will never be afforded to an employee dismissed for misconduct.
[11]
In my view, the section must be interpreted
to mean that evidence
need to be led to substantiate the fact that continued employment
would be intolerable
. Such may include but not limited to
evidence of a fall out between the dismissed employee which is caused
by a factor independent
of the allegations of misconduct or closely
connected to the misconduct alleged.
[12]
This must be so, in that once a commissioner finds that the
misconduct alleged has not been proven,
then the cause of
intolerability would be naturally removed
. However, if an
employer leads evidence to suggest that despite the finding of
misconduct there exists circumstances and not allegations
that would
render continued employment intolerable.
[13]
Again care must be exercised by employers to leave it for the
commissioner as it is argued in
this matter to phantom that the
continued relationship would be rendered intolerable. It is the duty
of an employer to present
evidence that will suggest that the
continued employment would be intolerable.
[15]
…Of course given the fact that reinstatement is a primary
remedy, the
commissioners should sparingly and after careful
consideration of all circumstances invoke the provisions of section
193 (2) (b)
of the LRA, to deny the remedy.
[17]
All in all, I am saying for section 193 (2) (b) to defeat the primary
remedy,
there must be convincing reasons for such
…
[19]
On the contrary, a decision to refuse the primary remedy
is
reviewable if no cogent reason supported by evidence is given for it.
Such in my view would be an unreasonable award.
[21] I must add, to deny
individual employees job security albeit with capped compensation,
offends the very basic principle upon
which the right to fair labour
practice is founded…
[20]
Shortly
after the
New
Clicks
judgment supra, the Labour Appeal Court (LAC) in
Maepe
v CCMA and Another
[7]
,
per Zondo JP (as he then was) said the following about the
subsection:-
“
[14]
…It is possible that in so far as the giving of false evidence
under oath may have occurred
in the disciplinary inquiry before the
dismissal, particularly where it was one of the factors that were
taken into account in
making the decision to dismiss. However, it
does not appear to me that the same can be said of a situation
where
giving false evidence only occurs in the arbitration or at the trial
subsequent to the dismissal.”
[21]
I
therefore understand the learned Justice President (as he then was)
to be saying that a factor that crops up after the dismissal
is not
and cannot be a factor to render continued employment intolerable.
The
Maepe
judgment was followed in a number of decisions thereafter. However
recently, the LAC in
Afgen
(Pty) Ltd v Ziqubu
[8]
without expressly stating that
Maepe
was
wrongly decided said the following:-
“
[26]
The other relevant matter is that of
Glencore Holdings (Pty) Ltd
and another v Gagi Joseph Sibeko and others
(Glencore) where the
Court properly accepted that an employee’s behaviour can be
taken into account to determine if reinstatement
or re-employment
must be awarded, more particularly where an employee behaved
offensively against the employer.
Whether the bad behaviour was
pre- or post-dismissal is irrelevant.
This Court in Glencore
stated that an employee’s behaviour no matter how abominable,
cannot automatically deny him/her an
award of reinstatement or
re-employment. Consideration should be given to the degree of
relationship contact between the employee
and his superior. The lack
of “functional role” performed by the employee in
Glencore including the lack of “functional
rapport with
superiors” meant that they could be no real obstacle in the
continued employment of the employee by Glencore
notwithstanding the
employee’s abominable behaviour”
[22]
It is apparent to me that the LAC in
Afgen
did not approve of the statement by Zondo JP that post dismissal
factor is not relevant. However, as I pointed out earlier, the
LAC
did not expressly overrule
Maepe
on that point. It could be said that by implication there was an
overruling. However, in my understanding, the LAC in
Afgen
found that the timing is not a particularly relevant factor. The
safer option would be to consider that what was said in
Maepe
is still binding on me. With time, the LAC shall express itself
clearly on this aspect. Either way, it seems to be settled that
an
employer bears the onus to demonstrate that reinstatement would be
intolerable. The Constitutional Court in
SACCAWU
,
albeit
dealing with section 193 (2) (c) stated the following: -
“
[50]
An
employer must lead evidence
as to why reinstatement is not reasonably practicable and the
onus
is on the employer
to demonstrate to
the court that reinstatement is not reasonably practicable…”
[23]
The
LAC in
Potgieter
v Tubatse Ferrochrome
[9]
took a view that it must be borne in mind that the commissioner had
exonerated the employee of all the charges and where the objective
facts do not support a finding of non-reinstatement, such a finding
cannot be upheld. Therefore, I take a view that a commissioner,
like
the one in this matter, is not empowered to willy-nilly choose which
evidence he or she believes would make continued employment
intolerable. It remains the call of the employer to identify, by way
of evidence, which factors would make continued employment
intolerable.
[24]
In considering the factors taken into account by
the second respondent, I come to the conclusion that the fact that
the dismissal
happened six years ago, cannot be a factor to bar
reinstatement. The Constitutional Court has spoken on this aspect.
The second
factor relating to the evidence of Boikanyo, Mr Tsatsawane
correctly jettisoned his support of this factor. Thus, it cannot
serve
as a bar to the reinstatement relief. The third factor that the
applicant was running an immigration practice is not a factor to
bar
reinstatement. There was no evidence from the respondent that this
factor would render continuation of employment intolerable.
At the
very best, if the applicant was running a thriving immigration
practice, he could himself have testified that he does not
wish to be
reinstated. The fourth factor, which is effectively a contradiction
in terms cannot serve as a bar. On the one hand,
the second
respondent made the following decisive finding: -
“
[89]
Even if I am wrong in respect of the above finding, the dismissal of
the Applicant would still be substantively
unfair in that
the
Respondent failed to prove that the Applicant received money from Dr
Gordon…”
[25]
To then on the other hand make reference to the
money issue and raise questions and/or suspicions is inappropriate in
my view. All
the submissions made by Mr Tsatsawane seem to point to
the finding that the third respondent failed to prove that the
applicant
received money from Gordon is inconsistent with the
evidence placed before the second respondent. I agree with the
submission,
the second respondent himself suggested that some
evidence is questionable and/or suspicious. The difficulty I have
though is that
there is no cross-review before me. These aspects go
to the question whether on the balance of probabilities, the
applicant did
receive money, thus guilty as charged. They are not
relevant to the question of a relief. In
New
Clicks
this Court stated the following:
-
“
[20]
Such similar argument was rejected by this court in
Amalgamated
Pharmaceuticals supra
. At para 13 of
the judgment the following was said:
“
The
mere fact that the applicant does not trust the individual
respondents cannot
without more
be a basis for holding that employment relationship has broken
down…To punish the individual respondents with unemployment,
even if this is accompanied with some compensation,
without
finding them guilty of any wrongdoing is grossly unfair.””
[26]
Having
considered all the factors considered by the second applicant, I must
then consider whether the second respondent nonetheless
acted
lawfully by denying reinstatement. In other words, his application of
section 193 (2) (b) was justified regard being had
to the proper
meaning of the section. In my view, the second respondent wrongly
interpreted the purpose and the import of the subsection
[10]
.
Secondly, he took into account irrelevant factors, which conduct
amounts to a material error of law that vitiates his award. Simply
put, the award was wrong in this regard. There were no cogent reasons
to deny the applicant the primary remedy. The LAC in
Potgieter
[11]
made it clear that intolerability generally addresses trust
relationship issues between the employer and the employee.
[27]
It is rather surprising to me why the third
respondent did not file a counter-review, especially in circumstances
where it submitted
that the applicant on his own version probably
received the money.
[28]
Accordingly, the award of the second respondent in
denying the applicant reinstatement is reviewable in law. In a number
of decisions,
this Court and the LAC found that where reinstatement
as a competent relief was ordered by a commissioner, such order fell
within
the bounds of reasonableness.
What then?
[29]
Mr Tsatsawane submitted that it would be fair and
equitable to direct the third respondent to pay to the applicant
maximum compensation
in order to bring an end to the dispute. In
fact, at the conclusion of argument, the Court was favoured with a
“with prejudice”
offer to pay the applicant an amount
equivalent to R 1 269 536 – 42. This offer was not
accepted by the applicant.
[30]
One
must not lose sight of the fact that this court, at this stage, is
sitting as a court of review. Section 193 (1) permits this
Court
sitting as a Court of first instance to, within its discretion, order
the employer to pay compensation, if it makes a finding
that a
dismissal is unfair
[12]
. The
second respondent made a finding that the dismissal of the applicant
was both substantively and procedurally unfair. He chose
to award
compensation as opposed to the primary remedy. This remedy was not
competent since the default position is that of reinstatement.
The
applicant is aggrieved by this choice of remedy.
[31]
It
being a review, section 145 (4) of the LRA decrees that if the award
is set aside, the Labour Court may determine the dispute
in the
manner it considers appropriate. Once the Labour Court exercises a
discretion to determine the matter, appropriateness is
what guides
it. In my view, appropriate in this instance should mean to do what
is lawful. What is lawful is for the arbitrator
to have required the
third respondent to reinstate. Having not done what is appropriate,
this court must do it in his stead
[13]
.
[32]
Unlike
in a matter where some evidence is required to reach a conclusion on
the appropriateness of a remedy, in a matter where a
decision maker
has failed to apply the law-ordering a competent default order of
reinstatement, the Court of review is empowered
to simply apply the
law
[14]
. In this instance, the
application of the law entails that the third respondent must be
required to reinstate the applicant. A
finding has been made, and
such a finding has not been challenged, i.e. that the dismissal of
the applicant was unfair on both
legs. Such finding calls without
more for the affording of a competent remedy unless the exceptions
are shown to exist. It is my
finding in
casu
that the exceptions are not shown to exist, therefore the default
position must obtain. The situation that obtained in
Afgen
[15]
does not obtain on the facts of this case. In other words, this case
is distinguishable from
Afgen
on the facts. Had the arbitrator ordered reinstatement, he
would have been in the position to fix a date from which the
reinstatement was to take effect. That involves an exercise of
discretion. The only limitation in the exercise of the discretion
is
that the date cannot be fixed at a date earlier than the date of the
dismissal.
[33]
Therefore, in my view, this court is in as good a
position as the arbitrator was. Ordinarily, a commissioner who orders
reinstatement
would be doing so from the date of the award, unless he
or she orders retrospectivity – the date not earlier than the
date
of dismissal. In this matter, if this Court exercises its
discretion to order reinstatement from the date of dismissal –
1 June 2010, such would mean that the third respondent would be
saddled with backpay in the region of nine years’ salary.
Although it was done in
Potgieter,
this
shall not be appropriate in my view. Since I am a Court of review, I
must postulate what should have happened in order to conform
to the
law. At best, had the second respondent afforded the applicant
reinstatement as he should have, he should have reinstated
him
effective from the date of the award.
[34]
Since I exercise a discretion to determine this
dispute as opposed to remitting it back to the CCMA, I must do what
the second respondent
should have done when making his award on 6
October 2016.
[35]
For
expediency and effective resolution of disputes as enjoined by the
LRA, this Court places itself in the shoes of the second
respondent
as at the time of making the award. It is appropriate to order
reinstatement from the date of the award
[16]
.
Equity
Aviation
[17]
judgment decreed that the fact that the dismissed employee has been
without income during the period since his or her dismissal
is a
factor to be taken into consideration when exercising discretion on
fixing the date of reinstatement. Ever since being decided,
Equity
Aviation
has been like an
alter
ego
of
any judgment considering reinstatement in the context of the LRA. It
has never been departed from for the past 11 years now.
[36]
Although there is no evidence as to the employment
status of the applicant currently, there was evidence before the
second respondent
that the applicant did ply a trade as an
immigration practitioner. It must follow axiomatically that he did
earn some income in
the plying of his trade as an immigration
practitioner. In fact, Mr Meiring, appearing for the applicant during
argument retorted
thus: “
Had he
not practiced as an immigration officer whilst still dismissed how he
would have survived?”
This factor
was considered by the second respondent in denying reinstatement.
Correctly categorized, it is in fact a factor relevant
to
retrospectivity of reinstatement as opposed to denial of
reinstatement. The applicant sought job security and the order
I am about to make would satisfy the applicant’s job security.
The core value of the LRA is security of employment.
[37]
With regard to the refusal to award arbitration
costs, when it comes to costs, a commissioner has a wide discretion.
A court of
review is loath to interfere with exercise of discretion
unless it is shown, which is not shown here, that the discretion was
exercised
with some
mala fides
or in a capricious manner. Therefore, this court shall not interfere
with this part of the commissioner’s award.
[38]
In the results, I make the following order:
Order
1.
The
award issued by the second respondent on 10 October 2016 under case
number GATW7089-10 is hereby reviewed and set aside only
to the
extent of denying the applicant the remedy of reinstatement.
2.
It
is replaced with an order that the applicant is reinstated with
effect from the date of the arbitration award.
3.
There is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate C Meiring
Instructed
by:
Geldenhuys CJ @ Law Inc, Pretoria.
For
the third Respondent: Advocate K Tsatsawane SC
Instructed
by:
Gildenhuys Malatji, Pretoria.
[1]
To promote the effective resolution of labour disputes.
[2]
Act 66 of 1995, as amended.
[3]
[2004] 2 All SA 609
(SCA) –The deponent to an affidavit in
motion proceedings need not be authorised to depose to the affidavit
(at para 19).
[4]
(2019) 40 ILJ 87 (CC).
[5]
Own underlining and emphasis.
[6]
(JR 1333/05) [2008] ZALCJHB 14 (27 February 2008).
[7]
[2008] 8 BLLR 723 (LAC).
[8]
Case JA34/18 delivered on 13 June 2019
[9]
(2014) 35 ILJ 2419 (LAC).
[10]
In
Boxer
Superstores (Pty) Ltd v Zuma and others
(2008) 29 ILJ 2680 (LAC) the court stated that: “
In
a case, as in the present dispute, where it is found that an
employer has not discharged the onus of proving that the dismissal
was fair,
the
competent remedy is that of reinstatement. Reinstatement is in
effect, the default position…
[11]
Ibid.
[12]
In
Draken
Industries CC v Commissioner Maande and others
[2014] ZALAC 42
at para 22 “
In
Billiton Aluminium SA Ltd t/a Hillside v Khanyile (2010) 31 ILJ 273
(CC) at para 27 the Court held that these remarks in the
Equity
Aviation case “relate to the inquiry at the first level of
engagement namely when the matter first comes before
a court or
commissioner. A commissioner or court, at that level, must act in
accordance with the provision of section 193(1)
and (2) in the
manner explained in Equity Aviation.”
[13]
This being the approach taken by the LAC in the
Potgieter
matter. There the LAC upheld the appeal and replaced the award of
the commissioner with an order reinstating an employee into
his
position and to be paid a salary he would have received had he not
been unfairly dismissed. It is instructive to note that
Potgieter
was dismissed around 2006 and the order of retrospective
reinstatement was made in 2014 – almost 8 years later.
[14]
The Court in Equity Aviation had the following to say: “
The
LRA’s objectives to resolve unfair dismissal disputes
expeditiously will be frustrated
if
remittal is granted especially where no exceptional for that relief
are shown to exist.”
[15]
See para 27-29 of the judgment.
[16]
This
approach was taken by the LAC in
Equity
Aviation
and was endorsed by the Constitutional Court as being correct. (para
50 of Nkabinde J judgment).
[17]
Equity
Aviation Services (Pty) Ltd v CCMA and others
(2008) 29 ILJ 2507 (CC).