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[2019] ZALCJHB 298
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National Union of Metalworkers of South Africa v Scribante Africa Mining (Pty) Ltd and Another (J1982/19) [2019] ZALCJHB 298 (5 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 1982/19
In the matter between:
NATIONAL UNION OF
METALWORKERS
OF SOUTH
AFRICA
Applicant
and
SCRIBANTE AFRICA
MINING (PTY) LTD
First
Respondent
SCRIBANTE CONSTRUCTION
(PTY) LTD
Second
Respondent
Heard: 3 October 2019
Delivered:
5 November 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The
applicant (NUMSA) approached this Court in terms of the provisions of
section 189A(13) of the Labour Relations Act (LRA)
[1]
to seek a declaratory order that the dismissal of its members by the
first and second respondents due to operational requirements,
was
unlawful/and or unfair, on account of the failure to invoke the
provisions of section 189 and/or 189A of the LRA, or to follow
a fair
procedure as envisaged in those provisions.
[2]
Central to NUMSA’s contentions is that when the facilitation
process
envisaged under section 189A (3) of the LRA was concluded,
and the time periods contemplated in terms of the provisions of
section
189A(13) read with section 189 of the LRA had expired without
the dismissals having been effected, the first and second respondents
were effectively precluded from dismissing its members on the
strength of that abandoned facilitation process, and ought therefore
have issued a fresh section 189(3) of the LRA notice.
[3]
The first and second respondents opposed the application and denied
that
the facilitation process was abandoned. They contend that NUMSA
and its members were advised on 30 June 2019 in a
consultative
meeting that the termination of employment would be
effective from 30 September 2019, and that there was no
obligation
or a need to issue a fresh notice or start the
facilitation process afresh after the facilitation process had taken
its course.
Background:
[4]
NUMSA represents its members who are or were employed at the first
respondent’s
coal mining operations in eMalahleni, Mpumalanga.
It further conceded that some of the individuals mentioned in
Schedule ‘A’
to the founding affidavit may not
necessarily be its members.
[5]
The first respondent, Scribante African Mining (Pty) Ltd is a company
incorporated in terms of the relevant statutes of the Republic and is
a subsidiary of Scribante Group (Pty) Ltd. The second respondent,
Scribante Construction (Pty) Ltd is further a subsidiary of the
Scribante Group. NUMSA’s contention is that to its knowledge,
the first respondent is the employer and that in the event that it is
found that the second respondent was erroneously cited, no
relief is
sought against it. For the purposes of convenience however, the first
and second respondents will collectively be referred
to as
‘Scribante’.
[6]
In July 2016, Scribante and a third party, South 32 Coal
Holdings
(Pty) Ltd (South 32), had entered into a three year contract
of service, which was due to end on 31 August 2019, with
an
additional two months for the purposes of de-establishing the
workplace and invoicing. In giving effect to the service contract,
Scribante had employed a number of employees in terms of indefinite
contracts or limited duration contracts linked to the duration
of the
South 32 contract.
[7]
Scribante contends that as the production in terms of the service
contract
was due to terminate on 30 June 2019, it had
commenced with retrenchment consultations process by issuing a notice
to
NUMSA on 31 April 2019. In the notice, Scribante
recorded that the service contract was coming to an end, and had
however
made an undertaking to the employees that it would pursue
negotiations with South 32 with the intention of extending the
service
contract for a further period post the termination date.
[8]
In the notice, Scribante however indicated that the consultation
process
as contemplated in section 189A of the LRA remained
desirable, in view of the fact that the dismissal of the employees
remained
a possibility, notwithstanding the planned attempts to
secure an extension of the service contract with South 32. In the
same notice,
Scribante further indicated its intentions to refer the
contemplated consultation process to the Commission for Conciliation
Mediation
and Arbitration (CCMA) for facilitation. Indeed on
30 April 2019, a request for a facilitation in terms of the
provisions
of section 189A of the LRA was made to the CCMA.
[9]
Following a request, the CCMA conducted such facilitations on 24 and
31 May 2019.
On 4 June 2019, Scribante issued
what it termed a comprehensive section 189(3) notice, with the view
of obtaining all
the affected employees’ submissions, to which
NUMSA and the other unions had responded on 10 June 2019. A
further
facilitation under the CCMA took place on 6 June 2019.
[10]
Scribante further contends that on 18 June 2019, it had
responded and addressed
all of NUMSA’s representations made in
its response of 10 June 2019, and had also presented a
slide show on the
issues raised by NUMSA and its responses, at an
un-facilitated meeting held on that date. The final facilitation
meeting was held
on 26 June 2019, resulting in the
Facilitator issuing a report which NUMSA seeks to rely on for its
contentions that
the process followed by Scribante was flawed.
[11]
On 30 June 2019, Scribante had issued a letter to NUMSA
advising that since the
60 day period for facilitation had expired,
the employees’ services were to be terminated at the end of
September 2019.
On 30 August 2019, Scribante advised
NUMSA that it was unsuccessful in its attempts to extend the service
contract with
South 32 beyond 30 September 2019. The letter
also served as a one month’s notice to NUMSA and its members,
and
advised that a small number of employees would be retained for
the purposes of de-establishment. NUMSA’s response on
3 September 2019
was to advise Scribante to stop the
dismissals and commence afresh with the consultations.
[12]
On 20 September 2019, NUMSA advised Scribante that it could
not accept that the
dismissals were to be proceeded with without a
fresh notice and compliance with the provisions of section 189 and
189A of the LRA
in respect of joint consensus seeking consultative
process. It placed Scribante on terms to undertake not to proceed
with the dismissals
failing which this Court would be approached for
urgent relief.
[13]
On 25 September 2019, Scribante sent correspondence to
NUMSA and all affected
parties to advise that all employees indicated
in a list published the previous week, would render their services
until 30 September 2019,
and further indicated how and when
their final payments would be made. This was followed by a response
to NUMSA’s letter
of 20 September 2019 wherein it was
indicated that in the light of the process followed through
facilitation, any urgent
application would be opposed.
The
parties’ submissions:
[14]
NUMSA holds the view that proper consultations were not held, in that
to the extent that
the facilitation process was abandoned, Scribante
ought to have issued a fresh section 189(3) notice for the purposes
of a proper
joint meaningful consensus seeking consultative process.
[15]
NUMSA appreciated that whilst facilitations took place, they however
came to an end on
26 June 2019 without dismissals, and
nothing of substance occurred given the uncertainty which had
prevailed at the time
in respect of the contractual arrangements
between Scribante and South 32 and their engagements in that regard.
NUMSA further relies
on the report of the CCMA Facilitator issued on
26 July 2019, which recorded
inter alia
that the
position of Scribante in relation to whether jobs would be lost or
not was unclear.
[16]
Thus, according to NUMSA, it was only once the dismissals became a
reality after Scribante’s
engagement with South 32 had failed,
that it was obliged to issue a fresh notice and conduct fresh
consultations, as new information
and a new economic rationale arose
from those engagements. To this end, NUMSA also holds the view that
other options flowing from
those engagements with South 32 would have
included looking at it utilising its influence with South 32 to save
jobs, or making
a range of proposals including looking into whether
the employees could not be absorbed into Scribante’s other
companies.
[17]
Despite the facilitation process having run its course and having
been concluded some four
days prior to the date of the proposed
dismissal, NUMSA holds the view that whilst some interaction took
place during such consultations
including looking at alternatives,
there were no proper and comprehensive consultations on all the
issues given the uncertainty
that prevailed, including on the timing
of dismissal, the selection criteria, severance pay etc., and that
the facilitation came
to an end due to a lack of direction on the
part of Scribante.
[18]
NUMSA further contends that at no stage did Scribante reserve its
rights to proceed with
the dismissals, and nor did it disclose its
further engagements with South 32. It was only on 30 August 2019
that Scribante
had advised by way of official notice, that it was
unable to secure a contract with South 32 beyond 30 September 2019
and that it accordingly intended to terminate all contracts of
employment even though it would endeavour to find alternative
placement
for scarce and essential skills in anticipation of future
work.
[19]
NUMSA also questioned the rationale behind the dismissal of 900
employees when the CCMA
report had mentioned that there was a total
workforce of 1 786 employees, and contended that since there was
no proper consultations,
it was not privy to Scribante’s
reasoning in this regard.
[20]
Following Scribante’s correspondence to NUMSA on
19 September 2019 in which
NUMSA was advised of the list of
employees whose last day of service was deemed to be 30 August 2019,
and the fact that
some employees were to be retained (based on skills
and LIFO) for the remainder of the de-establishment phase, NUMSA
further raised
concerns about plans to retain other employees for the
purposes of de-establishment, when that issue was never discussed nor
formed
part of the consultations.
[21]
Scribante opposed the application on a number of grounds including
that;
21.1
NUMSA’s proposition that the consultation process terminated on
26 June 2019
with no dismissals taking effect and therefore
necessitating fresh consultations was ill-founded, as it was advised
on 30 June 2019
at the consultation meeting that the
employees would be dismissed on 30 September 2019. That
advice was repeated and
confirmed on 30 August 2019 with
the notice of termination, as at the time, it was clear that no new
contract would be
entered into with South 32.
21.2
The fact that the service contract was extended was merely incidental
to the dismissal, and had
not changed anything other than delayed the
timing of the dismissal.
21.3
The allegations that Scribante did not consult on the selection
criteria, the timing of the dismissals
and severance pay were
untruthful as correspondence exchanged between the parties indicated
that these issues were dealt with at
length. In this regard, the
first of such correspondence was on 31 May 2019, where as
per the section 189 notice, Scribante
had indicated to NUMSA that if
the service contract with South 32 was not retained all employees
were to be affected, and where
also LIFO with skills retention and
severance package was proposed in respect of employees that were to
be retained.
21.4
The second correspondence was from NUMSA on 10 June 2019
where it had specifically
raised the possibility of employment of
employees on other sites, and that in regards to the selection
criteria, NUMSA had requested
information relating to skills and
particulars of employment, and further proposed LIFO and not skills
to be used as a selection
criteria. In that correspondence, NUMSA had
also proposed the end of December 2019 as the termination date,
and made proposals
on the severance pay.
21.5
The third correspondence was from Scribante on 18 June 2019
in response to NUMSA’s
proposals, wherein it was indicated that
the employment of employees on other sites was not possible due to
the nature of the contracts,
and had responded to proposals on
selection criteria and severance pay. In the light of the
correspondence, Scribante contends
that NUMSA gave an input on all
the issues it alleged it was not consulted on, which it had responded
to.
21.6
Scribante’s further contention is that the income from the
service contract with South
32 came to an end at the end of
September 2019, and it did not have money to pay the employees
beyond that period.
The
legal framework and evaluation:
[22]
In
Association
of Mineworkers and Construction Union and Others v Tanker
Services
[2]
,
Van Niekerk J reiterated the trite principle that in relation to
procedural fairness of a retrenchment, the LRA contemplates that
the
consultation process is one in which the parties jointly seek to
avoid retrenchment and ameliorate its consequences. It is
not a
process in which the employer party simply announces the decisions
that it intends to implement, and must remain open to
persuasion.
[23]
In
Steenkamp
and Others v Edcon Limited
[3]
,
it was stated that the objectives of section 189A(13) of the LRA is
to enhance the effectiveness of the consultation process by
providing
for the appointment of a facilitator and the mechanisms to pre-empt
and resolve disputes about substantive and procedural
unfairness
issues as and when they arise, during the consultation process.
Primarily, section 189A(13) of the LRA affords employees
or their
union who are aggrieved with the manner with which consultations were
conducted, an opportunity to approach this Court
on an expedited
basis, in order to compel the employer to comply with a fair
procedure, or to interdict or restrain the employer
from dismissing
them before having complied with a fair procedure as envisaged in
sections 189 and 189A of the LRA.
[24]
Bearing the above principles in mind, the starting point is that it
does not appear to
be in dispute in this case that the employment of
the employees was linked to the service contract with South 32, which
was due
to come to an end in August 2019. To the extent that
NUMSA disputes the economic rationale for the retrenchment (as per
its
response of 10 June 2019 to Scribante’s notice of
4 June 2019), that is clearly not an issue for this
Court
to determine at this stage.
[25]
The question that arises in this case is whether the consultation
process embarked upon
by the parties since the first notice was
issued on 30 April 2019 was flawed, for the purposes of the
relief sought by
NUMSA under the provisions of section 189A(13)(a) –
(b) of the LRA. It is common cause that facilitation process
initiated
after the section 189(3) notice issued on 30 April 2019
came to an end on 26 June 2019 without any dismissal.
The
question therefore is whether any subsequent events necessitated the
process to start afresh, specifically after Scribante’s
engagements with South 32 in regards to the extension of the service
contract.
[26]
To recapture NUMSA’s argument, it contended that despite
the fact that the
facilitation did not result in any dismissals
taking place, the notice leading to that facilitation process issued
on 30 April 2019,
did not in any event, comply with the
requirements of section 189(3) of the LRA, and was nothing but an
attempt to compel the employees
to agree to a different shift system
arrangement under threat of retrenchment. It further placed reliance
for its contentions on
the report of the Facilitator, wherein it is
recorded that as at 26 June 2019 when the facilitation
process ended, no
dismissals had taken place; that Scribante relied
on a service contract without producing a copy in that regard; and
further that
Scribante sought to introduce a two-shift system by
using the section 189A process.
[27]
The notice issued on 30 April 2019 is headed;
“
Consultations on possible retrenchment, alternatively
alignment of resources at the South 32 site in terms of section 189
of the
Labour Relations Act’.
It is addressed to NUMSA,
EWUSA and all employees at South 32 site, and advises that the
contract with South 32 was due to terminate
at the end of June 2019,
but that the parties were engaged in discussions on the possibility
of the service contract going
beyond that date. Scribante further
advised that depending on the outcome of engagements with South 32,
there might be a need to
align its operational needs and that there
may be a possibility of termination and/or changes, which would
include but not limited
to working hours and shift structures. In the
notice, it was further indicated that the CCMA would be approached
for facilitation
of the consultation process on issues that are
ordinarily covered under section 189(3) of the LRA and the nature of
the information
to be disclosed.
[28]
NUMSA is correct in pointing out that the notice does not indicate
how many employees would
be affected. Be that as it may, this does
not necessarily make the notice defective, on the basis that at the
time that it was
issued, Scribante could not have known how many
employees would be affected, as it was still going to enter into
discussions with
South 32 on the possibility of an extension of the
service contract. This was even more evident in the request for
facilitation
by the CCMA, where Scribante had indicated the number of
employees to be affected to be 951, but had not indicated the number
of
those to be retrenched.
[29]
NUMSA does not deny that four facilitations were held between
24 May 2019 and
26 June 2019, with an additional
un-facilitated meeting on 18 June 2019. Its case
however is that that
facilitation process ended up with no dismissals
being effected, which meant that since there were new developments
necessitating
a retrenchment, a new notice ought to have been issued.
[30]
Several difficulties arise from NUMSA’s contentions. The first
is that under the
provisions of section 189A(7) of the LRA, where a
facilitator has been appointed, the employer is precluded from giving
notice
to terminate the contracts of employment, unless a 60-day
period from the date on which notice was given in terms of section
189(3)
of the LRA has lapsed. In this case, the notice of
contemplated retrenchment was issued on 30 April 2019, and
it was
common cause that a comprehensive notice (dated 31 May 2019)
had followed on 4 June 2019. That had followed
upon two
facilitation meetings already held on 24 and 31 May 2019.
[31]
In the latter notice, Scribante again reiterated that it was unsure
as to how many employees
it was anticipated would be dismissed in
view of on-going discussions with South 32. It however gave a number
of approximately
400 positions that may be affected, further
indicating that those figures may change depending on discussions
with South 32. In
the notice, it was indicated that Scribante was
committed to meaningful consultations with a view to reach consensus
on a variety
of issues, indicating that no final decision was taken
on the matter as consensus had to be reached on those issues.
[32]
NUMSA had on 10 June 2019, comprehensively in a ten-page
document, responded
to the notice and its contents by disputing the
economic rationale for the retrenchments, and had made substantive
counter proposals.
Scribante had on 18 June 2019, also
comprehensively responded to NUMSA’s counter proposals, which
was followed
by a slide presentation on at an un-facilitated meeting
attended by NUMSA.
[33]
On 30 June 2019, Scribante had issued a notice to NUMSA,
advising that the 60
day period for the facilitation had expired and
that there was an agreement with South 32 to extent the service
contract by a further
three months, which meant that the services of
the affected employees would be terminated at the end of
September 2019.
[34]
To the extent that the notice of intention to retrench was issued in
April 2019, which
was followed by another one in May 2019, and
notwithstanding the uncertainties at the time, it was not in dispute
that the notice
of dismissal was issued on 30 June 2019 and
again on 30 August 2019. Clearly the latter notice of
termination
was issued after the 60 day period.
[35]
Further in the light of the above time line of events, I have
difficulties in comprehending
the basis upon which it can be said
that Scribante did not properly consult with NUMSA or that the
provisions of section 189 and
189A of the LRA were not complied with.
[36]
Scribante had from April 2019, indicated its intention to engage
South 32 on an extension
of the service contract and had kept NUMSA
abreast on its engagements, including advising it of the extension of
the service contract
in June 2019. NUMSA was fully aware of the
fact that as at the end of September 2019, the services of the
employees were
to be terminated. To this end, the contention that
there was a need to issue a fresh notice after 26 June 2019
is misplaced,
in that all that happened with effect from
30 June 2019, was that Scribante had obtained an extension
of the service
contract until end of September 2019. Nothing can
be read from the fact that no dismissals were effected before or
after 26 June 2019,
as Scribante and the employees had
merely obtained a life-line for an extra three months. The fact that
the Facilitator had recorded
that no dismissals were effected and
that all the jobs were saved is of little consequence in that at the
end of the facilitation
process, Scribante was still discussing the
possibility of an extension with South 32. The position however
changed after
30 June 2019 when the service contract was extended.
[37]
For NUMSA to however suggest that simply because no dismissals took
place as at 26 June 2019,
and that an extension of the
service contract was obtained thereafter which therefore necessitated
a fresh notice is clearly without
merit. The fact that the service
contract was coming to an end remained real, and it cannot be correct
that the extension of that
contract by a further three months created
new circumstances or a new rationale for the retrenchment for the
purposes of new consultations.
Nothing changed except that the
service agreement meant that the employees would be kept for another
three months.
[38]
If NUMSA was of the view that had it been engaged properly it would
have exerted its influence
with South 32 to either extent that
service contract further, or that it could have implored Scribante to
look at other options,
or that it could have influenced consultations
in regards to the timing of dismissal, the selection criteria,
severance pay etc.,
those are issues that are intrinsically linked to
substantive fairness of the retrenchments, that can be dealt with at
some point
in the future to the extent that NUMSA seeks to challenge
the economic rationale of the retrenchment. In any event, NUMSA had
conceded
that alternatives were explored during consultations, and
the fact that its counter proposals in that regard were not accepted
does not imply that they were not considered with an open mind.
[39]
To reiterate, Scribante’s contract of service given its limited
duration was always
going to come to an end, and it is not clear from
NUMSA’s submissions as to how it could have prevented that
eventuality.
The fact that Scribante was uncertain about when that
was going to happen or how many employees were to be affected given
its engagements
with South 32, could not have given rise to new
circumstances after the last facilitation process of 26 June 2019,
for
the purposes of deeming that facilitation process nugatory.
[40]
The
submission made on behalf of NUMSA that the notice on 30 April 2019
was not a proper notice and was merely meant to
put pressure on the
Union is also without merit, as the service contract was due to come
to an end in June 2019. In the light
of the uncertainties
surrounding whether an extension of the service contract would happen
or how many employees were to be affected,
there was nothing that
prevented Scribante as from April 2019 in the light of the imminent
termination of the service contract,
from forming a
prima
facie
view
on
possible retrenchments, even a firm one, provided it demonstrated and
kept an open mind in the subsequent process of consultations
[4]
.
Scribante had done so as evident from its engagements in the
facilitation
process, private engagements between the parties; an exchange of
correspondence between the parties in regard to proposals
and
counterproposals; the advice by Scribante in June 2019 that an
extension with South 32 was obtained; and the subsequent
notices of
termination in June and August 2019.
[41]
In summary, I am on the whole, satisfied, that Scribante was prepared
to discharge its
statutory consultation obligations with an open
mind, to consult in good faith, and to do whatever it could to extent
the service
contract with South 32 and to save jobs. NUMSA might be
aggrieved with the ultimate outcome of that process, but that however
does
not imply that it was flawed.
[42]
The submission made on behalf of NUMSA that Scribante abandoned the
facilitation process
after June 2019 before the 60 day period is
equally without merit in the light of the conclusions reached
elsewhere in this
judgment, and in any event, it could have sought an
extension of that facilitation process under the provisions of
section 189A(2)(c)
and (d) of the LRA, if it was of the view that
further consultations under facilitation were necessary after 26 June
2019.
[43]
Furthermore, the fact that the notice of termination issued on
30 June 2019 indicated
that there were ongoing endeavours
to obtain an extension with South 32 cannot make that notice invalid
or irregular, as it was
common cause that those engagements were
ongoing. In the end, a conclusion that the consultation process was
flawed simply because
it took place in circumstances where there were
uncertainties, or engagements between the employer with a third party
to extend
a fixed term contract of service in order to save jobs,
cannot be sustainable. There is therefore, no basis for any
conclusion
to be reached in this case that the process followed was a
sham or designed by Scribante to change the shift systems to its
advantage
or obtain a leverage in its engagements with South 32, or
to put pressure on NUMSA. Ultimately, the contract with South 32 came
to an end, and I fail to appreciate what leverage was obtained by
Scribante in the circumstances.
[44]
Further to the extent that NUMSA sought relief by way of
reinstatement or an interdict
to stop any further dismissals, it was
not in dispute that the service contract with South 32 came to an end
and clearly there
are no positions where the employees can be
reinstated. To the extent that NUMSA is aggrieved by the fact that
some employees were
retained for the purposes of winding up
operations at the site, those are issues related to the fairness of
the selection criteria
which can be dealt with in due course if NUMSA
elects to pursue them. Consequently, this application ought to fail.
[45]
I have further had regard to the requirements of law and fairness in
regards to the question
of costs, and I am of the view that each
party must be burdened with its own costs.
Order:
[46]
In the premises, the following order is made;
1. The applicant’s
non-compliance with the Rules of this Court in respect of the time
frames and manner of service is condoned
and this matter is heard as
one of urgency.
2. The applicant’s
application in terms of the provisions of section 189A(13) of the LRA
is dismissed.
3. There is no order as
to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances
For
the Applicants:
M. Niehaus of Minnaar Niehaus Attorneys
For
the First Respondent: M Grobler with O. Smith, instructed by: Van
Wyk & Associates
[1]
Act 66 of 1995 (as amended). Section 189A (13) provides:
‘
If
an employer does not comply with a fair procedure, a consulting
party may approach the Labour Court by way of an application
for an
order-
(a)
compelling the employer to comply with a fair procedure;
(b)
interdicting or restraining the employer from dismissing an employee
prior to complying with a fair procedure;
(c)
directing the employer to reinstate an employee until it has
complied
with a fair procedure;
(d)
make an award of compensation, if an order in terms of paragraphs
(a) to (c) is not appropriate.’
[2]
(2018) 39 ILJ 2265 (LC) at para 22
[3]
2019 (7) BCLR 826
(CC); (2019) 40 ILJ 1731 (CC);
[2019] 11 BLLR 1189
(CC); See also
Retail
and Associated Workers Union of South Africa v Schuurman Metal
Pressing (Pty) Ltd
(C 458/2004)
[2004] ZALC 74
(13 October 2004) (Unreported, where it
was held;
“…
the aim of section
189A(13) is to provide a remedy to employees to approach the Labour
Court to set their employer on the right
track where there is a
genuine and clear cut procedural unfairness which goes to the core
of the process. The section is aimed
at securing the process in the
interests of a fair outcome. It follows that not every minor
transgression of a procedural nature
will invite the benefit of the
court’s discretionary power to grant a remedy. To hold
otherwise would be to open the door
to excessive litigation, abuse
and unnecessary delay in the process of consultation. Section
189A(13) is aimed at unjustifiable
intransigence, it is not
available as a tool to thwart a retrenchment process where the
process, as in the present case, is otherwise
capable of being
rescued by genuine efforts to cure such flaws as may exist.
Moreover, it would be cumbersome, if not futile,
to make an order
compelling the respondent to issue a notice disclosing information
which it already has disclosed. There would
be no point.”
[4]
See
South
African Commercial Catering and Allied Workers Union and Others v
JDG Trading (Proprietary) Limited
(2019) 40 ILJ 140 (LAC);
[2019] 2 BLLR 117
(LAC)
at
para 29