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[2019] ZALCPE 8
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Careways Wellness (Pty) Ltd v Solidarity obo Adlam and Others (PR193/2017) [2019] ZALCPE 8 (27 March 2019)

THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
reportable
Case
no: PR 193 /2017
In the matter between:
CAREWAYS
WELLNESS (PTY)
LTD
Applicant
and
SOLIDARITY
obo M ADLAM

First
Respondent
F SAULS
N.O
Second
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION                                             Third

Respondent
Heard: 31 January 2019
Delivered: 27 March 2019
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 31 July 2017 under case number
ECPE1559-17 where the
Second Respondent (the arbitrator) found Ms
Adlam’s (the employee) dismissal substantively and procedurally
unfair and ordered
the Applicant to pay her 12 months’
compensation.
[2]
The Third Respondent opposed the
application.
The evidence adduced:
[3]
The issue to be decided by the arbitrator
was whether the employee’s dismissal was substantively and
procedurally fair.
[4]
The Applicant had employed the employee as
an ‘Onsite Wellbeing: National Coordinator’ until her
dismissal on 28 February
2017, for reasons related to the Applicant’s
operational requirements.
[5]
In order to assess the arbitrator’s
findings, it is necessary to consider the evidence adduced at the
arbitration proceedings.
[6]
In
2015, Life Healthcare Services (Life) acquired Careways (the
Applicant), a wellness company in order to expand and have a full

component when they bid for tenders in the industrial and mining
environment. Careways was not doing well and at the time it was
in
the process of liquidation. Life, when acquiring Careways, went
through a section 197 of the Labour Relations Act
[1]
(the LRA) process and absorbed all the employees. As the business
still struggled, the Applicant went through a retrenchment process

that started in August 2016 and which resulted in employees being
retrenched or demoted to lower positions.
[7]
The employee was dismissed at the end of
February 2017. In her opening statement at the commencement of the
arbitration, the employee
challenged procedural fairness on the basis
that the Applicant has not followed a process that complied with
section 189 of the
LRA in that there was no notification issued and
there were no proper consultation meetings held. In respect of
substantive fairness,
she indicated that she was the only one who was
retrenched and she did not know the reason why she was retrenched.
[8]
The Applicant’s first witness, Ms
Joyce van Niekerk, testified in her capacity as the regional manager
of Careways for the
Western and Eastern Cape. In August 2016 a
business review of Careways was undertaken and the employee was
interviewed with the
view of understanding what her role in Careways
was. In October 2016, Ms van Niekerk had another discussion with the
employee about
her position. The wellness part of the business, where
the employee was employed, was under review.
[9]
As early as September / October 2016, the
employee’s CV was sent out to other business units within the
Life group to establish
whether there was any alternative, suitable
position for the employee. The employee was offered short term
alternative positions,
such as assisting with the reception or other
administrative tasks, until the Applicant could find a suitable
alternative position,
but in the long term there was no reasonable
alternative for the employee in Port Elizabeth.
[10]
On 5 October 2016, Ms van Niekerk had a
meeting with the employee and she provided the ‘consultation
minutes’ wherein
the topics for discussion were recorded. Ms
van Niekerk explained that the recorded topics were discussed with
and explained to
the employee and she gave her feedback and made
comments on the topics. It is evident from the minutes that the
reason for retrenchment
was recorded as being that the Applicant did
not have enough business to justify the full-time placement of a
co-ordinator in the
Eastern Cape region. As a result, it was proposed
that the employee take over the duties of the receptionist, that her
salary would
not be affected and that it was a temporary arrangement
while the Applicant was looking for an alternative placement of the
employee.
It was also recorded that the timing of the retrenchment
was discussed, that the employee would consider the issues discussed
and
revert to Ms Van Niekerk and that the Applicant would respond to
any alternatives to be proposed by the employee.
[11]
Ms van Niekerk testified that when she had
this discussion with the employee in October 2016, the issues were
not new to her due
to the fact that Mr Neil Andershar, the business
development manager, already had a discussion with the employee about
her position
and the business review that the Applicant initiated.
Also prior to this discussion, the employee had already provided her
CV to
Ms van Niekerk for distribution within the company to try and
find another suitable position. According to Ms van Niekerk, the
employee was aware that her position was under review.
[12]
On the reason for the employee’s
retrenchment, Ms van Niekerk testified that the employee was
responsible for coordinating
onsite wellness days with clients, which
could be a one or sometimes as two-day event around wellness. Ms van
Niekerk was told
by the employee and other colleagues that there was
not enough business to justify a full time coordinator. This was
caused by
the fact that Discovery took its business away from the
Applicant and in general there was a substantial decrease in the
wellness
business, to the extent that the Applicant was reviewing it
to see if it was worthwhile to continue with the wellness business at

all. After the employee’s retrenchment, the Applicant further
reviewed the wellness business and there were further consultations

with staff regarding possible retrenchments. In the past six months,
the Applicant had done only one wellness day for a client
in Port
Elizabeth.
[13]
The employee was retrenched on 31 January
2017, with February 2017 being her notice month on account of the
fact that her position
became redundant and no suitable alternative
position could be found.
[14]
Ms van Niekerk explained that retrenchment
was the last option. The Applicant was taken over and during the
process of streamlining,
some positions were redundant or
consolidated. The Applicant no longer has any wellness coordinator
position as there were little
wellness day events and due to the lack
of business, there was no need for such a position anywhere.
[15]
In cross-examination Ms van Niekerk
conceded that the employee was not issued with a written notice as
envisaged in section 189(3)
of the LRA. The explanation she tendered
for not issuing the required notification was that the CEO requested
her to have a conversation
with the employee about the issues they
discussed on 5 October 2016, as Ms van Niekerk was in Port E Lizabeth
on that day and there
was no time to have the notification issued. Ms
van Niekerk could not tender any explanation why the section 189(3)
notice was
never issued to the employee, even subsequent to the first
meeting in October 2016.
[16]
It is evident from her evidence that Ms van
Niekerk sent the employee an electronic mail (email) on 3 October
2016, informing her
that she would be in Port Elizabeth on 5 October
2016 and that she was requesting ‘a short meeting’ with
the employee.
Ms van Niekerk had not informed the employee what the
meeting was about and she prepared no agenda for the meeting. In her
evidence,
she explained that she had wanted to discuss something else
with the employee and was only instructed in the morning of 5 October

2016 to discuss the retrenchment issue with her. From this, it is
evident that neither Ms van Niekerk nor the employee was expecting
to
have a section 189 consultation meeting on 5 October 2016.
[17]
The employee wrote an email to Ms van
Niekerk (after the meeting of 5 October 2016) wherein she had pointed
out that the Applicant
was not following the correct procedure in
terms of section 189 of the LRA and Ms van Niekerk explained that she
forwarded that
email to the Applicant’s head office, who gave
her advice and instructions on what to do next.
[18]
On 1 November 2016, the employee made
written proposals and gave inputs subsequent to the discussion she
had with Ms van Niekerk
on 5 October 2016, yet Ms van Niekerk never
responded to the email she received from the employee.
[19]
Ms van Niekerk had another informal meeting
with the employee on 9 December 2016, which was scheduled as Ms van
Niekerk was in Port
Elizabeth on that date. On this date Ms van
Niekerk confirmed with the employee that she was willing to relocate
and Ms van Niekerk
conveyed this message to the Applicant’s
head office.
[20]
On 12 December 2016, the employee addressed
a letter to Ms van Niekerk, referring to the conversation of 9
December 2016 and confirming
that she was willing to consider a
position in Gauteng. The employee requested an official letter as her
decision would be based
on that. Correspondence followed between them
and the employee persisted with her request that she be provided with
a letter setting
out what was offered to her so that she could
consider the available options. Such a letter was never provided.
[21]
Ms van Niekerk explained that at the time a
position was available in Illovo, but between December 2016 and
January 2017, the Applicant
decided not to continue with the position
anymore. Ms van Niekerk had another discussion with the employee on
31 January 2017,
informing her that the Applicant would proceed with
retrenchment as there was no suitable alternative position available.
[22]
Ms van Niekerk conceded that the employee
posed questions as to whether the entire wellness division was
closed, and if not, why
was she the first to be retrenched as she had
the most years of service, etcetera, and those questions were never
answered.
[23]
Ms van Niekerk conceded that there was a
national coordinator wellness events position available in
Johannesburg but that position
was never offered to the employee. The
reason was because the Applicant was considering outsourcing the
wellness coordination to
an outside service provider as the wellness
component of the business was not doing well and is still not doing
well.
[24]
Ms van Niekerk testified that the employee
was doing very little work in terms of the position she occupied,
because there was no
work in the wellness events coordination. She
could however not explain why the employee was not considered for
other positions,
notwithstanding her skills and willingness to
relocate and the possibility of a transfer to a different division
within the Life
Group.
[25]
She conceded that there was no consultation
with the employee on the issue of severance pay.
[26]
The employee testified that on 21 July
2016, Ms van Niekerk visited her office and they had a teleconference
with Mr Andershar and
during this discussion, they spoke to her about
her role and whether she would consider moving to Illovo, since the
Applicant did
not have new business tasks to assign to her in Port
Elizabeth, as Life was already doing most of the things the employee
did at
that point. The employee was told that the Applicant was
unable to utilise her if she was based in Port Elizabeth. Initially
the
employee was reluctant to move to Johannesburg due to her
personal circumstances, but shortly thereafter she indicated her
willingness
to relocate.
[27]
The employee explained that Life, like
Careways, had their own business division and there was a duplication
of roles after the
takeover and it was made clear to her that there
was no need for her position in Port Elizabeth.
[28]
After the discussion with Mr Andershar on
21 July 2016, the employee had no further discussions with him and
apart from the meeting
with Ms van Niekerk on 5 October 2016, there
was no other meeting where her possible move to Johannesburg was
discussed.
[29]
The employee testified that the meeting
with Ms van Niekerk on 5 October 2016 lasted for about 30 minutes and
that Ms van Niekerk
told her that there was not enough work for the
position she held. The employee accepted this fact and explained that
it was an
issue that she flagged with the Applicant and she offered
assistance to colleagues to keep busy. She explained that the
Applicant
lost the Discovery wellness contract at the end of 2015.
Discovery was the Applicant’s main source of work up to that
point
and in January and February 2016, the Applicant did not get a
lot of work and by March 2016 the employee had sent her manager an

email wherein she expressed her concern because of the lack of work
and she asked whether there was a possibility that she could
assist
in other divisions of the business as the work she was doing, was not
enough. She never received any response.
[30]
The employee’s move to the reception
was discussed in the meeting on 5 October 2016 and she agreed to
assist with the receptionist
post, but indicated that she was not too
happy about it as she had skills and experience that could add more
value to the business.
This was in any event only a temporary
arrangement.
[31]
The employee testified that she responded
on 1 November 2016 to the minutes of the meeting held on 5 October
2016, which she received
on 28 October 2016, and indicated that she
had not received a notice as envisaged in section 189(3) of the LRA.
She was scared
when she saw that the minutes referred to the meeting
as a consultation and after she obtained legal advice, she informed
the Applicant
that she did not regard the meeting as a consultation,
as she did not receive the required notice. The employee gave inputs,
as
she was requested to do, to which the Applicant never responded
and never gave her feedback.
[32]
The employee corroborated the evidence of
Ms van Niekerk that they had a meeting on 9 December 2016 where she
confirmed her willingness
to relocate and that on 12 December 2016,
she asked for formal letters setting out the available options.
[33]
The employee confirmed that after 9
December 2016, she did not have another meeting with Ms van Niekerk
regarding her position.
The next discussion with Ms van Niekerk was
on 31 January 2017, when she was informed that her position was
redundant, there was
not enough work, there was no alternative
position, and that the Applicant was going to retrench her.
[34]
The employee directed a number of questions
to Ms van Niekerk, after she was informed that she would be
retrenched, and she made
follow up enquiries on when her questions
would be responded to. The Applicant never responded to her.
[35]
In cross-examination the employee persisted
with her position that no consultation was ever held with her as
required by the LRA,
the Applicant only had informal discussions with
her. The meeting she had with Ms van Niekerk on 5 October 2016, was
not a consultation
in terms of section 189 of the LRA and in her view
it was a meeting to discuss what else the employee could do within
the business.
The Applicant proposed that she assist with the
receptionist position, which proposal she accepted, as at the time
she did not
think that she was going to lose her job. She explained
that wellness had gone through many changes and always recovered and
she
assumed that it would recover again if the Applicant got new
business and because Mr Andershar had said that he would do
everything
he could to revive the onsite wellness business. She knew
the business was not doing well.
Analysis of the
arbitrator’s findings and the grounds for review
[36]
In his analysis of the evidence, the
arbitrator recorded that the employee disputed that her dismissal was
based on a fair procedure
and that reasonable grounds existed for her
dismissal. As both substantive and procedural fairness were in issue
at the arbitration,
an enquiry into both aspects of fairness was
necessary.
[37]
The Applicant challenged the award on three
main grounds: the arbitrator’s finding on substantive
unfairness, procedural unfairness
and the relief awarded. I will deal
with each of the grounds in turn
infra.
[38]
I
have to deal with the grounds for review within the context of the
test this Court must apply in deciding whether the arbitrator's

decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable

decision maker could make.
Substantive unfairness
[39]
The Applicant’s case is that the
arbitrator failed to apply his mind to the evidence before him by
finding the employee’s
dismissal substantively unfair as there
was no real dispute that a valid commercial reason existed for the
employee’s dismissal.
The evidence before the arbitrator was
that Life acquired Careways in circumstances where Careways’
business was ailing and
almost under liquidation, and after a section
197 transfer of the Applicant’s employees was finalised, a
business review
was undertaken in respect of the entire wellness
business, which included a consideration of the employee’s role
in the business.
The review of the wellness business was ongoing with
further possible and actual retrenchments on the table. It was common
cause
that the wellness business was struggling as a result of the
cancelation of their biggest client, Discovery. Furthermore, there

was not enough work for the employee in the position that she
occupied, to justify her full-time placement in the position and
on
her own version, the employee was aware of this and she even raised
concerns about her lack of work. The evidence further was
that there
was a duplication of roles and functions after the section 197
transfer and the employee was aware of this. It is evident
from the
evidence adduced that the employee was not occupied with work at full
capacity and that her position did not have enough
work.
[40]
The employee conceded that when the
Discovery contract was lost at the end of 2015, the Applicant lost
its main source of work and
not much new work was coming in after
that, to the extent that she raised her concerns about her lack of
work by March 2016.
[41]
The Applicant further adduced evidence that
it was considering to outsource the wellness business component as
there was very little
wellness coordination work being done. It was
not viable for the Applicant to retain the role of wellness
coordinator in its operations,
whether in Johannesburg or elsewhere,
thus a position in Johannesburg was not a viable alternative.
[42]
The arbitrator found, based on the
evidence, that the employee’s dismissal was substantively
unfair. It is not apparent from
the arbitration award what the basis
for the finding on substantive unfairness was.
[43]
It is evident from the arbitration award
that the
ratio decidendi
in
the award is confined to findings on procedural fairness and that
there is no finding to support the conclusion that the employee’s

dismissal was substantively unfair. It appears that the arbitrator
conflated procedural fairness with substantive fairness. The
result
of this is that he failed to evaluate a critical aspect of the
dispute he had to adjudicate and that he concluded substantive

unfairness, without any consideration of the issue and in the absence
of findings on substantive fairness.
[44]
It is apparent that the arbitrator did not
consider whether a fair reason to retrench the employee existed
before he concluded that
her dismissal was substantively unfair. A
perusal of the award shows that the arbitrator failed to consider any
of the factors
relating to the issue of substantive fairness that
were presented in evidence during the arbitration proceedings.
[45]
In my view, there is merit in the
Applicant’s first ground for review. I am satisfied on the
facts and evidence placed before
the arbitrator, that had the issue
been evaluated as required, a reasonable decision maker could not
have concluded that the employee’s
dismissal was substantively
unfair.
Procedural unfairness
[46]
It was common cause that the employee was
not issued with a section 189(3) of the LRA notice. Section 189(3)
requires of an employer
to issue a written notice to the employee to
consult with it and to disclose in writing all the relevant
information, as set out
in the said section. The arbitrator held that
the purpose thereof was to ensure a meaningful joint consensus
seeking process between
the parties and to endeavour to reach
agreement on the possibilities to avoid the envisaged retrenchment
and if that was not possible,
to determine the manner in which the
retrenchment will take place. The arbitrator found that there was no
evidence of such a process
initiated by the Applicant and
participated in by the employee. The Applicant’s case that the
meeting held with the employee
on 5 October 2016, 9 December 2016 and
31 January 2017 constituted consultation as prescribed in section 189
of the LRA, was seriously
misplaced and disingenuous.
[47]
The arbitrator held that the starting point
of the consultation process should have been to invite the employee
in writing to a
consultation process, to inform her of all the
matters set out in section 189(3)(a)-(j) and to enable her to prepare
for the consultation.
The Applicant’s failure to do so denied
the employee the opportunity to meaningfully consult. The Applicant
did not provide
the employee with the necessary information, as it
was by way of legislation required to have done.
[48]
The arbitrator found that there was no
evidence that the Applicant has complied with the provisions of the
LRA and the meetings
that the employee had with Ms van Niekerk, were
problematic in that Ms van Niekerk was in no position to react to any
of the initiatives
proposed by the employee, she had to refer back to
the head office or the CEO and she had no mandate to respond to the
employee
or to conclude anything as she had to refer everything for
further decisions. These decisions, however, were not conveyed to the

employee in a process of consultation and it never reached the
employee for her input.
[49]
The employee sent numerous emails to the
Applicant wherein she asked for information and she made attempts to
get clarity on the
process, and the only response she received from
Ms van Niekerk, was that she had submitted her requests to head
office. There
was no reply to the employee’s indication of her
willingness to relocate to Johannesburg and no offer of any
alternative
position was made to the employee. There was no
discussion on suitable alternative positions and none was put on the
table for
consultation and consideration in a meaningful way.
[50]
The arbitrator found, based on the
evidence, that the employee’s dismissal was procedurally
unfair.
[51]
The Applicant’s case is that the
arbitrator failed to undertake a balanced assessment into whether a
genuine consultation
process was followed and instead he adopted a
tick-box approach that placed form over substance. The formal
non-compliance with
section 189 of the LRA did not undermine the
purpose of consultation or render the employee’s dismissal
unfair. A consultation
process took place during which the employee
was provided with various information listed in section 189(3) and
she was consulted
on various topics prescribed by section 189. In
short, the Applicant’s case is that there was substantial
compliance with
the procedural fairness requirements of section 189
of the LRA.
[52]
In my view there is no merit in this ground
for review.
[53]
I cannot agree that the arbitrator took a
tick-box approach and that there was a proper consultation process
during which the employee
was consulted on the topics prescribed by
section 189 of the LRA.
[54]
It is evident that the Applicant did not
comply with the formal procedural requirements of section 189(3) of
the LRA. On Ms van
Niekerk’s own version, she was not the
employee’s line manager and the so-called ‘consultations’
she had
with the employee, were not because she was the employee’s
manager who understood what the employee’s role and functions

were or because she was in a position to answer questions and to take
the process forward or because she had a mandate to conclude
the
process, but rather because she happened to be in Port Elizabeth from
time to time and was asked to meet with the employee
as and when she
was in Port Elizabeth.
[55]
The arbitrator’s finding that the
Applicant’s case that the meeting held with the employee on 5
October 2016, 9 December
2016 and 31 January 2017 constituted
consultation as prescribed in section 189 of the LRA, was seriously
misplaced and disingenuous,
is not unreasonable in view of the
evidence that was placed before him.
[56]
It may be so that the employee was aware
that her position was under review, but being aware that a position
was under review, is
not the same as being aware that in fact a
retrenchment process was unfolding and that dismissal was a reality.
[57]
It is evident that material aspects, as
required in section 189 of the LRA, were not discussed with the
employee. The failure to
do so resulted in a number of questions
raised by the employee on issues that should have been discussed in
the joint consensus
seeking process, for instance the number of
employees to be affected and the proposed method of selecting which
employees to dismiss.
To make matters worse, the Applicant did not
respond to the employee.
[58]
On Ms van Niekerk’s version, the
issue of severance pay was not discussed with the employee.
[59]
In the minutes of the meeting held on 5
October 2016 it was recorded that the employee was to consider the
discussion and to revert
to Ms van Niekerk and that Ms van Niekerk
would respond to any alternatives proposed by the employee. The
employee provided Ms
van Niekerk with her inputs in writing and she
raised certain questions. The only response she received was that Ms
van Niekerk
had referred it to head office. On Ms van Niekerk’s
own version she did not respond to the employee because she did not
have
answers.
[60]
In
Johnson
& Johnson (Pty) Ltd v CWIU
[3]
the Labour Appeal Court (LAC) has held that:
‘
The
important implication is that a mechanical ‘checklist’
kind of approach to determine whether section 189 has been
complied
with is inappropriate. The proper approach is to ascertain whether
the purpose of the section (the occurrence of a joint

consensus-seeking process) has been achieved.’
[61]
It
is by now trite that fairness is a matter of substance and not form
and that a joint consensus-seeking process is not evaluated
by means
of a mechanical checklist. Implicit in the requirement of engaging in
a meaningful joint consensus-seeking process and
the attempt to reach
consensus on the topics prescribed by section 189(2) of the LRA, is a
fair opportunity to make meaningful
proposals in respect of the
proposed retrenchment. The employee should be given notice and be
afforded ‘the opportunity to
come to terms with the situation,
to reflect on the matter, to seek advice and prepare for consultation
and only then can a fair
and genuine consultation begin.’
[4]
[62]
In
Edcon
v Steenkamp and Others
[5]
the
LAC made reference to the provisions of section 189 of the LRA in
general terms and held that:
‘…
The
section imposes a number of duties on the consulting parties in
apparently peremptory terms. Thus, for instance, the employer
‘must’
consult, ‘must’ issues a written notice and ‘must’
select according to fair criteria.
Employers frequently fail to
comply with these provisions. The courts have not in the past
regarded such failures to result in
invalid dismissals leading to
automatic reinstatement. The remedy for non-compliance will be
compensation or a pre-emptive interdict
where the failure is
exclusively of a procedural nature, or otherwise reinstatement or
re-employment at the discretion of the court
after taking account of
a range of factual considerations. Again, the notion that a
retrenchment which does not comply with the
requirements of the
section must be deemed to be invalid and a nullity, is foreign to the
scheme and purpose of section 189A of
the LRA which provides discrete
and effective remedies for redressing flaws in the process’.
[63]
The duties imposed by section 189 of the
LRA are peremptory and it is not for an employer to decide and cherry
pick which ones they
want to comply with and which ones they want to
disregard. The remedy for non-compliance is compensation or
reinstatement or re-employment
at the discretion of the bargaining
council or court, after taking into consideration a range of factual
considerations.
[64]
Not every breach of section 189 of the LRA
makes the retrenchment unfair and I have alluded to the fact that the
proper approach
is to determine whether the purpose of the said
section had been achieved.
[65]
In my view the purpose of section 189 of
the LRA has not been achieved
in casu
as
there was no proper joint consensus-seeking process. In fact, the
employee was treated unfairly in that she was deprived of her
right
to have and participate in such a process. The only engagement was
limited to sporadic, informal meetings with Ms van Niekerk,
that were
wholly inadequate to qualify as consensus-seeking consultations, as
envisaged in section 189(3) of the LRA.
[66]
The Applicant’s non-compliance with
section 189 indeed undermined the purpose of consultation and
rendered the employee’s
dismissal unfair.
[67]
There is no merit in this ground for review
and the arbitrator’s finding on procedural fairness is
reasonable and is not to
be interfered with on review.
Relief awarded
[68]
Section 194 of the LRA provides for limits
on compensation and prescribes that the compensation awarded to an
employee whose dismissal
is found to be unfair, must be just and
equitable in all the circumstances and may not be more than the
equivalent of 12 months’
remuneration.
[69]
The application of section 194 of the LRA
and the awarding of compensation entails the exercise of a discretion
to determine the
quantum of compensation within the parameters set in
section 194(1) of the LRA. The awarding of maximum compensation
should be
reserved for the most egregious of unfair dismissals.
[70]
The employee was awarded compensation
equivalent to 12 months’ remuneration. The arbitrator
considered the fact that the employee
had 18 years’ service and
had it not been that the Applicant had lost major clients, she would
in all probability have continued
with her employment at the
Applicant. She has now, at an advanced stage of her life, to attempt
to start her working life all over
again, through no fault of hers.
The Applicant should have treated her fairly, but failed to do so.
[71]
The Applicant’s case is that the
compensation that was awarded to the employee was not just and
equitable as the arbitrator
was wrong in finding the employee’s
dismissal substantively unfair and he ignored the extent to which the
Applicant had complied
with the procedural requirements of section
189 of the LRA.
[72]
In my view there is merit in this ground
for review.
[73]
It is apparent from the arbitrator’s
findings that he accepted that the employee would have continued with
her employment
with the Applicant, had it not been that the Applicant
lost major clients. This effectively finds that there was a business
rationale
for the employee’s dismissal and that the termination
of her services was caused by the loss of major clients.  This

is a factor that should have played a role in the awarding of just
and equitable compensation.
[74]
The arbitrator’s finding that the
employee was substantively unfairly dismissed, distorted the enquiry
into what would constitute
just and equitable compensation. The
arbitrator clearly determined the question of compensation based on
his finding that the employee’s
dismissal was both
substantively and procedurally unfair. The distorted enquiry led the
arbitrator to grant maximum compensation,
when such was not justified
and cannot be regarded as just and equitable in all the
circumstances.
[75]
The quantum of compensation should be
reduced to reflect compensation that is just and equitable in
circumstances where the employee’s
dismissal was procedurally
unfair and substantively fair. In my view, compensation equivalent to
six months’ remuneration
will be just and equitable.
Relief
[76]
This leaves the issue of relief.
[77]
The Applicant seeks for the arbitration
award to be reviewed and set aside and to be substituted with an
order that the employee’s
dismissal was procedurally and
substantively fair. Alternatively, the Applicant seeks an order
remitting the matter for a hearing
de
novo.
[78]
In the event the award is set aside on
review, this Court has a discretion whether or not to finally
determine the matter. A matter
could be finally determined where
there is a full record of the proceedings before Court and where it
would be in the interest
of justice to finally determine the matter.
[79]
In casu,
I
am indeed in a position to decide and finally determine the matter on
the record as the record before me is complete and
the
parties’ cases were fully ventilated.
It
is also in the interest of justice to determine the matter finally
and not to order a re-hearing of the matter as the employee’s

dismissal took place as far back as 2017 and this matter should be
and could be brought to finality.
[80]
This Court has a wide discretion in respect
of costs and in my view this is a matter where the interest of
justice will be best
served by making no order as to cost.
[81]
In the premises, I make the following
order:
Order
1.
The
arbitration
award issued on 31 July 2017 under case number ECPE1559-17
is
reviewed and set aside;
2.
The arbitration award is substituted with
the following:
2.1.
The dismissal of Ms Madeleine Adlam was
substantively fair and procedurally unfair;
2.2.
The Applicant is ordered to pay Ms
Madeleine Adlam compensation equivalent to six months’
remuneration calculated at her rate
of remuneration on the date of
dismissal;
2.3.
The Applicant is ordered to pay the
compensation to Ms Madeleine Adlam by no later than 18 April 2019.
3.
There is no order as to costs.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
Applicant:

Advocate R Itzkin
Instructed
by:

Edward Nathan Sonnenbergs Inc Attorneys
Third
Respondent:
Ms Nel of Solidarity
[1]
Act
66 of 1995 as amended.
[2]
(2007)
28 ILJ 2405 (CC) at para 110.
[3]
[1998]
12 BLLR 1209
(LAC) at para 29.
[4]
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
(2000)
21 ILJ 129 (LAC).
[5]
(2015)
36 ILJ 1469 (LAC) at para 51.