THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JA 75/24
In the matter between:
SAHARA AFRICAN LIVING (PTY) LTD Appellant
and
SOLIDARITY obo MEMBERS Respondent
Heard: 23 September 2025
Delivered: 06 November 2025
Coram: Van Niekerk JA, Djaje AJA et Chetty AJA
JUDGMENT
VAN NIEKERK, JA
Introduction
[1] This is a case, one of many , no doubt , about the employment -related
consequences of the Covid- 19 pandemic that swept the world in 2020. The
appellant is in the business of providing aircraft and crew, mainly outside of the
borders of the Republic of South Africa, including destinations such as Comoros,
2
Mozambique, Iraq and Sudan. The individual respondents, Burton, Steyn and
Clark (the employees) are pilots, represented by their trade union Solidarity.
[2] During March 2020, the national stat e of disaster declared by the President
because of the pandemic had the result that commercial flights were prohibited,
borders and other points of entry closed, and travel banned. Many countries
introduced similar measures , with the result that t he aviation industry was
profoundly affected world-wide.
[3] In consequence, t he appellant introduced temporary measures to reduce the
employees’ remuneration, in return for their remaining employed. It is not in
dispute that the variation was introduced by the appellant without any
consultation with or agreement by the employees. Although the employees
appear initially to have accepted these measures without protest , as the
temporary period for which t he measures were introduced became more
extended, they became contested during the second half of 2020. Various
attempts to resolve the impasse failed, and after a failed attempt at conciliation,
the employees were ultimately retrenched, with effect from 31 July 2021.
[4] In a dispute referred to the Labour Court, t he employees contended that the
reduction in their remuneration constituted a breach of their employment
contracts, that their retrenchments were substantively and procedurally unfair,
and that the appellant had failed to pay them their statutory notice pay.
[5] The Labour Court delivered its judgment on 17 April 2024. The Court held that
the appellant had breached the employees’ contracts of employment for the
period March 2020 to June 2021 and, in so doing, failed to comply with section
34 of the Basic Conditions of Employment Act 1 (BCEA). The Court held further
that the retrenchment of the respondent employees was substantively and
procedurally unfair , and that the appellant had failed to pay each of the
procedurally unfair , and that the appellant had failed to pay each of the
employees their statutory notice pay of one months’ remuneration. The Court
awarded each of the employees the equivalent of three months’ remuneration in
1 Act 75 of 1997.
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compensation for the breach of section 34, eight months’ remuneration for their
unfair retrenchment, and the equivalent of a month’s remuneration as notice pay.
The Court made no order as to costs.
[6] The appellant appeals against the Labour Court’s findings in respect of the
contractual claims by Steyn and Clark, and the findings relating to the unfair
retrenchment dispute. While the appellant did not appeal against the Labour
Court’s finding in Burton’s favour , all three employees filed a cross-appeal
against the Court’s award of compensation and contending that they should have
been awarded the difference between their contractual and actual remuneration
for the period March 2020 to July 2021. This Court is entitled to decide the merits
of that part of the Labour Court’s order that Burton be compensated for what he
alleged to be a breach of contract.
Background
[7] The factual background is largely undisputed. The employees were permanently
employed by the appellant as pilots. Steyn and Burton were engaged as
captains; Clark was a senior captain. The employees were typically on- tour for
periods of about eight weeks, and off -tour for about four weeks. Prior to March
2020, Steyn earned a salary of $6 400 while on- tour, and $3 200 while off -tour.
Burton earned a salary of $ 6000 on- tour, and $ 2800 off -tour. Clark earned a
salary of $8 000 on- tour and $5 000 off -tour, all calculated pro rata according to
the number of days spent on- or off-tour in any given month.
[8] As noted above, in mid- March 2020, with few exceptions, the aviation industry
ground to a halt. Most countries began suspending both international and
domestic flights . The appellant was largely prevented from conducting its
business.
[9] On 16 March 2020, the appellant advised its employees that there would be
major disruptions to business and that while the nature and extent of the
disruption was unknown, the impact of the Covid-19 pandemic was anticipated to
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be severe. On 20 March 2020, the appellant addressed a communication to its
employees, stating that they would receive their full salar ies for the month of
March 2020, but that from the next pay cycle, commencing on 26 March 2020,
on-tour salaries would be reduced by 30% , and off -tour salaries would be
reduced by 20%.
[10] During the last week of March 2020, some of the appellant’s employees ,
including Clark and Steyn, were placed on temporary layoff until further notice.
On 24 March 2020, the appellant notified the employees that the 30% deduction
for on-tour salaries and 20% reduction for off -tour salaries would take effect from
the end of March 2020, and not from the end of April as previously
communicated. F urther, the appellant advised that off-tour salaries would be
reduced to 50% for the pay period 26 March 2020 to 26 April 2020. On 26 April
2020, employees were advised that those of them who had not been temporarily
laid off would only receive 50% of their salaries while on- tour and 50% of the
normal subsistence allowance while on contract, for April 2020. The
communication concluded:
‘We understand the huge impact that this will have on our crew, however this
situation is dire and beyond our control. Our goal is to keep the company alive
and to keep as many jobs as possible so that when this crises (sic) passed we
are in a position to move forward positively.’
[11] On 2 April 2020, the appellant notified its employees regarding its operations and
the prospect of TERS 2 payments. This state of affairs persisted beyond the
easing of Covid- related restrictions during the latter half of 2020. On 22
November 2020, a group of the appellant’s pilots , including the employees,
clearly frustrated by the continued reduction in their remuneration for more than
six months, submitted a grievance to the appellant. The grievance raised queries
and complaints regarding the work situation and salary reductions , and concerns
and complaints regarding the work situation and salary reductions , and concerns
2 The Temporary Employer/Employee Relief Scheme.
5
that the employees had not been consulted about the reduction in their
remuneration. The grievance included the following requests:
‘7. We require exact charity as to how long these measures will remain in
force, and when will the employer review the position and consult with us
on this matter?...
11. Given that additional crew and aircraft have been supplementing the
contract in Iraq, and the borders being mostly opened now, when can we
expect the layoffs to be suspended and salaries to be reinstated as per
our employment contracts?’
[12] On 9 November 2020, the appellant posted a questionnaire for completion by its
pilots. The pilots were requested to answer yes or no to the following questions:
‘a. Are you willing to be roster ed to fly on tour on your current Covid 19
impacted salary?
b. Are you willing to be fostered per location Iraq – Ballad airbase?’
[13] Clark answered yes to the first question and no to flying in Iraq; Steyn answered
yes to both questions, and Burton answered no to both questions. Apart from the
employees, two other pilots indicated that they were not prepared to fly in Iraq;
Mr Ortmann, who resigned before the retrenchment that is the subject of the
present dispute, and Mr Jansen van Vuuren, who later agreed to fly in Iraq.
[14] On 6 December 2020, the head of the appellant responded to the grievance and
indicated that “immediate and drastic measures ” needed to be implemented by
the appellant for the company to survive. He stated further:
‘We review the situation on a month-to-month basis and have provided feedback
where relevant. We cannot predict how long these measures will remain in
force…
We still continue to suffer a significant and devastating impact on our business.
Those employees who have indicated their willingness to work on the reduced
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salaries have and will be rostered to work. We continue to plan and manage the
crew roster to ensure all crew who are willing to work on the reduced salary are
given an equitable chance to recover their loss of income whil st temporarily laid
off. We cannot predict how long these measures will remain in force.’
[15] On 11 February 2021, the employees’ trade union S olidarity began engaging in
correspondence with the appellant. In a series of letters and emails, Solidarity
expressed its members’ unhappiness at the lack of consultation at the outset and
also at the lack of any clear indication of how long the Covid- induced measures
would remain in place.
[16] In a letter to the appellant dated 11 February 2021, Solidarity recorded that it was
mandated to engage with the appellant to:
‘… establish an agreement on the continuation of these changes on mutual
terms, inclusive of timelines and measurable outcomes, in the hope that some
normality can be achieved sooner than later, and that both parties, the Employer
and Employees, have a legally binding reference point (refer to alterations and
variations of the contract of employment) dealing with this the required business
changes and sacrifices for the short term.’
[17] Solidarity further acknowledged that the appellant’s business could not continue
successfully without “flexibility” at that stage and concluded by requesting the
appellant to consult with a view to concluding a new agreement.
[18] On 19 February 2021, a telephonic discussion took place between the
appellant’s general manager and a S olidarity representative. In an email that
followed, Solidarity sought to discuss, among other things:
‘(1) The impact of the changes (2) the length of the changes (3) alternatives if
any (4) an agreement to regulate these temporary changes to ensure legal
certainty.’
[19] In a letter addressed to the appellant by S olidarity on 16 March 2021, the
following is recorded:
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‘It is our instruction to inform you of our members continued unhappiness…
2. … What was understood and believed to be short term immediate
measures, appear now to enjoy the status of permanent changes. This
was in essence confirmed by you, upon your failure to prescribe a plan of
action to return to normal.
3. Your actions [as explained] had risen b y cause of the pandemic. Whilst
this is noted and acknowledged by our members, this justification can no
longer survive or be used to justify the continued breach of our members
contracts of employment and did not warrant a draconian approach…
Our members have instructed us to request the following stipulations and
measures to be implemented to correct the breaches of their employment
contracts…
8. To pay our members their full salaries while on tour with effect from
March 2021, in line with their respective employment contracts.
9. To terminate the temporary layoff with immediate effect and implement no
less than 50% of their contractual salaries for OFF-duty periods.’
[20] The appellant responded by stating that it had to review the situation on an
ongoing basis, as the future remained uncertain.
[21] On 19 March 2021, Solidarity referred a dispute to the CCMA alleging a unilateral
change to its members’ terms and conditions of employment. A conciliation
hearing was convened to determine picketing rules. For reasons that are not
apparent, this resulted in an advisory arbitration award, issued on 6 May 2021.
The presiding commissioner noted the following:
‘5. The dispute pertains to the financial impact of the Covid 19 Lockdown
regulations on the business and employees and the measures taken by
the respondent to mitigate the negative impact...
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11. The relief sought by the Applicants is salary for March that is outstanding
and consultation on the alternatives to the status quo, rotation of
employees to be structured fairly.
ADVICE/RECOMMENDATIONS
2. Parties should meet to reassess the situation with the objective of
reaching an agreement that has the interest of both at heart, e.g. the
structure of rotation of employees, the duration of the layoff going
forward, etc.
3. Possibility of using a S ection 189A facilitation process as a forum for
discussions.
[22] The advisory award appears to have been made at the commissioner’s own
initiative, but the proposal that the dispute be treated as one of a potential
retrenchment found traction.
[23] On 14 May 2021, the appellant addressed an email to Solidarity indicating that a
retrenchment process was to take place. The appellant lodged a request with the
CCMA for the appointment of a facilitator in terms of section 189A of the LRA.
[24] In a letter dated 19 May 2021, Solidarity again indicated its commitment to
negotiate an agreement to deal with the temporary reduction in remuneration
implemented since March 2020. Solidarity placed its commitment to ‘ finding
solutions that aim to deal with the temporary reductions in salary that have
perpetuated for the last 14 months, and which are causing severe financial
hardship for our members ’. Solidarity further placed on record that the appellant
had ignored its prior requests to negotiate “ an outcome of a more permanent
nature”. Although Solidarity accused the appellant of being in breach of the
original contracts of employment, it asserted that the original contracts had not to
date changed on a ‘ permanent basis via any form of agreement from the side of
the employees’. The appellant was asked to negotiate and enter:
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‘… formal temporary agreements (suitable for both parties and without taking
advantage of the current situation and circumstances), for a limited duration
before the terms of our member’s original employment contracts (which have not
changed) can be honoured by the company.’
[25] The letter concluded by Solidarity requesting the appellant to make a proposal to
include, among other things, a timeframe for the return to normal salaries and
conditions of employment.
[26] On 29 June 2021, t he employees were notified of their retrenchment , to take
effect on 31 July 2021.
Labour Court
[27] As I have indicated above, i n the referral made to the Labour Court, Solidarity
made three claims. The first was the employees’ claim of breach of contract and
payment of their outstanding remuneration for the period 1 March 2020 to 31 July
2021; secondly, the substantive and procedural unfair ness of the employees’
retrenchment; and thirdly, a claim for payment of statutory amounts consequent
on the employees’ termination of employment.
[28] The appellant denied that it had breached the employees’ employment contracts
and relied on the defences of supervening impossibility of performance on the
part of both the appellant and the employees, thus excusing the appellant from
performing its reciprocal obligations in term s of the employees’ contracts of
employment. Secondly, what the appellant relied on what it contended to be at
least the tacit agreement of the employees to the payment of reduced
remuneration, in return for a continuation of the employment relationship. The
appellant further denied that the employees had been unfairly retrenched.
[29] In its judgment, the Labour Court made no reference to the defence of
supervening impossibility of performance.
3 The Court considered at some length
3 This despite the finding made by the Labour Court in its consideration of an appropriate remedy:
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the provisions of section 64 of the LRA in circumstances where it is not entirely
clear from the judgment to what extent the Court’s finding in relation to the
uncontested unliteral change by the appellant to the employees’ conditions of
employment implicates section 64. 4 Be that as it may, the Court concluded
ultimately that the appellant had unilaterally imposed changes to the employees’
terms and conditions of employment and thus breached their contracts of
employment.
[30] Regarding the defence of tacit consent to the reduction in remuneration, the
Court concluded:
‘[45] Having considered the documentary and oral evidence of the employees
in this matter, which in my view established the employees’ vulnerability
during the period, I am not persuaded that the employees evinced clear
and unambiguous intention to work on the unilaterally amended terms
and conditions of employment. I am also not persuaded that the conduct
of the employees could lead a reasonable person to believe that they
intended to so work. The employees did not tacitly consent to nor did they
acquiesced (sic) themselves to the company’s unilateral decision. The
fact that they understood the reasons for imposing the measures is not
tantamount to an acceptance of the new terms and conditions, more so
without them being afforded an opportunity to engage and decide.’
And further:
‘[46] The Court is not oblivious to the greater social and economic power that
employers, including the company in this case, enjoy. In the current
matter, with borders closed and commercial flying halted in many
countries, the company was acutely aware of the vulnerability of the
employees in the aviation industry. To impose such a decision, without
any form of consultation, during the Covid-19 pandemic and later argue
‘52 It is common cause that the borders remained closed for at least 6 months and
commercial flights only resumed in October 2020. Until the end of September 2020, the
commercial flights only resumed in October 2020. Until the end of September 2020, the
employees, even if they were ready and willing to work, could not render any service.’
4 The Court made extensive reference to Macsteel Service C entres SA (Pty) Ltd v National Union of
Metalworkers of SA & Others (2020) 41 ILJ 2670 (LC); [2021] 12 BLLR 1235 (LC).
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that the employees tacitly agreed and/or acquiesced to it is, in my view,
disingenuous and unfair.
[47] The crux of the matter is whether there was unilateral change to terms
and conditions of employment and a breach of their contracts of
employment… The unilateral decision is in breach of the employees’
contracts of employment, which expressly required that any alteration or
variation be signed by both parties after a process of consultation. The
conduct of the company is also in breach of section 34 of the BCEA which
requires that any deduction to the employee’s salary must be consented
to by the employee and after following a fair procedure and providing the
employee a reasonable opportunity to show why the deductions should
not be made. The deductions were not authorised by the law, collective
agreement, court order or an award. In the final analysis, the company
effected salary reduction without the employees’ consent.’
[31] The Labour Court came to the following conclusion:
‘[48] To conclude, the decision to reduce the employees’ salaries was taken
and implemented unilaterally, which is in breach of the contract of
employment and section 34 of the BCEA. The employees’ subsequent
conduct did not undo the breach already committed, nor did the
employees acquiesced (sic) to the unilateral decision. At best for the
company, the conduct of the employees may be relevant to the enquiry
on the appropriate remedy.’
[32] The Court noted that it had a discretion in determining the remedy for breach of
contract found to exist, and made specific reference to section 77A(e) of the
LRA, which empowers the Labour Court to make any order including:
‘making a determination that it considers reasonable on any matter concerning a
contract of employment in terms of section 77(3), which determination may
include an order for specific performance, an award of damages or an award of
compensation.’
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[33] The Court considered the circumstances that prevailed, including the fact that the
employees had worked significantly fewer hours during the period when they
were called to render services, that borders had remained close for at least six
months and that until the end of September 2020, the employees could not
render services even if they were willing and able to do so. In the result , in
respect of their contractual claim, the Court awarded compensation equivalent to
three months remuneration, payable at the off -tour salary, to each of the
employees.
[34] In relation to the alleged unfair retrenchment, the Labour Court came to the
following conclusion:
‘The company has not consulted the employees. The result is that it deprived the
employees of the opportunity to know and understand the basis for the
retrenchment, to discuss the alternatives to retrenchment, the selection criteria,
severance packages, and make representations about any matters relating to the
retrenchment. The inevitable conclusion is that the dismissal is procedurally and
substantively unfair and I find accordingly.’
[35] In relation to remedy, the Court concluded that it would be ‘just and equitable’ for
the appellant to pay each of the employees’ compensation in an amount
equivalent to eight months ’ remuneration, payable at the employees’ off -duty
salary.
[36] In respect of the employees’ claim for notice pay, the Labour Court observed that
the notices of termination were issued on 29 June 2021, advising the employees
that their services would be terminated with effect from 31 July 2021. The Court
held that ‘ [T]he company did not pay the employees notice pay ’, that they were
entitled to four weeks’ notice pay each and that the appellant was liable to pay
each of them the equivalent of four weeks’ remuneration, payable at their off-tour
salary.
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Sahara 15
[37] Mention should be made of the fact that after delivery of the judgment under
appeal, this Court heard an appeal in a matter concerning other employees of the
appellant but broadly speaking, the same factual matrix. What was at issue in
those proceedings was a judgment by the Labour Court to the effect that while
the employees engaged in that litigation had in fact agreed temporarily to a
reduction in their remuneration from March 2020, that consent had been
withdrawn with effect from March 2021, when the employees relied on their
original terms and conditions to enforce a claim for remuneration. This Court held
that there was no evidentiary basis to draw this conclusion, and said (per Davis
AJA):
‘[1] As counsel for the appellant correctly submitted, there was no evidence
before the court a quo which justified the conclusion that an agreement
had been entered into in March 2021 to vary the temporary agreement
which was initially sourced in the Covid 19 pandemic. In short, there is no
evidence to suggest that respondent or its members during the relevant
period had unequivocally indicated to appellant that they no longer
accepted the reduced salaries but now relied on the original contracts of
employment.
[2] The correspondence generated by respondent and which is cited earlier
in this judgment indicates to the contrary. Respondent had sought to
conclude a further agreement with appellant to enter into ‘formal
temporary agreements suitable for both parties and without taking
advantage of the current situation or circumstances ’ and which would be
for a limited period. Furthermore, the evidence before the court a quo
indicates that these employees carried on working in return for the
reduced salaries; certainly in the case of Mr Ortmann until June 2021 and
in the case of Mr van der Merwe and Mr Berry until 1 September 2021.
The conduct of respondent does not appear in any way to suggest that its
The conduct of respondent does not appear in any way to suggest that its
5 Unreported, Solidarity obo Members v Sahara African Living (Pty) Ltd (JS829/21) [2024] ZALCJHB 166
(17 April 2024).
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members had evidenced an intention to revert to the rights which flowed
from their original contracts of employment.
[3] The central basis of the court a quo’s finding in effect was that respondent
had sought to reinstate the original contracts of employment and that
temporary arrangements were no longer in force and effect. There is
however no evidential basis by which this finding can be justified. In other
words, the distinction drawn by the court a quo’s judgment for the period
until February 2021 as against the period until September 2021 (in the
case of Mr Berry and Mr van der Merwe) cannot be sustained.’
[38] In short, this Court accepted that there had been a tacit agreement between the
appellant and its employees to the effect that they would temporarily accept
reduced terms and conditions of employment in return for the continuity of
employment, and held that the Labour Court had erred by finding, on the facts,
that the agreement had been withdrawn (by the employees party to that appeal)
with effect from March 2021.
Grounds of appeal
[39] The appellant appeals against the Labour Court’s finding in respect of the
employees’ contractual claim , but for the findings in respect of Burton, and the
employees’ claim in respect of the shortfall in salaries for the month of March
2020. The appellant further appeals against the Labour Court’s orders in respect
of all three employees consequent on its findings of a substantively and
procedurally unfair retrenchment.
[40] The employees have filed a conditional cross- appeal against the Labour Court’s
award of compensation, in the event that this Court sets aside the Labour Court’s
order of compensation. The employees seek an order requiring the appellant to
pay to each of them the shortfall in their salaries for the period March 2020 to
July 2021. I have indicated, despite the appellant’s more limited grounds of
appeal, by virtue of the cross -appeal, this Court is entitled to make an order in
appeal, by virtue of the cross -appeal, this Court is entitled to make an order in
respect of Burton’s contractual claim.
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[41] The issues raised are whether the reciprocal rights and obligations under the
appellant’s original contracts of employment were rendered unenforceable on
account of the supervening impossibility of performance; whether the employees
at least tacitly agreed that instead of the appellant terminating the employment
relationship, they would work fewer hours for less pay ; whether the employees’
retrenchment w as substantively and procedurally unfair ; and if so, whether the
amount of compensation awarded each of the employees both in respect of their
contractual claims and their claim of unfair retrenchment, ought to be reduced.
Evaluation
[42] I deal first with the La bour Court’s findings in terms of the alleged breach of
contract and brea ch of section 34 of the BCEA. A breach by the appellant of
section 34 is not a cause of action that was pleaded by the employees, nor does
the pre- trial minute make any reference to that section. In other words, the
appellant was never asked to meet a claim based on any breach of section 34. It
was not open, in these circumstances, to the Labour Court to find, as it did, that
the appellant had breached section 34 of the BCEA or to account for this, as the
Court appeared to do, in the assessment of the amount of compensation to be
paid by the appellant to the employees.
[43] In any event, to the extent that the employees ’ claim is one of a failure to pay
remuneration against a tender of services, section 34 does not apply . That
section is concerned, as the heading of the section records, with deductions and
other acts by an employer concerning remuneration. A deduction from
remuneration must be distinguished from a reduction in remuneration. The non-
payment of remuneration is not a deduction. A n employee aggrieved by a non-
payment of remuneration, in whole or in part, has a rem edy in contract, or may
have a right of recourse in term s of section 32 of the BCEA, which requires an
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employer to pay remuneration not later than seven days after the completion of
the period for which the remuneration is payable, or on termination of the
contract of employment. 6not in the statutory prohibition s established by section
34. Section 35 of the BCEA is not applicable in the present case, and the Labour
Court was wrong to apply it.
[44] To the extent that the employees (and the Labour Court) referred to and sought
to apply section 64(4) of the LRA, that section similarly has no application in the
present instance. Section 64(4) does no more than establish a right to interim
relief when an employee refers a claim to the statutory dispute resolution
structures when the dispute so referred concerns an alleged unilateral change by
an employer to employees ’ terms and conditions of employment. The section
functions to preserve the status q uo (or to require the restoration of the status
quo where terms and conditions of employment have been changed), pending
the conclusion of a conciliation process. Section 64(4) is not intended to provide
a substantive, self-standing remedy when an employer unilaterally changes an
employee’s terms and conditions of employment. Rather, the section affords an
employee an interim remedy to protect the integrity of the conciliation process, a
remedy that expires once a certificate of non- resolution has been issued by a
commissioner or 30 days (or any agreed, extended period) has elapsed after the
referral of the dispute. Further, a dispute that concerns a unilateral change to
terms and conditions of employment is not a dispute that is arbitrable, nor is it a
dispute justiciable by the Labour Court . S hould conciliation fail, the LRA
contemplates that the dispute be determined by a resort to the exercise of
economic power. However, those provisions aside, to the extent that any
unilateral change by an employer to an employee’s terms and conditions of
employment constitutes a breach of the employment contract, the employee may
employment constitutes a breach of the employment contract, the employee may
elect to pursue whatever contractual remedies may be available, either in the civil
courts or in the Labour Court in terms of section 77(3) of the BCEA.
6 See section 32(3) of the BCEA.
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[45] In t he present instance, the employees initially contended that the appellant ’s
action in reducing their remuneration constituted a unilateral change to their
terms an d conditions of employment , referred a dispute to this effect to the
CCMA and invoked the interim relief afforded by section 64(4). For reasons that
are not apparent, the employees appear to have abandoned that election and
changed tack, electing instead during October 2021 to refer a claim to the Labour
Court in terms of section 77(3) . In essence, the employees ’ claim was one in
which they sought an order of specific performance in the form of payment by the
appellant of their remuneration, against a tender to work.
[46] In these circumstances, the Labour Court’s analysis of section 64(4) in relation to
the employees’ claim was misplaced. The Court’s failure to distinguish between a
statutory remedy intended to provide status quo relief during the phase of
conciliation and prior to the exercise of a right to strike, and a common law claim
for specific performance, resulted in c onceptual confusion. The employees’ claim
was one of breach of contract . The Labour Court, enjoying as it does concurrent
jurisdiction with the civil courts in such a claim, was required to evaluate the
claim as a civil court would.
[47] Regarding the remedy awarded by the Labour Court in respect of the employees’
contractual claim, both counsel agreed that it was not open to the Labour Court
to make the order for the payment of compensation. Although section 77A of the
BCEA empowers the Labour Court to make an award of compensation in any
matter that concerns a contract of employment, the appropriate remedy must be
determined with reference to the nature of the claim. Given that the employees’
claim was contractual in nature, the employees were either entitled to an order
for payment of their remuneration for the period in question , or not. The
employees had claimed that the appellant breached their contracts by refusing to
employees had claimed that the appellant breached their contracts by refusing to
pay them against their tendered services and sought an order for the payment of
the difference in their remuneration between that payable as at March 2020 and
the reduced remuneration paid between March 2020 and 31 July 2021, the date
on which their employment terminated. There is no scope for an appeal to
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considerations of fairness in these circumstances, or any award of
compensation. The Labour Court erred when it made that award.
[48] As recorded above, the Labour Court simply did not deal with the defence of
supervening impossibility of performance, and rejected the defence of express,
alternatively tacit, consent by the employees to the varied contractual terms.
[49] The facts disclose that while the employees may not have been happy about the
amendment to their terms and conditions of employment, they did not expressly
reject the unilateral change. On the contrary, the employees conducted
themselves in a manner which gave rise to the inescapable inference that they
consented to a temporary reduction in their salaries. This is consistent with the
finding by the Labour Court in Sahara 1, a finding that was left intact by this Court
in the appeal against that judgment. What concerned the employees was the
protracted duration of the temporary measures introduced by the appellant – their
demands were directed at the certainty of a timeline for the restoration of the
original terms and conditions of employment. Steyn, for example, testified that
the appellant ‘ had to do these measures to try and keep the company floating,
have everybody still the job at the end of the day and that I think a lot of us
softened up to that idea, but he just continued’.
[50] It is not in dispute that Steyn and Clark’s responses to the 9 November 2020
survey were that they expressly agreed to fly on the reduced salary . Over and
above this express election to continue flying on the reduced terms, the
employees remained in agreement with the temporary reduction in remuneration
post-February 2021, as disclosed in S olidarity’s letters to the appellant.
Solidarity’s mandate, as communicated to the appellant in its letter dated 11
February 2021, was not to insist that the appellant reinstate the terms of the
original contracts of employment . Rather, Solidarity sought to formali se a
original contracts of employment . Rather, Solidarity sought to formali se a
temporary agreement on terms more favourable to its members than the status
quo. At no stage did S olidarity insist on a rev ersion to the pre -March 2020
contractual arrangements. On the contrary, the proposal submitted by S olidarity
19
is consistent only with the acceptance of the status quo a s the starting point for a
negotiation of a new agreement . The proposal is certainly incompatible with any
assertion either that the pre-March 2020 contracts remained in force, or that they
should immediately be reinstated. Even during mid -May 2021, Solidarity
remained primarily focused on concluding an interim agreement more favourable
for its members than the status quo, as opposed to restoring the terms of the
original contracts of employment. In the absence of consent by the appellant to
revert to the original contracts of employment, the options open to the employees
were to compel the appellant to revert to the original contract by way of industrial
action, or to terminate the temporary agreement , which would not have resulted
in the original contractual terms being reinstated rather than the employment
relationship coming to an end. The employees initially sought to exercise the first
option by relying on section 64(4) of the LRA and referring a dispute to the
CCMA, an option that was abandoned. None of the employee s who are party to
these proceedings resigned from the appellant’s employ, and none of them
claimed a constructive dismissal. The inescapable conclusion is that despite their
dissatisfaction, the employees elected to continue in their employment on the
terms implemented by the appellant.
[51] To the extent that the Labour Court found that any consent to the varied terms
and conditions of employment was vitiated by duress, I fail to appreciate how , in
these circumstances , it can be said that the employees acquiesced in the
variation to their contractual terms only because they were under duress. The
employees had access to the assistance and advice of their trade union
throughout. As I have indicated, the employees were clearly not satisfied with the
state of affairs occasioned by the reduction i n their employment conditions ,
state of affairs occasioned by the reduction i n their employment conditions ,
especially when it persisted through late 2020 and early 2021. But it does not
necessarily follow that the employees did not accept the rationality or necessity
for the reduction.
[52] In short, as evidenced by their conduct and t hat of their collective bargaining
representative, the employees acquiesced in the variation to their pre -March
20
2020 terms and conditions of employment . The Labour Court thus erred in
finding that the appellant had committed a breach of contract.
[53] Given this finding, it is not necessary to canvass the parties’ submissions
concerning the impossibility of performance of the employees’ employment
contracts.
Retrenchment
[54] It will be recalled that the Labour Court found that the employees’ retrenchment
was both substantively and procedurally unfair. It did so on the basis that the
appellant had failed to consult the employees, thus depriving them “ of the
opportunity to know and understand the basis for the retrenchment, the selection
criteria, severance packages, and make representations about any matters
relating to the retrenchment”. Put another way, the Labour Court decided that the
absence of any fair procedure had the result that the employees’ retrenchments
were substantively unfair.
[55] The LRA draws a clear distinction between the substantive and procedural
requirements of fair retrenchment. The relationship between substance and
procedure is strongly symbiotic, but both remain independent values .
7 Although
there may be the exceptional case where an abject failure to comply with the
relevant procedural requirements may have the result of a retrenchment that is
also substantively unfair,8 this is not an inevitable consequence especially where,
as in the present instance, there is ample evidence of the substantive reason for
retrenchment. For example, i n Enterprise Foods (P ty) Ltd v Allen & others9 this
Court found that although no proper consultation process had taken place, there
was nonetheless a fair reason for the retrenchments, after taking into account the
evidence presented by the employer.
7 See R le Roux Retrenchment Law in South Africa (LexisNexis 2016) at 13.
8 See the judgment of this Court in Unitrans Zululand (Pty) Ltd v Cebekhulu [2003] 7 BLLR 688 (LAC)
where the Court recognised that the two notions of substance and procedure “ may be so inextricably
linked that the dismissal cannot be fair in the absence of a fair procedure” (at para 48).
9 (2004) 25 ILJ 1251 (LAC); [2004] 7 BLLR 659 (LAC).
21
[56] There is no real dispute that the appellant’s business was profoundly affected by
the measures taken, both nationally and internationally, to address the Covid 19
pandemic. Certainly, between March 2020 and October 2020, the appellant’s
business was reduced to one of care and maintenance. The reason provided by
the appellant for the retrenchments was that it had not secured new work for its
fleet and in consequence, had a surplus of pilots, more specifically, a surplus of
captains and that it could retain only those pilots who were willing and able to fly
in Iraq. It is not in dispute that by January 2021, only the contracts in Iraq, Sudan
and Comoros remained in place and that all other contracts had been cancelled.
Clark, Steyn and Burton were clearly selected for retrenchment because they
were the only three employees who would not or could not go on tour to Iraq. The
employees were aware that the only place where there was rarely any work was
in Iraq. Comoros did not present a viable alternative, with the client retaining its
own captain with the result that the employees would be rostered one month in
every eighteen. Even then, there were sufficient crew members in Iraq to rotate
to Comoros. In short, the appellant had been exploring alternatives to
retrenchment for more than a year by the time of t he retrenchments, having
placed its employees on layoff and reducing salaries. One aircraft had been sold.
New contracts that had been the subject of tenders had not materialised, and the
situation remained unimproved.
[57] The evidence discloses several meetings and discussions between the appellant
and Solidarity regarding the appellant’s situation and the prospects of securing
new work. Solidarity was aware of what the appellant was doing in order to avoid
the retrenchment of its pilots . The appellant found itself in a situation where the
employees could not be scheduled to tour in Iraq, the only viable contract then in
employees could not be scheduled to tour in Iraq, the only viable contract then in
existence. In these circumstances, it is difficult to appreciate are the Labour Court
decided that, on the one hand, it was unfair to keep employees on the payroll for
a prolonged period without providing them with work and allowing them to earn a
living, but on the other hand, there was no fair reason to retrench them. The
Labour Court failed to have regard to the obvious commercial rationale presented
by the appellant , and its finding that the employees ’ retrenchment was
22
substantively unfair solely because of a failure to properly consult cannot be
sustained. The evidence discloses that the employees and their trade union,
Solidarity, were well apprised of the appellant’s situation and, at the very least,
were in as good a position to refute the appellant’s evidence at trial that there
was a fair reason for the retrenchments as they would have been had the formal
consultations been more extensive. It cannot be in the circumstances that the
procedural shortcomings that existed led to the conclusion that the
retrenchments were, for that reason alone, substantively unfair.
[58] This leaves the question of procedural fairness. The importance of fair procedure
in retrenchment has been underscored by this Court
10 and has been emphasised
by the Constitutional Court. In Solidarity on behalf of Members v Barloworld
Equipment Southern Africa & others 11 the Constitutional Court said the
following:12
‘What may be gleaned from the authorities is that for a consultation process to be
meaningful, in the context of s 189, the employer must keep an open mind,
disclose sufficient information to enable consulting parties to make informed
representations, and seriously consider the representations. This entails that the
employer is under an obligation to furnish reasons for rejecting representations
after it has considered them carefully. Approaching the consultation with the pre-
determined outcome and failure to provide reasons for rejecting representations
will render the consultation process not meaningful.’
[59] As I have noted, t he appellant conceded during the trial that the procedure
adopted prior to the employees’ retrenchment was not ideal, and that it was not in
formal compliance with the provisions of section 189 in a number of respects.
The process that did transpire included the issuing of a section 189 (3) notice, an
invitation extended to Solidarity to examine the appellant’s accounts, a number of
invitation extended to Solidarity to examine the appellant’s accounts, a number of
discussions and meetings between the appellant and solidarity which had
10 See, for example, SA Commercial & Allied Workers Union & others v JDG Trading (Pty) Ltd (2019) 40
ILJ 140 (LAC); [2019] 2 BLLR 117 (LAC).
11 (2022) 43 ILJ 1757 (CC); [2022] 9 BLLR 779 (CC).
12 Ibid at para 46.
23
resulted in Solidarity understanding that the appellant’s operational and financial
position was at the time and that its operational requirements were to maintain
and support its Iraq contract . T here was also a virtual meeting between the
appellant and S olidarity on 1 March 2020 and informal discussions during the
CCMA hearing on 18 June 2021. At the appeal hearing, counsel submitted that if
anything, a token award of compensation was appropriate.
[60] A procedural shortcoming attracts an award of compensation in the form of a
solatium.
13 Having regard to the relevant facts and circumstances and the
appellant’s admitted failure to meet the threshold of fair procedure, a sum
equivalent to three months' remuneration in compensation for unfair procedure is
just and equitable. Considerations of fairness dictate that for the purposes of
calculating compensation, the rate of remuneration to be applied is that which
applied immediately prior to the appellant’s letter addressed to the employees on
20 March 2020, at their off-tour rate.
Notice pay
[61] Section 37 of the BCEA requires an employer to terminate a contract of
employment on notice. In the case of employees employed for more than one
year or more (the employees all fall into this category) , the notice period is four
weeks. Section 36 provides that an employer, instead of giving notice in terms of
section 37, may pay the employee t he remuneration that the employee would
have received if the employee had worked during the notice period. Put another
way, an employer may elect to pay the employee in lieu of notice should the
employer require the employee to leave the workplace on the giving of notice of
termination of employment.
[62] The Labour Court appears to have regarded the employees as entitled to ‘notice
pay’ over and above the notice of termination of employment that they were
13 Johnson and Johnson (Pty) Ltd v CWIU [1998] 12 BLLR 1209 (LAC) at para 41; see also Kemp t/a
Centralmed v Rawlins (2009)30 ILJ 2677 (LAC) at para 20 and McGregor v Public Health and Social
Development Sectoral Bargaining Council and Others (2021) 42 ILJ 1643 (CC).
24
afforded. Notice was given on 29 June 2021, to expire on 31 July 2021. This is
more than the prescribed period of four weeks’ notice. In the absence of proof
that the employees were not paid for the month of July 2021, the employees
were thus not entitled to any additional ‘notice pay’, and the Labour Court erred
by finding that they were.
Costs
[63] Ordinarily, when parties seek the adjudication of a contractual claim in terms of
section 77(3) of the BCEA, costs follow the result. In a claim under the LRA, such
as the employees’ claim for unfair retrenchment, any liability for costs is to be
determined according to the requirements of the law and fairness , read to mean
that costs do not ordinarily follow the result and will be granted only in
exceptional circumstances.
[64] In the present instance, the claim is hybrid in nature. It is not possible, in the face
of a lengthy record in which evidence was tendered in respect of both the
contractual claim and the claim of unfair retrenchment, to arrive at any fair
estimate apportionment of the costs in each of the respective claims. In these
circumstances, for the purposes of section 179(1), the requirements of t he law
and fairness are best satisfied by each party bearing its own costs.
Order
1. The appeal is upheld, with no order as to costs.
2. The order of the Labour Court is varied to read as follows:
a. ‘The applicant’s claim for remuneration is dismissed.
b. The applicants’ retrenchment was substantively fair but procedurally
unfair.
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c. The applicants are each awarded compensation in a sum equivalent to
three months’ remuneration, to be calculated at the rate of
remuneration payable to each of the individual applicants at their off-
tour rate, as it applied immediately prior to 20 March 2020.
d. There is no order as to costs.’
___________________
A. van Niekerk
Judge of the Labour Appeal Court
Djaje AJA et Chetty AJA concur.
APPEARANCES:
FOR THE APPELLANTS: C Watt-Pringle SC, with him J Withaar
Instructed by Richard Spoor Inc.
FOR THE RESPONDENTS: W Bekker SC, with him CR Dames
Instructed by Serfontein, Viljoen & Swart