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[2025] ZALCCT 134
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Mushroom and Things v Commission for Conciliation, Mediation and Arbitration (CCMA) (C593/2023) [2025] ZALCCT 134 (17 December 2025)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case No: C593/2023
(1)
Reportable: Yes/NO
(2)
Of interest to other Judges: Yes/No
(3)
Revised
In the matter between:
MUSHROOMS AND
THINGS
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
(CCMA)
First Respondent
GERALD JACOBS
(ARBITRATOR)
Second Respondent
NKOSEMVELA HUBERT
MAGWANYA
Third Respondent
Heard:
31
July 2025
Delivered:
This judgment was handed down electronically by
uploading on
Caselines
; by circulation to the
parties' legal representatives by email; and by publication on the
Labour Court’s website and
SAFLII
. The
date for hand-down is deemed to be on 17 December
2025
Summary:
Contract of employment – Repudiation –
Caveat subscriptor
–Parole Evidence Rule – Labour Relations Act Schedule 8
Code of Good Practice Dismissal – Sections 186 and 191
of the
LRA. Reinstatement Arbitration Order
JUDGMENT
GURA, AJ
Introduction
[1]
The
Applicant has brought an application in terms of section 145 of the
Labour Relations Act
[1]
(LRA ).
The Applicant’s prayers are for the review and set aside of an
arbitration award dated 15 November 2023, under case
no: WECT 1628/22
and for the Court to determine the matter in a manner the Court
considers appropriate. The Applicant has further
prayed for the
further stay of the enforcement of the award pending the outcome of
this review.
[2]
The review application is opposed by the
Third Respondent.
[3]
The First Respondent is the Commission for
Conciliation, Mediation and Arbitration (‘CCMA’). The
Second Respondent is
Gerald Jacobs, a Commissioner appointed by the
CCMA as the arbitrator who dealt with the dispute herein. The Third
Respondent is
Mr Nkosemvele Hubert Magwanya, a former employee of the
Applicant, who was represented by Mr Wilber Mfebe from Johannesburg,
under
Rule 25 (6) of the Rules for the Conduct of Proceedings before
the Commission for Conciliation, Mediation and Arbitration (‘CCMA
Rules’).
[4]
The Applicant’s founding,
supplementary and replying affidavits were deposed to by a Mr Harry
Petersen, an Office Bearer with
the Federation Hospitality
Association of South Africa (FEDHASA), and the person who represented
the Applicant at the arbitration
hearing.
[5]
The Third Respondent conceded that,
although Petersen was the individual who represented the employer at
arbitration, Petersen needed
to aver that he was duly authorised by
the Applicant to institute these review proceedings. Thus,
authorisation for the institution
of these proceedings is critical,
which is lacking.
[6]
The Third Respondent argued that the
Applicant’s attempt to remedy same in its replying affidavit
was insufficient, as the
Third Respondent placed on record that a
director or shareholder of the Applicant needs to authorise Petersen
to institute these
proceedings, as he was only a FEDHASA
representative. Thus, the Third Respondent was still not satisfied
that the application was
properly before the court. (Was the issue of
authorization dealt with??)
[7]
A further issue was raised by the Applicant
in relation to the CCMA filing the incomplete record of proceedings.
An agreement was,
however, reached that the records before the Court
were sufficient and that the proceedings may ensue.
Background
[8]
The Third Respondent worked for the
Applicant as a truck driver since 1 March 1998, earning a salary of
R10,850.00 per month at
the time of his dismissal.
[9]
On 5 November 2021, the Third Respondent’s
manager called a special meeting and informed all drivers, their
assistants and
the Third Respondent that, as a result of reduced
staff resulting from post-COVID, no drivers were allowed to
take leave.
Thus, no leave would be approved during the busy period
between 13 December 2021 and 15 January 2022.
[10]
It is the Applicant’s case during
oral evidence that there were notices put up by the employer to
further affirm awareness
relating to leave.
[11]
On the same day, the Third Respondent
applied for leave from his immediate manager. The Third Respondent’s
leave request was
not approved, even after personally approaching his
manager for approval. Later, it was reiterated to the Third
Respondent that
no leave could be taken during the requested period.
[12]
When the Third Respondent’s absence
was noted on 9 December 2021, his manager called him and enquired
about his absence, and
it was the Third Respondent’s response
that he was on leave and that he refused to return to work, all this
despite being
reminded that his leave had not been approved.
[13]
It was common cause that several messages
were then sent to the Third Respondent over the course of several
days, being 10, 14,
22 and 23 December 2021, to the same device,
which the Third Respondent had answered on 9 December 2021; however,
no response from
the Third Respondent was forthcoming.
[14]
On 6 January 2022, the Applicant forwarded
the Third Respondent a notice via email informing him that due to his
continuous unauthorised
absence, the Third Respondent had repudiated
his employment contract and that his repudiation was accepted.
[15]
On 10 January 2022, the Third Respondent
attempted to return to work by arriving at the Applicant’s
premises and was informed
of his repudiation. The Applicant furnished
Third Respondent with the notice that had been sent to him on 6
January 2022. The Third
Respondent thus referred the matter to the
CCMA as an unfair dismissal dispute.
[16]
Third
Respondent conceded that it is common cause between the parties that
no disciplinary hearing was convened, and the Applicant
continues to
maintain that there exists no dismissal but rather a repudiation of
the contract of employment.
[2]
The Third Respondent further argued that the other myriad of grounds
relied upon by the Applicant do not go to the merits of the
issue
identified above, but rather a perceived bias, alternatively a
dissatisfaction by the Applicant’s representative with
the way
the arbitration proceeded.
[17]
The Third Respondent‘s case was that
he was not aware that he was not supposed to take leave during the
period in question,
as he was not present during the meeting held on
5 November 2021. Furthermore, he always takes leave over the December
period and
thus decided to go on leave. He conceded that another
manager, Rikki Da Silva, informed him that he could not take leave
during
the December period of that particular year, but did not give
the reasons why. The Third Respondent further conceded to receiving
the telephone call from his manager but stated he did not receive any
of the messages and/or emails his manager sent to him through
the
same telephone number.
[18]
The arbitration of the unfair dismissal
dispute came before the Commissioner over a period of nine sittings,
wherein it was held
that there was a dismissal. Such dismissal was
held to be both substantively and procedurally unfair. The
Commissioner ordered
reinstatement with retrospective effect and
backpay.
[19]
Since the arbitration award was delivered,
it is common cause that the Applicant has not accepted the Third
Respondent back at work,
nor has the Applicant paid the remuneration
as outlined in the award.
Application before the
court
[20]
The Applicant’s point of departure is
to the effect that the arbitration award was riddled with
irregularities from the start.
Same were listed as follows from the
Applicant’s founding affidavit:
1.
The Second Respondent allowed the Third
Respondent to be represented by a person who lacked the right of
appearance.
2.
The Second Respondent allowed a person who
sought the right to appear before the Commission in terms of Rule 25
(6) without following
the process in accordance with Rule 31 as
required by Rule 25(6).
3.
The Second Respondent constantly denied the
Applicant‘s representative the right to object. This point was
subsequently abandoned
at the oral argument stage.
4.
The Second Respondent assisted the Third
Respondent’s representative in formulating certain questions.
This point was subsequently
abandoned at the oral argument stage.
5.
The Second Respondent unnecessarily delayed
the matter, which commenced on 11 May 2022. Again, this point was
abandoned at the oral
argument stage.
[21]
The Third Respondent’s stance is that
at the heart of this matter is the question of whether the Applicant
has succeeded in
proving that the decision which the Second
Respondent made is one that could not be made by any reasonable
decision-maker with
the material before him.
[22]
In opposition, the Third Respondent argues
that the application enjoys no prospects of success and is hamstrung
by a number of fundamental
misunderstandings of law by the Applicant.
Further that the Applicant has identified no grounds for review. The
Applicant’s
principal ground of review is that it opines that
there existed no dismissal, and absent a dismissal, the CCMA lacked
jurisdiction
to arbitrate the dispute.
[23]
The Third Respondent further argued that
the Employer prays for the staying of the enforcement of the
arbitration award, but does
not provide any detail under oath why the
Court should stay such an award. Further that there is no single
averment that, should
the award be enforced, the Applicant would
suffer some form of prejudice. The Applicant has further not provided
security as required
in terms of section 145 (7) of the LRA, nor has
the Applicant obtained any order dispensing with the security
required as envisaged
in Section 145 (8) of the Act. The relief
sought is thus not competent and not on the papers, as per the Third
Respondent.
[24]
Both parties were in agreement in
relation to the issue that the Second Respondent was to decide on, in
relation to whether
repudiation took place. Mr Petersen and the legal
representative for the Applicant, on the day of oral argument, argued
to the
effect that the Third Respondent was not dismissed but had
repudiated his contract, which was accepted.
[25]
In his heads of argument, the Third
Respondent argued as follows:
‘
[44]
This point has previously served before many court and in the
reported judgment of
South
African Broadcasting (SOC) Limited V Commissioner for Conciliation,
Mediation and Arbitration and Others
[3]
stated:
“
the
point in limine amounts to an assertion that an employer is entitled
to elect to treat an act of alleged misconduct by an employee
either
as a breach of contract, or a breach of a disciplinary rule. In the
former case, the employee may not claim to have been
dismissed in the
sense that dismissal is defined in section 186 of the LRA, and may
certainly not claim to have been unfairly dismissed.
Any recourse by
the employee, so the argument goes, is thus confided to a contractual
remedy, a remedy that the CCMA is not empowered
to grant. This
proposition only has to be stated to those terms to illustrate how
profoundly unsound it is. The definition of dismissal
in s 186 of the
LRA expressly includes circumstances where the employer has
terminated employment with or without notice.”
Whether
the employer casts the termination in the contractual language of
acceptance of repudiation of a contract of employment
and an election
to cancel the contract, this is no more or less than a termination of
employment, with or without notice ( i.e
summary termination ), which
in turn, by definition, constitutes a dismissal for the purposes of s
186
.
This is a matter over which the CCMA exercises jurisdiction, at least
where the reason for dismissal is misconduct, a reason that
is not in
dispute in the present instance ( see s 191(5 )
I
find it disconcerting to have to record such a trite principle -to
any labour lawyer, thus is a statement of the manifestly obvious
.
Were the SABC‘s point in limine to be upheld, it would be open
to employers to avoid the statutory consequences of an unfair
dismissal simply by casting a termination of employment in
common law contractual terms.”’
[4]
[26]
Evidenced by the record of proceedings and
the oral argument by the Applicant’s legal representative, it
is common cause that
the Applicant’s stance was placed on
record on numerous occasions before the CCMA, during Mr Petersen’s
oral evidence
and in the heads of argument of the Third Respondent
before this Court. Thus, the Applicant argued that the Third
Respondent dismissed
himself; he was not dismissed by the Applicant.
[27]
The Third Respondent argued that the fact
that he had returned to work on 10 January 2022 indicates that he did
not desert and thus
a desertion finding cannot be made. He further
argued that if the Applicant’s argument, that the Third
Respondent had absented
himself from 9 December to 10 January 2022,
is accurate, such would only amount to misconduct. Thus, the Third
Respondent argued
that misconduct can thus in no way be couched in
the contractual terms of repudiation and the acceptance of
repudiation. The Third
Respondent argued further that the fact that
the Employee returned to work on 10 January 2022 further indicates
that there was
a dismissal of the employee, which dismissal was both
substantively and procedurally unfair.
[28]
The
Applicant went into length during arguments in relation to Mr Mfebe,
who was allowed by the Second Respondent to represent the
Third
Respondent at the arbitration proceedings. The Third Respondent
argued that the issue of representation does not take the
merits of
the Applicant’s case anywhere, as there is also no submission
in the papers that the Applicant suffered some form
of prejudice
resultant from the Third Respondent’s chosen representative.
Further that the commissioner recorded the reasons
why he allowed the
Employee to be represented by Mr Mfebe, and there is nothing
irregular about such a finding.
[5]
Third Respondent argued further that whether or not there exists an
order of Court regarding Mr Mfebe, this is not germane, nor
relevant
to the dispute and the award by the commissioner. Thus, he argued
that the Applicant is clearly grasping at straws to
find some
semblance of argument to justify the unfair dismissal of the Third
Respondent.
A determination of locus
standi of the third respondent’s representative is a legal
point and not assessed against prejudice
to a party. (Court must
determine whether an individual excluded under Rule 25 of the CCMA
rules can still represent a party, and
if not, whether this
constituted an irregularity and a misapplication of the law)
The law
[29]
Arbitration
awards are reviewable in terms of section 145 of the LRA. The test in
deciding whether to review and set aside an arbitration
award is well
established. It is the reasonableness test as postulated by the
Constitutional Court
[6]
:
‘
The
better approach is that section 145 in now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in Bato Star: is the decision reached by the commissioner
one that a reasonable decision-maker could not reach ? Applying
it
will give effect not only to the constitutional right to fair labour
practices, but also to the right to administrative action
which is
lawful, reasonable and procedurally fair.’
[30]
The
proper application of the test on review is summarised by the Supreme
Court of Appeal in
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[7]
.
For an award to be reviewable, the arbitrator must have misconceived
the nature of the inquiry or arrived at an unreasonable result.
Most
importantly, a result will only be unreasonable if it is one that a
reasonable arbitrator could not reach on all the material
that was
before them.
[31]
The
Labour Appeal Court (LAC) has further confirmed that where a gross
irregularity in the arbitration proceedings is alleged, the
enquiry
extends to whether the result was unreasonable. If the decision
arrived at by the arbitrator is one that falls within a
band of
decisions to which a reasonable decision-maker could come on the
available material, then the award is not reviewable.
[8]
[32]
An
arbitrator must conduct an arbitration in a manner that he or she
considers appropriate in order to deal with the dispute fairly
and
quickly, but must deal with the substantial merits of the dispute
with the minimum of legal formalities.
[9]
The LAC has held that a court must be careful not to parse an award
by a commissioner of the CCMA in the same fashion as one would
an
elegant judgment of the Supreme Court of Appeal or the Constitutional
Court. Awards must be read for what they are, awards made
by
arbitrators, who are not judges:
‘
When
all of the evidence is taken into account, when there is no
irregularity of a material kind in that evidence was ignored, or
improperly rejected, or where there was not a full opportunity for an
examination of all aspects of the case, then there is no
gross
irregularity …’
[10]
[33]
It
is trite that the test applicable in arbitrations conducted under the
auspices of the CCMA is the balance of probabilities.
[11]
According to the test, where the evidence permits more than one
reasonable inference, the selected inference must, by the balancing
of probabilities, be the more natural and plausible conclusion of the
possible inferences. The credibility of witnesses and the
probability
of what they say should not be regarded as separate enquiries to be
considered piecemeal. They are part of a single
investigation into
the acceptability or otherwise of the versions presented.
[12]
[34]
The court requested the litigants to
address it on
caveat subscriptor
and the parole evidence rule. This the Court requested as same was
the line of argument by the Applicants.The court was interested
in
the relevance of the principles , post the SABC Judgment , which was
argued by the Third Respondent.
[35]
It
is a matter of common knowledge that a person who signs a contractual
document thereby signifies assent to the contents of the
document,
and if these subsequently turn out unfavourable, there is no one to
blame but him or herself. This general principle
is our law and,
usually traced to
Burger
v Central South African Railways
[13]
.
Innes C. J held that ‘
Our
law does not recognise the right of a court to release a contracting
party from the consequences of an agreement duly entered
into by him
merely because that agreement appears to be unreasonable
.’
[14]
When a contract is founded on true consensus ad idem, that is
undoubtedly the law, but, as pointed out above, the
caveat
subscripto
situation is not one of true consensus but of quasi-mutual assent,
and it is axiomatic that the doctrine of quasi-mutual assent
can only
be applied in favour of a party in the position of the reasonable
person.
[15]
[36]
Corbett
JA, In
Johnston
v Leal
[16]
,
described the parole evidence rule in the following terms :
‘
As
has been indicated, the parole evidence rule is not a single rule. It
in fact branches into two independent rules, or sets of
rules: (1)
the integration rule, described above, which defines the limits of
the contract, and (2) the rule, or set of rules,
which determines
when and to what extent extrinsic evidence may be adduced to explain
or affect the meaning of the words contained
in a written contract:
see, for example, the exposition by SCHREINER JA in
Delmas
Milling Co Ltd v Du Plessis
1955 (3) SA
447
(A) at 453 - 5. (For convenience I shall call this latter rule
"the interpretation rule".)
Dealing first with the
integration rule, it is clear to me that the aim and effect of this
rule is to prevent a party to a contract
which has been integrated
into a single and complete written memorial from seeking to
contradict, add to or modify the writing
by reference to extrinsic
evidence… the recorded terms of an integrated contract in
order to rely upon the contract as altered.’
[37]
The Court, in applying the law to the
facts, will not repeat issues dealt with above. The Applicant argued
that the Second Respondent’s
decision is reviewable and should
be set aside on the grounds that:
1.
The decision was so grossly unreasonable
and clearly indicates that the Second Respondent failed to apply his
mind to the facts
presented before him. Second Respondent found that
the Third Respondent lied under oath by placing on record that he was
not aware
that he could not take leave over the December period.
However, the Second Respondent conflicted with this view by finding
that
the dismissal was without a valid reason.
2.
The Third Respondent’s stance herein
was silent, lacking submissions and/or inputs to rebut and or
controvert the same herein.
The Applicant’s Counsel placed on
record that the Applicant had to employ three drivers on a part-time
basis, to cover three
routes which fell under the Third Respondent.
The latter was an experienced driver and could solely cover the said
routes and was
further considered as a Senior Driver. Mushrooms were
rotting in the trucks; thus, they had to be delivered to restaurants,
moreover,
after the covid lockdown had just been lifted.
3.
The Applicant further argued that there is
no rational connection between the facts presented before the Second
Respondent and the
conclusion the Second Respondent reached. The
Second Respondent found that the Third Respondent ‘
took
leave without the necessary permission, during a crucial period where
the Company could not afford to be without its regular
drivers
’,
to the Applicant‘s dismay, the Second Respondent found that
such behavior did not justify dismissal. The Third Respondent’s
stance herein was silent even on the day of
viva
voce
arguments.
4.
The Applicant further argued that the
Second Respondent committed misconduct in relation to the duties of a
commissioner whose duty
it was to merely arbitrate on the salient
facts presented before him and not to push his own agenda by
presenting his own evidence
and deliberating on it. No evidence was
presented before the Second Respondent in relation to Clause 5.1 of
the employment contract.
Thus, entering into the arena and proving
bias. The Third Respondent’s response herein was silent,
although the Court had
invited inputs in relation to
caveat
subscriptor
and the Parole Evidence
Rule. The Court received no submissions from the Third Respondent.
(Because of relevance to the issues
for determination by the Court)
5.
The Applicant further argued that the
Second Respondent, without a doubt, had also committed a gross
irregularity in the conduct
of the arbitration proceedings when he
openly favoured the Third Respondent‘s case. The Second
Respondent requested the Third
Respondent several times to reinstate
the Third Respondent, as he is almost at retirement age, and it would
be difficult for the
Third Respondent to get employment somewhere
else. This evidence was again left uncontroverted.
6.
The Applicant argued further that the
Second Respondent failed to take a holistic approach in relation to
the facts presented before
him, for one, that the Third Respondent
told his manager that ‘
I’m
just going to take leave and you can do what you want, and if you
give me a warning, I will take you to the CCMA
’.
Secondly, the Third Respondent disconnected the call whilst his
manager was still speaking to him, then ignored the follow-up
calls
from his manager. Thirdly, and of importance in relation to
procedural fairness, the Second Respondent failed to pronounce
on the
evidence presented that the Third Respondent was indeed afforded the
opportunity to present his case on 10 March 2022 at
the Applicant’s
place of business and was also afforded legal representation.
Fourthly, the Applicant argued that the Second
Respondent failed to
place on record that on 28 February 2022, he himself referred the
matter back for a disciplinary enquiry to
afford the Third Respondent
the opportunity to provide reasons for his absence. This enquiry was
held on 10 March 2022, and the
Third Respondent was represented by a
legal representative, Mr Magqanngana, from the EFF Labour Help Desk.
Thus, the Third Respondent
then referred the matter to the Second
Respondent after the matter remained unresolved on 14 March 2022.
7.
A fifth argument by the Applicant is that
the Second Respondent failed to appreciate that the Third
Respondent’s exclusive
purpose of returning to the Applicant’s
place of business was to enquire about the messages sent on his phone
and as to whether
same meant that he was dismissed. As a sixth
argument in relation to the Second Respondent’s failure to have
a holistic approach,
the Applicant argued that the Second Respondent
failed to appreciate that the Third Respondent was afforded several
opportunities
to return to work and only when he continued to
disregard the employer’s instructions, was the employer left
with no alternative
but to accept that Third Respondent had
repudiated the contract of employment. That the Applicant had to set
a precedent that insolence
will not be tolerated from the remaining
employees. Thus, the Applicant’s prayer is that a proper case
has been made for
the entire decision by the Second Respondent to be
set aside.
8.
Paragraphs 62 to 69 of the Third
Respondent’s heads of argument were abandoned by the latter,
dealing with their argument
that the commissioner unnecessarily
delayed the matter. Likewise, paragraphs 70 to 74, dealing with and
or headed ‘
The Commissioner
assisting in formulating questions
’
and refusing Petersen the right to object. Thus, it is the Third
Respondent‘s conclusion that the Applicant has failed
to prove
that the Second Respondent arrived at an unreasonable result, and the
application stands to be dismissed.
Evaluation
[38]
A
contract of employment is an agreement between two legal personae
(parties) in terms of which one of the parties (the employee)
undertakes to place his or her personal services at the disposal of
the other party (the employer) for an indefinite or determined
period
in return for a fixed or ascertainable remuneration, and which
entitles the employer to define the employee’s duties
and to
control the manner in which the employee discharges them.
[17]
Once the parties have agreed on the essential terms of the contract,
its terms are fixed in the sense that neither party may unilaterally
vary them unless the original contract provides for variation. If a
contract provides for variation in writing, only a written
variation
will be effective.
[18]
There
is a fine line between unilateral variations of contractual
provisions and changes to working practices.
[39]
In
A
Mauchle (Pty) Ltd t/a Precision Tools v National Union of
Metalworkers of SA & others
[19]
,
the LAC ruled that an employer’s instruction to its employees
to operate two machines instead of one as before did not constitute
a
unilateral variation. The Labour Court has also held that, in the
absence of a contractual provision governing shift times, a
change in
the shift system is merely a change of work practice.
[20]
[40]
In
SA
Broadcasting Corporation SOC Ltd v Commission for Conciliation,
Mediation & Arbitration & others
[21]
(
SABC
),
Judge van Niekerk (as he then was) re-emphasised the notion that the
employee’s breach of contract (often referred to as
a
repudiation) and the acceptance thereof by an employer in its very
nature is a dismissal. Judge van Niekerk did not take lightly
to
having to explain a principle so trite in South African law. The SABC
was unhappy about the ruling by the CCMA and on review
sought to
review and set aside the ruling that the CCMA lacks jurisdiction to
arbitrate the employee’s dispute. The SABC
approached the
Labour Court for a further order in terms of which it sought to stay
the arbitration proceedings until the review
had been decided. Judge
van Niekerk held that the submissions made by the SABC were
profoundly unsound and held as follows:
‘
The
definition of ‘dismissal’ in s 186 of the LRA expressly
includes circumstances where the employer ‘has terminated
employment with or without notice’. Whether the employer casts
the termination in the contractual language of acceptance
of the
repudiation of a contract of employment and an election to cancel the
contract, this is no more or no less than a termination
of
employment, with or without notice (ie a summary termination), which
in turn, by definition, constitutes a dismissal for the
purposes of s
186. This is a matter over which the CCMA exercises jurisdiction, at
least where the reason for dismissal is misconduct,
a reason that is
not in dispute in the present instance (see s 191(5)). I find it
disconcerting to have to record such a trite
principle to any labour
lawyer, this is a statement of the manifestly obvious. Were the
SABC’s point in limine to be upheld,
it would be open to
employers to avoid the statutory consequences of an unfair dismissal
simply by casting a termination of employment
in common-law
contractual terms. The inadequacies of the law of contract to protect
employees against a termination of employment
without a fair reason
and without following a fair procedure is the raison d’être
of the statutory protection against
unfair dismissal. This protection
has its roots in the power imbalance inherent in the employment
relationship and the remedial
constitutional right to fair labour
practices, a fact acknowledged many times over by this court, the LAC
and the Constitutional
Court.’
[41]
In an article discussing the Labour Court’s
findings in
SABC
,
the following was observed:
‘
is
therefore evident that employers should not view the acceptance of a
breach of contract as a distinct and separate concept from
a
dismissal. The end result remains the same; there is a termination of
the employment relationship between the employer and the
employee. It
then follows that the same rules of fairness apply, regardless of
whether the employee’s conduct is described
as a breach of
contract or as misconduct. Employers are warned against using this
argument to escape the remedies available to
an employee at the CCMA
by alleging that the CCMA does not have jurisdiction to arbitrate a
breach of contract matter. As indicated
by Judge van Niekerk, the
power imbalance in the employment relationship cannot be protected by
depriving employees of the right
to fair terminations of employment.
A dismissal dressed as a breach of contract is still a dismissal as
defined in the LRA. Accordingly,
the CCCMA can have the necessary
jurisdiction to arbitrate disputes involving the breach of a contract
that leads to termination
of employment.’
[22]
[42]
Schedule
8 of the Code of Good Practice: Dismissal
[23]
,
provides guidelines as to the handling of dismissal for reasons
related to conduct or capacity, including setting out that a
dismissal must be for a fair reason, discusses the concept of
disciplinary measures short of dismissal, the fair procedure to be
followed with respect to disciplinary procedures and further provides
guidelines in cases of dismissal for misconduct
[43]
Nowhere during the oral arguments by the
litigants was the Court directed by the Applicant as having observed
and or followed the
law above, as per the LRA. (Unless evidence as
summarized elsewhere @ para 37(6) suggested that the Third Respondent
was called
to a hearing in March 2022)
[44]
Rather, counsel argued that the Applicant
would have sued the Third Respondent for specific performance as its
stock, the mushrooms,
were rotting in the truck, as there was no
driver to deliver at their client’s restaurants, due to the
Third Respondent’s
absence. Hence, the Applicant employed three
drivers to cover the Third Respondent’s route. The common cause
being that since
the Third Respondent in
casu
was a senior and experienced employee,
he would have covered three deliveries driving one route.
Conclusion and costs
[45]
In
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[24]
,
the Constitutional Court confirmed that the rule that costs follow
the result does not apply in labour matters. The Court should
seek to
strike a fair balance between unduly discouraging parties from
approaching the Labour Court to have their dispute dealt
with and, on
the other hand, allowing parties to bring to this court (or oppose)
cases that should not have been brought to Court
( or opposed ) in
the first place.
[46]
Herein, this judgment, the Court has taken
the litigants through a journey of the common law contract of
employment, breach by way
of repudiation as alleged by the Applicant,
caveat subscriptor
,
the parole evidence rule, wherein either the employer or employee
sues for specific performance, not under the auspices of the
Labour
Court.
[47]
I
thus reiterate Judge van Niekerk’s words in
SABC
[25]
and I quote and reiterate
as well:
‘…
Whether
the employer casts the termination in the contractual language of
acceptance of repudiation of a contract of employment
and an election
to cancel the contract, this is no more less than termination of
employment, with or without notice (i.e summary
termination), which
in turn, by definition, constitutes a dismissal for the purposes of
s.186… I find it disconcerting to
have to record such a trite
principle -to any labour lawyer, this is a statement of the
manifestly obvious.’
[48]
In applying the law to the facts and the
reinstatement order, it is common cause that the Third Respondent
herein would have reached
the retirement age of 65 from the time of
the commencement of the dispute. (Was this issue ventilated before
the Arbitrator?)
[49]
The
LAC has held in the case of
South
African Municipal Workers Union obo Koopman v City of Cape Town and
Others
[26]
(
Koopman
)
that an employer is not obliged to keep an employee’s seat warm
where the employee has not tendered their services within
a
reasonable period following a reinstatement order. Where an employee
fails to reinstate their services within a reasonable period,
their
entitlement to reinstate lapses and an employer is not entitled to
reinstate them. Further, an order of reinstatement does
not in itself
reinstate the employee. Rather, it creates reciprocal obligations on
the employer and the employee: the employee
must tender their
services, and the employer must accept the employee back into its
employment.
[50]
Further, when an employee receives a
reinstatement order, the employee is provided with an election. If
the employee wants to be
reinstated, the employee must tender their
services within the specified period in the reinstatement order, on
good cause shown,
within a reasonable period thereafter. The
arbitration award at paragraph 81 was to the effect that the employee
was to have tendered
his services to the employer on 1 December 2023.
There has been no evidence adduced to this court as to whether the
offer of services
or acceptance was made. Thus, three years have
passed to date, and the Employee was 62 at the commencement of this
dispute. It
would thus go without saying that he has reached the
statutory retirement age. (The lapse of time due to review
proceedings??)
[51]
The
LAC in
City
of Johannesburg and Another v Independent Municipal and Allied Trade
Union on behalf of Erasmus and Another
[27]
held that where a tender of services is made so late, no valid tender
could be made later, and the entitlement to reinstate lapsed
for
those reasons. The LAC cautioned that the right to fair labour
practices also extends to employers. It would be unfair and
unreasonable to expect employers to keep a position open indefinitely
for an employee who was unfairly dismissed and was awarded
reinstatement, only to decide for themselves when they deem
appropriate to return to work and to tender their services. The Third
Respondent argued that upon his return from his unapproved leave,
this was proof that he had not repudiated the contract. The LAC
in
the
Koopman
held
it would be appropriate to refer judgment to the Minister of
Employment and Labour to consider potential legislative amendments
that could remedy similar situations in the future. The Court
proposed that employers be required to initiate communication with
an
employee after review or appeal proceedings are finalised, informing
them of as to when they are expected to tender their services.
This,
according to the LAC, will provide clarity and certainty for both
employers and employees while maintaining the onus on the
employee to
tender services.
[52]
[The
Constitutional Court relied on
Koopman
in
National
Union of Metalworkers of South Africa obo Fohlisa and Others v Hendor
Mining Supplies ( a division of Marchalk Beleggings
[28]
which held that a reinstatement order does not itself revive the
contract of employment rather, the contract is restored when the
employer accepts the employee’s offer to return to work. The
Constitutional Court stated that this principle is not authority
for
the proposition that a reinstated employee is only entitled to be
paid as from the date of their factual reinstatement. The
Labour
Court had incorrectly found that the contract was restored by the
first Labour Court’s order, not by the arbitration
award.
Arbitration awards reinstate an employee on the terms and conditions
which existed at the time of dismissal, unless the
order expressly
provides otherwise.
(Not sure I follow the
context in respect of reference to
Hendor
)
[53]
The
LAC held in
Coca
Cola Sabco (Pty) Ltd v Van Wyk
[29]
,
an employee who is successful in his/her claim following a
reinstatement following dismissal is entitled to be paid for the time
between the granting of the order of reinstatement and the date of
the actual implementation of the arbitration order if the employee
tendered his/her services and has proven his damages during that
period. Should the employer fail to pay the employee for such
time,
the employee is not automatically entitled to such remuneration.
However, he/she may launch action proceedings by virtue
of breach of
contract. In such circumstances, the employer may insist that the
employee prove his/her damages.
[54]
The Labour Court exist as a court of law
and equity in terms of section 151 (1) of the LRA. It must also give
effect to section
1 (d) (iv) of the LRA, which reads as follows :
‘
The
purpose of this Act is to advance economic development , social
justice , labour peace and the democratization of the workplace
by
fulfilling the primary objects of this Act , which are –
…
(d)
to promote –
…
(iv)
the effective resolution of labour disputes.’
[55]
The
Labour Court has held in
Kolobe
v Proxenos (Sophia’s Restaurant)
[30]
,
the word ‘effective’ should be equated with ‘speedy’.
[56]
In
Bader
(Bop) (Pty) Ltd & another v National Bargaining Council and
Others
[31]
,
Pillay J held:
‘…
bound
in terms of section 1(d) … to channel the dispute in a way
that it avoids a spiraling of the dispute in an abyss of
technicalities.
In making the order that
I do, and without denying the parties such rights as they may have in
law, the court prevails on the parties,
including the Bargaining
Council, to address the dispute effectively and substantively.’
The Second Respondent ‘s
analysis of evidence with particular reference to Paragraph 60 to 66
, 71 and 72 are correct , in
analyzing the contract of employment ,
common law and suit for damages , which does not exonerate the
employer from the statutory
mandate in the Labour Relations Act.
[57]
In the premises, the following order is
made:
Order
The Applicant’s
application is dismissed with costs.
L Gura
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
applicant:
C A Casner
Instructed
by:
Elroy Adams and Associates
For the third
respondent:
Brett Aarninkhof
Instructed
by:
Aarninkhof Attorneys
[1]
Act
66 of 1995, as amended.
[2]
In
its heads of argument, the Applicant further argued that repudiation
is the high water mark of its case, that there existed
no dismissal
but rather a repudiation of contract. This is the argument of the
Applicant on the merits in this review.
[3]
(2020) 41 ILJ 493 (LC) at para 12.
[4]
’The underlined portion is emphasised by the Third
Respondent’s Counsel.
[5]
Rule
25 ( 6) of the CCMA Rules, as read with Rules 25 (1) (f) and 25
(6)(f).
[6]
Sidumo
and another v Rusternburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC) at para 110, Navsa AJ’s judgment.
[7]
[2013]
11 BLLR 1074 (SCA).
[8]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and others
[2014] 1 BLLR 20 (LAC).
[9]
Section
138(1) of the LRA
[10]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2008)
29 ILJ 2899 ( LAC ), at 2906D – F.
[11]
Potgietersrus
Platinum Limited v Commission for Conciliation Mediation and
Arbitration and Others
(J1800/98)
[1999] ZALC 191
(29 June 1999) at para 62.
[12]
Marapula
& others v Consteen ( Pty ) Ltd
(1999
) 20 ILJ 1837 ( LC ) at para 33.
[13]
1903
TS 571
[14]
ibid
at 576. See 1.5.2
[15]
See
2.1.3
[16]
1980 (3) SA 927
(A) at 942H – 943F.
[17]
J
Grogan, ‘Workplace Law’, 13
th
ed. Juta, at p 31.
[18]
Southgate
v Blue IQ Investment Holdings
(2012)
33 ILJ 2681 (LC). Upheld on appeal in
Blue
IQ Investment Holdings v Southgate
(2014) 35 ILJ 3326 (LAC).
[19]
(1995)16
ILJ 349 (LAC).
[20]
Apollo
Tyres SA (Pty) Ltd v National Union of Metalworkers of SA &
others
(2012) 33 ILJ 2069 (LC)
;
Cape
Clothing Association v SA Clothing & Textile Workers Union &
another
(2012) 33 ILJ 1643 (LC).
[21]
(2020) 41 ILJ 493 (LC) at para 12.
[22]
C
Nolan, ‘A dismissal dressed as a breach of contract is still a
dismissal: a warning to employers’, 24 March 2020,
https://www.ensafrica.com/news/detail/2390/a-dismissal-dressed-as-a-breach-of-contract-i.
[23]
Schedule 8 of the LRA (repealed, effective 4 September 2025).
[24]
(2018)
39 ILJ 523 (CC) at para 24.
[25]
Supra.
[26]
(2025) 46 ILJ 1132 (LAC).
[27]
(2019) 40 ILJ 1191 (LAC).
[28]
2017 (7) BCLR 851 (CC).
[29]
[2015] 8 BLLR 774 (LAC).
[30]
(2000)
21 ILJ 1130 (LC).
[31]
(2001)
22 ILJ 2431 (LC) at 2433C – E.