REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN CAPETOWN
CASE NO: C335/ 2003
In the matter between:
PROTEKON (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION First Respondent
COMMISSIONER DAVE WILSON N.O. Second Respondent
NEIL ROBERT MARINUS Third Respondent
JUDGMENT
Introduction
1.This is an application to review and set aside an arbitration award made by a CCMA
commissioner, the Second Respondent in these proceedings. The CCMA award has been
reported at (2003) 24 ILJ 1595 (CCMA).
2.The dispute has its origin in a decision by the Applicant, Protekon (Pty) Ltd, to terminate the
provision of travel concessions to a class of managerial employees. The Third Respondent, Mr
Marinus, fell within this class and was affected by the decision.
3.Protekon terminated the travel concessions and substituted these with an increase in
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remuneration to compensate affected employees for the loss of the travel concessions. The Third
Respondent considered that he was unfairly affected by this decision. After internal grievance
procedures were exhausted, he referred a dispute to the CCMA. He alleged that the Applicant’s
decision constituted unfair conduct relating to the provision of benefits. That is a dispute
contemplated by the provisions of Section 186(2)(a) of the Labour Relations Act, 1995 (“the LRA”).
4.The dispute ultimately came before the commissioner in arbitration proceedings. The
commissioner made an award in favour of the Third Respondent. Before dealing with the
arbitration award and the grounds on which the Applicant attacks the award on review, I set out a
summary of the material facts as they appear from the papers before me.
Summary of material facts
5.Protekon was, until April 1999, an internal business unit of Transnet. It had no separate legal
personality. With effect from 1 April 1999 it was “corporatised”. Its business was transferred from
Transnet to a newly established company, Protekon (Pty) Ltd. The company was wholly owned by
Transnet. One of the consequences of this transaction was that the company was substituted in
the place of Transnet as the employer of all employees employed in the business immediately prior
to the transfer. This took place in terms of the provisions of Section 197 of the LRA.
6.Immediately prior to the business transfer, employees in the business enjoyed certain
travel concessions. The nature of the travel concessions was regulated by a policy
document. The policy document described the travel concessions in terms which
indicated that they were discretionary in nature and that the rules governing the grant of
travel concessions could be changed unilaterally.
travel concessions could be changed unilaterally.
7.Nevertheless, employees of Transnet had been able to take up the travel concessions in terms
of the policy consistently since it was first introduced by the former South African Railways and
Harbours Service, during 1981. The travel concession policy was inherited by Transnet when it
was established in 1990.
8.One of the undertakings given by the Applicant to Transnet at the time of the business transfer
was that conditions of employment would not be changed for a period of three years following the
business transfer.
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9.The Third Respondent was not employed in the Protekon business unit of Transnet at the time of
the business transfer in 1999. At that time he was employed by Transnet in its Spoornet business
unit.
10.During 2001, the Third Respondent applied for a vacant position with the Applicant. He was
successful in his application and was appointed as an employee of the Applicant with effect from 1
October 2001.
11.Immediately prior to his appointment, and as a consequence of his employment with Spoornet,
the Third Respondent enjoyed the benefit of the travel concessions. When he was engaged by the
Applicant with effect from October 2001 he signed a fresh employment contract. There was no
reference to the travel concessions in the employment contract. He was, however, told that his
“benefits” in the employment of the Applicant would remain the same as with Spoornet. There was
no specific discussion in relation to the travel concessions. On taking up employment with the
Applicant, the Third Respondent was provided with a copy of an induction booklet in which it was
stated that the viability of the travel concessions was “currently under revision and therefore
subject to change”.
12.During March 2002 the Applicant resolved, with effect from 1 April 2002 (three years following
the business transfer from Transnet), to withdraw travel concessions from approximately 200
managerial employees and to replace the concessions with an increase in monetary remuneration.
The Applicant took this decision without prior consultation with the affected employees.
13.The increase in monetary remuneration for affected employees was determined following an
examination of the actual usage of travel concessions by those employees. Actual usage by the
group of affected employees as a whole amounted to approximately 25% of the total available
group of affected employees as a whole amounted to approximately 25% of the total available
travel concessions. Each affected employee was compensated by the payment of additional
remuneration amounting to one third of the value of the available travel concessions. The average
value of the travel concessions available per manager was calculated as being approximately
R51,000. The amount of compensation determined by the Applicant was one third of this,
R17,000.
14.The Third Respondent was one of the affected managerial employees.
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15.In his award, the commissioner found that the travel concessions were benefits as
contemplated by the provisions of section 186(2)(a) of the LRA. He found that the
Applicant had committed an unfair labour practice, and awarded the Third Respondent
certain relief.
16.The Applicant then initiated these proceedings.
Unfair conduct relating to the provision of benefits: the jurisdiction of the CCMA
17.Mr Kahanovitz, who appeared on behalf of the Applicant, approached the matter on the basis
that the Applicant accepted that the travel concessions were “benefits” of the Third Respondent’s
employment in the sense contemplated in Section 186(2)(a) of the LRA.
18.The Applicant was, in my view, correct to approach the matter on this basis. This Court has, in
previous decisions, determined that a “benefit” for this purpose must be something other than
remuneration: Schoeman v Samsung Electronics (Pty) Ltd (1997) 18 ILJ 1098 (LC) 1102; Gaylard
v Telkom SA Ltd (1998) 19 ILJ 1624 (LC) . In reaching that conclusion, this Court was clearly
concerned that if the notion of “benefits” is interpreted too widely, the effect of this would be to give
parties the right to refer to arbitration a wide range of disputes that are in essence disputes about
remuneration. The effect of this would, because of the provisions of section 65(1)(c) of the LRA,
be to preclude industrial action over a range of disputes over remuneration that properly fall within
the realm of collective bargaining.
19.On the facts of those cases, this Court found that commission payable as part of the
employee’s salary (in Schoeman v Samsung ) and accumulated leave pay (in Gaylard v Telkom )
were not “benefits” as contemplated by the unfair labour practice definition. While it is not
necessary for me here to reconsider whether those decisions were correct on their facts, the
statement (in Schoeman v Samsung at 1102G to 1103A) that a benefit is “something extra, apart
from remuneration” seems to me to go too far. In my view there is little doubt that remuneration in
its statutory sense (as defined in the LRA) is broad enough to encompass many forms of payment
to employees that may, in the ordinary use of language, properly be described as “benefits”.
20.There is no closed list of employment benefits that fall within what is contemplated in section
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186(2)(a). But there can be little doubt that most pension, medical aid and similar schemes fall
within the scope of that term. This is so despite the fact that employer contributions to such
schemes fall within the statutory definition of remuneration: see, for example, Younghusband v
Decca Contractors (SA) Pension Fund and its Trustees (1999) 20 ILJ 1640 (PFA) at 1657I to
1658E; Resa Pension Fund v Pension Fund Adjudicator & Others (2000) 21 ILJ 1947 (C) at [15].
And in SAMRI v Toyota of South Africa Motors (Pty) Limited [1998] 6 BLLR 616 (LC) participation in
a motor vehicle benefit scheme in terms of which employees were granted the use of a motor
vehicle by the employer was held to constitute part of an employee’s remuneration.
21.I have referred earlier to this Court’s concern that if some forms of remuneration are found to
fall within the concept of “benefits” as contemplated in the unfair labour practice definition, this
might unduly curtail industrial action in an area typically regarded as the proper subject of collective
bargaining. In the light of the decisions of the Labour Appeal Court, to which I refer below, this
concern need not persist.
22.Disputes over the provision of benefits may fall into two clearly identifiable categories: the first is
where the issue in dispute concerns a demand by employees that certain benefits be granted (or
reinstated) irrespective whether the employer’s conduct in not agreeing to grant the benefit (or in
removing it) is considered to be unfair; the second is where the issue in dispute is the fairness of
the employer’s conduct. No party has a right to refer disputes in the first category to arbitration,
and there is consequently no barrier to industrial action at the point of impasse. The converse is
true of disputes in the second category.
true of disputes in the second category.
23.In Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building & Allied
Workers Union (2) (1997) 18 ILJ 671 (LAC) Appeal Court cautioned against allowing parties to
“convert” justiciable disputes into disputes in respect of which industrial action is permissible by
changing the nature of the demand. This would allow “the tail to wag the dog.” (at 677 HI and
678 AC) When that decision is considered in the context of other decisions of the LAC (in
particular Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & Others (1)
(1998) 19 ILJ 260 (LAC) at 269 GH and Coin Security Group (Pty) Ltd v Adams & Others (2000)
21 ILJ 924 (LAC) at [16]) it is, however, clear that the Court will look at the substance of the dispute
and not at the form in which it is presented, and that the characterization of a dispute by a party is
not necessarily conclusive. What is required is an assessment, on the facts of each case, of the
true nature of the dispute in order to determine whether it is a dispute that a party has the right to
refer to arbitration.
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24.More significantly, perhaps, the Labour Appeal Court has pointed out that there are a number of
types of dispute in respect of which parties enjoy a genuine election whether to resort to industrial
action or to seek adjudication: see Maritime Industries Trade Union of SA & Others v Transnet Ltd
& Others (2002) 23 ILJ 2213 (LAC) paragraphs [106] to [108].
25.Where disputes over benefits are concerned, its seems to me, there can be little objection to
workers choosing to tackle the employer in the collective bargaining arena rather than trying to
demonstrate unfairness in the sense contemplated in the unfair labour practice definition. The
LRA does not appear to preclude them from doing both at the same time. (This is in contrast to the
election to resort to either arbitration or industrial action in relation to organisational rights: Section
21 read with Section 65(2) of the LRA; and the election to resort to either adjudication or industrial
action now provided for in Section 189A, with specific reference to subsection 189A(10).)
26.It is for these reasons that I consider that the Applicant was correct to approach the matter on
the basis that the travel concessions that the Third Respondent enjoyed whilst in the employ of the
Applicant constituted a “benefit” within the meaning of that term in the unfair labour practice
provisions of the LRA.
27.That conclusion does not of course determine the nature or extent of the employer’s obligations
to provide the benefit. A separate enquiry is necessary for that purpose. This will usually be
necessary to determine whether or not any particular employer conduct in relation to the provision
of the benefit can properly be described as being unfair and as constituting an unfair labour
practice.
28.The main thrust of the argument of Mr Kahanovitz, however, was that the Third Respondent
28.The main thrust of the argument of Mr Kahanovitz, however, was that the Third Respondent
had enjoyed no contractual right to the benefit in question because the benefit was conferred on
terms which expressly reserved the employer’s right to withdraw it. In the absence of an
enforceable contractual right to the benefit, Mr Kahanovitz submitted, the CCMA had no jurisdiction
to adjudicate the dispute because it fell outside what was contemplated by the provisions of section
186(2)(b) of the LRA. In support of this submission, Mr Kahanovitz referred me to the judgment of
the Labour Appeal Court in Hospersa & another v Northern Cape Provincial Administration (2000)
21 ILJ 1066 (LAC) .
29.In Hospersa, an employee had acted in a more senior position for some two years. When the
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position was advertised she applied to be permanently appointed to it, but was unsuccessful in her
application. She then ceased to act in the more senior position. She declared a dispute in which
she claimed that she should have been remunerated retrospectively at the higher rate of
remuneration commensurate with the position in which she had been acting for the duration of the
period of acting. She could point to no contractual entitlement, regulation or policy that provided
for an “acting allowance” in those circumstances. The LAC held that the dispute was not about
something to which the employee was already entitled. It was about a benefit which she hoped to
“create through arbitration” (at paragraph [8]). The Court continued:
“ … the legislature did not seek to facilitate, through item 2(1)(b), the creation of an
entitlement to a benefit which an employee otherwise does not have. I do not think
that item 2(1)(b) was ever intended to be used by an employee who believes that
he or she ought to enjoy certain benefits which the employer is not willing to give
him or her, to create an entitlement to such benefits through arbitration….It simply
sought to bring under the residual unfair labour practice jurisdiction disputes about
benefits to which an employee is entitled ex contractu (by virtue of the contract of
employment or a collective agreement) or ex lege (the Public Service Act or any
other Act). ”(at paragraph [9])
30.The essence of the Court’s reasoning was that the unfair labour practice jurisdiction may not be
used as a substitute for collective bargaining, to create new employment rights or to further
collective bargaining demands.
31.Mr Kahanovitz sought to persuade me that the effect of the decision in Hospersawas to restrict
the unfair labour practice jurisdiction in relation to benefits to the enforcement of contractual rights.
Scrutiny of employer conduct was to be limited to an examination of whether the employee is
contractually entitled to the remedy that is sought. I do not agree that this was the intention of the
Labour Appeal Court or the effect of the decision in Hospersa.
32.What the Labour Appeal Court clearly does say in Hospersais that the unfair labour practice
jurisdiction cannot be used to assert an entitlement to new benefits, to new forms of remuneration
or to new policies not previously provided by the employer. To permit that would allow an
employee to use the unfair labour practice jurisdiction to establish new contractual terms,
something which the LRA clearly contemplates should be left to a process of bargaining between
the parties.
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33.It does not, however, follow from this that an employee may have recourse to the CCMA’s
unfair labour practice jurisdiction only in circumstances in which he has a cause of action in
contract law. If that was the case there would have been little purpose in introducing the specific
unfair labour practices contemplated in Section 186 of the LRA.
34.The establishment of the CCMA’s unfair labour practice jurisdiction specifically in relation to
benefits is, it seems to me, a legislative response to the complexity of the reciprocal employer and
employee rights and obligations that exist in many employee benefit schemes. In typical employee
benefit schemes (such as pension funds and medical aid schemes) the employer’s obligations
frequently extend beyond the simple payment of money to the employee or a third party in return
for services rendered by the employee. Employer obligations are typically regulated by separate
policies or rules. In many instances the employer enjoys a range of discretionary powers in terms
of those policies or rules. The legislature has clearly considered it necessary to regulate employer
conduct in those circumstances by superimposing a duty of fairness irrespective whether that duty
exists expressly or impliedly in the contractual provisions that establish the benefit.
35.The fact that an employer is entitled, by the terms of a benefit scheme or policy, to exercise a
discretion as to the amount of any benefit to be provided, as to the terms upon which a benefit is to
be provided, or as to whether a benefit is to be provided at all does not, in my view, take the
benefit outside the ambit of the unfair labour practice jurisdiction provided by Section 186(2)(a).
The existence of an employer discretion does not by itself deprive the CCMA of jurisdiction to
scrutinise employer conduct in terms of the provisions of that section. On the contrary, it is clear
that the provision was introduced primarily to permit scrutiny of employer conduct including the
exercise of employer discretion in the context of employee benefits.
36.It follows from this that there are at least two instances in which employer conduct in relation to
the provision of benefits may be subjected to scrutiny by the CCMA under its unfair labour practice
jurisdiction. The first is where the employer fails to comply with a contractual obligation that it has
towards an employee in relation to the provision of an employment benefit. The second is where
the employer exercises a discretion that it enjoys under the contractual terms of the scheme
conferring the benefit.
37.In the first instance, there is clearly an overlap between the CCMA’s unfair labour practice
jurisdiction and the jurisdiction of civil courts to deal with contractual disputes. In the second
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instance, where the fairness of the employer’s exercise of a contractual discretion may be
subjected to scrutiny, it is not clear that the employee has any other cause of action besides the
unfair labour practice, unless it can be demonstrated in a civil court that the contract requires,
expressly or impliedly, that the discretion be exercised fairly.
38.It is possible that a contractual term to this effect (imposing a duty on the employer to act fairly)
will readily be implied in the context of employment benefits. The courts have on a number of
occasions found an implied duty of good faith in this context: see, for example, Tek Corporation &
others v Lorentz 1999 (4) SA 884 (SCA) at 894BE (referring to Imperial Group Pension Trust Ltd v
Imperial Tobacco Ltd [1991] 2 All ER 597 (Ch) ); IBM Pensioners Action Group v IBM SA (Pty) Ltd
(2000) 21 ILJ 1467 (PFA) at [27] to [38]. It seems to me that the requirement of fairness derived
from the right to fair labour practices may well be found to coincide substantially if not completely
with the duty of good faith referred to in these decisions.
The commissioner’s assessment of the fairness of the Applicant’s conduct
39.The travel concessions regime in place when the Third Respondent took up employment with
the Applicant during 2001 was the same regime as that enjoyed by other employees prior to their
employment by the Applicant in consequence of the business transfer in 1999. It was the same
travel concessions regime as that enjoyed by the Third Respondent during his employment at
Spoornet. It was a regime that reserved a considerable degree of employer discretion that was
expressly provided for in the policy regulating the travel concessions.
40.What the Applicant did with effect from 1 April 2002 was to exercise the discretion that it had
reserved for itself in terms of the rules regulating travel concessions to withdraw the concessions
from a class of employees. It substituted them with the payment of increased remuneration. The
withdrawal of the travel concessions against payment of increased remuneration constituted
employer conduct in relation to the provision of a benefit.
41.The Applicant suggested that the commissioner should have limited himself to assessing the
fairness or otherwise of the withdrawal of the benefit, and that he erred in considering that the
“compensation” that the Applicant determined should replace the travel concessions formed part of
the Applicant’s “conduct” in relation to the provision of benefits. In my view the withdrawal of the
travel concessions and its replacement with monetary “compensation” was part of a single course
of conduct by the Applicant, and the commissioner was entitled to consider that conduct in its
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entirety.
42.The conduct was unilateral. It was not preceded by any formal process of engagement or
consultation with the affected employees with a view to seeking consensus. The commissioner
was required to consider whether the conduct constituted an unfair labour practice.
43.The commissioner’s approach to assessing the fairness of the Applicant’s conduct was to look
separately at the question whether there was a fair reason for the conduct and the question
whether a fair procedure was followed. Although the LRA itself does not prescribe this separate
analysis of questions of substance and procedure, as it does for example in relation to the question
of the fairness of dismissal (in Section 188), this approach was well established under the general
unfair labour practice jurisdiction of the 1956 LRA. (The commissioner referred in this regard to the
decision of WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen [1997] 2 BLLR 124 (LAC) ). In my
view that is an appropriate approach to adopt in considering the fairness of employer conduct in
relation to the provision of benefits.
44.The commissioner found that the Applicant was contractually entitled to withdraw the travel
concessions and that it had a genuine commercial rationale for doing so. This, in the
commissioner’s view, meant that there was a fair reason for the employer’s conduct. That decision
of the commissioner is not challenged in these proceedings.
45.On the question of procedure, the commissioner considered the effect of the decision in two
discrete ways. First, the commissioner concluded that since the Applicant had a genuine
commercial rationale to withdraw the travel concessions, it was entitled to make this decision
without consultation. This conclusion, it seems to me, is open to serious question. But it is not
attacked in these proceedings, the application being unopposed, and I am not at liberty to interfere
with it. In any event, the commissioner concluded that the failure to consult was indeed unfair, for
a different reason. He concluded that it was unfair (as a matter of procedure) for the employer to
determine without prior consultation the amount of compensation to be paid to affected employees
as a substitute for the withdrawal of the travel concessions. He then crafted certain remedies
based on that finding of unfairness.
46.In my view there is no reason to fault the commissioner’s finding of procedural unfairness, and I
too would have decided that the employer conduct in withdrawing the benefit was procedurally
unfair. I would have added to the reasoning of the commissioner that it was unfair because there
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was no consultation on the rationale for the employer conduct.
The remedy determined by the commissioner
47.This disposes of all of the Applicant’s challenges save for one. That challenge focused on the
remedy that the commissioner determined in consequence of his finding that the employer conduct
was procedurally unfair.
48.There were two elements to the Applicant’s attack on the remedy. The first was that the
commissioner ordered the Applicant to consult with all of the approximately 200 affected
employees, and not only the Third Respondent. The remaining employees were not party to the
dispute and, it was submitted, had made no complaint. The Applicant submitted that the
commissioner exceeded his powers when he made this order.
49.The second element to the attack on the remedy concerned the commissioner’s award of
compensation. The commissioner ordered the Applicant to compensate the Third Respondent in
an amount equal to the difference between the value he would have received had the travel
concessions remained in place and the amount actually paid to him during the period of one year
(that was the period of time that had elapsed between the withdrawal of the travel concessions and
the date of the arbitration).
50.A commissioner appointed to determine an unfair labour practice dispute may determine the
dispute “on terms that the commissioner deems reasonable” (Section 193(4) of the LRA). Those
terms “may include ordering reinstatement, reemployment or compensation”.
51.In the present matter the commissioner ordered that consultation with all affected employees
must take place, but that if it did not the Applicant must reinstate the Third Respondent’s full travel
benefits retrospective to the date of the award. In addition, the commissioner awarded
compensation for the loss of the benefit for the period prior to the arbitration. Since the net effect
of these elements of the award did not amount to more than the full retrospective reinstatement of
the benefit, I need not consider the question whether the commissioner has the power to award
both reinstatement and compensation as remedies for an unfair labour practice, or whether these
remedies stand as alternatives only.
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52.The commissioner’s award gave the Applicant an opportunity to remedy its procedural error. If
it took this opportunity, it would have to compensate the Third Respondent only for the loss he had
suffered during the one year period prior to the arbitration taking place. The consultation
envisaged did, however, necessarily involve a large number of other employees that were not in
dispute with the Applicant. The commissioner could not reasonably order consultation with the
Third Respondent alone. Where the amount available as compensation for withdrawal of the travel
concessions had been settled for the group of affected employees as a whole, the outcome of
consultation with the Third Respondent would have been a foregone conclusion.
53.At the same time, the commissioner could not reasonably have contemplated consultation with
the group of affected employees as a whole, unless that consultation took place on the basis that
the Applicant and the affected employees were willing to revisit, with open minds and in good faith,
what had previously been determined. That process would necessarily have unsettled what had,
for the approximately 200 other employees, until then been settled. On the evidence before the
commissioner, the other affected employees had made no complaint, and had accepted the new
dispensation. They had not been joined in the proceedings. In my view that made the
commissioner’s award, at least to that extent, irrational, and the commissioner exceeded his
powers in granting that relief.
The relief to be granted by this Court
54.This conclusion does, however, give rise to certain difficulties in relation to the relief that should
be granted by this Court. The commissioner considered it reasonable to make the further order
that, in the event consultation did not take place, the Applicant must reinstate the Third
Respondent’s use of the travel concession. The commissioner clearly considered the failure to
consult to be sufficiently serious to justify the grant of what may be termed substantive rather than
merely procedural relief in the event that the Applicant failed to take the further opportunity it was
given to consult.
55.I have considered whether the matter should be remitted to the commissioner to reconsider the
remedy he granted in the light of the difficulties with it that I have referred to. Although the remedy
that is to be granted in unfair labour practice disputes is a discretionary one, and for that reason I
would ordinarily be inclined to remit the matter to the CCMA, I have decided to substitute the
award. The circumstances in which this Court will do this were considered in Maarten & Others v
Rubin NO & Others (2000) 21 ILJ 2656 (LC) at [26] to [28]. In the present matter I consider that
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further delay would cause unjustifiable prejudice to both the Applicant and the Third Respondent,
and that this Court is in as good a position as the CCMA to make the decision itself. The type of
decision is one with which this Court is familiar.
56.There is nothing in the provisions of the LRA (section 193(4)) to suggest that substantive relief
(in the form of reinstatement of a benefit) may not be granted where an employer has been found
to have committed an unfair labour practice on procedural grounds only. This is in contrast to the
remedies for unfair dismissal provided for in Section 193(1) and (2), as interpreted by the Labour
Appeal Court in Mzeku & others v Volkswagen SA (Pty) Ltd & others (2001) 22 ILJ 1575 (LAC) .
57.In the present matter, however, there are compelling reasons why an order reinstating the travel
concessions for one employee only would not be reasonable. Inherent in the substitution of the
travel concession scheme, it seems to me, is the notion of cross subsidisation. It is a group
scheme. Some employees may make more use of it while others may use it less. That appears to
be the basis of the commissioner’s conclusion that the Applicant “acted fairly in determining the
total amount of compensation payable, in that the amount of compensation exceeded the
anticipated cost of granting the benefit, based on historical information.”
58.Where an employer has not breached its contractual obligations to an individual employee, it
seems to me that an adjudicator should be reluctant, as a matter of fairness, to disturb an
employer decision that may reasonably be said to be in the interests of a group of employees as a
whole, even if the interests of a minority of employees in the group are adversely affected. With
fairness as the test, questions of proportionality will invariably need to be considered. The
disadvantages to a minority may, as a matter of fairness, outweigh the advantages to a majority.
In the present case, however, there is no reason to conclude that any adverse impact on the Third
Respondent is disproportionate to the settled interests of the majority of employees in the affected
class.
59.In those circumstances it seems to me that compensation is an adequate and appropriate
remedy. As to the amount of such compensation, the LRA provides only that it should not exceed
the equivalent of 12 months remuneration (Section 194(4)). In my view the amount of
compensation calculated by the commissioner, being the difference in value to the Third
Respondent of the travel concession and the compensation paid to him as a member of the
affected class of employee, for a period of 12 months, is reasonable, just and equitable in all the
circumstances.
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60.The Third Respondent did not oppose this application and no cost order was sought against
him. The Applicant sought an order of costs against the CCMA and the commissioner on the
grounds that there had been a serious failure to discharge their statutory functions, and that the
order was “bizarre”. I do not agree that a cost order is warranted in the present matter.
Order
I make the following order:
1.
1. The relief granted by Second Respondent is reviewed and set aside and substituted with
the following: “The Respondent is ordered to pay the Applicant an amount of R23,890
(twenty three thousand eight hundred and ninety rand). This amount shall bear interest
from 21 May 2003 to date of payment at the rate prescribed from time to time in respect of
a judgment debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975.”
2. The Applicant is ordered to pay the amount due in terms of paragraph 1 within 14
days of this order.
3. There is no order as to costs.
C F N TODD
Acting Judge of the Labour Court
Date of hearing: 24 November 2004
Date of judgment: 17 May 2005
Applicant’s Representative: Adv. CS Kahanovitz, instructed by Jan S De Villiers