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[2016] ZACC 1
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Steenkamp and Others v Edcon Limited (CCT46/15, CCT47/15) [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC) (22 January 2016)
Links to summary
Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Cases CCT 46/15 and CCT 47/15
In the matter between:
KARIN
STEENKAMP
First Applicant
MZIMKHULU DE BOOI AND 3 OTHERS
VICTORIA SEKHOTO AND 132 OTHERS
GOODNESS KHUMALO
AND 65 OTHERS
Second and Further Applicants
NATIONAL UNION OF METALWORKERS OF
SOUTH
AFRICA
Intervening Applicant
and
EDCON
LIMITED
Respondent
Neutral
citation:
Steenkamp
and Others v Edcon Limited
[2016] ZACC
1
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der
Westhuizen J, Wallis
AJ and Zondo J
Judgments:
Cameron J (Van der Westhuizen J concurring): [1]
to [86]
Zondo J (Mogoeng CJ, Moseneke DCJ, Jafta J,
Khampepe J, Madlanga J, Matojane AJ, Nkabinde J and Wallis AJ
concurring): [87] to [195]
Heard
on:
8 September 2015
Decided
on:
22 January 2016
Summary:
Labour Relations Act
—
dismissal for operational requirements
—
non-compliance with section
189A(8)
—
premature
notices of termination
—
dismissal not invalid but may be unfair
—
requirements
of section 189A(8) relating to procedural fairness
—
LRA remedy for LRA breach not common law
remedy
—
workers
to use LRA mechanisms
—
remedies
in section 189A(8)(9) and (13) adequate
—
reinstatement not competent for invalid
dismissal
—
appeal
from LAC
—
application
dismissed
Minority judgment
—
section 189A(7) and (8)
create a dismissal-free zone — dismissals in breach of section
189A invalid
ORDER
On appeal from the Labour Appeal Court:
(a)
Leave to appeal is granted.
(b)
The appeal is dismissed.
(c)
There is no order as to costs.
JUDGMENT
CAMERON J (Van der Westhuizen J
concurring)
Introduction
[1]
The Labour Relations Act
[1]
(LRA) provides that an employer undertaking large scale
retrenchments may give notice to terminate the contract of employment
only once 60 days have elapsed after extending an invitation to
consult on an impending retrenchment.
[2]
The statute further provides that, in these retrenchments, notice of
termination of employment “must” be given
in accordance
with its provisions. If an employer dismisses in violation of
this injunction, are the dismissals invalid?
The applicants
(employee applicants), joined by the National Union of Metalworkers
of South Africa (NUMSA), say Yes. The
respondent, Edcon Limited
(Edcon), says No. Contradictory decisions of the Labour Appeal
Court point in opposite directions.
[3]
These proceedings seek an answer from this Court.
Background
[2]
Edcon employed almost 40 000 sales,
administrative and other staff in 1 300 retail outlets across
nine countries in Southern
Africa. But its business began to
falter. During April 2013, it started restructuring for
operational requirements.
[4]
By mid 2014, the process had resulted in the retrenchment of
about 3 000 employees.
[3]
During the retrenchment process, Edcon
first issued written notices in terms of section 189(3) of the
LRA.
[5]
These informed its workforce in general terms that it was
contemplating dismissal for operational requirements and invited
consultation. Because of the size of the workforce, and the
scale of the proposed retrenchments, section 189A applied.
[6]
This requires that, in respect of any dismissal it covers, “an
employer must give notice of termination of employment
in accordance
with the provisions of this section”.
[7]
The effect of non-compliance with this provision is at issue.
[4]
For large-scale retrenchments, section 189A
provides the option of facilitation.
[8]
This meant Edcon reached a critical point in the process. Under
the statute the parties may agree on facilitation,
[9]
or, if not, either the employer or a representative trade union may
request that the matter be facilitated. This entails
a joint
consensus-seeking process to mitigate adverse consequences.
[10]
[5]
But, if a facilitator is not appointed,
section 189A(8) imposes a minimum 30 day time bar.
[11]
The period is calculated from the date on which the employer issues
notices in terms of section 189(3). During that
period,
employees and employers are barred from taking further steps.
Neither party may refer a dispute about the impending
retrenchments
to the applicable bargaining council or to the Commission for
Conciliation Mediation and Arbitration (CCMA). It
follows that
employers, in particular, are not entitled to invoke the power the
provision confers on them after the periods have
elapsed, namely to
give notice to terminate contracts of employment in accordance with
section 37(1) of the Basic Conditions of
Employment Act
[12]
(BCEA).
[6]
The dispute arose because Edcon issued
notices of termination before this 30 day period had elapsed.
In consequence,
the employee applicants made 51 referrals,
involving 1 331 employees, to the Labour Court. These
challenged the validity
of the dismissals. The first, second
and further applicants are employees involved in four of these
referrals.
[7]
The time between Edcon’s section
189(3) notices and the notices of termination varied. In the
case of Ms Karin Steenkamp,
the first applicant, it was six days.
In other cases, it was more than 60 days.
[13]
Neither Edcon nor the applicants referred a dispute to the CCMA in
terms of section 189A(8). None of the employees
sought to
embark on a retaliatory strike and none approached the Labour Court
to compel Edcon to comply with a fair procedure or
to interdict or
restrain it from dismissing them before complying with a fair
procedure.
[14]
Nor did the applicants refer an unfair dismissal dispute to the CCMA
in terms of section 191(1)(a) of the LRA.
[8]
More importantly, none of the employee
applicants contest any aspect of the procedural or substantive
fairness of the dismissals.
They have not sought to impugn the
fairness of Edcon’s unauthorised conduct. Nor have they
tendered to return
the severance packages Edcon paid them.
Their sole ground of complaint is formal. It is that Edcon gave
short notice
under section 189A(2)(a) and (8). And so the
single issue before us is the effect of not complying with those
provisions.
Labour Appeal Court
[9]
Confronted with its non-compliance with the
notice periods, Edcon initiated these proceedings with the specific
object of challenging
De Beers
and
Revan
,
the Labour Appeal Court decisions holding section 189A dismissals on
short notice invalid.
[15]
The Judge President specially constituted the Labour Appeal
Court, sitting as a court of first instance, to hear the
case.
[16]
Edcon invited the Court to reinterpret section 189A(2)(a) read with
section 189A(8) so as to conclude that dismissals in
violation of
those provisions’ time periods were not invalid. The
Court accepted the challenge, and upheld it.
It found in favour
of Edcon. It found the approach in that Court’s two
earlier decisions “obviously wrong
”
.
[17]
[10]
At the base of the Court’s judgment
lies the distinction between a failure by an employer to give proper
and valid notice
of termination in terms of the contract, on the one
hand, and failure to give valid notice in breach of a statutory
provision.
The former, the Court said, can be construed as a
breach of contract. If that breach is material, it may result
in a wrongful
or unfair termination of employment. This in turn
entitles the employee to seek specific performance or damages for
wrongful
termination, but also reinstatement or compensation for
unfair dismissal under section 193 of the LRA.
[18]
[11]
By contrast, breach of a statutory notice
requirement violates the principle of legality. This allows the
employee to challenge
the lawfulness of the action by means of review
proceedings to obtain an order of invalidity and reinstatement. In
essence,
the Court held that the latter breach, with its
consequences, is not found in the LRA. Instead, it found, the
statute contemplates
and provides remedies for one kind of dismissal
only: unfair dismissal, as defined in the statute. This takes
place when
an employer unfairly terminates a contract of employment.
And a dismissal so defined is an unfair dismissal, whether or not
the
termination also violates section 189A(2)(a) and (8).
[12]
The Court located this approach in the
LRA’s definition of “dismissal”. This, the
statute provides, means
amongst others that “an employer has
terminated employment
with or without
notice
”.
[19]
The Court reasoned that the word “terminated” must
be given its ordinary meaning. This is “bringing
to an
end” – regardless whether the action is lawful, fair or
otherwise. A termination by an employer without
giving proper
or valid notice still constitutes a “dismissal” under the
LRA.
[20]
The statute provides remedies to address any wrongfulness or
unfairness. But this does not alter the factual consequence
of
the termination. The employee is dismissed, fairly or unfairly,
lawfully or unlawfully.
[13]
The Court evoked the history of employment
law jurisprudence in South Africa. It explained that the
concept of an employment
relationship is broader than the concept of
a contract of employment. So a “dismissal” under
the statute is not
the equivalent of a lawful cancellation of a
contract of employment. It is much broader:
“
The
statutory concept of dismissal is therefore not restricted to the
contractual notion of lawful cancellation and recognises that
contract law is an insufficient instrument to regulate the modern
employment relationship.”
[21]
The Court found an
“implicit acceptance” in
Schierhout
[22]
that a wrongful or “invalid” termination can nevertheless
in fact bring a contract of employment to an end. This
belief,
it said, has persisted in our law.
[14]
The purpose of the LRA’s wide
definition of “dismissal” is to extend the statute’s
scope to protect dismissed
employees. The important practical
result is that a wrongful termination without notice that does not
constitute a lawful
cancellation or rescission of an employment
contract may still constitute an effective dismissal under the
LRA.
[23]
[15]
By contrast, the Court held, where
dismissals contravene provisions in statutes other than the LRA, a
fundamental principle comes
into play; that they are void and of no
effect, even though, the Court noted, this doctrine has softened
somewhat because the remedies
available are discretionary.
[16]
Accordingly, the general principle that
something done in contravention of a statute is void and of no
effect, which
Schierhout
applied in the employment context, no longer applies in all cases.
It depends on the proper construction of the particular
legislation.
[24]
And the consequence of the contravention depends on the nature of the
discretionary remedies available. The enquiry
is thus
contextual. The Court held that it involves consideration of:
the right sought to be enforced and the wrong sought
to be rectified;
the subject matter of the prohibition; its purpose in the context of
the legislation; the nature of the mischief
the prohibition was
designed to remedy or avoid; and any cognisable impropriety that may
flow from invalidity.
[17]
Here, the Court found, it was important
that section 189A already offers the parties remedies to counteract
non-compliance.
Section 189A(9) licenses an immediate
retaliatory strike. And section 189A(13) provides for an order
compelling the employer
to comply with a fair procedure, or for an
interdict, reinstatement or compensation.
[18]
Most pertinently, the Court held,
De
Beers
and
Revan
introduce an anomaly: they remove a conventional dismissal from
the scope of the LRA so that it cannot be assessed on the
basis of
fairness. This is because categorising the dismissal as totally
invalid leads automatically to reinstatement.
By contrast, the
remedies the LRA provides make it clear that reinstatement is not a
competent remedy for mere procedural unfairness.
[25]
[19]
The Court concluded that
De
Beers
and
Revan
were wrong. Non compliance with these provisions does not
lead to an invalid dismissal. The employee applicants,
NUMSA
and the Minister of Labour were ordered to pay Edcon’s costs.
In this Court
[20]
The employee applicants and NUMSA in
essence contend that the Labour Appeal Court misread the clear
language of the provisions.
Their purpose is to limit the
employer’s unilateral use of economic power by imposing a time
bar on dismissals. The
time bar creates a compulsory cooling
off period for conciliation and for the possibility of settlement,
thus avoiding job losses,
to be explored. The time bar is
imperative and not directory. It must be complied with.
And because disregard
of it entails breach of a statutory
prohibition, the remedy of specific performance must be available.
[21]
NUMSA contends that section 189A(2)(a) of
the LRA imports two effects into the mass retrenchment process.
It makes a notice
of termination the only way to terminate the
employment of an employee marked for retrenchment. And it
provides that the
termination notice must be in accordance with
section 189A(7)(a), where there is facilitation, or section
189A(8)(b)(i), where
there is not.
[22]
Edcon contends that, contrary to
De
Beers
and
Revan
,
where facilitation is not sought, an employer’s failure to
refer a dispute to the CCMA for conciliation in terms of section
189A(8)(a) (where the employee does not do so), and the lapse of the
time period thereafter, does not result in the ensuing dismissals
being invalid. The employees are dismissed for all purposes
under the statute – and the statute confines them to their
unfair dismissal remedies. Section 189A affords them no
additional contractual claim arising from an invalid dismissal when
its notice provisions are breached.
[23]
Edcon argues that the definition of
“dismissal” in the statute must be interpreted widely, so
as to include employees
affected by a dismissal without proper notice
(an “unlawful dismissal”).
[26]
The recent amendment of the definition,
[27]
Edcon urged, demonstrates that the section must be interpreted
broadly. The purpose is to afford employees wide-ranging
protection against unfair dismissal. And taking “unlawful”
dismissal out of it would prejudicially harm that protection.
Hence short-notice terminations should not be held invalid.
Issues
[24]
The issues are—
a)
whether leave to appeal should be granted;
b)
whether non-compliance with the statutory
time periods in section 189A of the LRA invalidates dismissals;
and
c)
costs.
Jurisdiction and leave to appeal
[25]
Leave to appeal must be granted. The
interpretation of the LRA, a statute that gives effect to the
constitutional right to
fair labour practices,
[28]
is a constitutional issue.
[29]
In addition, the ambit of the employment rights flowing from section
189A is an arguable point of law of general public importance,
which
this Court ought to hear.
[30]
And prospects seem to me propitious.
Merits
The purpose of
section 189A of the LRA
[26]
The starting point is the provision that
sets out the purpose of the LRA – section 1. This
provides:
“
The
purpose of this Act is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by
fulfilling the primary objects of this Act, which are—
(a)
to give effect to and regulate the
fundamental rights conferred by section 23 of the Constitution;
(b)
to give effect to obligations incurred by
the Republic as a member state of the International Labour
Organisation;
(c)
to provide a framework within which
employees and their trade unions, employers and employers'
organisations can—
(i)
collectively bargain to determine wages,
terms and conditions of employment and other matters of mutual
interest; and
(ii)
formulate industrial policy; and
(d)
to promote—
(i)
orderly collective bargaining;
(ii)
collective bargaining at sectoral level;
(iii)
employee participation in decision-making
in the workplace; and
(iv)
the effective resolution of labour
disputes.”
[27]
This shows that the LRA places particular
emphasis on promoting the participation of employees in
decision-making in the workplace
and the effective resolution of
labour disputes.
[28]
Section 189A was inserted into the LRA in
2002.
[31]
As the Labour Appeal Court noted, it aimed to enhance the
effectiveness of consultation in large-scale retrenchments by
reducing friction.
[32]
There had to be a better way to manage disputes about dismissals for
operational requirements affecting large numbers of
employees.
Section 189A sought to provide it.
[33]
[29]
First, the provision gave employees in mass
retrenchments a new right. It offered them a choice between
industrial action
and adjudication as the means to try to resolve the
dispute. Second, i
t
introduced the option of facilitation at an early stage and spelt out
the requirements and elements of due and fair process.
To
minimise strikes and litigation, the provision allows for compulsory
facilitation by the CCMA, if either the employer or a consulting
party representing the majority of at-risk employees asks for it.
The parties are also free to agree to a voluntary
facilitation.
[34]
[30]
The appointment of a facilitator suspends
the employer’s power to dismiss for 60 days. Once the
notice of termination
is given, the employees have the choice of
either embarking on industrial action – an option not open in
other dismissals
– or referring a dispute regarding substantive
fairness to the Labour Court.
[35]
If facilitation is not requested or agreed, there is a 30-day
bar on referring a dispute to a bargaining council or the CCMA
from
the date on which notice in terms of section 189(3) is given, and in
addition the employer may give notice to terminate only
once the
further period mentioned in section 64(1)(a) has elapsed. Edcon
breached both time periods by issuing termination
notices to
retrenched employees early.
[36]
But once a referral to the Labour Court has been made, the right to
strike is no longer available.
[37]
Thereafter the employer is free to give notice of termination.
For their part, once the periods have elapsed and notice
of
termination has been given, aggrieved employees may opt for
industrial action or to refer a dispute about the substantive
fairness
of the dismissals to the Labour Court.
[38]
[31]
Section 189A
expressly limits the disputes that can be referred to the Labour
Court. Only those concerning a fair reason for
the dismissal
can be referred – in other words disputes
about
substantive
fairness.
[39]
Both referral options expressly impose a time bar.
[40]
Disputes about procedure under section 189A cannot be referred
to the Labour Court by statement of claim, but must instead
be
brought by the speedier means of motion proceedings.
[41]
[32]
The effect of the
provisions,
[42]
where the employees have opted for adjudication rather than to
strike, is to separate process issues from questions of fairness.
Instead the section provides a mechanism to pre-empt procedural
problems before the substantive issues
become
ripe for adjudication
or industrial action.
[33]
Seen thus, the first question is this: how
distinctive are the provisions of section 189A? What do
they add to the LRA’s
other provisions dealing with dismissal
and particularly with retrenchments? The answer to that
question may indicate the
true purpose of their enactment, and hence
the effect of non-compliance with what they demand.
[34]
In argument, counsel for Edcon described
section 189A as a “bolt-on” to section 189. Its
sole purpose, he contended,
is to add extra fair process protections
to those that section 189 already affords. Section 189 itself,
counsel maintained,
prescribes what steps the employer has to take.
And section 185, which confers the right not to be unfairly
dismissed, or
to be subjected to an unfair labour practice,
[43]
forms the basis of a comprehensive legislative scheme that provides
remedies for
all
unfair dismissals
[44]
– including dismissals in breach of section 189A’s time
periods. Section 189A thus provides no distinctive
remedies on dismissal.
[35]
In this way, according to Edcon, a
termination of employment that is premature under section 189A(2)(a)
and (8) is just another
section 186-defined dismissal, with merely
ordinary section 185 unfair dismissal remedies that ensue to sanction
it. On this
approach, the provisions of section 189A do confer
on the employee at risk of being dismissed in a mass retrenchment the
extra
facilitation, strike and interdict tools the provision spells
out. But when it comes to the crunch of dismissal, they offer
no special protection; in particular, they do not inflict the
sanction of invalidity on short notice dismissals.
[36]
This argument, like the reasoning of the
Labour Appeal Court, is not without persuasive impact. Its
force rests on two considerations.
First, the statutory
definition of unfair dismissal specifically encompasses dismissals
without notice. Second, section 189A
itself seems to provide
remedies to the at risk employees in a mass retrenchment and
their representatives. The question
is whether its design and
purpose indicate that non-compliant dismissals are, in addition,
invalid.
[37]
As the Labour Appeal Court pointed out, the
contrary approach introduces an anomaly to the statute’s
treatment of dismissals.
This is because it removes a
non compliant section 189A dismissal entirely from the scope of
Chapter 8 of the LRA.
[45]
Hence it “will not be assessed on the basis of fairness,
merely because it was procedurally premature and branded as
invalid”.
[46]
[38]
The Labour Appeal Court’s response to
this anomaly was to treat the concept of dismissal under the statute
as uniform.
This approach, which Edcon supported in this Court,
seeks to meld the dismissal provisions of the statute into a uniform
whole,
so that dismissal under section 189A doesn’t stick out.
Its correlative is that it offers the attraction of a unified
taxonomy of remedies: one statutory concept of dismissal, with one
single set of statutory remedies. These are the remedies
for
unfair dismissal only, plus the specific strike and interdict
remedies section 189A itself provides during the mass retrenchment
process – but without the novel remedy of nullity for a failure
to give proper notice, which is otherwise alien to the conceptions
and scheme of the LRA.
[39]
But there are considerable difficulties
with this approach. First, to see section 189A as a mere
“bolt-on”
to section 189 is to understate its
significance. Section 189 covers all retrenchments, big or
small, individual or mass.
By contrast, section 189A deals with
mass retrenchments only. It exempts employers employing fewer
than 50 employees from
its provisions. For those employing 50
plus, it provides a graduated scale of application, depending on how
big the workforce
is, and what proportion of it the employer proposes
to retrench.
[47]
[40]
So the provision sequesters off large-scale
retrenchments for special treatment. By doing this, the
legislature recognised
their distinctive power to trigger labour
unrest. More importantly, it recognised their impact on large
numbers of employees’
lives, and the lives of their dependants,
should joblessness ensue.
[41]
In keeping with this, the provision creates
processes that are distinctive from those applicable to other
retrenchments. They
do not apply to smaller employers. It
interposes compulsory facilitation, if either the employer
[48]
or consulting parties
[49]
ask for it. And it makes facilitation available also if the
parties agree.
[50]
In addition, it creates special remedies – mandatory order or
interdict,
[51]
plus strike
[52]
– that are otherwise foreign to the employee’s armoury in
retrenchments and unfair dismissals.
[53]
[42]
Section 189A thus goes further than the
general obligation, which the statute already imposes in section 189,
to engage before retrenching
in “a meaningful joint
consensus-seeking process” so as to reach consensus on avoiding
or minimising the threatened
retrenchments.
[54]
It creates a framework of inducements and constraints whose design is
to impel the employer to engage in that exercise with
added focus and
with particular single-mindedness.
[43]
The obligation the provision imposes on the
employer to give notice in accordance with its provisions (“must”)
has to
be seen against this background. It is not a mere
procedural add-on to the processes that section 189 already creates.
Nor is it a mere palliative for the impending retrenchment. On
the contrary, it is foundational to the change of tone that
section
189A signals, and pivotal to the shift of power its provisions seek
to effect.
[44]
In short, a dismissal that violates section
189A’s time periods does “stick out”. It
cannot be smoothed
into the larger fabric of the LRA’s
treatment of dismissals. While it also constitutes a dismissal
without notice under
section 186(1)(a),
[55]
it is also signally different from other dismissals covered by
Chapter 8. Section 189A is exceptional, in wording and
remedy and object and effect. It was enacted precisely to
oblige the employer to deal differently with big retrenchments.
[45]
The obligation it imports to respect the
time periods it sets out (“must”) was enacted to create a
dismissal-free zone
during which consensus may be sought and
alternatives may be explored. In other words, the employees
must be safe from dismissal
while the stipulated statutory periods
elapse.
[46]
To treat the time period obligation as
merely directory – in other words, as having no consequence
other than making the dismissal
procedurally unfair for the purposes
of section 185’s remedies – is to deny the powerful
novelty the provision imports
as well as to misjudge its structure.
The provision sought to effect a power shift from employers in mass
retrenchments –
and it did so in the best and most effective
way. It rendered dismissals in disregard of its notice
provisions invalid.
[47]
Recognising this consequence has
indisputable clout. It deprives the employer, for a specified
period, of the ultimate power
in the employment relationship –
that of termination. Dismissal has been called “tantamount
to capital punishment”
in the employment relationship.
[56]
Section 189A abolishes this sanction for the limited time its
provisions decree.
[48]
At the same time, even though only
temporarily, it affords at-risk employees the continued advantage of
their employment benefits
and security. And all this in the
service of focusing the employer’s attention, during the time
freeze, on the possibility
of avoiding the retrenchments altogether.
The employer must stay its hand, while the employees remain
protected. The
possibly unappealing prospect of discussions and
alternatives may, through force of circumstance, become more
enticing. That
is the statutory design.
[49]
So the time period is to run unhindered.
It is intended to quell employer steps that imperil the
provision’s joint consensus-seeking
aims. The judgment of
Zondo J, which I have had the pleasure of reading, finds that the LRA
does not expressly confer a right
to be dismissed lawfully. It
bolsters this conclusion through an exposition of the LRA’s
predecessors. It notes
the removal of a criminal sanction for
unauthorised conduct.
[57]
It reasons that, since the LRA
does not expressly provide for a right to a lawful dismissal, a
litigant is not entitled to
a declaratory remedy when dismissed in
breach of the LRA’s provisions.
[58]
This approach narrows the entitlement to a lawful dismissal. It
infers from the absence of an express provision in
the statute that
protection against unlawful conduct must be understood to have been
absorbed into the statute’s fairness
protections.
[50]
These are not unattractive propositions.
But ultimately they do not seem convincing to me. First,
fairness and lawfulness
overlap. We cannot rigidly separate
them, banishing the latter from the purview of the statute.
Evaluating fairness
requires a judgment on competing interests and
rights of both workers and employers. This is a value
judgment.
[59]
In this, a court must have regard to the statutory provisions before
it, its scope and its objects.
[60]
In this weighing, lawfulness and fairness are not exclusionary
opposites.
[51]
Second, the LRA has not impoverished a
wronged worker’s cache of weapons. That the LRA creates
specific remedies for
most labour and employment disputes does not
mean that it does not concomitantly create other remedies, especially
when the claim
is rooted in the language and logic of the LRA
itself.
[61]
The lawfulness ground, in other words, is a claim seeking to enforce
compliance with the provisions of section 189A.
[52]
Reliance on
Chirwa
is inapposite.
[62]
The LRA did not extinguish causes of action. It supplemented
existing remedies. It is open to a litigant to choose
her
remedy and to do so at her own peril. This Court dealing with
Chirwa
in
Gcaba
,
came to precisely this conclusion. Van der Westhuizen J said:
“
Furthermore,
the LRA does not intend to destroy causes of action or remedies and
section 157 should not be interpreted to do so.
Where a remedy lies
in the High Court, section 157(2) cannot be read to mean that it
no longer lies there and should not be
read to mean as much. Where
the judgment of Ngcobo J in
Chirwa
speaks of a court for labour and
employment disputes, it refers to labour – and employment –
related disputes for which
the LRA creates specific remedies. It
does not mean that all other remedies which might lie in other courts
like the High
Court and Equality Court, can no longer be
adjudicated by those courts. If only the Labour Court
could deal with
disputes arising out of all employment relations,
remedies would be wiped out, because the Labour Court (being a
creature
of statute with only selected remedies and powers) does not
have the power to deal with the common law or other statutory
remedies.”
[63]
[53]
The applicants do not seek a remedy outside
the LRA. Nor do they seek a remedy alien to its provisions.
They rely on
a unique remedy that section 189A has specifically
afforded those vulnerable to mass retrenchment.
[54]
Third, the failure to provide for a
criminal sanction does not entail that there is no need to hold a
party accountable for violating
the provision’s prohibition on
short service terminations. When an employer trespasses
onto the minimum 30-day
period, it rides roughshod over the aim of
encouraging consensus and seeking to avoid mass dismissals. No
criminal sanction
is needed to spell this out.
[64]
[55]
What of the remedies internal to section
189A? The interdict to compel a fair procedure, and the
retaliatory strike?
Understanding the unique character of
section 189A’s dismissal protection entails certain
correlative conclusions.
The first is that the provision’s
compulsory time periods are not aspects of “a fair procedure”
envisaged in
section 189A(13). The second is that employees
given short notice may not go on strike for that reason.
[56]
The Labour Appeal Court suggested that the
mandatory and interdictory remedies of section 189A(13) are available
to employees who
receive short notice of termination.
[65]
It also considered that employees in this position have available the
retaliatory strike that subsection (9) envisages.
From the
availability of these remedies, the Court drew the conclusion that
nullity did not follow from non compliance.
[57]
The judgment of Zondo J reasons that the
availability of these remedies must mean that non-compliance with
section 189A(8) gives
rise to a question of unfair procedure.
Hence, nullity is not visited upon non-compliance.
[66]
It also suggests that the other
remedies in 189A provide “employees [with] . . . strong
weapon[s] to deal with the employer”.
[67]
[58]
The difference with the analysis here lies
in the extent to which one recognises as distinctive the protections
section 189A sought
to introduce into a workplace at risk of
large-scale retrenchments. More particularly, it depends on
appreciating the power
that making a short-notice dismissal invalid
has to constrain an employer to think again before effecting a mass
retrenchment.
[59]
The approach of the Labour Court and the
judgment of Zondo J inhibit the efficacy of the process section 189A
seeks to command.
It seems to me to place a burden on
employees, requiring them to rush to court, or to invoke “the
nuclear option”,
namely a strike, in an effort to secure
compliance with section 189A(8).
[68]
[60]
If the consequence of invalidity is central
to the shift of power the provision introduces, and if it is integral
to the provision’s
purpose of seeking, if at all possible, to
avoid mass retrenchments, then the Labour Appeal Court’s
characterisation of the
other remedies in section 189A cannot be
accepted. The remedies in subsections (9) and (13) are not
available for short notice.
[69]
This is because short notice is not merely a question of “fair
procedure”. It serves a more powerful and
more radical
purpose – to constrain a rethink. And, unless disregard
of the dismissal-free zone during a mass retrenchment
process has a
distinctive consequence, that pivotal statutory purpose will remain
unattained.
[61]
A further difference stems from the
purposive interpretation of section 189A. The strike remedy is
inapposite. It does
not properly deal with the mischief section
189A(8) seeks to prevent. Indeed, the strike option is of cold
comfort, compared
to the protection a statutory prohibition on
dismissal for a 30 day period would afford. A strike
accentuates
the workplace calamities section 189A seeks to
avoid. Strike action imposes severe perils on an
already declining
employer, on the industry as a whole and,
worst, on employees who are not at risk of retrenchment, for the
whole enterprise may
be shut down. Against these alternatives,
reading the provisions at issue to entail the nullity of
non-compliant dismissals
seems both sound and sensible.
[62]
Hence it is preferable to find that the
dismissal is a nullity, and that a different set of statutory
remedies ensues – those
the employee applicants are seeking in
these and related proceedings. This purposive approach favours
an interpretation that
non compliance with section 189A(8) goes
to unlawfulness. It results in nullity and affords the
workforce affected remedies
the provision itself creates, rather than
reducing their armoury to only procedural fairness. This to me
strikes an appropriate
balance between workers’ and employers’
rights and interests. Compliance with the notice period ought
not to
be construed as encouraging a “check list”
approach to realising the protections in section 189A.
[70]
Requiring employers to adhere to the dismissal-free zone is not for
ticking boxes in the interests of formal compliance with
the LRA.
It is in the public interest to ensure, as far as possible, some
measure of certainty in turbulent employment times.
[63]
The provision’s wording reinforces
this conclusion. So does its cross incorporation of the
provisions of the BCEA.
Section 189A(2)(a) stipulates that an
employer “must give notice of termination” in accordance
with the provisions
of the section. Section 189A(7)(a) provides
that, where a facilitator is appointed, after the expiry of 60 days
from the
date of the section 189(3) notice of invitation to consult,
an employer “may give notice to terminate the contracts of
employment
in accordance with section 37(1)” of the BCEA.
[71]
Its companion provision, section 189A(8)(b)(i), similarly
provides that, where a facilitator is not appointed, after
the expiry
of the stipulated periods, the employer “may give notice to
terminate the contracts of employment in accordance
with section
37(1)” of the BCEA.
[64]
The provision’s reference to “notice
to terminate” is, as NUMSA contended, redolent of the language
of the contractual
termination of employment, rather than merely of
statutory unfair dismissal. Under the common law of contract,
conduct by
the employer that constitutes a repudiation of the
contract does not, of itself, put an end to the contract. What
it does
is to vest the employee with an election. She can stand
by the contract. Or she can choose to accept the employer’s
repudiation and bring the contract to an end.
[72]
[65]
But at common law, that choice is the
employee’s. Except where summary dismissal is
warranted,
[73]
the unilateral act of the employer in
terminating the contract, whether by notice or other conduct, does
not without more bring
an end to the contract of employment.
[74]
The same applies to an employee who gives short notice in violation
of the contract: he or she may be obliged to serve out
the notice
period.
[75]
In neither case does the unlawful repudiation of the contract have to
be accepted by the other party.
[76]
[66]
It has been observed that the common law
contract of employment is “the key relationship” in the
application of South
Africa’s labour relations
legislation.
[77]
Understanding its terms is essential
to appreciating how the LRA and its predecessor legislation use, and
generally expand, the
terminology of dismissal, termination and
notice. It is trite that a lawful termination of the contract
of employment will
not suffice to render the termination fair under
the LRA. But the requirement that a termination be fair does
not entail
that an employer need not adhere to the requirements of
terminating the contract lawfully,
[78]
whether these arise from the contract itself, or, as here, from
statute.
[67]
By corollary, the LRA’s remedies have
not supplanted the whole of the common law of contract.
[79]
The right not to be unfairly
dismissed, which the LRA affords, finds its application pre-eminently
in circumstances where
the employee’s contractual security of
employment is tenuous. Where, by contrast, the contract of
employment affords
the employee larger and firmer rights, and the
employee wishes to rely on them, rather than on the LRA’s
unfair labour practice
remedies, he or she is entitled to do so.
[80]
The LRA did not extinguish entirely common law rights arising from an
agreement of employment.
[81]
Hence, in this provision, the
LRA by invoking the common law inhibition on unlawful termination,
gives the employees additional
protection.
[68]
It is this common law location of the
statute as a whole that the language of section 189A invokes.
The same applies to the
BCEA. Under that statute, it is well
accepted that a dismissal on short notice is not effective to
terminate the contract
of employment.
[82]
When either employer or employee seek to terminate, the BCEA
requires that each give notice in terms of section 37.
If
either party does not, the contract of employment continues to
subsist, affording both employee and employer a range of statutory
remedies to enforce it.
[69]
During the hearing, counsel for Edcon was
asked whether, if the provisions of section 189A had appeared in the
BCEA, rather than
in the LRA, as a “bolt-on” to section
189, its stipulated notice periods would have to be considered
peremptory.
His answer was Yes. And it had to be Yes, for
it would have been plain beyond contest, within the BCEA, that the
provision’s
notice requirements, like those of section 37, are
peremptory, and that notice given in violation of them is null and
void.
Counsel’s reply is nevertheless telling. For
it concedes the logic of the provision’s structure and
language.
And those the location of the provision, in the LRA,
rather than in the BCEA, cannot change.
[70]
When section 189A was enacted in 2002 and
provided that the employer “may” give notice of
termination in mass retrenchments
in accordance with the BCEA, but
only after the specified periods had elapsed, its provisions had a
specific meaning and effect.
This was to render short notice
invalid, and to make any ensuing dismissals null and void. The
opposing reading would substantially
attenuate the effect of the
enacted employment protections.
[71]
In addition to being faithful to statutory
language of the provision, the conclusion here conforms with the
doctrinal development
of employment law, as overwritten by statute
law. Since the Labour Appeal Court derived support for its
approach from that
history, it is necessary to pause to consider it.
[72]
In perhaps the most celebrated case,
Schierhout
,
a public servant who had been
“illegally retired”
[83]
in breach of a peremptory provision of a statute sought, on tender of
his services, to claim the salary he had lost. His
entitlement
depended on whether his removal was a nullity. The Appellate
Division held per Innes CJ it was and applied the
“fundamental
principle of our law that a thing done contrary to the direct
prohibition of the law is void and of no force”.
[84]
In doing so, it distinguished Mr Schierhout’s position as
a statute-protected employee from that of ordinary employees
who, on
wrongful or “arbitrary” dismissal,
[85]
cannot claim their salary, but
instead are confined to claiming whatever damages they may be able to
prove they suffered in consequence
of the employer’s wrongful
act in dismissing them.
[73]
Schierhout
thus
afforded support for two propositions. The first is that
disregard of peremptory statutory requirements leads to nullity.
The second is that specific performance of an irregularly terminated
contract of employment is not available to ordinary (non-statutory)
employees. Innes CJ said that “the only remedy open to an
ordinary servant who has been wrongfully dismissed is an
action for
damages”, and that the courts “will not decree specific
performance”
of
this class of contract.
[86]
[74]
Since
Schierhout
,
the rigidity of both propositions has been substantially tempered.
First, our courts accept that whether violating a statutory
prohibition has the consequence of nullity depends on a broad
understanding of the statute’s purpose and meaning.
[87]
That consequence depends on the subject-matter of the prohibition,
its purpose in the context of the legislation, the remedies
provided
for disregard of it, the mischief it was designed to remedy and any
untoward consequences that invalidity may wreak.
[88]
[75]
It is the second proposition in
Schierhout
on which the Labour Appeal Court relied in coming to its conclusion.
This was the Appellate Division’s “implicit
acceptance”
that a wrongful or statutorily invalid termination can bring the
employment contract to an end. This, the
Court said, had
“persisted in our labour law”.
[89]
This led the Labour Appeal
Court to observe that dismissal under the LRA includes forms of
employment termination far broader
than only lawful cancellation.
It was this consideration that persuaded the Court that dismissal
under section 189A falls
within the broad ambit of a section 186
dismissal, even if on short notice in breach of the provision.
[76]
The Labour Appeal Court was also alert to
the fact that the second proposition in
Schierhout
had been superseded by judicial development.
[90]
In
Stag Packings
,
a Full Court held that there is
no rule of law that a party’s wrongful cancellation of a
contract of personal service
puts an end to the contract even though
the other party does not accept the repudiation.
[91]
There is in other words no rule that the employment contract
can be terminated unilaterally, and thereby brought to an end.
[92]
From this it follows that there is no absolute prohibition against
granting a remedy of specific performance to wrongfully
dismissed
employees, even if not statute-protected.
[93]
Whether specific performance is in fact granted depends on practical
considerations
[94]
and lies in the court’s
discretion.
[95]
[77]
Despite this, the Labour Appeal Court found
support for its approach in the broad notion, which it said
Schierhout
entailed, that an invalid termination could nevertheless put a
unilateral end to a contract of employment. In the balance
the
Court struck in approaching the meaning of the provisions, it erred.
In doing so, it ascribed too much weight to the
original statement in
Schierhout
,
and too little to significant later developments that have superseded
it. These have reaffirmed that unilateral conduct
by the
employer does not of itself terminate the contract of employment.
[78]
Section 189A resonates with this strong
stream of contractual employment doctrine. And the stream
contributes force to the
conclusion that
De
Beers
and
Revan
were correct, and the Labour Appeal Court in the present case
incorrect.
Is retrospective
reinstatement automatic?
[79]
The Labour Appeal Court gave prominence in
its reasoning to the idea that the inefficacy of short notice, and
the nullity of resultant
dismissals, would lead “automatically”
to the remedy of reinstatement, with, it implied, full back pay for
those reinstated.
[96]
This led the Court to reject the conclusion that non-compliant
dismissals were null and void. The Court seemed to adopt
a more
nuanced approach to remedy – finding that other provisions of
the LRA dealing with unfair dismissal provided it.
Hence,
according to the Labour Appeal Court, non-compliant dismissals in
violation of section 189A were just ordinary unfair dismissals,
subject to the ordinary remedies provided elsewhere in the LRA.
[80]
The conclusion that short notice dismissals
under section 189A are subject to the ordinary remedies in section
193, the Labour Appeal
Court found, would “lead to more
proportionate and less capricious consequences”
[97]
for non-compliance. In this Court, Edcon supported the Labour
Appeal Court’s analysis and approach.
[81]
These considerations are consequentialist
in tone and effect. But are they correct? NUMSA in its
argument disavowed
them. It rejected the notion that
short notice dismissal in violation of section 189A would
automatically entitle employees
to reinstatement. On the
contrary, NUMSA contended that reinstatement was not automatic.
Whether the court hearing
the employee applicants’ claim
granted them reinstatement, and on what conditions, was a question
for its discretion.
[82]
In oral argument, the employee applicants
endorsed this approach. This led to the paradox that the
employees embraced a weaker
remedy for short-notice dismissals under
section 189A than the employer insisted would be the consequence of
their argument.
[83]
The employee applicants and NUMSA are in my
view correct. The fact that the dismissals are null and void
does not entitle
employees subjected to them, without more, to the
remedy of full retrospective reinstatement.
[98]
That has never been the approach of South African courts. For
instance, employees dismissed on short notice in violation
of the
BCEA have not always been granted full retrospective
reinstatement.
[99]
This is in keeping with the long-standing notion that remedy
depends on the discretion of the Court that hears the employee
applicants’ claim. There is no reason to think that the
enactment of section 189A entailed a radical abandonment of
this
approach to remedy.
[84]
It is worth stressing that the question of
the remedy to be afforded to the employee applicants in the
proceedings now pending elsewhere
is not before us. Despite
this, the judgment of Zondo J undertakes an exposition of the
remedies expressly provided in section
189A but fails to acknowledge
the foundational remedy that lies in the breach of the statute,
generally, itself. We are concerned
with it only so far as it
bears on interpretation. And once one removes the
consequentialist sting from the arguments that
induced the Labour
Appeal Court to hold that a short-notice dismissal under section 189A
is not a nullity, the statutory consequence
may freely flow: the
dismissal is indeed a nullity. Section 189A(14) empowers the
Labour Court to grant relief provided for
in section 158(1)(a).
This includes a declaratory order. This may also include an
order declaring non-compliant
dismissals invalid.
[100]
Conclusion
[85]
If notice of termination in retrenchments
subject to section 189A does not comply with the provisions of
section 189A(8)(b)(i),
where no facilitator has been appointed, as
here, there is no valid termination. In that event, the
contract of employment
is not terminated. And if the contract
of employment is not terminated, there is no dismissal in terms of
section 186(1)(a)
of the LRA.
[86]
The employee applicants and NUMSA are thus
right. When Edcon dismissed the individual employees without
waiting for the time
periods in section 189A(8) to expire, it acted
without effect in law. The dismissals were a nullity.
They had no force
and effect. The question of what remedy flows
in practice from this conclusion must await another day and another
court.
ZONDO J (Mogoeng CJ, Moseneke DCJ, Jafta
J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J and Wallis AJ
concurring):
Introduction
[87]
The issue for determination in this matter
is whether dismissals effected by an employer pursuant to notices
given in breach of
section 189A(8)
[101]
of the Labour Relations Act
[102]
(LRA) are invalid. I have had the pleasure of reading the judgment
prepared by my Colleague, Cameron J (first judgment).
[103]
It holds, by implication, that this Court has jurisdiction. I
agree. This matter involves the interpretation
of the LRA which
is legislation enacted to give effect to the Constitution and the
interpretation of such legislation is a constitutional
matter.
[104]
Indeed, this Court would also have jurisdiction on the basis that
this matter raises an arguable point of law of general
public
importance which ought to be considered by this Court.
[105]
For the reasons given in the first judgment, I also agree that we
should grant leave to appeal. The first judgment
goes on to
hold that the dismissals of the applicants by the respondent are
invalid, the appeal should be upheld and the decision
of the
Labour Appeal Court set aside. I am unable to agree with
this conclusion and outcome. In my view, the dismissals
cannot
be held to have been invalid and the appeal should be dismissed.
I, therefore, write to set out my reasons for this
conclusion and
outcome.
Background
[88]
The first judgment sets out the factual
background to this matter. For that reason I do not propose to
do the same save to
the limited extent required for a proper
understanding of my approach. What follows in the next few
paragraphs is the limited
background necessary for that purpose.
[89]
Before the events that gave rise to the
present dispute, the respondent employed about 40 000 employees
throughout the country.
Between April 2013 and mid-2014 it
dismissed about 3000 employees for operational requirements.
[106]
It is common cause that section 189A was applicable to the
dismissal.
[107]
The individual applicants, by which term I mean the applicants other
than the National Union of Metalworkers of South Africa
(the Union),
are some of the employees who were dismissed during that period.
[90]
The individual applicants were given
notices as contemplated in section 189(3). Those are notices
that an employer is obliged
to issue when it contemplates the
dismissal of any employees for operational requirements. By way
of such notices an employer
invites to the consultation process the
parties with whom it is required to consult in terms of section
189(1).
[108]
Section 189A(2)(a) provides that in respect of any dismissal covered
by section 189A “an employer must give notice
of termination of
employment in accordance with the provisions of this section”
Section 189A(2) also provides that
the period of the consultation
period contemplated in section 189 may be varied by the parties.
It also provides that no
consulting party may unreasonably refuse to
extend the period of consultation if the extension is required “to
ensure meaningful
consultation”. Section 189A(3) and (4)
envisages the appointment of a facilitator to help the parties with
the issues
that are the subject of the consultation process.
[91]
In terms of subsection (7) the employer is
precluded from giving notice to terminate the contracts of employment
unless “60
days have elapsed from the date on which notice was
given in terms of section 189(3)”. That is in a situation
where
a facilitator has been appointed. In terms of subsection
(8) a party to the consultation process is precluded from referring
a
dispute to a bargaining council or the Commission for Conciliation,
Mediation and Arbitration (CCMA) before the lapse of 30 days
from the
date on which notice was given in terms of section 189(3) and the
periods envisaged in section 64(1)(a). This is
where no
facilitator has been appointed.
[92]
Where a facilitator is appointed, there is
a period of 60 days during which employees may not be given notices
of the termination
of their contracts of employment (dismissal
notices). That is 60 days from the day of the giving of the
section 189(3) notice.
However, in a situation where a
facilitator is not appointed, the period during which the employees
may not be given dismissal
notices is 30 days from the date of the
giving of the section 189(3) notice plus the period in
section 64(1)(a).
[93]
In this case no facilitator was appointed
to assist the consulting parties in terms of section 189A(3) and (4)
with the issue relating
to the contemplated dismissal of employees
for operational requirements. This meant that subsection (8)
was applicable.
Therefore, the respondent was precluded from
giving employees dismissal notices during the period of 30 days from
the date of the
giving of section 189(3) notice and until the periods
mentioned in section 64(1)(a) had elapsed. The respondent gave
the
individual applicants dismissal notices during this period when
it was precluded from doing so. This is common cause.
The
time periods between the issuing of the section 189(3) notices and
the notices of termination varied from 6 days to in excess
of 60
days.
[94]
In response to the dismissal notices and
the resultant dismissals, the applicants did not make use of the
dispute resolution mechanisms
of the LRA. They did not make an
application to the Labour Court for an order under section
189A(13)
[109]
nor did they give a notice of the commencement of a strike nor refer
a dispute about whether there was a fair reason for the dismissal
to
the Labour Court for adjudication. I shall say more about these
avenues later. They simply approached the Labour
Court and
asked for orders declaring the dismissals invalid and of no force and
effect and for reinstatement orders. However,
the matter was
heard by the Labour Appeal Court sitting as a court of first
instance. That Court rejected the applicants’
contention
that the dismissals were invalid and upheld the respondent’s
contention.
[110]
That judgment of the Labour Appeal Court overruled an earlier
judgment of the same Court, differently constituted, in
De
Beers
[111]
which had upheld a similar contention and which was followed in
Revan
.
[112]
The appeal
[95]
This case is about a breach of the
provisions of section 189A(8). Section 189A(8) reads:
“
If
a facilitator is not appointed—
(a)
a party may not refer a
dispute
to a
council
or the Commission unless a period of 30
days has lapsed from the date on which notice was given in terms of
section 189(3); and
(b)
once the periods mentioned in
section
64(1)(a) have elapsed—
(
i
)
the employer may give notice to terminate
the contracts of employment in accordance with
section 37(1) of the
Basic Conditions of Employment Act
;
and
(ii)
a registered trade union or
the
employees
who
have received notice of termination may—
(aa)
give notice of a
strike
in terms of
section 64(1)(b) or (d); or
(bb)
refer a
dispute
concerning whether there is a fair
reason for the
dismissal
to the Labour Court in terms of
section
191
(11).”
[96]
The dispute between the parties is whether
the dismissals effected pursuant to the dismissal notices given in
breach of section
189A(8) were invalid and of no force or effect.
The applicants contend that that is so. The respondent contends
that
that is not so and seeks a conclusion that its breach of section
189A(8) did not render the dismissals invalid. The respondent
concedes that its conduct constitutes a breach of subsection (8) but
contends that, while that may render the resultant dismissals
unfair,
it does not render them invalid and the applicants cannot be granted
the declaratory order and order of reinstatement they
seek.
[97]
In support of their contention the
applicants mainly rely upon the use of the word “must” in
section 189A(2)(a).
The provision reads:
“
(2)
In respect of any dismissal covered by this section—
(a)
an employer
must
give notice of termination of employment in
accordance with the provisions of this section.” (Emphasis
added.)
The
applicants also rely on
Schierhout
[113]
to argue that anything done contrary to law is a nullity.
[98]
The first judgment holds that subsections
(7) and (8) of section 189A create what it refers to as a
“dismissal-free zone”
during which an employer to whom
section 189A applies may not give employees dismissal notices
nor terminate their contracts
of employment. I would call it a
“dismissal-free-period”. With this proposition I
have no quarrel.
However, the judgment then goes on to say
that, if an employer issues notices of dismissals or dismisses
employees during this
period, the result is that the notices and the
resultant dismissals are null and void and of no force and effect.
It also
says, as I understand it, that its interpretation of
subsection (8) provides greater protection to employees against
dismissal
during the “dismissal-free-period” because the
employer would see dismissing employees during the period as too
risky.
That interpretation is that the dismissal of employees
in breach of the provisions of subsection (8) results in invalidity.
With this further proposition I am unable to agree. The first
judgment does not explain why the orders provided for in subsection
(13) would not be a sufficient deterrent to the employer. Nor
does it explain why the employer would not consider a strike
such as
is envisaged in section 189A(8) and (9) as an equal, if not a
greater, threat for the continued viability of its business.
[99]
In this judgment I say that, just because
the employer gave notices of termination or effected dismissals
contrary to the procedural
requirements of subsection (7) or (8) does
not mean that the notices or dismissals are a nullity. I
further say that the
mere use of the word “must” in
section 189A(2) is not adequate to justify that conclusion. It
all depends upon
a number of considerations including the purpose of
the statute, whether the breach relates to an obligation that did not
exist
at common law and that has been created specially by the
statute, whether the statute provides for remedies for such a breach
and
whether, having regard to all relevant provisions of the statute,
it can be said that its purpose is that a breach of the relevant
obligation results in the invalidity of the thing done contrary
thereto. This requires a proper examination of the relevant
provisions of the statute. In my view a proper examination of
the provisions of the LRA, including its scheme, the purpose
of
section 189A, the remedies in subsection (13) and the availability of
the strike option, drives one to the conclusion that the
giving of
notices of the termination of contracts of employment in breach of
subsection (8) or the effecting of dismissals in breach
of subsection
(8) does not result in the notices of dismissals or the resultant
dismissals being null and void.
Interpretive approach
[100]
This matter requires us to interpret
various provisions of the LRA. That being the case, it is
necessary that we have regard
to the correct approach to the
interpretation of this legislation. The starting point is
section 39(2) of the Constitution.
In so far as it is relevant,
it reads:
“
When
interpreting any legislation . . . every court, tribunal or forum
must promote the spirit, purport and objects of the Bill
of Rights.”
We must also take
into account the provisions of section 3 of the LRA. Section 3
reads:
“
Any
person applying
this Act
must interpret its provisions—
(a)
to give effect to its primary objects;
(b)
in compliance with the Constitution; and
(c)
in compliance with the public international law obligations of the
Republic
.
”
[101]
The primary objects of the LRA appear in
section 1 which sets out its purpose. The purpose is—
“
to
advance economic development, social justice, labour peace and the
democratisation of the
workplace
by
fulfilling the primary objects of
this
Act.
”
Thereafter the primary objects of the
LRA are spelt out. They are:
“
(a)
to give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution;
(b)
to give effect to obligations incurred by the
Republic
as a
member state of the International Labour Organisation;
(c)
to provide a framework within which
employees
and their
trade
unions
, employers and
employers’ organisations
can—
(i)
collectively bargain to determine wages, terms and conditions of
employment
and other matters of mutual interest; and
(ii)
formulate industrial policy; and
(d)
to promote—
(i)
orderly collective bargaining;
(ii)
collective bargaining at sectoral level;
(iii)
employee
participation in decision-making in the
workplace
;
and
(iv)
the effective resolution of labour
disputes
.”
It is trite by now that, in interpreting
provisions of the LRA, the correct approach is purposive
interpretation.
[102]
In my view the applicants’ contention
falls to be rejected and their appeal dismissed. This view I
take rests on three
bases. These are that—
(a)
the LRA does not contemplate invalid dismissals or an order declaring
a dismissal invalid
and of no force and effect;
(b)
the declaratory order sought is a wrong remedy for an LRA breach; and
(c)
for a breach of a section 189A(8) obligation, the applicants are
limited to the remedies
provided for in section 189A and those
remedies are adequate.
I proceed to deal with these in turn.
A.
Relief sought not contemplated by the LRA
[103]
My point of departure is that, if a
litigant’s cause of action is contractual in nature, the remedy
will have to be found
within contract law. If a litigant’s
cause of action is based on the law of delict, the remedy will have
to be in the
law of delict. The applicants’ cause of
action is a breach of the procedural requirements laid down in
section 189A(8)
of the LRA that a relevant employer is required to
comply with before it can dismiss employees to which the section
applies.
On the same principle the relief to which the
applicants may be entitled by virtue of that breach, if they make out
a proper case,
should be sought within the four corners of the LRA.
The applicants contend that Edcon’s non-compliance with the
section
189A(8) procedure before the workers were dismissed rendered
their dismissals invalid. They do not contend that the
non-compliance
rendered their dismissals unfair.
[104]
Non-compliance with the section 189A(8)
procedure may result in the dismissals being unfair, not invalid.
Before a court may
declare that a dismissal is invalid, it must first
conclude that the dismissal is unlawful. The LRA is legislation
that was
enacted to give effect to section 23 of the Constitution.
What we find in section 23 that is closely related to section 189A
is
the provision in section 23(1) that “everyone has a right to
fair labour practices”.
[105]
The LRA created special rights and
obligations that did not exist at common law. One right is
every employee’s right
not to be unfairly dismissed which is
provided for in section 185. The LRA also created principles
applicable to such rights,
special processes and fora for the
enforcement of those rights. The requirement for the referral
of dismissal disputes to
conciliation is one of the processes created
by the LRA. The CCMA, bargaining councils and the Labour Court
are some of the
fora. The principles, processes, procedures and
fora were specially created for the enforcement of the special rights
and
obligations created in the LRA. Indeed, the LRA even
provides for special remedies for the enforcement of those rights
and
obligations. The special remedies include interdicts,
reinstatement and the award of compensation in appropriate cases.
These special rights, obligations, principles, processes, procedures,
fora and remedies constitute a special LRA dispensation.
[114]
[106]
Section 189A falls within Chapter VIII of
the LRA. That is the chapter that deals with unfair
dismissals. Its heading
is: UNFAIR DISMISSAL AND UNFAIR LABOUR
PRACTICE. Under the heading appears an indication of which
sections fall under the
chapter. The sections are reflected as
“ss 185-197B”. The chapter starts off with section
185. Section
185 reads:
“
Every
employee
has the right not to be—
(a)
unfairly dismissed; and
(b)
subjected to unfair labour practice.”
Conspicuous by its absence here is a
paragraph (c) to the effect that every employee has a right not to be
dismissed unlawfully.
If this right had been provided for in
section 185 or anywhere else in the LRA, it would have enabled an
employee who showed that
she had been dismissed unlawfully to ask for
an order declaring her dismissal invalid. Since a finding that
a dismissal is
unlawful would be foundational to a declaratory order
that the dismissal is invalid, the absence of a provision in the LRA
for a right not to be dismissed unlawfully is an indication that the
LRA does not contemplate an invalid dismissal as a consequence
of a
dismissal effected in breach of a provision of the LRA.
[107]
This indication is reinforced when one has
regard to the definition of “dismissal” in section
186(1).
[115]
It starts with what would ordinarily be understood as a dismissal,
namely, a termination of employment with or without notice.
That encompasses the ordinary situation of the employer giving notice
under the contract of employment and a summary dismissal.
But
then in five further paragraphs it extends the concept of dismissal
far beyond its ordinary meaning. Once again the absence
of any
reference to an unlawful dismissal is telling. It suggests
that, if a dismissed employee wishes to raise the unlawfulness
of
their dismissal, they must categorise it as unfair if they are to
obtain relief under the LRA.
[108]
Another indication that the LRA does not
contemplate an invalid dismissal is this. In section 187 the
LRA created a new category
of dismissals. It called them
“automatically unfair dismissals”. This is a
special category of dismissals.
What makes this category of
dismissals special is that the dismissals in this category are all
based on reasons that we, as society,
regard as especially
egregious. They include cases where an employee is dismissed
for his or her race, gender, sex, ethnic
origin, religion, marital
status, political opinion, membership of a trade union, participation
in a protected strike, exercise
of rights provided for in the LRA and
other such arbitrary reasons. Another factor that makes this
category of dismissals
special is that for those cases where an
employee’s dismissal has been found to be automatically unfair,
the LRA provides
the Labour Court with power to order the
employer to pay double the maximum compensation that the Labour Court
would have had the
power to order if the dismissal had not been found
to be automatically unfair but was found to simply lack a fair reason
or was
found to have been effected without compliance with a fair
procedure.
[109]
Most, if not all, of the reasons for
dismissal that render a dismissal automatically unfair as
contemplated in section 187 are reasons
that would ordinarily render
a dismissal unlawful and invalid. If the Legislature had
intended that under the LRA there
would be a category of invalid
dismissals, it would have been the automatically unfair dismissals.
The Legislature must have
deliberately decided that the LRA would not
provide for invalid dismissals but rather for automatically unfair
dismissals instead.
Put differently, the Legislature
deliberately provided in the LRA for unfair dismissals and
automatically unfair dismissals to
be outlawed and to attract a
remedy but did not make any provision for unlawful or invalid
dismissals. To understand this choice
by the Legislature, it is
necessary to look back at the legal position before the passing of
the current LRA.
[110]
The predecessor to the current LRA was the
Labour Relations Act
[116]
(1956 LRA). Section 66
[117]
of the 1956 LRA prohibited employers from victimising workers for
actual or suspected union membership and made such conduct a
criminal
offence. Dismissal for union membership and for taking part in
a strike that was not prohibited by that Act constituted
conduct
prohibited by that provision. Under the 1956 LRA those
dismissals were recognised as unlawful and invalid.
[111]
In
Rooiberg
Minerals
[118]
the Court held that, where an employer had victimised an employee in
breach of section 66 of the
Industrial
Conciliation
Act
[119]
(1937
Act), the dismissal was
invalid.
[120]
Section 66 of the 1937 Act was, to all intents and purposes, similar
to section 66 of the 1956 LRA. In
Makhanya
[121]
the dismissal was effected in contravention of section 25 of the Wage
Act.
[122]
That provision was materially the same as section 66 of the 1956
LRA.
[123]
In that case the Court held, following
Rooiberg
Minerals
, that a dismissal effected in
contravention of section 25 of the Wage Act was null and void.
[124]
In
Stag Packings
[125]
the employer conceded that, if the reason for the dismissal of the
workers brought the dismissal within the ambit of section 66
of the
1956 LRA, the dismissal constituted victimisation and would,
therefore, be invalid.
The reason I
refer to cases based on contraventions of section 66 of the 1937 Act
and section 25 of the Wage Act is to show that
dismissals that were
effected in contravention of provisions materially similar to those
of section 66 of the 1956 LRA were held
by the courts to be invalid.
[112]
The characteristic of all these cases and
the statutory provisions with which they were concerned is that the
conduct in question
by the employer constituted a criminal offence
and the criminal court had the power to reinstate an employee after
conviction.
The position is different under the LRA.
Whilst previous labour legislation in this country had contained many
provisions
reinforced by criminal sanction, there was a deliberate
choice in the LRA to move away from this model and not to use the
criminal
law to enforce obligations in the current LRA. The
context in which the dismissals were held to be invalid in those
cases
is different from the statutory context in which we are asked
to hold that the applicants’ dismissals were invalid.
The
LRA does not contemplate invalid dismissals.
[113]
Unlike the current LRA, the 1956 LRA
contemplated invalid dismissals and orders declaring dismissals
invalid and of no force and
effect. Section 17(11)(a)
[126]
of that Act conferred upon the Industrial Court jurisdiction to
decide any matter that a civil court could decide arising out of
the
administration of various pieces of labour legislation. Section
17(11)(a) is the provision under which the workers in
Ndawonde
[127]
brought their application for an order
inter
alia
declaring that their dismissal for
union membership or lawful union activities was invalid and of no
force and effect. In
Ndawonde
the court held that the applicants were entitled to seek an order
declaring their dismissals invalid. It rejected the employer’s
contention that under the 1956 LRA they were limited to challenging
their dismissals under the unfair labour practice provisions.
[114]
The Court’s reason for rejecting that
contention was that, unlike the current LRA, the 1956 LRA had section
17(11)(a) which
gave power to the Industrial Court to adjudicate any
case under that statute arising from the application of various
pieces of
labour legislation that any civil court could adjudicate.
That power enabled the Industrial Court to make an order declaring
a
dismissal invalid – a power that a civil court would ordinarily
have. The current LRA does not have a provision to
that effect
concerning the Labour Court. In section 157(2) of the LRA the
concurrent jurisdiction the Labour Court has with
the High Court is
confined to cases in which there is an alleged or threatened
violation of the fundamental rights entrenched in
the Bill of Rights
arising from:
“
(a)
employment and from labour relations;
(b)
any
dispute
over the constitutionality of any executive or
administrative act or conduct, or any threatened executive or
administrative act
or conduct, by the State in its capacity as an
employer, and
(c)
the application of any law for the administration of which the
Minister
is responsible.”
[128]
[115]
It seems to me that section 157(2) is a
replacement of section 17(11)(a) of the 1956 LRA because section
17(11)(a) also referred
to matters arising from the application of
various pieces of legislation falling under the Minister of Labour.
It appears
that there was a deliberate decision by the Legislature
not to frame section 157(2) in such a way as would have given
the
Labour Court jurisdiction to deal with all the matters that could
be dealt with by the Industrial Court under section 17(11)(a)
of the
1956 LRA. Matters such as
Ndawonde
would be some of those matters.
Those are matters in which an order could be sought declaring a
dismissal invalid. The
similarity of the idea represented from
the words “arising from” to the end of paragraph (c) to
the idea represented
in section 17(11)(a) of the 1956 LRA could not
have been a coincidence.
[116]
I think that the rationale for the policy
decision to exclude unlawful or invalid dismissals under the LRA was
that through the
LRA the Legislature sought to create a dispensation
that would be fair to both employers and employees, having regard to
all the
circumstances, including the power imbalance between them.
In this regard a declaration of invalidity is based on a “winner
takes all” approach. The fairness which forms the
foundation of the LRA has sufficient flexibility built into it to
enable a court or arbitrator to do justice between employer and
employee. For example, where a dismissal is unlawful by virtue
of the employer having failed to follow a prescribed procedure before
dismissing an employee and the dismissal is declared invalid,
in law
the employee is regarded as never having been dismissed and will be
entitled to all arrear wages from the date of the purported
dismissal
to the date of the order. Under the LRA a dismissal will be
recognised as having taken place irrespective of whether
the
dismissal is held to have been automatically unfair or unfair because
there was no fair reason for it or because there was
no compliance
with a fair procedure in effecting it.
[117]
Furthermore, the fairness required by the
LRA dictates that the relief that is granted by the Labour Court or
an arbitrator for
an unfair dismissal must take account of all the
relevant circumstances of the case and the interests of both the
employer and
employee. As a result of this approach, there is
flexibility in the relief that may be granted in a particular case.
The remedy may be reinstatement with or without retrospectivity.
It may be an award of compensation. The compensation
is capped
at 12 months’ remuneration or 24 months’ remuneration,
depending on whether it is for an automatically unfair
dismissal or a
substantively or procedurally unfair dismissal. If the
dismissal is substantively fair but procedurally unfair,
reinstatement is not competent but an award of compensation is
competent.
[118]
All of these enable the Court or an
arbitrator to grant relief for unfair dismissal that is just and
equitable to both the employer
and the employee in a particular
case. The common law which gives us the concept of the
invalidity of a dismissal is rigid.
It says that if a dismissal
is unlawful and invalid, the employee is treated as never having been
dismissed irrespective of whether
the only problem with the dismissal
was some minor procedural non-compliance. It says that in such a case
the employer must pay
the employee the whole backpay even if,
substantively, the employer had a good and fair reason to dismiss the
employee.
[119]
Whereas the LRA requires a number of
factors to be taken into account in deciding what the appropriate
remedy is for an unfair dismissal
including an automatically unfair
dismissal, the common law’s remedy of an invalid dismissal
takes into account one fact
and one fact only. That is that the
dismissal was in breach of statutory provisions. Under the LRA
if the remedy that
is considered fair is compensation, the Court
grants compensation. The compensation is limited to 12 months’
or
24 months’ remuneration, as the case may be, in terms of
section 194 of the LRA. Under the LRA if the Court thinks
reinstatement would be an appropriate remedy, it will grant
reinstatement. When considering the flexibility required by the
LRA in the grant of a remedy for unfair dismissal, one thinks of the
flexibility in regard to a remedy that section 172(1)(b) of
our
Constitution contemplates. Section 172(1)(b) confers on the
courts the power to make “any order that is just and
equitable”
when dealing with constitutional matters within their powers. I
make these points to show that the exclusion
of the remedy of an
invalid dismissal under the LRA was deliberate. It did not fit
into the dispensation of the LRA which
required flexibility so as to
achieve fairness and equity between employer and employee in each
case.
[120]
Section 188(1) of the LRA refers to unfair
dismissals that fall outside the category of automatically unfair
dismissals. Section
188(1) provides:
“
(1)
A
dismissal
that is not automatically unfair, is unfair if the employer fails to
prove—
(a)
that the reason for
dismissal
is a fair reason—
(i)
related to the
employee’s
conduct or capacity; or
(ii)
based on the employer’s
operational requirements
; and
(b)
that the
dismissal
was effected in accordance with a fair
procedure.”
Section 188(2) is also important.
It reads:
“
Any
person considering whether or not the reason for
dismissal
is a fair reason or whether or not the
dismissal
was effected in accordance with a fair procedure must take into
account any relevant
code of good
practice
issued in terms of
this
Act
.”
[121]
The Code of Good Practice contemplated in
section 188(2) appears as Schedule 8 to the LRA. When one
goes to the Code
of Good Practice, one finds that it covers only
dismissals for misconduct and dismissals for incapacity. It has
no provisions
relating to dismissals for operational requirements.
There is a reason for this. It is that, whereas there are no
detailed
provisions in the LRA itself about dismissals for misconduct
and for incapacity, there are detailed provisions in the LRA relating
to dismissals for operational requirements. Those detailed
provisions are contained in sections 189 and 189A.
[122]
The Code of Good Practice provides for
guideline procedures that are expected to be followed to ensure
procedural fairness in the
case of dismissals for misconduct and
dismissals for incapacity. The Code of Good Practice seeks to
give effect to section
188(1)(a)(ii) of the LRA in relation to
dismissals for misconduct and dismissals for incapacity. That
is the provision that
requires a dismissal to be effected in
accordance with a fair procedure.
[123]
The provisions of sections 189 and 189A
were enacted to give effect to sections 185 and 188 in regard to
dismissals for operational
requirements. That means the two
sections were enacted to give effect to an employee’s right not
to be unfairly dismissed
provided for in section 185 read with
section 188(1). They were not enacted to give effect to every
employee’s right
not to be unlawfully dismissed for which the
LRA does not make any provision. In particular, in so far as
sections 189 and
189A provide for procedures and processes that must
be complied with before any dismissal for operational requirements
can be effected,
they seek to give effect to the requirement in
section 188(1)(a)(ii) that a dismissal must be effected in accordance
with a fair
procedure. Therefore, both sections 189 and 189A
have nothing to do with unlawful or invalid dismissals.
[124]
The first judgment is wrong that section
189A cannot be smoothed into the fabric of the unfair dismissal
provisions of the LRA.
That section fits comfortably into those
provisions. If non-compliance with section 189A results in
dismissals being procedurally
unfair, the ordinary unfair dismissal
provisions of the LRA as well as the special remedies that section
189A provides may be invoked.
If the employer’s
operational requirements for dismissals are inadequate, this can be
challenged as rendering the dismissal
substantively unfair with the
advantage of immediate access to the Labour Court or the right to
strike provided for in section
189A may be invoked.
[125]
If the procedural requirements of section
189 or 189A are not complied with in circumstances where there is no
acceptable reason
for non-compliance, the result will be that the
dismissal was not effected in accordance with a fair procedure as
contemplated
in section 188(1)(a)(ii). It is, therefore,
procedurally unfair – not unlawful, invalid and of no force or
effect.
In substance the applicants’ complaint is that
the dismissals are procedurally unfair. However, the applicants
have
dressed their complaint up as something else so that they can
avoid the mechanisms and remedies under the LRA and seek a remedy
that falls outside of the LRA in relation to dismissals. They
do so in an attempt to get maximum benefit that is available
only
when the breach relied upon is not that of the provisions of the
LRA. What the applicants are doing is not exactly
forum-shopping but it is analogous to forum-shopping. Where the
law permits forum-shopping, a litigant cannot be denied relief
just
because it is engaging in forum-shopping. However, in this case
there is no room for granting the remedy sought by the
applicants.
[126]
As already stated, the applicants’
complaint is the respondent’s breach of its procedural
obligations in section 189A(8)
by failing to observe the time limits
imposed by that provision. The procedural obligations placed
upon an employer in section
189A, including those in section 189A(8),
relate to the procedural fairness contemplated in section 188(1)(b).
Then, when
subsection (13) refers to non- compliance with a fair
procedure, it refers to procedural fairness made up of the procedural
obligations and rights provided for in section 189A. That being
the case, subsection (13) is of great significance.
Not so much
for what it provides but rather for what it does not provide.
[127]
Subsection (13) reads:
“
(13)
If an employer does not comply with a fair procedure, a consulting
party may approach the Labour Court
by way of an application for an
order—
(a)
compelling the employer to comply with a fair procedure;
(b)
interdicting or restraining the employer from dismissing an employee
prior to complying
with a fair procedure;
(c)
directing the employer to reinstate an employee until it has complied
with a fair
procedure;
(d)
make an award of compensation, if an order in terms of paragraphs (a)
to (c) is not
appropriate.”
If section 189A had contemplated that,
for a breach of a procedural obligation in section 189A(8), the
Labour Court could grant
a declaratory order that the resultant
dismissal is invalid and of no force and effect, it would have been
the easiest thing to
include another paragraph in subsection (13), a
paragraph (e), reading as follows: “(e) declaring the dismissal
invalid”.
The drafters did not include an order to that
effect among the orders in subsection (13) because invalid dismissals
were not contemplated
for the dispensation created by the LRA.
[128]
The orders that the Labour Court is given
power to make under subsection (13) are so extensive as to make it
unnecessary for the
LRA to contemplate invalid dismissals and an
order declaring a dismissal invalid and of no force and effect.
Those orders
include an order for reinstatement which could be with
retrospective effect to the date of dismissal and, thus, entitling an
employee
to full backpay and other benefits and to be treated as if
he had never been dismissed. Any power to enable the Labour
Court
to make an order declaring an employee’s dismissal
invalid and of no force or effect is redundant in the presence of a
power
to make a fully retrospective order of reinstatement in
subsection (13)(c).
[129]
One of the strange features of the
applicants’ case is that, although their complaint is based
upon a breach of an LRA obligation,
the remedy that they seek,
namely, a declaratory order that the dismissal is invalid and of no
force and effect is a common law
remedy and not an LRA remedy.
Instead of seeking an LRA remedy for an LRA infringement, they seek a
common law remedy for
an LRA infringement. There is a
disjuncture about that. As if that is not enough, when they
seek to identify from where
the Labour Court must derive its
jurisdiction to adjudicate a dispute arising out of a breach of an
LRA obligation, they do not
go to the LRA. This is done despite
the fact that the LRA does deal with the jurisdiction of the Labour
Court.
[129]
They go outside the LRA to the Basic Conditions of Employment
Act
[130]
(BCEA) and rely upon section 77
[131]
of that Act to say that the Labour Court has jurisdiction to deal
with a dispute concerning a breach of an LRA obligation.
They
could not find a single provision in the LRA which gives the Labour
Court the jurisdiction to entertain a dispute whether
a dismissal in
breach of an LRA provision is invalid. That is telling.
[130]
The scheme of the LRA is that, if it
creates a right, it also creates processes or procedures for the
enforcement of that right,
a dispute resolution procedure for
disputes about the infringement of that right, specifies the fora in
which that right must be
enforced and specifies the remedies
available for a breach of that right. A well-known example is
every employee’s
right not to be unfairly dismissed which is
provided for in section 185. In section 186 there is a
definition of what dismissal
means. In section 187 there is a
special category of dismissals, namely, automatically unfair
dismissals. In section
188 other categories of dismissals are
created, namely, dismissals that lack a fair reason and procedurally
unfair dismissals.
[131]
In section 189 the LRA sets out the process
or procedure that an employer must follow when contemplating the
dismissal of any employee
for operational requirements. In
section 189A the LRA creates rights and obligations for a certain
category of employers
and their employees in regard to dismissals for
operational requirements which did not form part of the LRA before
2002.
[132]
It also creates the processes or procedures to be complied with.
Section 189A also specifies the process for the adjudication
of
disputes. In this regard it makes provision for the referral to
the Labour Court for adjudication of a dispute about whether
there is
a fair reason for dismissal. It makes provision for the route
of a strike and lock-out for the resolution of a dispute.
It is
particularly significant that section 189A(9) expressly contemplates
the very eventuality that arises in this case.
That is the
eventuality of an employer giving notice of dismissals prematurely.
It provides the remedy of an immediate strike
for a breach of the
section’s provisions. In section 189A(13) the LRA
specifies special remedies for non-compliance
with a fair procedure.
All of that – including subsection (8) – is about the
right not to be unfairly dismissed
which the LRA creates in section
185. In section 191 the LRA sets out the dispute procedure that
must be used to resolve
disputes concerning alleged infringements of
the right not to be unfairly dismissed. No provision is made
anywhere for a
dispute procedure that must be used for a dispute
about the validity or lawfulness or otherwise of a dismissal.
[132]
One can take other rights provided for in
the LRA and do the same exercise. These include organisational
rights, collective
bargaining rights, the right to strike and
others. There is even a special dispute resolution chapter in
the LRA but it says
nothing about a right not to be dismissed
unlawfully or about disputes concerning invalid dismissals.
There is no reference
to a right not to be unlawfully dismissed.
There are no processes or procedures for the enforcement of such a
right.
There are no fora provided for in the LRA for the
enforcement of such a right. Nowhere in the entire LRA is there
mention
of the words “dismissal” and “unlawful”
or “invalid” in the same sentence. Yet there are
many sentences in the LRA in which the words “dismissal”
and “unfair” appear. The LRA makes no provision
for
dispute procedures to be followed in the case of a dispute arising
out of the infringement of such a right. The only
sensible
explanation for these omissions in the LRA is that the LRA does not
contemplate a right not to be unlawfully dismissed
nor does it
contemplate invalid dismissals or orders declaring dismissals invalid
and of no force and effect.
[133]
The absence in the LRA of any provision for
a right not to be dismissed unlawfully and of any dispute procedures
or processes for
the enforcement of that right explain why the
applicants have been forced to go to another statute i.e. the BCEA to
enforce a right
that is not provided for in the BCEA which they say
is provided for in the LRA. The explanation is simply that the
LRA does
not contemplate the right and the invalid dismissals on
which they base their case. If the LRA contemplated such a
right
in regard to dismissals, it would have made provision for it
and for a dispute procedure to be followed in disputes concerning its
infringement.
[134]
One factor in determining whether a breach
of the procedural requirements of section 189A(8) results in the
invalidity of the dismissal
notices or of the resultant dismissals is
whether the LRA provides any consequences for the breach. The
first point is that
the LRA does not say that the invalidity of the
dismissal notices or of the resultant dismissals is part of the
consequences of
a breach of section 189A(8).
[135]
The LRA spells out the consequences of an
employer’s breach of the procedural requirements of section
189A(8) both in section
189A(9), which is the strike route, and in
subsection (13). That the subsection (13) orders are
consequences of non-compliance
with the procedural requirements is
made clear when subsection (13) refers to “non-compliance
with a fair procedure”.
That phrase is a reference to the
procedure set out in section 189A. If the provisions that cover
the “fair procedure”
referred to in subsection (13)
include the procedural requirements of subsection (8), then logically
that would lead to the conclusion
that the subsection (13) orders
represent the consequences of non-compliance with subsection (8).
Furthermore, in many cases
the invalidity of an act performed
contrary to a statutory provision is inferred from the fact that the
statute makes that act
a criminal offence. The LRA does not
have a comparable provision.
[136]
I conclude that invalid dismissals and a
declaratory order that a dismissal is invalid and of no force and
effect fall outside the
contemplation of the LRA. Such an order
cannot be granted in a case based on the breach of an obligation
under the LRA concerning
a dismissal. Accordingly, on this
ground alone, the appeal falls to be dismissed.
B.
LRA remedy for an LRA breach
[137]
The second basis for my conclusion that the
applicants’ appeal should be dismissed is a principle that, for
convenience, I
call “LRA remedy for an LRA breach”.
The principle is that, if a litigant’s cause of action is a
breach
of an obligation provided for in the LRA, the litigant as a
general rule, should seek a remedy in the LRA. It cannot go
outside
of the LRA and invoke the common law for a remedy. A
cause of action based on a breach of an LRA obligation obliges the
litigant
to utilise the dispute resolution mechanisms of the LRA to
obtain a remedy provided for in the LRA.
[138]
The approach is in line with this Court’s
decision in
Chirwa
.
[133]
Ms Chirwa had been employed by the Transnet Pension Fund (Fund), an
organ of state established by legislation. She
was dismissed
for poor performance. She referred a dispute of unfair
dismissal to the CCMA for conciliation in terms of section
191 of the
LRA. After the conciliation process had failed to produce a
resolution of the dispute, she was entitled to request
that the
dispute be resolved through arbitration in terms of section 191(5) of
the LRA. However, she did not make this request.
Instead,
she brought an application in the High Court to have the decision to
terminate her contract of employment reviewed and
set aside under the
Promotion of Administrative Justice Act (PAJA).
[134]
She contended that the decision to terminate her contract of
employment constituted administrative action under PAJA.
[139]
In the High Court Ms Chirwa’s case
was based on a contention that the Fund had been obliged to comply
with the provisions
of the Code of Good Practice contained in
Schedule 8 of the LRA. In this regard she was relying on an
alleged breach by the
Fund of provisions of the Code relating to
procedural fairness applicable to dismissals for poor performance.
She contended
that the decision to terminate her contract of
employment constituted administrative action under PAJA and fell to
be reviewed
and set aside because of the Fund’s alleged
non-compliance with the LRA procedural requirements. From this
it is clear
that the
Chirwa
case shares an important feature with the present case. In
Chirwa
the
employee’s cause of action was non-compliance with a procedural
requirement provided for in the LRA and the Code but
the relief she
sought fell outside the LRA. She sought relief in PAJA.
In the present case the applicants’ cause
of action is also
non-compliance with a procedural requirement of the LRA but the
relief that they seek falls outside the LRA.
It is to be found
in the common law.
[140]
I have said above that a litigant who bases
its case on a breach of an obligation in the LRA must seek a remedy
in the LRA and not
outside of the LRA. This Court has already
laid down this principle. In one of the two majority judgments
in
Chirwa
Ngcobo
J
[135]
said:
“
Where,
as here, an employee alleges non-compliance with provisions of the
LRA, the employee must seek the remedy in the LRA.
The employee
cannot, as the applicant seeks to do, avoid the dispute resolution
mechanisms provided for in the LRA by alleging
a violation of a
constitutional right in the Bill of Rights. It could not have
been the intention of the legislature to allow
an employee to raise
what is essentially a labour dispute under the LRA as a
constitutional issue under the provisions of section
157(2). To
hold otherwise would frustrate the primary objects of the LRA and
permit an astute litigant to bypass the dispute
resolution provisions
of the LRA. This would inevitably give rise to forum shopping
simply because it is convenient to do
so or as the applicant alleges,
convenient in this case ‘for practical considerations’.
What is in essence a
labour dispute as envisaged in the LRA should
not be labelled a violation of a constitutional right in the Bill of
Rights simply
because the issues raised could also support a
conclusion that the conduct of the employer amounts to a violation of
a right entrenched
in the Constitution.”
[136]
[141]
Ms Chirwa’s application in the High
Court was based upon a contention that the Fund had dismissed her in
breach of the provisions
of items 8 and 9 of Schedule 8 to the LRA
and the Code of Good Practice issued in terms of section 188(2) of
the LRA.
This Court pointed out that Ms Chirwa’s
claim was based on section 188 of the LRA read with items 8 and 9 of
the Code.
[137]
[142]
In another majority judgment in the same
case Skweyiya J said:
“
Thus,
unlike in
Fredericks
,
the applicant here expressly relies upon those provisions of the LRA
which deal with unfair dismissals. Indeed, this is
the claim
she asserted when she approached the CCMA. It is apparent that
when she approached the High Court, she made
it clear that her
claim was based on a violation of the provisions of the LRA,
including items 8 and 9 of Sc[hedule] 8 to that
Act. However,
she elected to vindicate her rights not under the provisions of the
LRA, but instead under the provisions of
PAJA.”
[138]
Skweyiya J concluded
that Ms Chirwa was not “at liberty to relegate the finely-tuned
dispute resolution structures created
by the LRA”.
[139]
[143]
Ngcobo J also said:
“
The
question therefore is whether a dispute about a failure to comply
with the mandatory provisions of item 8 and 9 of Schedule
8 to the
LRA is a dispute which falls to be resolved under the dispute
resolution provisions of the LRA. In the light of
the
principles to which I have referred, the answer is clear; a dispute
concerning the alleged non-compliance with the provisions
of the LRA
is a matter which under the LRA, must be determined by the Labour
Court. This result cannot be avoided by alleging,
as the
applicant does, that the conduct of Transnet violates the provisions
of the LRA in question and violates a constitutional
right to just
administrative action in section 33 of the Constitution and is
therefore reviewable under PAJA.”
[140]
[144]
Applying this passage to the present case,
the dispute concerns the breach by Edcon of the procedural
requirements of section 189A(8).
Accordingly, the dispute
“falls to be resolved under the dispute resolution provisions
of the LRA”. The applicants
cannot avoid this result by
alleging that the dismissal is invalid and of no force and effect.
What this passage means in
part is also that, if a litigant’s
case is based on a breach of an LRA obligation, the dispute
resolution mechanism used
must be that of the LRA and the remedy must
also be a remedy provided for in the LRA. Accordingly, on this
ground, too, the
appeal falls to be dismissed.
C.
Applicants limited to section 189A remedies
and those remedies are adequate
[145]
Under this heading I seek to show that,
since the applicants rely upon a breach of an obligation in section
189A, their remedies
are limited to those provided for in that
section and that those are adequate remedies. In
Madrassa
[141]
it was held that, as a general rule of construction, if it is clear
from the language of a statute that, in creating an obligation,
the
Legislature has confined the party complaining of its
non -performance or suffering from its breach to a particular
remedy,
such party is limited to that remedy and has no further
remedies. One exception to this general rule is the grant of an
interdict.
This general rule has been followed in a number of
cases.
[142]
[146]
After referring to
Madrassa,
the Court in
Kubheka
went on to say:
“
As
a matter of construction of the statute, the express provision of a
forum
for
the enforcement of the liability shows that the Legislature intended
that
forum
to have jurisdiction to enforce the remedy, and where the statute is
silent on the question whether any other
forum
would have a similar jurisdiction, the finding of an intention on the
part of the Legislature that such a concurrent, unexpressed
jurisdiction should exist, can of necessity only be based on an
implied provision to that effect, which is to be derived from the
provisions of the statute as a whole.”
[143]
In the present case
the obligation which the applicants seek to enforce is a new
obligation introduced into the LRA in 2002.
It did not exist at
common law nor did it exist in the LRA before 2002. It was
inserted by section 45 of the Labour Relations Amendment
Act.
[144]
Prior to this amendment, section 189 governed all dismissals for
operational requirements. The obligation is found
in
section 189A(8). It is a procedural obligation.
Subsection (9) provides for a strike option for employees in
a case
where notices of dismissals are given or the actual dismissals are
effected before the expiry of the period referred to
in
subsection (8)(b)(i). Section 189A was not part of
the LRA prior to 2002.
[147]
At this stage it is necessary to deal with
section 189A(2). However, as it has been quoted already, it is
not necessary to
quote it again. The purpose of
section 189A(2)(a) is to make sure that there is no doubt that
any notice of the termination
of a contract of employment given in a
situation governed by section 189A cannot be said to be a notice
in terms of any other
law. This is in line with the idea that
section 189A creates special rights and obligations for which it
provides special
remedies. Subsection (2)(b) makes this even
clearer.
[148]
Subsection (2)(b) permits employees to
resort to a strike in regard to the fairness of the reason for
dismissal. In terms
of our law governing industrial action the
normal position is that employees may not resort to a strike in
respect of an issue
in dispute that they may refer to arbitration or
to the Labour Court nor may an employer institute a lock out in
respect of such
an issue in dispute.
[145]
A complaint about the fairness of a dismissal covered by section 189A
is a complaint that can be referred to the Labour Court.
It is,
therefore, an issue that would ordinarily not be strikeable. In
the case of dismissals to which section 189A applies,
the LRA has
gone out of its way and created an exception to that normal rule.
Section 189A makes an exception to this rule
in order to enable
workers and employers to resort to strikes and lockouts,
respectively, to try and resolve disputes concerning
dismissals
governed by section 189A. In this situation an extraordinary
remedy is provided for an extraordinary situation.
[149]
Subsection (7) deals with what may or may
not happen where a facilitator has been appointed. It also lays
down certain procedures.
Subsection (7),
inter
alia
, provides:
“
(7)
If a facilitator is appointed in terms of subsection (3) or (4), and
60 days have elapsed from
the date on which notice was given in terms
of
section 189
(3)—
(a)
the employer may give notice to terminate the contracts of employment
in accordance
with
section 37
(1) of the
Basic Conditions of Employment Act
; and
(b)
a registered
trade union
or the
employees
who have
received notice of termination may either—
(i)
give notice of a
strike
in terms of
section
64
(1)(b) or (d); or
(ii)
refer a
dispute
concerning whether there is a fair reason for
the
dismissal
to the Labour Court in terms
of
section 191(
11).”
[150]
The provisions of subsection (7)(a) mean
that, in a case where a facilitator was appointed, a period of at
least 60 days from the
date on which the section 189(3) notice was
given must lapse before the employer may give employees dismissal
notices. An
employer may not give an employee notice of the
termination of his or her contract of employment before the expiry of
60 days.
If an employer were to do so, that would be a breach
of section 189A(7). It would immediately give the employees the
right
to strike.
[146]
[151]
Subsection (8) has already been quoted
above. It is therefore, not necessary to quote it again.
In
terms of subsection (8) a period of at least 30 days must elapse from
the date of the giving of the section 189(3) notice before
a party
may refer a dispute to a council or the CCMA. A referral of a
dispute before the expiry of that period would be a
breach of the
provision. Once the period of 30 days has elapsed, the employer
must also wait for the periods referred to
in section 64(1)(a) to
elapse before it may give the employees dismissal notices. If
the employer were to give employees
dismissal notices prior to the
expiry of those periods, that would be a breach of subsection
(8)(a). That is dealt with under
subsections (8)(a) and
(8)(b)(i).
[152]
Subsection (8)(b)(ii) deals with what the
employees and a registered trade union may do in response to
dismissal notices.
In construing subsection (8)(b)(ii), the use
of the word “may” before subparagraph (aa) and the use of
the disjunctive
word “or” between (aa) and (bb) must be
noted. It seems to me that employees and a registered trade
union are
given an election between two routes. The one route
is a strike. The other is adjudication by the Labour Court of a
dispute about whether there is a fair reason to dismiss. The
employees and a registered trade union may not have both at
the same
time or one after the other. They have to choose one and their
choice cannot be changed once it has been communicated
to the
employer.
[153]
Subsection (9) is also important. It
is also about the strike weapon for the workers. It reads:
“
Notice
of the commencement of a
strike
may be given if the employer dismisses or gives notice of
dismissal
before the expiry of the periods
referred to in subsections (7)(a) or (8)(b)(i).”
This provision deals specifically with
the situation where the employer gives employees notices of dismissal
or dismisses employees
before the expiry of the statutory time
periods prescribed in subsection (7)(a) and subsection (8)(b)(i).
It provides a clear
remedy in addition to the remedy under section
189A(13). It provides that, as a response to the employer
giving employees
notices of dismissal or dismissing employees before
the expiry of the periods in subsections (7)(a) and (8)(b)(i), the
employee
may give notice of a strike and resort to a strike
immediately after the expiry of the strike notice. That is a
further strong
indication that the Legislature was aware of this
possibility and provided for it by way of remedies in section 189A
under the
LRA.
[154]
The right to strike in this provision can
be invoked only where the employees decide not to refer the question
whether the employer
had a fair reason to dismiss to the Labour
Court. Subsection (10)(a) makes it clear that the avenue of a
strike under subsection
(9) is not in addition to the avenue of
referring a dispute concerning whether there is a fair reason for the
dismissal to the
Labour Court for adjudication. It is in the
place of such a referral. Subsection (10)(a) also makes it
clear that,
if the union or the workers elect to refer a dispute
concerning whether there is a fair reason for a dismissal to the
Labour Court,
that is not in addition to the avenue of a strike.
It is in its place.
[155]
Subsection (9) is important to trade unions
and workers because it gives them an opportunity to carefully assess
which avenue or
weapon has a better chance of producing the outcome
they want when the employer acted prematurely in either issuing
notices of
dismissal or dismissing without issuing notices. The
provision gives them an election. Once they have made their
election,
they are bound by it and may not later explore the other
avenue. If they elect the strike route, they cannot later seek
to
refer a dispute about whether there is a fair reason for dismissal
to the Labour Court for adjudication. If they elect
to
refer a dispute concerning whether there is a fair reason for the
dismissal to the Labour Court, they cannot later resort to
a strike.
Importantly, the time constraints that previously applied to them
fall away and they are entitled immediately to
invoke the option of a
strike.
[156]
Under normal circumstances workers do not
have an election whether to use a strike to deal with a dismissal to
which they are opposed.
In terms of section 65(1)(c) they may
not resort to a strike in respect of such a matter because it is an
issue in dispute that
they have a right to refer to the Labour Court
for adjudication.
[147]
They are obliged, if they want to challenge the dismissal in any way
under the LRA, to refer the dispute to the Labour Court
for
adjudication. The fact that section 189A gives workers and
trade unions the election that it gives them means that the
protection it gives to employees is greater than the protection given
to employees to whom section 189A does not apply.
It is
also important to point out that in terms of subsection (11)(a)(ii)
the employer is precluded from instituting a lock-out
in a case where
the workers do not elect the strike route.
[157]
Subsections (8)(b)(ii)(aa) and (bb) provide
the only remedies available to workers or their trade union if they
dispute the fairness
of the reason for their dismissal. They do
not have any other remedies. However, they are still better off
than their
colleagues to whom section 189A does not apply. That
is in so far as they may be challenging the fairness of the reason
for
their dismissal. What if they challenge only the procedural
fairness of the dismissal?
[158]
It is to be noted that in such a case
subsection (8)(b)(ii)(bb) does not contemplate the referral of a
dispute concerning the procedural
fairness of a dismissal to the
Labour Court for adjudication. In terms of that provision only
a dispute concerning whether
there is a fair reason for dismissal may
be referred to the Labour Court for adjudication. In fact
subsection (18) precludes
the Labour Court from adjudicating any
dispute about the procedural fairness of a dismissal for operational
requirements referred
to it in terms of section 191(5)(b)(ii).
It reads:
“
The
Labour Court may not adjudicate a
dispute
about the procedural fairness of a
dismissal
based on the employer’s
operational requirements
in any
dispute
referred to it in terms of section 191(5)(b)(ii).”
Subsection (18) may
seem very drastic and harsh on employees who may be having a dispute
with their employer concerning the procedural
fairness of their
dismissal. However, it will be seen that, when read with
subsection (13), it is not harsh at all.
Subsection (13)
provides extensive protections to employees where the employer has
failed to comply with a fair procedure.
[148]
[159]
I cannot think of any relief that an
employee could ask for which is not provided for in this section.
Subsection (17)(a)
provides that an application such as the one
contemplated in subsection (13) must be made not later than 30 days
after the employer
has given notice to terminate the employees’
contracts of employment or if notice is not given, the date on which
the employees
were dismissed. So, a challenge based on
procedural unfairness may be brought after the dismissals have taken
place.
However, subsection (17)(b) gives the Labour Court power
to condone, on good cause shown, any failure to comply with that time
limit.
[160]
If an employer has not issued notices of
dismissal but has failed or is failing to comply with a fair
procedure in the pre-dismissal
process, a consulting party may make
use of the remedy in subsection (13)(a). In such a case the
consulting party would apply
to the Labour Court for an order
compelling the employer to comply with a fair procedure. If an
employer gives employees
notices of dismissal without complying with
a fair procedure, or, if an employer dismisses employees without
complying with a fair
procedure, the consulting party may apply to
the Labour Court for an order interdicting the dismissal of employees
in terms of
subsection (13)(b) until there is compliance with a fair
procedure. This would include giving premature notices of
dismissal.
[161]
If an employer has already dismissed
employees without complying with a fair procedure, the consulting
party may apply to the Labour
Court in terms of subsection (13)(c)
for an order reinstating the employees until the employer has
complied with a fair procedure.
The significance of the remedy
of reinstatement in subsection (13)(c) is that it is made available
even for a dismissal that is
unfair only because of non-compliance
with a fair procedure. That is significant because it is a
departure from the normal
provision that reinstatement may not be
granted in a case where the only basis for the finding that the
dismissal is unfair is
the employer’s failure to comply with a
fair procedure.
[149]
In such a case the norm is that the Labour Court or an
arbitrator may award the employee only compensation.
[162]
Subsection (13)(d) provides that a
consulting party may apply to the Labour Court for an award of
compensation “if an
order in terms of paragraphs (a) to (c) is
not appropriate”. It seems to me that the phrase “if
an order in terms
of paragraphs (a) to (c) is not appropriate”
constitutes a condition precedent that must exist before the Court
may award
compensation. The significance of this condition
precedent is that its effect is that the Labour Court is required to
regard
the orders provided for in subsection (13)(a) to (c) as the
preferred remedies in the sense that the Labour Court should only
consider
the remedy in subsection (13)(d) when it is not appropriate
to make any of the orders in subsection (13)(a) to (c).
[163]
This is a reversal of the legal position
that obtains in the case of dismissals for the employer’s
operational requirements
governed by only section 189 where dismissal
is only procedurally unfair and not substantively unfair as well.
In these cases
the Labour Court is required not to order
reinstatement at all. So, in making the remedy of reinstatement
available for a
procedurally unfair dismissal and also making it one
of the preferred remedies in subsection (13), the Legislature has
gone out
of its way to give special protection for the rights of
employees and to protect the integrity of the procedural requirements
of
dismissals governed by section 189A.
[164]
The extensive remedies in subsection (13)
provide at least partial compensation for the fact that in respect of
disputes concerning
the procedural fairness of dismissals the
employees have been deprived of the right to adjudication that other
employees have.
In part the extensive remedies in subsection
(13) for non-compliance with procedural fairness have been provided
because of the
importance of the pre-dismissal process.
[165]
Subsection (14) provides:
“
Subject
to this section, the Labour Court may make any appropriate order
referred to in
section
158
(1)(a).”
The orders referred to in section
158(1)(a) include a declaratory order. However, I do not think
that subsection (14) empowers
the Labour Court to make a declaratory
order of invalidity in respect of a dismissal when the LRA makes no
provision for a right
not to be dismissed unlawfully or for an
invalid dismissal. This means that whatever declaratory order
may be made in terms
of subsection (14) may be made only if it is
contemplated in section 189A. This is so because of the opening
phrase: “subject
to this section” which appears at the
beginning of subsection (14).
[166]
I referred earlier to the fact that section
189A(8) gives employees and a registered trade union a right to
strike as one of the
“weapons” they may use when they
have received notices of the termination of contracts of employment
of the employees.
That avenue is provided by subsection
(7)(b)(i) and subsection (8)(b)(ii)(aa). Both those
provisions say that a registered
trade union or employees who have
received dismissal notices may “give notice of a strike in
terms of section 64(1)(b) or
(d)” or “refer a dispute
whether there is a fair reason for the dismissal to the Labour Court
in terms of section 191(11)”.
[167]
A question that arises out of these
provisions is whether the strike contemplated in these provisions can
only be about a dispute
whether there is a fair reason for the
dismissal or can also be about a dispute concerning non-compliance
with a fair procedure
or whether it can be about both. It can
also be asked whether the strike can relate to such dispute as may
have existed between
the parties prior to the dismissal or prior to
the giving of the notices of dismissal by the employer and whether it
can relate
to all three disputes or to any one of them.
[168]
The reason for considering what the
position is in this regard is that it is necessary to assess whether
the strike route is available
to employees and a trade union if the
dispute is confined to non-compliance with a fair procedure. It
seems from subsection
(10)(a)(i) and (ii) as well as subsection
(2)(b) that the strike contemplated in subsections (7) and (8)
relates simply to dismissals.
What we know is that:
(a)
before a strike notice can be given, the
employees would have received notice of the termination of contracts
of employment because
that must precede the giving of a strike
notice;
(b)
in terms of subsection (10)(a)(i) the
strike route is not available to a consulting party “if [the
consulting party] has referred
a dispute concerning whether there is
a fair reason for that dismissal to the Labour Court”;
(c)
in terms of subsection (10)(a)(ii) the
option of referring to the Labour Court for adjudication a
dispute whether there is
a fair reason for the dismissal is not
available to a consulting party “if [the consulting party] has
given notice of a strike
in terms of this section in respect of that
dismissal”;
(d)
whereas, in respect of a dispute whether
there is a fair reason for the dismissal, there is a clear provision
that there will be
no strike if that dispute has been referred to the
Labour Court for adjudication, there is no corresponding provision in
respect
of a dispute about whether there has been compliance with a
fair procedure in regard to a dismissal;
[150]
(e)
there is also no provision to the effect
that, if a consulting party has applied to the Labour Court for any
of the orders listed
in subsection (13), the consulting party
may not give notice of a strike; and
(f)
there is no provision to the effect that,
if a consulting party gives notice of a strike in respect of a
dispute whether there has
been compliance with a fair procedure in
respect of a dismissal, the consulting party may not apply to the
Labour Court for any
order listed in subsection (13).
[169]
If a strike may be resorted to in respect
of a dispute whether there was compliance with a fair procedure in
respect of a dismissal,
not only would that mean that the LRA makes
it possible for employees to strike in respect of a dispute about the
procedural fairness
of a dismissal but also it would mean that
employees are not precluded from using both a strike and the Labour
Court to deal with
an employer who fails to comply with a fair
procedure in dismissing them or in issuing notices of termination.
This would
be quite extraordinary not only because it goes against
the norm but also because in respect of a dispute about a more
serious
matter – namely whether there is a fair reason for the
dismissal – the LRA does not permit the use of both avenues.
Even if a strike may not be resorted to in respect of a dispute on
whether there was compliance with a fair procedure in regard
to a
dismissal, the remedies in subsection (13) are still sufficiently
extensive and adequate. They make it unnecessary for
the LRA to
contemplate orders declaring dismissals invalid.
[170]
It may well be that a strike in respect of
a dispute on whether there has been compliance with a fair procedure
in respect of a
dismissal is not permissible under section 189A
because, maybe, the LRA must be construed to mean that the exception
to the norm
is only in respect of a dispute whether there is a fair
reason to dismiss. Having said this, I note that subsection
(2)(b),
which provides for the exception to the norm with regard to
the right to strike, simply provides that, “despite section
65(1)(c),
an employee may participate in a strike and an employer may
lock-out in accordance with the provisions of this section”.
This does not help us in clarifying whether the strike route is
available in respect of both types of dispute or only in respect
of
the dispute whether there is a fair reason for the dismissal.
[171]
Where section 189A permits a strike,
whether in respect of a dispute concerning the existence of a fair
reason for the dismissal
only or both types of dismissal disputes,
the position is that section 189A gives employees a strong weapon to
deal with the employer.
It is a strong weapon because in a
particular case, a strike, particularly one that lasts long, has the
potential to financially
ruin an employer’s business.
This is more so when a strike is resorted to against an employer who
may be facing financial
difficulties as is to be expected of an
employer who seeks to dismiss a significant number of its workforce
for operational requirements.
[172]
A protected strike may be a potent
collective bargaining weapon against an employer. This can be
seen, in part, from the fact
that the LRA permits various actions to
be taken against an employer in contemplation or furtherance of a
protected strike.
The actions that the employees and their
union may take against the employer in contemplation or in
furtherance of a protected
strike include breaches of contracts and
the commission of delicts. In respect of both a breach of
contract and the commission
of a delict the employer is precluded
from taking any legal action against the union or employees.
This is based on section
67(1) and (2) of the LRA. This section
reads:
“
(1)
In this Chapter, ‘protected
strike
’
means a
strike
that complies with the provisions of this Chapter and ‘protected
lock-out
’
means a
lock-out
that complies with the provisions of this Chapter.
(2)
A person does not commit a delict or a breach of contract by taking
part in—
(a)
a protected
strike
or a protected
lock-out
;
or
(b)
any conduct in contemplation or in the furtherance of a protected
strike or a protected lock-out
.” (Emphasis in original and
added.)
Even under the 1956
LRA there was a provision to this effect although it was differently
formulated. It was section 79 of
that Act.
[151]
[173]
The meaning of section 67(2)(b) is that,
for example, in the case of a protected strike, a trade union and
employees may resort
to any conduct in contemplation or furtherance
of a protected strike and the employer may not interdict them or sue
them for damages
for such conduct even if the conduct causes the
employer financial loss. The only limitation to this extensive
right is that
such conduct may not constitute a criminal
offence.
[152]
[174]
Conduct referred to in section 67(2)(b)
would include the calling of a boycott of the products of the
employer. It would also
include the union and workers
peacefully dissuading potential temporary workers not to take up
employment with the employer for
the duration of the strike.
Picketing is also provided for in section 69.
[153]
The point about all this is that the strike under section 189A is a
far reaching “remedy” itself and that
there is,
therefore, no need to include the invalidity of dismissals as a
consequence of non-compliance with the procedural obligations
in
subsection (8) on the basis that, otherwise, there would be no
serious consequences for non-compliance. Another point
about
all this is also to show that the remedies provided by the LRA to
employees who are dismissed or who receive notices of dismissals
in
terms of section 189A(7) and (8) are adequate.
[175]
May it be said that the remedies provided
for in subsection (13) are inadequate and fall short of proper
remedies for the employees?
No. Not only is the choice of
remedies wide but also the protection is itself very extensive.
They are remedies that
do justice between employer and employee.
If these remedies are adequate, the question that arises would be:
why would the
LRA require the invalidity of dismissals as another
consequence? The remedies in subsection (13) are sufficient and
they
represent serious consequences for non-compliance with the
procedural requirements of, among others, subsection (8).
[176]
The order provided for in subsection
(13)(c) can in effect give employees the same relief as an order
declaring a dismissal invalid.
An order that a dismissal is
invalid and of no force and effect means that in law there was never
any dismissal. That means
that the employee has always remained
in the employ of the employer. An employee whose dismissal has
been declared invalid
does not need an order of reinstatement because
he or she is in his or her employer’s employ.
[177]
In the case of an employee whose dismissal
is automatically or substantively unfair, the law recognises the
dismissal but regards
it as unfair. Unless the employee has
been granted an order of reinstatement with retrospective effect to
the date of dismissal,
he is not regarded as having been in the
employer’s employ between the date of the dismissal and the
date of the grant of
the order of reinstatement. However, once
an order of reinstatement is made retrospective to the date of
dismissal, whether
it is in the case of an automatically unfair
dismissal or a substantively unfair one, the employee will in effect
be regarded as
not having been dismissed. In that case the
employee is in no worse a position than an employee whose dismissal
has been
found to have been invalid. An employee whose
dismissal has been declared invalid only needs to report for duty or
to tender
his or her services but an employee whose dismissal is
valid but unfair needs an order of reinstatement in addition to an
order
declaring the dismissal unfair in order to report for duty.
[178]
Two employees, one whose dismissal has been
declared invalid by a court and another whose dismissal has been
declared unfair but
who, in addition, secures an order of
reinstatement with retrospective effect to the date of dismissal, are
exactly in the same
position. Both may report for duty and
resume their jobs and get backpay for the post-dismissal period.
[179]
In
Pottie v
Kotze
[154]
the Court held that non-compliance with the requirements of
subsections (1) and (3) of section 13
bis
of the Transvaal Motor Vehicle Ordinance
[155]
when a second-hand motor vehicle was disposed of did not render the
transaction null and void. In that case the fact that
the
Ordinance in question had ample remedies for enforcing the
prohibition or requirement in question was an important factor that
the Court took into account in reaching the conclusion that the
purpose of the Ordinance was not to visit a transaction entered
into
in breach of subsections (1) and (3) of section 13 with nullity.
The Court said:
“
In
the Ordinance under discussion there are ample remedies for enforcing
the requirement that the vehicle should be examined and
pronounced
fit for the road; when once that pronouncement has been made, there
is no mischief left, and nothing could then be gained,
while serious
inequities might be caused, by invalidation of the contract.”
[156]
[180]
The LRA does not contemplate orders of
invalidity in respect of dismissals. This is because through
orders of reinstatement
that operate with retrospective effect to the
date of dismissal the same result may be achieved as is achieved
through an order
declaring a dismissal invalid. Furthermore,
that is achieved while retaining the flexibility that comes with
fairness and
equity which are the foundation of the LRA dispensation
and without the rigidity of the common law on which the invalidity of
dismissals
is based. Therefore, under the LRA the need for
invalid dismissals does not arise.
The approach of the Labour Court and
Labour Appeal Court
[181]
In considering whether the dismissal
notices in
De Beers
I
,
[157]
De Beers II
[158]
and
Revan
,
[159]
were valid, the Labour Court (in respect of
De
Beers
I)
and the Labour Appeal Court (in respect of
De
Beers
II
and
Revan
),
respectively, adopted the approach that, if an act was done contrary
to a statutory obligation, it was invalid and of no force
and effect
and should be so declared. This was based mainly on the fact
that the statutory provision contains the word “must”.
This was not the correct approach.
The correct
approach
[182]
The approach that the use of the word
“shall” in a statutory provision means that anything done
contrary to such a provision
is a nullity is neither rigid nor
conclusive. The same can be said of the use of the word
“must”. Many
factors must be considered to
determine whether a thing done contrary to such a provision is a
nullity. There are cases where
the performance of an act in
breach of a statutory obligation does not necessarily result in the
act being invalid and of no force
and effect.
[160]
When the question arises whether something that was done contrary to
a statutory provision is invalid and of no force and
effect, the
proper approach is to ascertain what the purpose of the legislation
is in this regard. Sometimes, the purpose
of the legislation
will be to render it a nullity. At other times the purpose will
not be to render such a thing a nullity.
In each case the
legislation will need to be construed properly to establish its
purpose.
[183]
Some of the factors that should be taken
into account in the construction of the statute to establish its
purpose are the following:
the purpose of the legislation as a whole,
the purpose of the relevant section of the Act, the mischief sought
to be addressed,
whether the statute makes provision for remedies for
its breach or whether, if the act is not held to be null and void, it
would
mean that the provision may be breached with impunity.
[161]
Where the statute does make provision for some remedies for the
breach of the relevant provision, the Court would also have
to take
into account whether the remedies provided are adequate. Where
they are adequate, there seems to be no justification
for the
conclusion that the purpose of the legislation is to visit an act
committed in breach of the provision with nullity. It
would be
a different case where the remedies provided by the statute are not
adequate, particularly if they are substantially inadequate
or where
such remedies cannot be easily obtained.
[184]
This approach is consistent with that taken
in
Standard Bank
,
[162]
Metro Western Cape (Pty) Ltd
,
[163]
Palm Fifteen (Pty) Ltd,
[164]
Pottie v Kotze
[165]
and
Swart v Smuts
.
[166]
In
Palm Fifteen
Miller
JA said:
“
.
. . the subject matter of the prohibition, its purpose in the context
of the legislation . . ., the remedies provided in
the event of
any breach of the prohibition, the nature of the mischief which it
was designed to remedy or avoid and any cognisable
impropriety or
inconvenience which may flow from invalidity, are all factors which
must be considered when the question is whether
it was truly intended
that anything done contrary to the provision in question was
necessarily to be visited with nullity.”
[167]
This passage was
quoted with approval in
Absa Insurance
Brokers (Pty) Ltd
.
[168]
In that case the Supreme Court of Appeal made the following important
point after quoting the above passage from
Palm
Fifteen (Pty) Ltd
:
“
In
answering the question as to whether a contract entered into in
contravention of the provisions of s 20
bis
is a nullity,
the purpose of the section
is crucial
.”
[169]
(Emphasis added.)
[185]
If one were to apply to the present case
the factors mentioned by Miller JA, one would need to point out that—
(a)
the purpose of the procedural obligation
that has been breached is to give effect to the employer’s
obligation to ensure compliance
with a fair procedure before there
can be a dismissal for operational requirements and to give the
parties enough time to try and
reach an agreement on the various
issues;
(b)
the statute is silent on whether a breach
of the procedural obligation in question results in the invalidity of
the dismissal;
(c)
there is no provision in the statute making
a breach of the procedural obligation a criminal offence; and
(d)
this is not a case where a breach of the
procedural obligation will have no consequences if it is held that
the purpose of section
189A(8) is not to visit the dismissal or
notices with nullity; this is a case where the statute spells out
serious consequences
for the employer if the employer acts in breach
of the procedural obligation including an order that would
effectively reverse
the decision of the employer until the employer
has complied with the procedural obligation; that reversal may
include reinstatement
of employees; also included is that the
employer may be “hit” with a strike.
[186]
Having regard to the purpose of the LRA in
general, the purpose of section 189A, the purpose of section
189A(8) and the provisions
of section 189(a) and of 189A(13) in
particular, and other factors, there is no sufficient basis for the
proposition that the purpose
of the LRA is that the consequence of a
breach of section 189A(8) is the nullity of the act done
contrary thereto.
[187]
Two cases were referred to during the
hearing in which dismissals that were effected in breach of statutory
provisions relating
to notice were declared invalid and of no force
and effect. One was
NTE Ltd
[170]
and the other was
Natal Co-operative
Timbers (Pty) Ltd
.
[171]
Both cases are distinguishable. The statutory context in which
they were decided differs significantly from the statutory
context in
which we have to decide the present case. In both cases the
legislation involved had a provision that made non-compliance
with
the relevant notice provisions a criminal offence. The LRA has
no such provision. In both cases the legislation
involved did
not have any non-criminal consequences such as we have in section
189A(13) and (9) in the present case.
Schierhout
[172]
,
upon which there was much reliance by the Union and the other
applicants, is similarly distinguishable.
Is an order of reinstatement
competent in the case of an invalid dismissal?
[188]
One of the factors on which the first
judgment relies to reach the conclusion that dismissal notices given,
or, dismissals effected,
in breach of the procedural requirements of
section 189A(8) are invalid is the proposition that the grant of an
order of reinstatement
in the case of an invalid dismissal is not
automatic but discretionary. Obviously, that implies that an
order of reinstatement
is competent in the case of a dismissal that
has been declared invalid and of no force and effect. I am
unable to agree with
this proposition. In my view an order of
reinstatement is not competent where the dismissal is invalid and of
no force and
effect. To speak of an order of reinstatement in
that case is a contradiction in terms.
[189]
An invalid dismissal is a nullity. In
the eyes of the law an employee whose dismissal is invalid has never
been dismissed.
If, in the eyes of the law, that employee has
never been dismissed, that means the employee remains in his or her
position in the
employ of the employer. In this Court’s
unanimous judgment in
Equity Aviation
,
Nkabinde J articulated the meaning of the word “reinstate”
in the context of an employee who has been dismissed.
[173]
She said, quite correctly, it means to restore the employee to the
position in which he or she was before he or she was dismissed.
[174]
With that meaning in mind, the question that arises in the context of
an employee whose dismissal has been found to be invalid
and of no
force and effect is: how do you restore an employee to the position
from which he or she has never been moved?
That a dismissal is
invalid and of no force and effect means that it is not recognised as
having happened. It is different
from a dismissal that is found
to be unfair because that dismissal is recognised in law as having
occurred.
[190]
When a dismissal is held to be unfair, one
can speak of a reinstatement but not in the case of an invalid
dismissal. This,
therefore, means that an order of
reinstatement is not competent for an invalid dismissal. An
employer against which an order
has been made declaring the dismissal
of its employees invalid and who does not want to continue or cannot
continue the employment
relationship with those employees will have
to dismiss them again. Otherwise, they remain in its employ
and, if they tender
their services or are prevented by the employer
from performing their duties, will be entitled to payment of their
remuneration.
[191]
The distinction between an invalid
dismissal and an unfair dismissal highlights the distinction in our
law between lawfulness and
fairness in general and, in particular,
the distinction between an unlawful and invalid dismissal and an
unfair dismissal or, under
the 1956 LRA a dismissal that constituted
an unfair labour practice. At common law the termination of a
contract of employment
on notice is lawful but that termination may
be unfair under the LRA if there is no fair reason for it or if there
was no compliance
with a fair procedure before it was effected.
This distinction has been highlighted in both our case law and in
academic
writings.
[175]
[192]
It is an employee whose dismissal is unfair
that requires an order of reinstatement. An employee whose
dismissal is invalid
does not need an order of reinstatement.
If an employee whose dismissal has been declared invalid is prevented
by the employer
from entering the workplace to perform his or her
duties, in an appropriate case a court may interdict the employer
from preventing
the employee from reporting for duty or from
performing his or her duties. The court may also make an order
that the employer
must allow the employee into the workplace for
purposes of performing his or her duties. However, it cannot
order the reinstatement
of the employee.
[193]
The appeal must fail. Does this mean
that this is the end of the road for the employees in this case?
Not necessarily.
Until the decision of this Court, the
employees acted on the strength of decisions of the Labour Court and
Labour Appeal Court
whose effect was that in this type of case it was
open to them not to use the dispute resolution mechanisms of the LRA
and not
to seek remedies provided for in section 189A but instead to
simply seek orders declaring their dismissals invalid. It is
arguably open to them to seek condonation and pursue remedies under
the LRA. Obviously, Edcon would be entitled to oppose
that.
[194]
Originally, all the parties had sought
costs if they were successful. However, during argument they
all abandoned costs.
In any event I am of the view that the
dictates of fairness and equity require that no order as to costs
should be made.
This is a labour matter and it raised an
important issue of law that required to be considered by this Court.
[195]
In the result, the following order is made:
(a)
Leave to appeal is granted.
(b)
The appeal is dismissed.
(c)
There is no order as to costs.
For the First, Second and Further
Applicants: A Redding SC and E S J Van Graan SC instructed by Keith
Whitaker Attorney.
For Intervening Applicant: J G Van der
Riet SC and H Barnes instructed by Ruth Edmonds Attorneys
For the Respondent: A Myburgh SC and F
Boda instructed by Norton Rose Fulbright South Africa Inc
[1]
66 of 1995.
[2]
Section 189(3) read with section 189A(8)(a) of
the LRA.
[3]
Both
De Beers Group
Services (Pty) Ltd v National Union of Mineworkers
[2010]
ZALAC 26
;
[2011] 4 BLLR 319
(LAC) (Davis JA, Waglay DJP and
Hendricks AJA concurring) (
De Beers
)
and
Revan Civil Engineering Contractors
and Others v National Union of Mineworkers and Others
(2012)
33 ILJ 1846 (LAC) (Landman AJA, Davis JA and Hlophe AJA
concurring) (
Revan
),
say Yes, while
Edcon v Steenkamp and
Other
s
[2015] ZALAC 2
;
2015 (4) SA 247
(LAC) (Murphy AJA, Tlaletsi DJP and Musi JA concurring) (Labour
Appeal Court judgment) says No.
De
Beers
and
Revan
endorsed the approach taken in an earlier first-instance decision,
National Union of Mineworkers v De
Beers Consolidated Mines (Pty) Limited
[2006] ZALC 65
; 2006 27 ILJ 1909 (LC) (Freund AJ).
[4]
Section 213 of the LRA defines “operational
requirements” as “requirements based on the economic,
technological,
structural or similar needs of an employer”.
[5]
Section 189(3) requires an employer to invite the
other consulting party to consult. This is to be done on
notice that must
disclose the following information: the reasons for
the proposed dismissals, alternatives that have been considered, the
method
for selecting employees to dismiss, the timing of the
dismissals, severance pay, the possibility of future re-employment,
the
number of employees employed by the employer and the number of
employees dismissed for operational reasons in the preceding 12
months.
[6]
Section 189A of the LRA provides:
“
(1)
This section applies to employers employing more than 50 employees
if—
(a)
the
employer contemplates dismissing by reason of the employer's
operational requirements, at least—
(i)
10 employees,
if the employer employs up to 200 employees;
(ii)
20 employees,
if the employer employs more than 200, but not more than 300,
employees;
(iii)
30 employees,
if the employer employs more than 300, but not more than 400,
employees;
(iv)
40 employees,
if the employer employs more than 400, but not more than 500,
employees; or
(v)
50 employees, if the employer employs more than 500 employees; or
(b)
the number of
employees that the employer contemplates dismissing together with
the number of employees that have been dismissed
by reason of the
employer's operational requirements in the 12 months prior to the
employer issuing a notice in terms of section
189(3), is equal to or
exceeds the relevant number specified in paragraph (a).
(2) In
respect of any dismissal covered by this section—
(a)
an employer must give notice of termination of employment in
accordance
with the provisions of this section;
(b)
despite section 65(1)(c), an employee may participate in a strike
and an employer may lock out in accordance with the provisions of
this section;
(c)
the consulting parties may agree to vary the time periods for
facilitation or consultation;
(d)
a consulting party may not unreasonably refuse to extend the period
for consultation if such an extension is required to ensure
meaningful consultation.
(3) The
Commission must appoint a facilitator in terms of any regulations
made under subsection (6) to assist the parties engaged in
consultations if—
(a)
the employer has in its notice in terms of section 189(3) requested
facilitation; or
(b)
consulting parties
representing the majority of employees whom the employer
contemplates dismissing have requested facilitation
and have
notified the Commission within 15 days of the notice.
(4) This
section does not prevent an agreement to appoint a facilitator
in
circumstances not contemplated in subsection (3).
(5) If a
facilitator is appointed in terms of subsection (3) or (4)
the
facilitation must be conducted in terms of any regulations made by
the Minister under subsection (6) for the conduct
of such
facilitations.
(6) The
Minister, after consulting NEDLAC and the Commission, may
make
regulations relating to—
(a)
the time period, and
the variation of time periods, for facilitation;
(b)
the powers and duties of facilitators;
(c)
the circumstances in which the Commission may charge a fee for
appointing a facilitator and the amount of the fee; and
(d)
any other matter necessary for the conduct of facilitations.
(7) If a
facilitator is appointed in terms of subsection (3) or (4),
and 60
days have elapsed from the date on which notice was given in terms
of section 189(3)—
(a)
the employer may
give notice to terminate the contracts of employment in accordance
with section 37(1) of the Basic Conditions
of Employment Act; and
(b)
a registered trade union or the employees who have received
notice of termination may either—
(i)
give notice of a strike in terms of section 64(1)(b) or (d);
or
(ii)
refer a dispute concerning whether there is a fair reason for the
dismissal to the Labour Court in terms of section 191(11).
(8) If a
facilitator is not appointed—
(a)
a party may not refer a dispute to a council or the Commission
unless a period of 30 days has lapsed from the date on which notice
was given in terms of section 189(3); and
(b)
once the periods mentioned in section 64(1)(a) have elapsed—
(i)
the employer may give notice to terminate the contracts of
employment in accordance with section 37(1) of the Basic Conditions
of Employment Act; and
(ii)
a registered trade union or the employees who have
received notice of termination may—
(aa)
give notice of a strike in terms of section 64(1)(b) or (d); or
(bb)
refer a dispute
concerning whether there is a fair reason for the dismissal to the
Labour Court in terms of section 191(11).
(9)
Notice of the commencement of a strike may be given if the employer
dismisses or gives notice of dismissal before the expiry
of the periods referred to in subsections (7)(a) or (8)(b)(i).
(10) (a)
A
consulting party may not—
(i)
give notice of a strike in terms of this section in respect
of a
dismissal, if it has referred a dispute concerning whether there is
a fair reason for that dismissal to the Labour Court;
(ii)
refer a dispute about whether there is a fair reason for a dismissal
to the Labour Court, if it has given notice of a strike in terms of
this section in respect of that dismissal.
(b)
If a trade union gives notice of a strike in terms of this section—
(i)
no member of that trade union, and no employee to whom a collective
agreement concluded by that trade union dealing with consultation or
facilitation in respect of dismissals by reason of the employer’s
operational requirements has been extended in terms of section
23(1)(d), may refer a dispute concerning whether there is a fair
reason for dismissal to the Labour Court;
(ii)
any referral to the Labour Court contemplated by subparagraph (i)
that has been made, is deemed to be withdrawn.
(11) The following
provisions of Chapter IV apply to any strike or lock-out in
terms of
this section:
(a)
Section 64(1) and (3)(a) to (d), except that—
(i)
section 64(1)(a) does not apply if a facilitator is appointed
in
terms of this section;
(ii)
an employer may only lock out in respect of a dispute in which
a
strike notice has been issued;
(b)
subsection (2)(a), section 65(1) and (3);
(c)
section 66 except that written notice of any proposed secondary
strike must be given at least 14 days prior to the commencement of
the strike;
(d)
sections 67, 68, 69 and 76.
(12) (a)
During the 14-day period referred
to in subsection (11)(c), the
director must,
if requested by an
employer who has received notice of any intended secondary strike,
appoint a commissioner to attempt to resolve
any dispute, between
the employer and the party who gave the notice, through
conciliation.
(b) A
request to appoint a commissioner or the appointment of a
commissioner in terms of paragraph (a) does not affect the right of
employees to strike on the expiry of the 14-day period.
(13) If an employer
does not comply with a fair procedure, a consulting party
may
approach the Labour Court by way of an application for an order—
(a)
compelling the employer to comply with a fair procedure;
(b)
interdicting or restraining the employer from dismissing
an employee prior
to complying with a fair procedure;
(c)
directing the employer to reinstate an employee until
it
has complied with a fair procedure;
(d) make
an award of compensation, if an order in terms of paragraphs
(a) to
(c) is not appropriate.
(14) Subject to this
section, the Labour Court may make any appropriate order
referred to
in section 158(1)(a).
(15) An award of
compensation made to an employee in terms of subsection (14)
must
comply with section 194.
(16) The Labour
Court may not make an order in respect of any matter concerning
the
disclosure of information in terms of section 189(4) that has been
the subject of an arbitration award in terms of section
16.
(17) (a)
An application in terms
of subsection (13) must be brought not later
than 30 days after the employer has given notice to terminate
the employee's
services or, if notice is not given, the date on
which the employees are dismissed.
(b) The
Labour Court may, on good cause shown condone a failure to
comply
with the time limit mentioned in paragraph (a).
(18) The Labour
Court may not adjudicate a dispute about the procedural fairness
of
a dismissal based on the employer's operational requirements in any
dispute referred to it in terms of section 191(5)(b)(ii).
(19) . . .
(20) For the
purposes of this section, an 'employer' in the public service is
the
executing authority of a national department, provincial
administration, provincial department or organisational component
contemplated in section 7(2) of the Public Service Act, 1994
(promulgated by Proclamation 103 of 1994).”
[7]
Section 189A(2)(a).
[8]
Regulations in terms of section 189A(6), for the conduct of
facilitations in terms of the provision, were promulgated under GN
1445,
Government Gazette
25515 of 10 October 2003.
[9]
Section 189A(4) above n 6.
[10]
Section 189A(2), (3) and (4).
[11]
This minimum time period is subject to extension
by agreement between the parties. See the judgment of Zondo J
at [92] and
[151].
[12]
75 of 1997. See below n 71.
[13]
Labour Appeal Court judgment above n 3 at para
28. Individual employees issued with notices of termination in
excess of
30 days of the date on which notices in terms of section
189(3) were issued were not notified prematurely; this does not
detract
from the question the Court must resolve. The parties
agree that Edcon failed to comply with the time periods in section
189A(8)(a) and (b) of the LRA.
[14]
See generally section 189A(13) above n 6.
[15]
Edcon initially framed a constitutional challenge
to the provision, citing the Ministers of Labour and of Justice and
Constitutional
Development, and seeking an order declaring that
section 189A(2)(a) read with section 189A(8), as interpreted in
De
Beers
and
Revan
above n 3
,
are unconstitutional and inconsistent with
sections 9(1) and 23 of the Constitution. See the Labour
Appeal Court judgment
at para 25. It later amended its notice
of motion to claim first re-interpretation of the provisions, and
then only constitutional
invalidity, in the alternative. The
Minister of Labour filed opposing papers in the constitutional
challenge, contending
that the provisions of section 189A are
peremptory and that failure to comply should lead to invalidity of
the dismissal.
But in this Court the sole issue was the
interpretation of the provisions, and neither Minister filed papers
nor were they cited.
[16]
Section 175 of the LRA provides that the Judge
President may direct that any matter before the Labour Court be
heard by the Labour
Appeal Court sitting as a court of first
instance.
[17]
Labour Appeal Court judgment at para 57,
referring to
De Beers
and
Revan
above n 3.
[18]
Section 193 provides remedies for unfair
dismissal and unfair labour practices. See also below n 44.
[19]
Section 186(1)(a) of the LRA. (Emphasis added.)
See below n 27 for the effect of the 2014 amendment to this
provision.
[20]
Labour Appeal Court judgment above n 3 at para
49.
[21]
Id at para 40.
[22]
Schierhout v Minister of Justice
1925 AD 99.
See
National Union of
Textile Workers and Others v Stag Packings (Pty) Ltd and
Another
1982 (4) SA 151
(T);
(1982) 4
All SA 566
(T) (
Stag Packings
).
[23]
Labour Appeal Court judgment above n 3 at para
40.
[24]
Metro Western Cape (Pty) Ltd v Ross
[1986] ZASCA 36
;
1986
(3) SA 181
(A);
[1986] 2 All SA 288
(A) at 188A-J and
Swart
v Smuts
1971 (1) SA 819
(A);
[1971] 2
All SA 153
at 829E-H.
[25]
Labour Appeal Court judgment above n 3 at para
50. Section 193(2)(d) provides that an employer must be
required to reinstate
an unfairly dismissed employee unless amongst
others “the dismissal is unfair only because the employer did
not follow
a fair procedure”.
[26]
Section 186(1)(a).
[27]
In 2014, section 186(1)(a) was amended to replace
“a contract of employment” with “employment”,
so that
the provision includes a dismissal where “an employer
has terminated employment with or without notice”. The
amendment came into force on 1 January 2015, after the Labour Appeal
Court had reserved judgment in this matter.
[28]
Section 23(1) of the Bill of Rights provides that
“[e]veryone has the right to fair labour practices”.
[29]
National Union of Metal Workers of South
Africa v Intervalve (Pty) Ltd and Others
[2014] ZACC 35
; 2015 (2) BCLR 182 (CC) at para 25;
Food
and Allied Workers Union v Ngcobo NO and Another
[2013] ZACC 36
;
2014 (1) SA 32
(CC);
2013 (12) BCLR 1343
(CC) at
para 24;
National Education Health and
Allied Workers Union (NEHAWU) v University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) (
NEHAWU)
at para 14.
[30]
Section 167(3)(b)(ii) of the Constitution.
For recent authority see
DE v RH
[2015] ZACC 18
;
2015 (5) SA 83
(CC);
2015 (9) BCLR 1003
(CC) at
paras 8 and 10 and
Paulsen and Another
v Slip Knot Investments 777 (Pty) Limited
[2015]
ZACC 5
;
2015 (3) SA 479
(CC) at para 16.
[31]
Section 45
of the
Labour Relations Amendment Act
12 of 2002
.
[32]
Labour Appeal Court judgment above n 3 at para 3.
[33]
What follows draws largely on the illuminating
expositions of
section 189A
by Murphy AJ in
National
Union of Metalworkers of SA v SA Five Engineering
[2004]
ZALC 81
; (2004) 25 ILJ 2358 (LC) at paras 6-8, and by Murphy AJA in
the Labour Appeal Court judgment above n 3 at paras 3-21.
[34]
Section 189A(3)
and (4) of the LRA above n 6.
[35]
Section 189A(7)(b).
[36]
Labour Appeal Court judgment above n 3 at para
43.
[37]
Section 189A(10)(a)(i)
above n 6.
[38]
Section 189A(8)(b)(ii).
[39]
Id at
section 189A(7)(b)(ii)
and
189A
(8)(b)(ii)(bb).
[40]
The referral must in either case be made in terms
of
section 191(11).
This provides that the referral to the
Labour Court for adjudication
inter
alia
of a dismissal for operational
requirements in terms of
section 191(5)(b)
must be made within 90
days after the bargaining council having jurisdiction or the CCMA
commissioner certifies that the dispute
remains unresolved
(section
191(11)(a)).
Section 191(11)(b)
provides that the Labour Court
may condone non-observance of the timeframe on good cause shown.
[41]
As contemplated in
section 189A(13)
above n 6.
[42]
Section 189A(13)
, read with
section 189A(18).
[43]
Section 185
provides:
“
Every
employee has the right not to be—
(a)
unfairly dismissed; and
(b)
subjected to unfair labour practice.”
[44]
Section 193
, headed, “Remedies for unfair
dismissal and unfair labour practice”, provides:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds
that a dismissal is unfair, the Court or the arbitrator may—
(a)
order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either in the work
in
which the employee was employed before the dismissal or in other
reasonably suitable work on any terms and from any date not
earlier
than the date of dismissal; or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re employ the employee unless—
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a
continued
employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d)
the dismissal is unfair only because the employer did not follow
a
fair procedure.
(3) If a
dismissal is automatically unfair or, if a dismissal based
on the
employer's operational requirements is found to be unfair, the
Labour Court in addition may make any other order that
it considers
appropriate in the circumstances.
(4)
An arbitrator appointed in terms of this Act may determine any
unfair labour practice dispute referred to the arbitrator, on terms
that the arbitrator deems reasonable, which may include ordering
reinstatement, re-employment or compensation.”
[45]
Id at sections 185-197B.
[46]
Labour Appeal Court judgment above n 3 at para
50.
[47]
Section 189A(1)(a)(i)-(v) above n 6.
[48]
Section 189A(3)(a).
[49]
Section 189A(3)(b).
[50]
Section 189A(4).
[51]
Section 189A(13).
[52]
Section 189A(9).
[53]
Labour Appeal Court judgment above n 3 at para 11
held that by affording employees and employers the right to
participate in industrial
action “despite section 65(1)(c)”,
section 189A(2)(b) of the LRA, creates an exception to the general
prohibition
on industrial action in relation to rights issues.
[54]
Section 189(2) of the LRA.
[55]
NUMSA initially argued that a non-compliant
dismissal under section 189A is not a section 186 dismissal at all,
but abandoned
this approach during oral argument.
[56]
“
In the Firing Line” (1987) 4
Employment Law
1,
stated that:
“
[O]ne of the fundamental principles of
industrial justice is that a dismissal is a remedy of last resort.
It has been described
as the industrial relations equivalent of
capital punishment because it sounds the death knell to the
employment relationship.
It is a result of this that the
industrial court requires an employer faced with redundancy to
explore all the alternatives to
retrenchment, and to dismiss for
misconduct only if the offence is so grievous as to render the
continuance of their relationship
intolerable.”
See also
Timothy v Nampak Corrugated
Containers (Pty) Ltd
[2010] ZALC 29
;
(
2010) 31 ILJ 1844
(LAC) at 1849E-F;
Engen Petroleum Ltd v Commissioner for
Conciliation Mediation and Arbitration and Others
[2007] ZALAC
5
;
[2007] 8 BLLR 707
(LAC) at para 131;
National Union of
Mineworkers v Black Mountain Mineral Development Co (Pty) Ltd
[1997] ZASCA 21
;
1997
(4) SA 51
(SCA);
[1997] 2 All SA 595
(A) at 61E; and
Riveiro and
Another v JSN Motors
[1995] 10 BLLR 93
(IC) at 102G-I.
[57]
Zondo J’s judgment at [110] to [112] where
he refers to section 66 of the Labour Relations Act 28 of 1956 and
other similar
provisions in old labour law legislation that provided
criminal sanctions for the victimisation of workers for actual or
suspected
union membership.
[58]
Id at [102].
[59]
National Union of Metalworkers of SA v Vestak
Co-operative Ltd and Others
[1996] ZASCA 69
;
1996 (4)
SA 577
(A) at 589C-D quoted and endorsed in
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[2007] ZASCA 52
;
2007 (5) SA 552
(SCA) at para 7.
[60]
Id and
South African
Maritime Safety Authority
v
McKenzie
[2010] ZASCA 2
;
2010 (3) SA
601
(SCA) at para 16.
[61]
See
Coetzee v Fick
and Another
1926 TPD 213
at 216 in
which it was held that “[we] have no right to assume, merely
from the fact that a special remedy is laid down
in a statute as a
remedy for a breach of a right given under a statute, that other
remedies are necessarily excluded.”
Coetzee
was approved in
Da Silva and Another v
Coutinho
1971 (3) SA 123
(A) at 135
and quoted with approval in
McKenzie
at
para 16.
[62]
Chirwa v Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3)
BCLR 251
(CC). See Zondo J judgment at [138] to [143].
[63]
Gcaba v Minister for Safety and Security and
Others
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at para 73.
[64]
Simplex (Pty) Ltd v Van der Merwe and Others
NNO
1996 (1) SA 111
(W) at 112H-113D.
[65]
Labour Appeal Court judgment above n 3 at para
48.
[66]
Zondo J judgment at [175].
[67]
Id at [171].
[68]
Id at [131], [146], [153], [158], [159] and
[165].
[69]
For an incisive analysis of the operation of section 189A(13), see
the judgment of Murphy AJ in
RAWUSA v Schuurman Metal Pressing
(Pty) Ltd
[2004] ZALC 74
; (2004) 25 ILJ 2376
(LC);
[2005] 1 BLLR 78
(LC) holding at para 32 that the
provision is aimed “at unjustifiable intransigence”.
Its aim “is to
provide a remedy to employees to approach the
Labour Court to set their employer on the right track where there is
a genuine
and clear cut procedural unfairness which goes to the core
of the process”. The provision “is aimed at
securing
the process in the interests of a fair outcome”.
It follows that “not every minor transgression of a procedural
nature will invite the benefit of the court’s discretionary
power to grant a remedy”.
[70]
A mechanical, check list approach is
inappropriate. See
Johnson
& Johnson (Pty) Ltd v CWIU
(1999)
20 ILJ 89 (LAC);
[1998]
12 BLLR 1209
(LAC) at para 29 quoted with approval in
Alpha
Plant & Services (Pty) Ltd v Simmonds
[2000]
ZALAC 26
;
[2001]
3 BLLR 261
(LAC). See also
Robinson
v PriceWaterhouseCoopers
[2005]
ZALC 99
;
[2006] 5 BLLR 504
(LC) at para 11 and
Chester
Wholesale Meats (Pty) Ltd v NIWUSA
[2006]
3 BLLR 223
(LAC) at para 23.
[71]
Section 37 of the BCEA provides for the timing and form
of a notice of termination.
While
section 38 of the BCEA provides for circumstances in which payment
may be made instead of a notice in terms of section 37.
[72]
Stewart Wrightson (Pty) Ltd v Thorpe
1977 (2) SA 943
(A);
[1977] 3 All SA 267
at 945A and
Myers
v Abramson
1952 (3) SA 121
(C);
[1952]
1 All SA 267
(C) at 123.
[73]
Venter v Livni
1950 (1) SA 524
(T);
[1950] 1 All SA 173
(T) at 528.
[74]
Wallis
Labour and
Employment Law
(Butterworths, Durban
1992) at 39 and Brassey
Commentary on
the Labour Relations Act
(Service 2,
2006) at A8-18.
[75]
See
Nationwide
Airlines (Pty) Ltd v Roediger
2008 (1)
SA 293
(W) in which an airline pilot who left his employment before
effluxion of the three-month contractual notice period was required
by order of court “to continue serving as a captain of the
Boeing 767 aircraft” of the airline.
[76]
See
Lottering and Others v Stellenbosch Municipality
[2010]
ZALC 67
;
(2010) 31 ILJ 2923 (LC) for the effect of short
notice on the part of an employee who resigns. The conclusions
at para 41
may be at variance with the approach adopted in this
judgment, but the question of resignation is not the issue here.
[77]
Wallis “The LRA and the Common Law”
(2005)
Law, Democracy and Development
181 at 187. See also Wallis above n 74 at 8.
[78]
Member of the Executive Council for Health,
Eastern Cape v Odendaal
and Others
[2008] ZALC 161
; (2009) 30 ILJ 2093 (LC) at para 50.
[79]
Fedlife Assurance Ltd v Wolfaardt
[2001]
ZASCA 91
;
2002 (2) SA 49
(SCA) (
Fedlife
),
which this Court approved in
NEHAWU
above n 29 at paras 52-3.
[80]
Fedlife
id at
para 22.
[81]
Id at paras 21-2.
[82]
Anderson v Toyota SA Motors (Pty) Ltd
(1993) 14 ILJ 452 (IC) in which it was held that notice in violation
of section 14(2) of the Basic Conditions of Employment Act
3 of 1983
is invalid and results in the subsequent dismissal being null and
void at 454C-D and
Tsetsana v
Blyvooruitzicht Gold Mining Co Ltd
[1999]
ZALC 13
;
[1999] 4 BLLR 404
(LC) in which it was held that the notice
of termination given while an employee was on leave, in violation of
section 14(2)(ii)
of the Basic Conditions of Employment Act 3 of
1983, is invalid and null and void at paras 25 and 27. Both
cases predate
the
Basic Conditions of Employment Act 75 of 1997
;
however the logic of the reasoning is apposite in this matter.
[83]
Schierhout
above
n 22 at 106.
[84]
Id at 109.
[85]
Id.
[86]
Id at 107.
[87]
See the authorities Froneman J sets out in
Cool
Ideas 1186 CC v Hubbard
and
Another
[2014] ZACC 16
;
2014 (4) SA
474
(CC);
2014 (8) BCLR 869
(CC) (
Cool
Ideas
) at para 168 fn 142 and Zondo
J’s judgment at [184].
[88]
See
Cool Ideas
id
at paras 43-7 where Majiedt AJ held that the registration
requirement for builders is imperative, and that non-compliance
disentitles a claim for remuneration for a building contract and
Palm Fifteen (Pty) Ltd v Cotton Tail
Homes (Pty) Ltd
1978 (2) SA 872
(A);
(1978) 3 All SA 406
(A) at 885E F.
[89]
Labour Appeal Court judgment above n 3 at para
40.
[90]
Id at para 43.
[91]
Stag Packings
above n 22 at 156F-157A.
[92]
Id at 157A.
[93]
Id at 158A-B.
[94]
Id at 157C.
[95]
Id at 158A-D.
[96]
Labour Appeal Court judgment above n 3 at paras
28 and 50.
[97]
Id at para 50.
[98]
See
Schierhout
at 111 and
Stag Packings
at 158 above n
22.
[99]
See for example t
he remedies granted in
Anderson
and
Tsetsana
above
n 82. In
Anderson
the Industrial Court declared the dismissal null and void and
ordered reinstatement, and in
Tsetsana
the
Court found that the notice period operating concurrently with the
applicant’s leave was null and void, and ordered
the employer
to pay additional notice pay.
[100]
Zondo J judgment at [158].
[101]
See [95] below.
[102]
66 of 1995.
[103]
The reason for referring to it as the first
judgment is that it was produced first.
[104]
National Education Health and Allied Workers
Union (NEHAWU) v University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para
14.
[105]
Section 167(3)(b)(ii) of the Constitution reads:
“
(3)
The Constitutional Court—
. . .
(b)
may decide—
. . .
(ii)
any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by
that Court”.
[106]
Section 213 of the LRA defines “operational
requirements” as “requirements based on the economic,
technological,
structural or similar needs of an employer”.
[107]
In this judgment any reference to sections is a
reference to the LRA unless the context indicates otherwise.
[108]
Section 189(1) provides:
“
(1)
When an employer contemplates dismissing one or more
employees
for reasons based on the employer’s
operational
requirements
, the employer must
consult—
(a)
any person whom the employer is required to consult in terms of
a
collective agreement
;
(b)
if there is no
collective agreement
that requires consultation—
(i)
a
workplace forum
if
the
employees
likely
to be affected by the proposed
dismissals
are employed in a
workplace
in respect of which there is a
workplace
forum
; and
(ii)
any registered
trade union
whose members are likely to be affected by the
proposed
dismissals
;
(c)
if there is no
workplace forum
in the
workplace
in which the
employees
likely to be affected by the proposed
dismissals
are
employed, any registered
trade union
whose members are likely to be affected by the
proposed
dismissals
;
or
(d)
if there is no such
trade union
,
the
employees
likely
to be affected by the proposed
dismissals
or their representatives nominated for that
purpose.”
[109]
See [127] below where this provision is quoted.
[110]
Judgment by Murphy AJA with Tlaletsi DJP and Musi
JA concurring, reported as
Edcon
v
Steenkamp
and
Others
[2015] ZALAC 2
;
2015 (4) SA 247
(LAC);
(2015)
36 ILJ 1469 (LAC).
[111]
De Beers Group Services (Pty) Ltd
v
National Union of Mineworkers
[2010]
ZALAC 26
;
[2011] 4 BLLR 319
(LAC); (2011) 32 ILJ 1293 (LAC).
This was a judgment of Davis JA in which Waglay DJP and
Hendricks AJA concurred.
[112]
Revan Civil Engineering Contractors and Others
v National Union of Mineworkers and Others
(2012)
33 ILJ 1846 (LAC). This was a judgment of Landman AJA in which
Davis JA and Hlophe AJA concurred.
[113]
Schierhout v Minister of Justice
1925 AD 99.
[114]
In
South African
Maritime Safety Authority v McKenzie
[2010]
ZASCA 2
;
2010 (3) SA 601
(SCA); (2010) 31 ILJ 529 (SCA); the Supreme
Court of Appeal, through Wallis AJA held that one could not simply
transpose rights
from the LRA into the contract of employment.
[115]
Section 186(1) entitled “Meaning of
dismissal and unfair labour practice” reads:
“
Dismissal
means that—
(a)
an employer has terminated employment with or without notice;
(b)
an employee employed in terms of a fixed term contract of employment
reasonably expected the employer—
(i)
to renew a fixed term contract of employment on the same or
similar
terms but the employer offered to renew it on less favourable terms,
or did not renew it; or
(ii)
to retain the employee in employment on an indefinite basis but
otherwise on the same or similar terms as the fixed term contract,
but the employer offered to retain the employee on less favourable
terms, or did not offer to retain the employee.
(c)
an employer refused to allow an
employee
to resume work after
she—
(i)
took maternity leave in terms of any law,
collective agreement
or
her contract of employment; or
(ii)
. . .
(d)
an employer who dismissed a number of
employee
s for the same
or similar reasons has offered to re-employ one or more of them but
has refused to re-employ another; or
(e)
an employee terminated employment with or without notice because
the
employer made continued employment intolerable for the employee; or
(f)
an employee terminated employment with or without notice because
the
new employer, after a transfer in terms of section 197 or section
197A, provided the employee with conditions or circumstances
at work
that are substantially less favourable to the employee than those
provided by the old employer.”
[116]
28 of 1956.
[117]
Section 66 of the 1956 LRA read:
“
(1)
Any employer who, whether or not any agreement, award or
determination is
binding upon him in terms of this Act, dismisses
any employee employed by him or reduces the rate of his remuneration
or alters
the terms or conditions of his employment to terms or
conditions less favourable to him or alters his position relatively
to
other employees employed by him to his disadvantage, by reason of
the fact, or because he suspects or believes whether or not the
suspicion or belief is justified or correct, that—
(a)
that employee has given information which by or
under this Act he is required to give, or which relates to the terms
or conditions
of his employment or those of other employees of his
employer, to the Minister or to an officer, or to an industrial
council
or executive or other committee of an industrial council, or
to a designated agent or other official of an industrial council or
to a conciliation board, or to a mediator, assessor, arbitrator or
umpire appointed under this Act, or to the industrial court
or to a
member of the industrial court or has complied with any lawful
requirement of an inspector or designated agent, or has
given
evidence before a court of law; or
(b)
that employee has refused or omitted to do any
act which an employer may not require or permit an employee to do in
terms of sub-section
(2) or (3) of section
fifty-two
;
or
(c)
that employee belongs or has belonged to any
trade union or any other similar association of employees or takes
or has taken part
outside working hours, or, with the consent of the
employer, within working hours, in the formation of or in the lawful
activities
of any such trade union or association, shall be guilty
of an offence.
(2)
If an industrial council or a conciliation board has failed to
settle a dispute such as is referred to in sub-section (1) of
section
forty-three
(other than a dispute between any
employer and employee referred to in sub-section (1) of section
forty-six
and has not decided to refer such dispute to
arbitration, the Minister may, if he deems it expedient to do so,
and if in his
opinion the employees or the trade union by whom or
which the dispute was referred to the industrial council or on the
application
of whom or which the conciliation board was established
had reasonable grounds for believing that the action taken by the
employer
which resulted in the dispute arose from a matter such as
is referred to in paragraph
(a)
,
(b)
or
(c)
of
sub-section (1) or in paragraph
(a)
or
(b)
of
sub-section (1) of section
twenty-five
of the Wage Act, 1957
(Act 5 of 1957), direct that the provisions of section
forty-six
relating to arbitration shall apply in respect of such dispute as
though it were a dispute referred to in sub-section (2) of
the
last-mentioned section and thereupon all the provisions of the
last-mentioned section shall so apply.”
[118]
Rooiberg Minerals Development Co Ltd v Du Toit
1953 (2) SA 505 (T).
[119]
36 of
1937.
[120]
Rooiberg Minerals
above
n 118 at 509D–510A.
[121]
Makhanya v Bailey NO
1980
(4) SA 713
(T); (1980) 3 ILJ 219 (T).
[122]
5 of 1957.
[123]
See summary in
National
Union of Textile Workers and Others v Stag Packings (Pty) Ltd and
Another
1982 (4) SA 151
(T);
(1982) 4
All SA 566
(T)
at 153A-C.
[124]
Makhanya
above n
121 at 225D-226B.
[125]
Stag Packings
above
n 123.
[126]
S
ection
17(11)(a) of the 1956 LRA reads:
“
(11)
The functions of the industrial court shall be–
(a)
to perform all the functions, excluding
the adjudication of alleged offences, which a court of law may
perform in regard to a
dispute or matter arising out of the
application of the provisions of the laws administered by the
Department of [Labour].”
[127]
Ndawonde and Others v KwaZulu Cash & Carry
(Pty) Ltd
(1988) 9 ILJ 103 (IC).
[128]
The reference to the Minister is a reference to
the Minister of Labour.
[129]
Section 157 of the LRA.
[130]
75 of 1997.
[131]
Section 77 of the BCEA reads:
“
(1)
Subject to the Constitution and the jurisdiction of the Labour
Appeal Court,
and except where this Act provides otherwise, the
Labour Court has exclusive jurisdiction in respect of all matters in
term of
this Act.
(1A)
The Labour Court has exclusive jurisdiction to grant civil relief
arising from
a breach of sections 33A, 43, 44, 46, 48, 90 and 92.
(2)
The Labour Court may review the performance or purported performance
of any function provided for in this Act or on any act or omission
of any person in terms of this Act on any grounds that are
permissible in law.
(3)
The Labour Court has concurrent jurisdiction with the civil courts
to hear and determine any matter concerning a contract of
employment, irrespective of whether any basic condition of
employment
constitutes a term of that contract.
(4)
Subsection (1) does not prevent any person relying upon a provision
of this Act to establish that a basic condition of employment
constitutes a term of a contract of employment in any proceedings
in
a civil or an arbitration held in terms of an agreement.
(5)
If proceedings concerning any matter contemplated in terms of
subsection (1) are instituted in a court that does not have
jurisdiction in respect of that matter, that court may at any stage
during the proceedings refer that matter to the Labour Court.”
[132]
The reference to 2002 is based on the fact that
section 189A was inserted into the LRA in 2002 by
section 45
of the
Labour Relations Amendment Act 12 of 2002
.
[133]
Chirwa v Transnet Limited and Others
[2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC).
[134]
3 of 2000.
[135]
Moseneke DCJ, Madala J, Navsa AJ, Nkabinde J,
Sachs J and Van der Westhuizen J concurred in the judgment of Ngcobo
J.
[136]
Chirwa
above n
133 at paras 18 and 124.
[137]
Id at para 125.
[138]
Id at para 61.
[139]
Id at para 65.
[140]
Id at para 125.
[141]
Madrassa Anjuman Islamia v Johannesburg
Municipality
1917 AD 718.
[142]
Coetzee v Fick and Another
1926 TPD 213
at 216;
Balagooroo
Senaithalway Educational Trust v Soobramoney
1965 (3) SA 627
(N) at 628H;
Callinicos
v Burman
1963 (1) SA 489
(A) at
497H-498C;
Da Silva and Another v
Coutinho
1971 (3) SA 123
(A) at
134H-135A and 140E-F. The latter two cases were cited with
approval in this Court in
Fose v
Minister of Safety and Security
[1997]
ZACC 6
;
1997 (3) SA 786
(CC); 1997 (7) BCLR 851 (CC) at fn 161.
[143]
Kubheka and Another v Imextra (Pty) Ltd
1975 (4) SA 484
(W) at 489A-B.
[144]
12 of 2002.
[145]
Section 65(1)(c)
provides:
“
(1)
No person may take part in a
strike
or a
lock-out
or in any conduct in contemplation or furtherance of a
strike
or a
lock-out
if—
. . .
(b)
the
issue in
dispute
is one that a party has the
right to refer to arbitration or to the Labour Court in terms of
this Act
or
any other employment law”.
[146]
Section 189A(9).
[147]
See section 64(1) of the LRA.
[148]
See [127] above where subsection (13) is quoted.
[149]
See section 193(2)(d) of the LRA.
[150]
Of course, subsection (18) precludes the Labour
Court from adjudicating a dispute about whether there has been
compliance with
a fair procedure in regard to a dismissal. For
that reason, there was no need for such a corresponding provision in
respect
of a dispute whether there has been compliance with a fair
procedure in respect of a dismissal.
[151]
Section 79 of the 1956 LRA read:
“
Indemnification
against certain losses suffered in furtherance of strike or lockout—
(1)
No civil legal proceedings, shall be brought in any court of law
against any employee, employer, registered trade union or employers’
organization, or against any member, office-bearer
or official of
any such union or organization in respect of
any breach of
contract
,
breach of statutory duty
or
delict (other
than defamation) committed by that employee, employer
, union or
organization, or by that member, office bearer or official on behalf
of that union or organization,
in furtherance of a strike or
lock-out
: Provided that this indemnity shall not apply to any
act committed in furtherance of any strike or lock-out in which, or
in the
continuance of which, any employee, employer or other person
is by section 65 forbidden to take part, or to any act the
commission
of which is a criminal offence.
(2)
Subject to the indemnity in subsection (1) any member, office-bearer
or official of a trade union, employers’ organization or
federation who interferes with the contractual relationship between
an employer and an employee resulting in the breach of such contract
shall be liable in delict.” (Underlining supplied.)
[152]
Section 67(8) of the LRA.
[153]
Section 69 of the LRA reads:
“
(1)
A registered trade union may authorise a picket by its members and
supporters
for the purposes of peacefully demonstrating—
(a)
in support of any protected strike; or
(b)
in opposition to any lock-out.
(2)
Despite any law regulating the right of assembly, a picket
authorised
in terms of subsection (1), may be held—
(a)
in any place to which the public has access but outside the premises
of an employer; or
(b)
with the permission of the employer, inside the employer’s
premises.
(3)
The permission referred to in subsection (2)(b) may not be
unreasonably
withheld.
(4)
If requested to do so by the registered trade union or the employer,
the Commission must attempt to secure an agreement between the
parties to the dispute on rules that should apply to any picket
in
relation to that strike or lock-out.
(5)
If there is no agreement, the Commission must establish picketing
rules, and in doing so must
take account of—
(a)
the particular circumstances of the workplace or other premises
where it is intended that the right to picket is to be exercised;
and
(b)
any relevant code of good practice.
(6)
The rules established by the Commission may provide for picketing
employees—
(a)
in a place contemplated in section 69(2)(a) which is owned or
controlled by a person other than the employer, if that person has
had an opportunity to make representations to the Commission
before
the rules are established; or
(b)
on their employer’s premises if the Commission is satisfied
that the employer’s permission has been unreasonably withheld.
(7)
The provisions of section 67, read with the changes required by
the
context, apply to the call for, organisation of, or participation in
a picket that complies with the provisions of this section.
(8)
Any party to a dispute about any of the following issues, including
a person contemplated in subsection (6)(a), may refer the dispute in
writing to the Commission—
(a)
an allegation that the effective use of the right to picket is being
undermined;
(b)
an alleged material contravention of subsection (1) or (2);
(c)
an alleged material breach of an agreement concluded in terms of
subsection (4); or
(d)
an alleged material breach of a rule established in terms of
subsection
(5).
(9)
The party who refers the dispute to the Commission must satisfy
it
that a copy of the referral has been served on all the other parties
to the dispute.
(10)
The Commission must attempt to resolve the dispute through
conciliation.
(11)
If the dispute remains unresolved, any party to the dispute may
refer it
to the Labour Court for adjudication.
(12)
If a party has referred a dispute in terms of subsection (8) or
(11), the
Labour Court may grant relief, including urgent interim
relief, which is just and equitable in the circumstances and which
may
include—
(a)
an order directing any party, including a person contemplated in
subsection (6)(a), to comply with a picketing agreement or
rule; or
(b)
an order varying the terms of a picketing agreement or rule.
(13)
The Labour Court may not grant an order in terms of subsection (12)
unless—
(a)
48 hours’ notice of an application seeking relief referred
to
in subsection (12)(a) or (b) has been given to the respondent;
or
(b)
72 hours’ notice of an application seeking relief referred
to
in subsection (12)(c) or (d) has been given to the respondent.
(14)
The Labour Court may permit a shorter period of notice than required
by subsection (13)
if the—
(a)
applicant has given written notice to the respondent of its
intention
to apply for the order;
(b)
respondent has been given a reasonable opportunity to be heard
before a decision concerning the application is taken; and
(c)
applicant has shown good cause why a period shorter than that
contemplated by subsection (13) should be permitted.”
[154]
Pottie v Kotze
1954 (3) SA 719 (A).
[155]
17 of 1931 as amended.
[156]
Pottie v Kotze
above n 154 at 727A-B.
[157]
National Union of Mineworkers v De Beers
Consolidated Mines (Pty) Ltd
[2006]
ZALC 65
; (2006) 27 ILJ 1909 (LC).
[158]
De Beers Group Services (Pty) Ltd v National
Union of Mineworkers
above n 111.
[159]
Revan Civil Engineering Contractors and Others
v National Union of Mineworkers and Others
above n 112.
[160]
See for example
Pottie
v Kotze
above n 154.
[161]
See cases referred to in [184] below.
[162]
Standard Bank v Estate Van Rhyn
1925 AD 266
at 274.
[163]
Metro Western Cape (Pty) Ltd v Ross
[1986] ZASCA 36
;
1986 (3) SA 181
(A);
[1986] 2 All SA 288
(A)
at 188F-I.
[164]
Palm Fifteen (Pty) Ltd v Cotton Tail Homes
(Pty) Ltd
1978 (2) SA 872
(A);
(1978)
3 All SA 406
(A)
at 885E-G.
[165]
Pottie v Kotze
above
n 154 at 726H-727A.
[166]
Swart v Smuts
1971 (1) SA 819
(A);
[1971] 2 All SA 153
at
829E-H.
[167]
Palm Fifteen (Pty) Ltd
above n 164.
[168]
Absa Insurance Brokers (Pty) Ltd v Luttig and
Another NNO
[1997] ZASCA 61
;
1997 (4)
SA 229
(SCA);
[1997] 3 All SA 267
(A) at 238J-239A and at 293B.
[169]
Id at 239B.
[170]
NTE Ltd v SA Chemical Workers Union and Others
(1990) 11 ILJ 43 (N)
.
[171]
Transport and Allied Workers Union and Others
v Natal Co-operative Timber Ltd
(1992)
13 ILJ 1154 (D).
[172]
See above n 113.
[173]
Equity Aviation Services (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) at para
36.
[174]
Id.
[175]
This distinction has been discussed in the
following context. In
Marievale
Consolidated Mines Ltd v National Union of Mineworkers and Others
1986 (2) SA 472
(W); (1986) 7 ILJ 108 (W) the employer dismissed
employees for striking and obtained an order from the Supreme Court
(now
High Court) declaring the dismissals lawful and valid and an
order evicting the employees from accommodation provided by it.
Within a week of that order, the employees obtained an order from
the Industrial Court ordering the employer to reinstate them
on the
basis that their dismissals were unfair. Reinstatement also
meant the reinstatement of the employees in the accommodation
provided by the employer. See
National
Union of Mineworkers v Marievale Consolidated Mines Ltd
(1986) 7 ILJ 123 (IC). A subsequent attempt by the employer to have
the Supreme Court review and set aside the reinstatement
order of
the Industrial Court failed. See
Marievale
Consolidated Mines Ltd v The President of the Industrial Court
and Others
1986 (2) SA 485
(T); (1986) 7 ILJ 152 (T). For a discussion of
these three cases and the distinction between lawfulness and
fairness, see
RMM Zondo:
Forum Shopping:
The Industrial Court versus the Supreme Court
(1987) 8 ILJ 571.