AMCU obo Busiwe and Another v Rand Uranium (Pty) Ltd (JS298/17) [2021] ZALCJHB 206 (2 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 298/17

In the matter between:

AMCU OBO M BUSIWE & 1 Other Applicant

and

RAND URANIUM (PTY) LTD Respondent

Heard: 17 February 2020

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 02 August 2021.

Summary: Unfair dismissal claim referred to this court in terms of section 191(6) o the LRA – the proceedings constitute a hearing de novo – dismissal is substantively unfair – reinstatement impracticable, hence a compensatory relief.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] In these proceedings, the applicant (AMCU) is challenging the dismissal of its members, Messrs Herbert Bisiwe (Mr Bisiwe) and Makhosandile Fanteni (Mr Fanteni) (applicant employees) by the respondent (Rand Uranium). Mr Bisiwe was charges as follows:

‘1. Refusal and/or failure to comply with and/or undermining a lawful and reasonable instruction:

In that on Tuesday, 4 December 2012, you failed and/or refused to comply with and/or undermined a lawful and reasonable instruction by not attending a scheduled meeting at 13h30 with the Senior Human Resource Manager at Cook 3 Hostel boardroom as instructed.

2. Intimidation and/or harassment:

(a) In that on Monday 3 December 2012 you intimidated and/or harassed a member of the human resource staff, to wit Nombulelo Matyobeni in the office of the Human Resource Superintendent to supply you with the detail of the employees to be compulsorily retrenched, well knowing that such information is confidential and that you are not entitled to it.

(b) In that on Monday, 3 December 2012 you intimidated and/or harassed a member of the engineering staff, to wit Oupa Thobeha, the shift engineer, in his office to supply you with the detail of the employees to be compulsorily retrenched well knowing that such information is confidential and that you are not entitled to it.

(c) In that on Monday, 3 December 2012 you intimidated and/or harassed a member of the human resource staff, to wit Bisiwe Nxusani, the human resources superintendent, in her office to supply you with a copy of the retrenchment list and employees to be medically incapacitated agreements, an arbitration award pertaining to the Section 189A process and the conditions of employment of artisans, well knowing that such information is confidential and that you are not entitled to do it.

3. Continuously undermining the formal communication structures on the shaft:

In that over a period of approximately 3 months you have been undermining and/or refusing and/or failing to adhere to the formal communication structures at Cook 2 shaft as regulated by the recognition agreement between management and NUM, as you are on a continuous basis refusing and/or failing to raise your concerns and/or complaints and/or requests through the union shaft committee and/or the fulltime shaft stewards.’[1]

[2] While Mr Fanteni was charged as follows:

‘1. Refusal and failure to comply with and/or undermining a lawful and reasonable instruction:

In that on Tuesday, 4 December 2012 you failed and/or refused to comply with and/or undermined a lawful and reasonable instruction by not attending the schedule meeting at 13:30 with the senior human resources manager at Cook 3 hostel boardroom as instructed.

2. Intimidation and/or harassment:

In that on Monday 3 December 2012 you intimidated and/or harassed a member of the human resources staff, to wit Bisiwe Nxusani, the Human Resource Superintendent, in her offices to supply you with a copy of the retrenchment list and employees to be medically incapacitated agreements, an arbitration award pertaining to the Section 189A process and the conditions of employment of artisans, well knowing that such information is confidential and that you are not entitled to it.

In that over a period of approximately 3 months you have been undermining and/or refusing and/or failing to adhere to formal communication structures at Cook 2 shaft as regulated by the recognition agreement between management and the NUM, as you are on a continuous basis refusing and/or failing to raise your concerns and/or complaints and/or requests through the union shaft committee and/or the fulltime shaft stewards.

You instead continue to raise the said concerns, complaints and/or requests directly with the human resources superintendent which causes a tremendous amount of friction between yourself and the human resources superintendent.’

[3] Mr Bisiwe was found not guilty of charges 1 and 2(c). While, even though Mr Fanteni was found guilty of charge 1, he was only given a warning. Accordingly, the parties agreed that these charges are not relevant in this matter. In essence, the applicant employees were found guilty of charges of intimidation, harassment and continuously undermining the formal communication structures. They were dismissed on 18 January 2013.

[4] Disgruntled by their dismissal, applicant employees referred a dispute to the Commission for Conciliation Mediation and arbitration (CCMA). The Commissioner upheld their dismissal. They challenged that arbitration award in a review application before this Court. The matter was remitted back to the CCMA for a hearing de novo by consent between the parties owing to the missing record. The parties then invoke section 191(6) of the LRA and requested that the matter be referred to this Court. A ruling was accordingly issued by the CCMA permitting the referral, hence these proceedings.

[5] The parties agreed that the only issue for determination challenge pertains to the substantive fairness.

Background facts

[6] The applicant employees were employed by Rand Uranium which consisted of, inter alia, Cooke 1, Cooke 2 and Cooke 3 shafts. They were both working at Cooke 2 shaft and were members of National Union of Mine Workers (NUM) up until the time of their dismissal.

[7] It is common cause that Rand Uranium and NUM had a collective bargaining relationship that was governed by the recognition and procedural collective agreement (recognition agreement) that was concluded on 1 April 2011. The recognition agreement regulated the dissemination of information and in terms of the communication structure, a shaft chairperson was responsible for all staff members’ problems within the section and together with his shaft committee would address those problems with management.

[8] Mr Clement Nkomo (Mr Nkomo) was the NUM shaft chairperson and Mr Fanteni a shaft committee member at Cooke 2. On 20 June 2012, Rand Uranium received a communication from Cooke 2 NUM branch that it had suspended Mr Nkomo from all NUM activities as the shaft chairperson and member of NUM. An acting shaft chairperson was appointed.

[9] The dissonance within NUM led to unauthorised march on 25 June 2012 and a memorandum signed by NUM members was handed over to Cooke 2 management. Mr Bisiwe was also a signatory to the memorandum wherein they demanded, inter alia, a suspension of the NUM branch; management to deal with the union at the shaft committee level; a declaration that the suspension of the shaft chairperson, Mr Nkomo, null and void. On 25 August 2012, another memorandum was addressed to NUM by its disgruntled members at Cooke 2 about the manner in which their branch was operating.

[10] Simon Bafana Douglas Gininda (Mr Gininda), the ER Manager, testified that in October 2012, there was a breakaway session that was held with the Cooke 2 shaft stewards following the sporadic unlawful marches and related activities by the NUM members. The purpose of the breakaway session was to reinforce the importance of the communication structures per the recognition agreement. Mr Fanteni conceded to attending the session as a shaft steward.

[11] On 3 December 2012, the applicant employees visited the Human Resources (HR) office. Ms Nombulelo Eunice Matyobeni (Ms Matyobeni) who was the HR intern at the time, testified that in the morning of 3 December 2012, Messrs Bisiwe and Nkomo visited her office and demanded to see the retrenchment list, which according to them was racist. Even though she had the retrenchment list in her possession as she was busy parading the employees who were affected by the retrenchment that was taking place at that time, she did not give it to them. Instead, she requested them to return later in the day when Ms Queen Nxusani (Ms Nxusani), the HR superintendent, would be in the office. Ms Matyobeni accused Messrs Bisiwe and Nkomo of intimidating her and threatened to remove her as HR intern.

[12] Mr Bisiwe denied that he and Mr Nkomo intimidated or harassed Ms Matyobeni in the morning of 3 December 2012. He also denied that they requested a retrenchment list. The only document they requested at that time was the retrenchment agreement and they were told to return back later when Ms Nxusani was in the office. This evidence was corroborated by Mr Nkomo who further rebuffed the allegation that they referred to retrenchment list as racist because most of the employees that were affected by the retrenchment were where in any event black.

[13] During the second visit in the afternoon, Messrs Bisiwe and Nkomo returned to the HR office and were in the company of Mr Fanteni and Ms Rosie Tshabedi. Present at the HR office were Mmes Nxusani and Matyobeni and Mr Jockey Motsumi. Mr Nkomo was the spoke person for the group. He testified that they were at the HR office to request several documents; but, as an Artisan, he was personally interested in the collective agreement that dealt with the terms and conditions of the Artisans as he had been informed by his assistant artisan that he had been paraded. He made it clear to Ms Nxusani that he was approaching the HR office as an ordinary employee and not as a member of the NUM in terms of Section 204 of the Labour Relations Act[2] (LRA).

[14] Mr Fanteni testified that, as an Artisan, he was also interested in the terms and conditions of the Artisans as his assistant artisan was paraded as well. They also requested a copy of the retrenchment agreement. Mr Bisiwe testified that he was interested in the retrenchment agreement because he was not sure whether he was affected.

[15] Ms Nxusani asked the group to return the next day at 12h00. She did not tell them that they were not entitled to the documents or that the documents they were requesting were confidential.

[16] The applicant employees denied that they intimidated Ms Nxusani and her colleagues during the afternoon meeting. They testified that the converse is true as the meeting commenced with the exchange of pleasantries since it was December and approaching Christmas period. After the jovial salutations, Mr Nkomo made it clear that they were requesting the retrenchment agreement and collective agreement pertaining to the Artisans’ terms and conditions of employment in terms of section 204 of the LRA. This evidence was corroborated by Mr Nkomo. I must mention that Mr Nkomo also dismissed for the same incident that led to the dismissal of the applicant employees.

Intimidation and/or harassment

[17] While Ms Matyoben conceded during her cross examination that there was nothing wrong with employees seeking information from the HR office, she was adamant that she felt intimidated by the manner it was requested. She established that they were angry by the tone of their voices and facial expressions which were stiff.

[18] However, when teased, she failed to explain the glaring omission of the alleged intimidation in Ms Nxusani’s email that was sent to Mr Gininda on the morning of 3 December 2012 wherein she reported the incident. If indeed she had been intimidated, I find it strange that Ms Nxusani, her supervisor, would fail to address that compliant with Mr Gininda at the earliest convenience. Better still, Ms Nxusani could have directly addressed the complaint with the applicant employees and Mr Nkomo at the commencement of the afternoon meeting, particularly, since these threats were not only serious, they were also directed at Ms Matyobeni who as an intern at that time.

[19] Even the assertion by Ms Matyobeni that the afternoon meeting was intimidating is feeble. She wants this Court to believe that the applicant employees, who were allegedly moving up and down with the hand in the pockets, were intimidating, at least to her. The challenge with her evidence is that it was not corroborated. The three witnesses called on behalf AMCU confirmed and corroborated each other that there were no acts of intimidation that occurred during the meetings. Mr Nkomo specifically denied that he harassed Ms Nxusani by pointing a finger or shouting at her. It was AMCU’s undisputed evidence that Mr Nkomo speaks with a high-pitched voice ordinarily.

[20] In any event, it would seem that during the afternoon meeting the alleged harassment was directed at Ms Nxusani. Yet, no mention was made of any act of intimidation or harassment in the email that was sent to Mr Gininda immediately after that meeting. On the contrary, Ms Nxusani recorded what transpired as follows:

‘Hi DG

The following people came to me requesting the following:

· Retrenchment agreement and replacement of medical incap agreement.

· Arbitration award from the Section 189 process that we are busy with, in terms of the conditions of employment of artisans.

…

I am quite unhappy by all this thing [sic] of being visited by the sectional stewards and suspended chairperson as I think they should get all the information from the fulltime. No bothering me while I am busy implementing what was agreed on central.’ (Emphasis added)

[21] Obviously, Ms Nxusani was merely displeased by being interrupted by the applicant employees’ visit. As correctly contended by AMCU, if Ms Nxusani was indeed intimidated, it is illogical that she would omit to mention that fact when recounting what transpired during the meeting to Mr Gininda. It is also startling that, despite the alleged serious threats and intimidation, the applicant employees were still invited to return to the HR office the next day.

[22] In my view, Rand Uranium failed to prove the charge of intimidation or harassment against both applicant employees.

Undermining the communication structures

[23] The crest of Rand Uranium’s case is that the applicant employees were not supposed to approach the HR office to request the retrenchment agreement, amongst other documents. Mr Gininda testified that, in terms of the recognition agreement, the NUM members had to avail themselves to the recognised communication structures, which included the branch and shaft committees. The applicant employees conceded that they were aware of the communication structures.

[24] Rand Uranium tried to link the unauthorised march that took place on 25 June 2012 and the memorandum, to which Mr Bisiwe was a signatory, with the applicant employees’ visit to the HR office on 3 December 2012. In my view, unlawful marches and petitions by NUM members were indicative of NUM’s own internal problems. Mr Bisiwe conceded that, given the challenges that they had with the NUM branch, the members demanded that communication should be channelled to the shaft committee temporarily. However, as conceded Mr Gininda, Mr Bisiwe was the only signatory to the memorandum that a disciplinary action was taken against. Mr Gininda attributed that slip to progressive discipline.

[25] Nevertheless, it is not clear to me as to memorandum could have had any bearing on the incident of 3 December 2012. The applicant employees, through Mr Nkomo their spokesperson, made it clear that they were approaching the HR office in terms of section 204 of the LRA which provides:

‘Section 204 Collective agreement, arbitration award or wage determination to be kept by employer

Unless a collective agreement, arbitration award or determination made in terms of the Basic Conditions of Employment Act provides otherwise, every employer on whom the collective agreement, arbitration award, or determination, is binding must –

(a) keep a copy of that collective agreement, arbitration award or determination available in the workplace at all times;

(b) make that copy available for inspection by any employee; and

(c) give a copy of that collective agreement, arbitration award or determination –

(i) to an employee who has paid the prescribed fee; and

(ii) free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum.’

[26] Evidently, a collective agreements is not confidential and any employee should be allowed access for inspection. In the present instance, Mr Nkomo was not bound the NUM recognition agreement and the communication structures as his membership had been suspended. On the other hand, while the applicant employees conceded that they were bound by the communication structure at Cooke 2, they denied that their conduct was aimed at undermining them. They testified they first sought the retrenchment agreement from Mr Motsamai, the acting shaft chairperson, but were referred Mr Metsing, the branch secretary. Mr Metsing was stationed in Randfontein, 45 minutes away from Westonaria where they were stationed. Hence they approach the HR Office.

[27] Much was made of the applicant employees’ failure to call Mr Metsing and request the documents. Yet, Mr Gininda testified that, as part of the communication structures during the retrenchment exercise, NUM members who had issues with the retrenchment procedure could approach the HR office in their section or the office of the fulltime shaft steward or the shaft committee.

[28] There was no evidence to support Rand Uranium’s allegation that the applicant employees continuously raised their concern directly with the HR office which caused ‘a tremendous amount of friction’. Mr Bisiwe was only a signatory to the memorandum that pertained to the NUM’s internal scuffles. While on 3 December 2012 they approached the HR office in terms of section 204 of the LRA. Even if their request in terms of section 204 of the LRA was ill-conceived, it cannot be said that they were undermining the recognised communication structures. At most, Ms Nxusani could have refused to give them the retrenchment agreement and directed them to the relevant structures.

[29] It would seem that Mr Gininda was suspicious of the applicant employees’ motives simply because at that time at Rand Uranium, as elsewhere within the mining industry, AMCU was making inroads into mines where NUM enjoyed majority representation as a collective bargaining party. He, Mr Gininda, testified that Mr Nkomo was trying to create a parallel structure to the branch committee within NUM as he was not appointed a fulltime shaft steward and wanted to undermine the decisions of the branches or agreement that existed. This was vehemently disputed by Mr Nkomo as he had already been suspended as a member of NUM when he visited the HR office of 3 December 2012.

[30] Tellingly, Mr Gininda was patently oblivious of the status of a retrenchment agreement, which is in effect a collective agreement. Ms Nxusani did not suggest that the retrenchment agreement was confidential or communicate same to the applicant employees; but seemed vexed by the request that was directed at her office as opposed to the NUM structures. In fact, even Ms Matyobeni conceded during her cross examination that there was nothing untoward with the request for the retrenchment agreement.

[31] While I accept that the retrenchment process is a sensitive process, I disagree that the retrenchments agreement is confidential. Any employee has a right to inspect it any given time in terms of section 204 of the LRA. In fact, the fallacy of Rand Uranium’s contention that collective agreement is confidential is that the applicant employees were criticised for not requesting a copy from NUM during their cross-examination.

[32] There is also no evidence that the applicant employees sought the retrenchment agreement in order create havoc in the work place or sought to stop the process of retrenchment or take over the rein of NUM as was suggested by Mr Gininda. Even though there were rumours that the applicant employees were recruiting members for AMCU, there is no evidence that Mr Gininda took the disciplinary action against the applicant employees and secured their dismissal because of his belief that they were recruiting for AMCU. Contrary to the applicant employees’ pleaded case, that they were, in fact, recruiting for AMCU and were dismissed for advancing its interests, they disavowed that they were involved in AMCU’s activities at that time during their cross-examination. They also testified that they were loyal members of NUM which represented them during their disciplinary enquiry. They joined AMCU during the CCMA proceedings.

[33] I deem it opportune for me to backtrack and quickly deal with Rand Uranium’s submission that this action should be dismissed on the basis that the applicant employees abandoned their pleaded case that their dismissal was motivated by the fact that they had joined or associated themselves with the activities of AMCU. Well, as stated above, in absence of any evidence to prove that the applicant employees were indeed victimised as such, their decision to discard this claim is well-judged. Even so, the shedding of this claim is not dipositive of the matter nor warrants that AMCU be nonsuited. Hence, I proceeded to deal with the merits.

[34] It follows that Rand Uranium failed to prove on that the applicant employees undermined the collective barging structures with the aim of creating havoc in the workplace or friction with the HR office.

[35] In sum, I find that the dismissal of the applicant employees was substantively unfair.

Remedy

[36] Finally, on the issue of relief, section 193(1) of the LRA provides:

‘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.’

[37] While reinstated is a mandatory relief, section 193(2) provides or the following specified exceptions:

‘(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.’

[38] In the present instance, the applicant employees seek reinstatement with full back pay. Mr Fanteni testified that he was aware that Sibanye Stillwater, Rand Uranium’s holding company, was still recruiting and therefore they could be accommodated.

[39] On the other hand, Rand Uranium submitted that reinstatement is impracticable. Mr Gininda testified that in 2017 there a restructuring that took place at Sibanye Stillwater, which included its subsidiaries, Beatrix, Kloof, Driefontein and Cooke. As a result, Cooke and Beatrix ceased the mining operations and were put under care maintenance. Some of the affected employees were transferred to other operation where there were vacancies. Therefore, currently have about 116 employees left out of about 4000 full staff complement.

[40] In considering the question of the practicability of reinstatement, having concluded that the dismissal of the applicant employees was unfair, I had to bear in mind the very well-established authorities of Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others[3] and SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others[4]. In Equity Aviation, the Constitutional Court underscored primacy of that reinstatement as a primary remedy which is aimed at restoring the employee to the employment relationship and to safeguard the employee’s security of employment. Of course, if one of the specified circumstances set out in section 193(2) is present, then compensation in terms of s 193(1)(c) may be ordered and the amount would depend on the nature of the dismissal. This notion was reaffirmed in SA Revenue Service,[5] where the Constitutional Court stated:

‘Once the Labour Court or an arbitrator has found a dismissal unfair, it or he is obliged to consider which one of the remedies listed in s 193(1) is appropriate, having regard to the meaning of s 193(2). Considering both the provisions of s 193(1) and s 193(2) is important because one cannot adopt the attitude that dismissal is unfair, therefore, reinstatement must be ordered. The Labour Court or an arbitrator should carefully consider the options of remedies in s 193(1) as well as the effect of the provisions of s 193(2) before deciding on an appropriate remedy. A failure to have regard to the provisions of s 193(1) and (2) may lead to the court or arbitrator granting an award of reinstatement in a case in which that remedy is precluded by s 193(2).’

[41] What stands out from the above authorities is that reinstatement is the primary remedy for a substantively unfair dismissal, and must follow a finding of unfair dismissal, unless it can be shown by the employer that one of the special circumstances in section 193(2) find application.[6] In SA Commercial Catering & Allied Workers Union & others v Woolworths (Pty) A Ltd,[7] the Constitutional Court aptly explained the term ‘not reasonably practicable’ to mean more than just a mere inconvenience and requires evidence of a compelling operational burden. While in Xstrata SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers on behalf of Masha & others,[8] the LAC explained the term ‘not reasonably practicable’ as follows:

‘The object of s 193(2)(c)of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the employee’s job no longer exists, or the employer is facing liquidation, relocation or the like. The term “not reasonably practicable” in s 193(2)(c) does not equate with “practical”, as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile. An employee’s length of service, the delay in the arbitration and alleged untested shortcomings in capacity are not normally relevant to the question of practicability.’ (Emphasis added)

[42] Regrettably, despite the contemptable and inexcusable manner in which the applicant employees were dismissed and the delay of about a decade in finalising this matter, there is profuse evidence that reinstatement is not reasonably practicable. It is not in dispute that Rand Uranium had suspended all mining operations and is currently in care and maintenance. It stands to reason that since to reinstate means ‘to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions[9], such an order would not be feasible or reasonably practicable where the employer is defunct, so to speak.

[43] Nothing turns on the fact that Sibanye Stillwater accommodated some employees from Cooke 2 during structuring in 2017 or that it may be recruiting correctly. The applicant employees were employed by the subsidiary company, Rand Uranium, a different employer.

[44] That takes me to the issue of the compensation. In terms of section 194 of the LRA, the Labour Court or an arbitrator is endowed with a wide discretion to award compensation subject to being just and equitable and not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the day of dismissal.[10]

[45] In the present instance, Rand Uranium had offered the applicant employees the maximum compensation with prejudice but was turned down. Even so, it would seem that it still takes no issue with the maximum compensation being awarded. In fact, it is my view that, in the light of the overall circumstances that led to the applicant employees’ dismissal, maximum compensation is warranted. Mr Bisiwe was earning R22 056.00 per month at the time of his dismissal. While Mr Fanteni was earning R18 600.00 month.

Conclusion

[46] In all the circumstances, I find the dismissal of the applicant employees substantively unfair. Rand Uranium should, accordingly, pay Mr Bisiwe compensation of R264 672.00 and Mr Fanateni R223 200.00 which equivalent to their 12 months’ remuneration.

Costs

[47] On the issue of costs, both parties sought costs. In the circumstances of this matter, I am satisfied that a cost order against Rand Uranium will not offend the principles of fairness and equity. Even though it had tendered the maximum compensation, AMCU was not frivolous in rejecting it given the hardship the applicant employees have suffered for almost a decade and their hope of being reinstated when they heard that Sibanye Stillwater was still recruiting.

[48] In the circumstances, I make the following order:

Order

1. The dismissal Messrs Bisiwe and Fanteni was substantively unfair.

2. Rand Uranium shall to pay Messrs Bisiwe and Fanteni compensation in the amount of R264 672.00 and R223 200.00, respectively with 10 days from the date of this judgment.

3. Rand Uranium shall pay AMCU’s costs of suit.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant : Advocate AL Cook

Instructed by : LDA Attorneys

For the Respondent : Advocate R Itzkin

Instructed by : Solomonholmes Attorneys

[1] page 83 of the indexed bundle

[2] Act 66 of 1995, as amended.

[3] [2008] ZACC 16; 2009 (1) SA 390 (CC); (2008) 29 ILJ 2507 (CC) (Equity Aviation) at para 44.

[4] 2017 (1) SA 549 (CC); (2017) 38 ILJ 97 (CC) (SA Revenue Service) at para 38. These authorities are referred with approval in University of South Africa v Stapelberg NO & Others (2019) 40 ILJ 2610 (LC) at paras 40-45.

[5] Id.

[6] See: Association of Mineworkers and Construction Union ("AMCU") and Others v Australian Laboratory Services (Pty) Ltd [6](JS315/12) [2017] ZALCJHB 398 at paras 75-76.

[7] (2019) 40 ILJ 87 (CC) (Woolworths) at para 49. See also Potgieter v Tubatse Ferrochrome & Others (2014) 35 ILJ 2419 (LAC) at para 37 also held that: ‘impracticability’ generally addresses unfairness in terms of operational or similar ground’. The same court in Glencore Holdings (Pty) Ltd & another v Sibeko & Others (2018) 39 ILJ 138 (LAC) at para 11 referred to ‘the core operational requirements of an employer’.

[8] (2016) 37 ILJ 2313 (LAC) (Xstrata SA) at para 11.

[9] See: Equity Aviation supra n 2 at para 36.

[10] Having considered all the relevant circumstances and make such order as it deems fair to both parties in the light of everything. See University of South Africa v Stapelberg NO & Others (2019) 40 ILJ 2610 (LC) at para 59.