Ehlanzeni District Municipality v South African Local Government Bargaining Council and Others (JR1163/10) [2014] ZALCJHB 368 (30 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR1163/10

EHLANZENI DISTRICT MUNICIPALITY Applicant And SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL MTUTUZELI NGQELENI N.O. SOUTH AFRICAN MINICIPAL WORKERS UNION obo NKOSI & TWO OTHERS First Respondent Second Respondent Third to further Respondents

Heard: 29 November 2013

Delivered: 30 September 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] The Applicant seeks an order that the arbitration award issued by the First Respondent (the Arbitrator) on 29 March 2010 under case number MPD100907 be reviewed and set aside. In the award, the Arbitrator found that the Respondents (herein referred to as employees) being N Nkosi, NC Maluka and LP Malambe were entitled to participate in the Motor Vehicle Allowance Scheme with effect from 1 May 2010. The Respondents opposed the review application, and subsequently brought an application to dismiss the review application in view of the delays in prosecuting it. The Applicant opposed this application.

The Rule 11 application:

[2] The arbitration award was issued on 29 March 2010 whilst the review application was filed on 19 May 2010. On 8 June 2012, the Third Respondent filed an application in terms of Rule 11 to dismiss the review application on account of the Applicant’s failure to deliver a reconstructed record, its Rule 7A (8) Notice and supplementary affidavit in accordance with Rule 7A (8) of the Rules of this Court.

[3] In his affidavit in support of the application, SAMWU’s Provincial Secretary in the Mpumalanga Province averred the following;

3.1 The award was certified in terms of section 143 (3) of the Labour Relations Act (The LRA) on 16 August 2010. In September 2011, the SALGBC had notified SAMWU that the audio recordings in respect of the arbitration proceedings could not be located and that the record had to be reconstructed.

3.2 After numerous postponements, the parties together with the Arbitrator met on 18 November 2011 to reconstruct the record. Since then, the Applicant has not done anything to expedite the prosecution of the review application.

3.3 Since the record was reconstructed on 18 November 2011, it was supposed to have been filed by 2 December 2011. The Applicant, despite numerous reminders to its previous attorneys (Mculu Inc), and being put on terms, failed to ensure any progress in respect of the review application. As at 8 June 2012 when the Rule 11 application was filed, there had been no response from the Applicant or Mculu Inc.

3.4 The delay of 4 months and three weeks in filing the record was unreasonable and prejudiced the interests of the union and its members who were in possession of an award in their favour.

[4] Hugh Mbatha, the Applicant’s Municipal Manager deposed to an opposing affidavit in which he had responded as follows;

4.1 The applicant was advised by Mculu Inc on 10 August 2011 that the Labour Court had not received a copy of the arbitration record from the Arbitrator. He confirmed that after several postponements, the parties had met with the Arbitrator to reconstruct the record of arbitration proceedings on 18 November 2011.

4.2 On 18 November 2011, no actual reconstruction of the record took place as the parties had agreed that the evidence as summarised by the arbitrator in the award was sufficient for the purposes of the review application.

4.3 Mculu Inc was under the impression that the SALGBC would file the reconstructed record with the Court, and had advised the Applicant that everything was in order and that it was up to the Registrar of this Court to allocate a date for the hearing. The Applicant had relied on that advice.

4.4 It was conceded that there was indeed a delay in the prosecution of the review application but that such a delay was attributable to the confusion surrounding whether the reconstructed record had been filed by SALGBC, and the inability of Mculu Inc to comprehend the procedure involved in review applications.

4.5 It was further submitted that there was no basis for the review application to be dismissed, as the matter was ripe for a hearing. It was further contended that the dismissal of the application would be purely on the basis of a technicality, and that the broader principles of justice required that the Court deal with the merits of the review application.

Evaluation: Re: Rule 11 application:

[5] As it was correctly pointed out on behalf of the Respondents, the court has a discretion in granting an order to dismiss a claim on account of an unreasonable delay in its prosecution. In considering whether to dismiss an application in terms of Rule 11 of the Rules of this Court, the Court in exercising its discretion will take into account the length of the delay, the explanation in that regard, prejudice caused as a result of the delay and the desirability of expeditiously finalising a matter[1]. Furthermore, the Court will be guided by considerations of interests of justice, the fairness to dismiss the application, and the merits of the main application sought to be dismissed.

[6] In this case, it was common cause that the review application was filed timeously; that a record of the proceedings was not filed on account of audiotapes not being found, and that following numerous postponements, the parties had met with a view of reconstructing the record on 18 November 2011. It is further apparent that no actual reconstruction took place on 18 November 2011. Inasmuch as the record of proceedings was not available, the Respondents pointed out that the agreement was not only to rely on the award of the Arbitrator, but also other documentation that was presented at the arbitration proceedings.

[7] The delay between 19 May 2010 when the review application was filed, and 18 November 2011 when the parties met for reconstruction purposes cannot solely be attributed to the Applicant. Nevertheless, there is still the delay between May 2010 when the review was launched, and September/October 2011 when it was realised that the record had not been filed, which delay the Applicant still needs to account for.

[8] A further issue remains whether the Applicant gave a reasonable and satisfactory account for the delays between 18 November 2011 and 8 June 2012 when the Rule 11 application was filed, as well as July 2012 when the notice in terms of Rule 7A(8) (b) and an opposition to the Rule 11 was filed. The Applicant’s new attorneys of record (Werksmans Inc) came on board in June 2012. The Applicant appears to attribute the delay in this regard either on being misled by Mculu Inc that everything was in order in respect of the review application or on confusion emanating from the reconstruction of the record on 18 November 2012.

[9] The Courts have in many instances made it clear that a litigant cannot simply fold its arms and sit idle without regularly following

up on its litigation and the progress therein, especially after such litigation is prosecuted on its behalf by its chosen representatives[2]. The point was emphatically made by the then Labour Appeal Court (per Nicholson JA) in Superb Meat Supplies CC v Maritz[3] in the following terms;

‘In this court and the Supreme Court of Appeal there have been frequently repeated judicial warnings that there is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. It has never been the law that invariably a litigant will be excused if the blame lies with the attorney. To hold otherwise might have a disastrous effect upon the observance of the rules of this court and set a dangerous precedent. It would invite or encourage laxity on the part of practitioners. The courts have emphasized that the attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.’

[10] In this case, after Mculu Inc had launched the review application in May 2010, nothing further was done until September 2011 when it came to the attention of SAMWU that no progress had been made in securing a transcribed record, or at least until 10 August 2011 when Mculu Inc sent the Applicant correspondence to inform it that the Court was still not in possession of the record of the arbitration proceedings. There is no explanation from the Applicant in regard to this excessive period of delay, and even if it wished to attribute the delay to Mculu Inc, there is no indication whatsoever as to what steps it took to enquire about the progress of the review application after it was launched.

[11] As already indicated, the Applicant had also not explained the delay between 18 November 2011 and June 2012 when Werksmans Inc came on board. It was apparent from 18 November 2012 that in the light of the audiotapes not being located, and the reconstruction process not having achieved its purpose, the Applicant could not have been in a position to either file such a record or file its supplementary affidavit in respect of the review application. Notwithstanding, nothing was however done in this regard to inform the Court, and it is indeed not sufficient for the Applicant simply to aver that it had relied on the advice of Mculu Inc that everything was in order, especially since there is no suggestion that it had received confirmation from either the SALGBC or the Court that a record had been filed.

[12] On the Applicant’s own version, no reconstruction of the record took place on 18 November 2011, and I fail to appreciate how it could have been under the impression that SALGBC would file a ‘reconstructed record’ when none existed. The Applicant being dominus litis in the review application, it was expected of it after 18 November 2011 to approach the Court and inform it of the parties ‘agreement’ to proceed with the application in the absence of a record. In these circumstances, it is concluded that the Applicant had not been able to account for the excessive delay in prosecuting the review application, and that its excuse and attempts at attributing the blame solely on Mculu Inc without taking responsibility for its own litigation amounts to no explanation at all.

[13] It is accepted that as with applications for condonation, the factors that a court takes into account in exercising its discretion as to whether or not to grant the Rule 11 applications are not own their own, individually decisive. In the light of the excessive delay and the lack of a reasonable or acceptable explanation in that regard, other considerations to be looked at include whether the Respondents have suffered prejudice as a result of that delay, interests of justice, the fairness to dismiss the application, and the merits of the main application sought to be dismissed.

[14] In considering the question of prejudice, it is taken into account that the employees are still employed by the Applicant. They have already certified the award in terms of section 143 of the LRA. It is accepted that in terms of the award, they were supposed to have benefitted from the Scheme as of 1 May 2010. In my view, the effects of the prejudice can be ameliorated by a dismissal of the review application where this should be the case.

[15] It can further be accepted that this case is important to both parties, moreso in the light of the employees’ contentions that the scheme was not consistently applied. Furthermore, it cannot be doubted that the enforcement of the award has financial consequences for the Applicant and the application of its policies. In the light of these and other factors, it is my view that it would neither be fair nor be in the interests of justice for the Applicant to be deprived of an opportunity to pursue the review application, moreso since such an application was timeously filed, and since ultimately, the SALGBC and the arbitrator had failed to make available the record of the proceedings. To this end, the application in terms of rule 11 is dismissed. Notwithstanding the dismissal of the application, and taking into account that the application was clearly necessitated by the Applicant’s inaction and dilatoriness moreso on the part of Mculu Inc, it is further deemed to be in the interests of law and fairness that the Applicant should be burdened with the costs of that application.

Background to the review application:

[16] The Applicant has a Motor Vehicle Allowance Scheme, which does not form part of the terms and conditions of employment. It is further not part of the Main Collective Agreement between SAMWU and the Applicant. In terms of this Scheme, the Municipal Manager determines and has discretion over which employees qualify for participation in the scheme. Considerations for participation in the Scheme include affordability, reasonableness, and whether an employee performs duties, which require travelling on a regular basis at an average of 1000 kilometres per month.

[17] Other considerations to be taken into account include that when an employee travels in a pool car, he/she would indicate travelling

mileage on a regular basis when the pool car is used. Where an employee uses his/her personal vehicle, it will also be required that the mileage covered in a month be indicated. Once an employee has compiled travelling mileage, which is supported by logbook, then an application can be submitted to participate in the scheme. The Municipal Manager having exercised his discretion and where the application is approved, the relevant committee will then decide and give final approval.

[18] The employees had all applied to participate in the Scheme in May 2009. Their applications were turned down and they subsequently

referred a dispute pertaining to “Discrimination” to the SALGBC. Conciliation having failed, a certificate of outcome was issued on 8 December 2009, reflecting the dispute to be

arbitrated as pertaining to an alleged unfair labour practice. The employees then referred the dispute for arbitration, which matter came before the arbitrator.

The arbitration proceedings:

[19] The evidence led at arbitration was to the effect that Nkosi’s application was declined as she was informed that she did not travel 850 km per month on official trips. She conceded during the arbitration proceedings that she travelled less than 1000 km per month.

[20] Maluka is employed as Performance Management System Coordinator. He also submitted an application to participate in the Scheme in the May 2009. Despite his contentions that he was required to travel to various municipalities in the district for official visits, he travelled in his supervisor’s vehicle for official trips. He further conceded that he had not submitted proof that showed that he was required to travel more than 860 km per month for official purposes, and that he was not aware of the requirements of the Scheme. Marietta Diedericks, the Deputy Manager - Performance Management, and Maluka’s supervisor, confirmed that indeed Maluka travelled with her for official purposes. She did not support Maluka’s application, as he could not perform independently.

[21] Malambe is employed as an Assets Clerk. Her application was declined on the basis that she did not travel more than 850 km per month on official trips. She confirmed that she travelled less than 850 km per month. She also conceded that she was not aware of the requirements of the Scheme.

[22] Phindani Khumalo, a supervisor in the Supply Chain Unit denied that Nkosi travelled 1000 km per month. He further testified that Malambe did not qualify for the Scheme because she did not need to travel as some of her functions had been outsourced to a service provider. His testimony was that the Scheme was not an entitlement, he did however confirm that there were two other Assets Clerks in the Unit who were allowed to participate in the scheme even though they did not travel more than 1000 km per month.

The arbitration award:

[23] The arbitrator had identified the issue to be decided as pertaining to whether or not the Applicant’s decision not to approve the employees’ applications to participate in the Scheme constituted an unfair labour practice in terms of section 186 (2) of the LRA. His starting point was to determine whether the employees met the requirements of the Scheme. In regards to Nkosi, he took into account her concession that she did not travel more than 1000 kilometres per month. In regards to Malambe, the arbitrator dismissed Diedericks’ evidence that he was not ready to perform independently and regarded this evidence as mainly pertaining to performance management issues, which did not have any relevance to the dispute before him.

[24] The arbitrator concluded that it was not clear which policy had informed the committee’s decision to decline the employees’

applications. He had regard to the provisions of the Council resolution and acknowledged that it required an employee to travel

1000 kilometres per month. He however took regard of Nkosi and Malambe’s testimony that they were informed that their applications were declined as they travelled 850 kilometres per month, whilst Maluka was informed that he had to submit proof that he travelled more than 860 kilometres per month on official trips. The arbitrator lamented the fact that the Applicant had not called any witness to explain the ‘discrepancy’ or defend its decision.

[25] The Arbitrator also took into account that other employees’ applications were approved even though they did not travel 1000 kilometres per month, and the Applicant had not called any witness to explain the ‘discrepancy’. He concluded that the scheme was not consistently applied, and found in favour of the employees.

The legal framework pertaining to reviews:

[26] In accordance with the now well-known Sidumo test, the issue is whether the decision reached by the arbitrator is one that a reasonable decision-maker could not reach on the material placed before him. Where a defect in the award is alleged as contemplated in section 145 (2) of the Labour Relations Act, the issue is whether the arbitrator had misconceived the nature of the enquiry or arrived at an unreasonable result[4]. The Labour Appeal Court in Goldfields Mining South Africa (Pty) Limited (Kloof Gold Mine) v CCMA & Others[5] further held that where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator

misconceived the nature of the proceedings, but extends to whether the result was unreasonable, i.e., whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come to on the available

material. In further explaining the approach of the review court, the Labour Appeal Court in Goldfields further held that;

“In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts

presented at the hearing and came to a conclusion that is reasonable”[6]

The grounds of review and evaluation:

[27] The Applicant’s main contention was that participation in the Scheme was not a benefit, but a managerial discretionary matter. It was further contended that the dispute before the Arbitrator was an interest issue outside the scope of the unfair labour practice definition, which could not be arbitrated. To this end, it was submitted that the SALGBC could not assume jurisdiction and arbitrate the dispute as referred, and on that basis alone, the award should be set aside.

[28] Whether participation in the Scheme is a benefit has to be looked at within the context of the provisions of section 186 (2) of the LRA, which defines an unfair labour practice to mean;

‘any unfair act or omission that arises between an employer and employee involving-

(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.’

[29] The Labour Appeal Court had in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration[7] in agreement with Protekon (Pty) Ltd v CCMA and Others[8], interpreted the term ‘benefit’ in the above provision to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer’s discretion. Thus the LAC recognised that many employee benefits schemes confer rights and create obligations and confer discretion on employers, and that one of the objects of s186(2)(a) of the LRA is to provide a remedy when such discretion is exercised unfairly.

[30] It therefore follows from Apollo Tyres (Pty) Ltd that in this case, the enquiry should be whether in declining the employees’ application to participate in the Scheme, the

Applicant had exercised its discretion fairly. The concept of unfairness denotes a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended[9]. Linked to the concept of fairness in my view is whether the discretion was exercised in good faith. There is therefore no substance to the Applicant’s submissions to the effect that the facts in casu are different from those in Apollo Tyres (Pty) Ltd, as the principles enunciated therein are equally applicable in this case, and further since participation in the Scheme was a

discretionary matter.

[31] Amongst the grounds of review as submitted on behalf of the Applicant was that;

31.1 By ordering that that the employees should participate in the Scheme, the Arbitrator did so without any rational objective basis, and substituted his own standards for those of the employer.

31.2 The Arbitrator exceeded his powers in allowing the employees to participate in the Scheme on the basis of inconsistency in the application of the Scheme, and in so doing, created rights when none existed.

31.3 The Arbitrator committed gross irregularity in that he failed to appreciate the nature and process which give rise to the approval of the application to participate in the Scheme, and in this regard, failed to appreciate that participation in the Scheme was at the discretion of the Municipal Manager, and further that employees had to build up evidence to support their applications.

31.4 The Arbitrator committed gross irregularity as he failed to apply his mind to the facts and failed to appreciate the nature of the facts before him in that he purported to draw a negative inference against the Applicant for not calling any of the committee members to explain the discrepancy over and above the Applicant’s witnesses, and furthermore, failed to place sufficient value or have regard to the evidence of the Applicant’s witnesses in relation to the disapproved application for participation in the Scheme

[32] The employees’ main contention was that the Applicant did not exercise its discretion fairly, as other employees who were not travelling the requisite number of kilometres had received the benefit whilst they did not. The employees acknowledged that the Municipal Manager may have applied the process envisaged in item 3.6 of the Municipal Resolution taken on 27 November 2007. They however held the view that other employees who received the benefit who were performing the same job descriptions as them never went through that process and received the benefit on their job descriptions.

[33] Three considerations were crucial in exercising the Municipal Manager’s discretion. These were affordability, reasonableness

and a requirement that an employee must travel on a regular basis at an average of 1000 kilometres per month. It is trite that the onus in establishing the existence of an unfair labour practice is on the employees[10]. It would therefore be for the employees to show that the Applicant had exercised its discretion unfairly in excluding them from

participation from the Scheme.

[34] It was common cause that the employees in this case did not meet the 1000 kilometres per month travel requirement. The Arbitrator’s

remark in the award that Malambe had testified that she travelled more than the required kilometres is clearly not correct as this was not her evidence as summarised under ‘Survey of evidence and arguments’. To the extent that the Applicant’s Municipal Manager was influenced by this consideration in exercising his discretion, it cannot be said that he had acted arbitrarily or capriciously, as this would have been in accordance with the requirements as set out in Resolution of the Council.

[35] The basis of declining Maluka’s application was that she used to travel in his supervisor’s vehicle and was not entitled to participate in the Scheme. During argument however, it was submitted that Maluka has since been placed on the Scheme, as his job profile met the requirements.

[36] In the award, the Arbitrator relied on two factors in coming to the conclusion that the Applicant had acted inconsistently. The first was that even though the requirement was 1000 kilometres travel per month, Nkosi and Malambe were told that they travelled less than 850 kilometres per month for official purposes, whilst Maluka was informed that he should submit proof that he travelled more than 860 kilometres per month. The Arbitrator had in this regard pointed out that no evidence was led on behalf of the Applicant in regard to this ‘discrepancy’. In my view, it would be pedantic to find fault with the Arbitrator’s use of the term ‘discrepancy’ when it is apparent that what was meant was that if the requirement was 1000 km per month, it was inconsistent on the part of the Applicant to decline the applications unless Nkosi and Malambe produced proof that they travelled more than 860 kilometres per month.

[37] The other basis for inconsistency allegation pertained to the fact that other employees had received the benefit when they had not provided proof of their travel, or had travelled less than the required 1000 kilometres per month. The onus is indeed on the Applicant to prove fairness in the differentiation between the various employees.

[38] As summarised by the Arbitrator, Khumalo testified that Nkosi (A Supply Chain Management Officer) and Malambe (Assets Clerk) fell under his supervision in the Supply Chain Unit. There were two other Supply Chain Management Officers who participated in the Scheme as they travelled the required 1000 kilometres per month. His only contention in regards to the reason that Nkosi did not participate was that the Scheme was not an entitlement.

[39] In respect of Malambe, it was further Khumalo’s testimony that there were three other Asset Clerks under his supervision. Two of these participated in the Scheme even though they did not travel the required 1000 kilometres per month. The rationale for excluding Malambe according to Khumalo, was that she used to travel the required 1000 km per month before and participated in the Scheme until some of her functions were outsourced.

[40] The Applicant’s contention that the Arbitrator’s reasoning in allowing Nkosi and Malambe to participate in the Scheme created rights for them that did not exist has no merit in that the issue is not whether any new rights were created, but whether the Applicant had consistently applied the Scheme or fairly exercised its discretion in that regard. Since the onus was on the Applicant to justify the differentiation, the Arbitrator was correct in lamenting the fact that no evidence was led to justify the differentiation, albeit the Arbitrator had used the phrase ‘discrepancy’ in that regard.

[41] In the absence of justifiable grounds to differentiate between the employees, the discretion exercised in declining the employees

participation in the Scheme cannot be said to have been fair, rational, consistent or reasonable. Thus if the Scheme was not regarded as an entitlement for other employees, it could not in fairness have been regarded as such in respect of other employees that did not meet the requirements.

[42] There is further no merit in the contention that the Arbitrator committed gross irregularity in that he failed to appreciate the nature and process which gave rise to the approval of the application to participate in the Scheme. The Arbitrator had taken regard of the Council Resolution and requirements to participate in the Scheme and pointed out the ‘discrepancies’ in its application insofar as different requirements were set for Nkosi and Malambe.

[43] In the light of the above conclusions, I am satisfied that there is no basis for a conclusion to be reached that the Arbitrator

misconstrued the nature of the enquiry or arrived at an unreasonable result in the light of the material before him.

[44] In regards to the Applicant’s contention that the employees had referred a dispute pertaining to ‘discrimination’, and yet the Arbitrator had dealt with the matter as an unfair labour practice on the basis of the certificate issued, this cannot also be a ground to review and set aside the award. This conclusion is premised on the fact that it is trite that a consideration of a dispute referred cannot solely be on the basis of the referral or the labelling of the dispute in the certificate of outcome. In terms of the provisions of section 138 (1) of the LRA, the arbitrator is required to deal with the substantial merits of the dispute between the parties with the minimum of legal formalities and do so expeditiously and fairly. It is further required of the arbitrator to determine the real dispute between the parties irrespective of how the dispute has been labelled[11]. In this case, I am satisfied that the Arbitrator dealt with the substantial merits of the dispute before him, and properly identified

the dispute he was required to arbitrate. The arbitrator had considered the principal issue before him, evaluated the facts presented at the hearing and came to a conclusion that is reasonable. There is therefore no basis for a finding to be made that the decision the Arbitrator reached is one that a reasonable decision-maker could not have reached on the material placed before him. Further having had regard to considerations of law and fairness, it is deemed appropriate not make any cost order in respect of the review application.

Order:

i. The Respondent’s Rule 11 application is dismissed.

ii. The Applicant is ordered to pay the costs of the Rule 11 application.

iii. The application to review and set aside the award issued by the Second Respondent under case number MPD 100907 is dismissed.

iv. There is no order as to costs in respect of the review application.

______________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Adv XD Matyolo

Instructed by:

Werksmans Inc

For the Third Respondent: Ms. D Norton of Mkhabela Huntley Adekeye Inc

[1] BP Southern Africa (Pty) Ltd v National Bargaining Council for the Chemical Industry & Others (2010) 31 ILJ 1337 (LC); Radebe v Government of the Republic of South Africa 1995 (3) SA 787 (N)

[2] See IMATU on behalf of Zungu v SA Local Government Bargaining Council and Others (2010) 31 ILJ 1413 (LC).

[3] (2004) 25 ILJ 96 (LAC)at para 16

[4] Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA) at para 12

[5] Case number JA 2/2012 at para 14

[6] At para 16

[7] (2013) 34 ILJ 1120 (LAC)

[8] (2005) 26 ILJ 2970 (LC)

[9] Apollo Tyres SA (Pty) Ltd at para 53. (See also Labour Relations Law: A Comprehensive Guide (5th ed, 2006) at 48.

[10] City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others (2013) 34 ILJ 1156 (LC) at para 19

[11] CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; 2009 (2) SA 204 (CC) at para 64