Freshmark (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (JA12/2001) [2002] ZALAC 29; (2003) 24 ILJ 373 (LAC); [2003] 6 BLLR 521 (LAC) (11 December 2002)

Freshmark (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (JA12/2001) [2002] ZALAC 29; (2003) 24 ILJ 373 (LAC); [2003] 6 BLLR 521 (LAC) (11 December 2002)

The Labour Appeal Court held that the employer's offer to the employee to continue in her position, but with amended terms requiring work every second Saturday and corresponding compensation, constituted 'alternative employment' within the meaning of section 196(3) of the Labour Relations Act. The Court found that...

Source-derived case information.

Citation
[2002] ZALAC 29
Parties
Appellant: Freshmark (Pty) Limited; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Van der Walt, J. Adriaan; Respondent: South African Workers' Union on behalf of Mrs De Klerk
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
11 December 2002
Case Number
JA12/2001
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment on Review of Arbitration Award
Outcome
Appeal upheld; arbitration award set aside; employee not entitled to severance pay.
Judges
Zondo JP, Nicholson JA, Van Dijkhorst AJA
Legal Topics
Severance Pay, Alternative Employment, Dismissal for Operational Requirements, Unreasonable Refusal, Basic Conditions of Employment Act, Labour Relations Act
Labour Law Severance Pay Alternative Employment Dismissal for Operational Requirements Unreasonable Refusal Basic Conditions of Employment Act Labour Relations Act

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Freshmark (Pty) Limited

Appellant

Commission for Conciliation Mediation and Arbitration

Respondent

Van der Walt, J. Adriaan

Respondent

South African Workers' Union on behalf of Mrs De Klerk

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the employer's offer to the employee constituted 'alternative employment' under section 196(3) of the Labour Relations Act.
  2. 2 Whether the employee's refusal of the offer was unreasonable, disentitling her to severance pay.
  3. 3 Whether the commissioner and Labour Court erred in their interpretation of 'alternative employment'.

Ratio Decidendi

The Labour Appeal Court held that the employer's offer to the employee to continue in her position, but with amended terms requiring work every second Saturday and corresponding compensation, constituted 'alternative employment' within the meaning of section 196(3) of the Labour Relations Act. The Court found that the commissioner and Labour Court erred in interpreting 'alternative employment' as requiring a different position, rather than employment on different terms. The employee's refusal of the offer was found to be unreasonable, as the operational requirements justified the change, all other employees had accepted similar terms, and the employer had offered fair compensation and...

Court Disposition

Appeal upheld; arbitration award set aside; employee not entitled to severance pay.

Orders

  • The appeal is upheld.
  • The decision of the Labour Court is set aside and replaced with the following order: