IMATU obo SP Hlabisa & 7 Others v Umkhanyakude District Municipality (D908/17) [2022] ZALCD 9; (2022) 43 ILJ 1842 (LC) (9 June 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Reportable

Case No: D908/17

In the matter between:

IMATU OBO SP HLABISA & 7 OTHERS

Applicant

AND

UMKHANYAKUDE DISTRICT MUNICIPALITY

Respondent

Heard: 26 May 2022

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 14h00 on 9 June 2022

Summary: Unfair discrimination in terms of s187 (1)(f) of LRA-employees retirement ages allegedly unilaterally reduced from 65 to 60.

Issue: Whether employees normal or agreed retirement ages were 60. Applicants’ version and unchallenged evidence indicating that they did not agree to retire at 60 and that normal retirement age was 65.

Relief- employees originally claiming reinstatement retrospective to date of dismissal under S 193(1) of the LRA and compensation for automatic unfair dismissals. By date of trial employees all over 65- claim changed without pleadings being amended from reinstatement to claim for back pay from date of dismissal to employees reaching age 65.

Held- employer liable for payment of compensation to employees for automatically unfair dismissal. No back pay payable to employees.

Judgment

Lawrence AJ

Introduction

[1] The Applicant in this matter is the Independent Municipal & Allied Trade Union (“IMATU”) acting on behalf of its members namely, SP Hlabisa and 7 others.

[2] The details of the individual members, who are party to this dispute, are set out in Annexure B to the Statement of Case that IMATU filed on their behalf.

[3] The individual members represented by IMATU will hereafter be referred to as the Applicants

[4] The matter came before this Court as a trial with issue in dispute revolving around whether the termination of the individual Applicants’ services, on the 31st of August 2015, was automatically unfair age related discrimination in the terms contemplated by Section 187 (1) (f) of the Labour Relations Act 66 of 1995 (“the Act”).

[5] It was not disputed that the Respondent had terminated the employment of the Applicants as they were all over the age of sixty (60) years.

[6] The Respondent’s position is that the Applicants had passed the normal retirement age of sixty (60) and it was therefore entitled to retire them in terms of Section 187 (2) (b) of the Act.

[7] The letters of termination that were issued to the Applicants clearly state that the reason for the termination of their contracts is on account of the fact that they had reached the age of sixty (60) years.

[8] The pre-trial minute that was handed up as “exhibit C” indicated that the Applicants had been permanently employed by Respondent, on different dates and in various positions.

[9] As at the termination date, namely 31 of August 2015, the Applicants were aged as follows

a. S P Hlabisa- 61 years and 4 months;

b. T P Mtshali- 60 years and 11 months;

c. T A Gazu- 62 years and 2 months;

d B Gumede- 62 years and 7 months;

e. M H Mduli- 60 years and 4 months;

f. T Msweli- 60 years and 2 months;

g. B W Mabuyakhulu- 62 years and 2 months; and

h. B S Maklina- 60 years and 2 months.

[10] By the time this matter got to trial, it was common cause that all of the Applicants had passed the age of sixty five (65) which they contend to be the applicable retirement age beyond which they are not be entitled to continue working.

[11] When the litigation commenced, the Applicants framed their “Relief Sought”, per the statement of case filed on 23 June 2017, as follows:

“in the light of the foregoing the applicants seek an order in the following terms:

a) that the dismissals of the applicants on account of their age was automatically unfair in the circumstances;

b) that the members be reinstated from the date of their dismissals without any loss of remuneration or benefits, save for pension benefits in respect of those applicants belonging to the Government Employees Pension Fund until they reach an age of retirement agreed by the parties, or in the absence of such agreement they reach the age of 65,

c) Alternatively, should the court deem reinstatement inappropriate, the members be awarded compensation equivalent to twenty four months remuneration;

d) Costs of suit;

e) Further and/or alternative relief”

[12] The pre-trial minute, namely exhibit “C” repeats the very

same prayer for relief as is foreshadowed in the Applicants’ statement of case.

[13] Notwithstanding this Ms Harvey, on behalf of the Applicants, submitted in her closing argument, that as the Applicants cannot be reinstated they should be each awarded back pay from 31 August 2015 to the various dates on which they would have each the age sixty five (65).

[14] In addition to this (and not as an alternative) she argued that the Applicants should be paid compensation equivalent to twenty four (24) months remuneration on account of the automatically unfair discrimination perpetrated by the Respondent.

[15] I will return to the issue of whether:-

15.1 the Applicants are entitled to be claim both back pay and compensation given that this is not the relief claimed in the pleadings by the Applicants, and

15.2 Secondly, in a case such as the present, where reinstatement is not possible, an Applicant should be entitled to notionally claim back pay in terms of S193 of the Act and then also couple that with a claim for compensation in terms of S194(3).

[16] The Respondent, in turn seeks an order dismissing the Applicants’

referral.

[17] It was apparent at the inception of this matter that the Applicants had served their statement of case on 27 June 2017- almost two years after their services were terminated.

[18] The Applicants had, however, filed and served an application for condonation for the late referral of the dispute to this Court.

[19] The Respondents also had sought condonation for the late filing of their statement of response. Which was filed some four weeks after it was apparently due in terms of the Rules.

[20] I was advised that, by agreement between the parties, the issue of condonation had been dispensed with and there was no need for it to be traversed by either party and by consent the delays in the matter were condoned.

[21] The parties then proceeded to deal with the merits of the matter.

[22] In terms of the pre-trial minutes, exhibit “C” the Respondent accepted that it bore the duty to begin.

[23] On the account of the unavailability of the Respondents only witness at the commencement of the trial, the Applicants agreed to begin by leading the evidence of their witness.

The case for the Applicants

[24] The only witness called on behalf of the Applicants, was Mr Njabulo Mthiyane, a chief support services officer, employed by the Respondent since 2009.

[25] He also gave evidence in his capacity as a shop steward and the chairperson of the trade union, IMATU’s local constituency.

[26] The Applicants were all previously employed by the Respondent in various capacities until they were forced to retire on 31st of August 2015.

[27] The Applicants had anticipated working until they reached the age of sixty five (65) years.

[28] By reference to the Bundle of Documents handed up as exhibit “B”,

he indicated who the eight Applicants were and which pension/provident fund they each belonged to.

[29] From his evidence, it was apparent that the following Applicants namely, Mr Mtsweli, Mr Mduli and Mr Maklina were members of the Natal Joint Municipal Pension Fund (“NJMPF”).

[30] The remaining other five applicants belonged to the Government Employees Pension Fund (“GEPF”).

[31] He indicated that the retirement age, in terms of NJMPF, is sixty five (65) years of age and he is familiar with this as he is also a member of this fund.

[32] As far as the GEPF is concerned, the retirement age is similarly sixty five (65) years of age and the members guide was referred to by Mr Mthiyane as being indicative of this fact.

[33] On the 18th of August 2015, he wrote to the Respondent’s then municipal manager raising issue about the fact that the eight Applicants were being compelled to retire as of 31st August 2015.

[34] He made the point in his correspondence, at page “B” 21, that the retirement age for both the NJMPF and the GEPF Applicant employees is sixty five (65) years of age.

[35] In his letter, he implores the Respondent’s municipal manager to resolve the matter before it escalates to a level of a dispute having to be declared.

[36] When no response was received, he drafted a letter declaring a dispute in respect of the matter and attaching a list of the affected Applicants.

[37] On the 10th of September the municipal manager responded agreeing to meet on the 29th of September 2015 but this meeting never eventuated.

[38] Mr Mthiyane referred to pages “B” 19 and “B” 19A.

[39] On page “B” 19 the gross monthly salaries of each of the Applicant employees is reflected in schedule which also contains an extrapolation of the compensation claimed on behalf of each of the Applicants, as a solatium, quantified at a total of twenty four (24) months remuneration.

[40] Page “B” 19A, on the other hand, indicates the dates of birth of each the Applicants; shows the date of their respective ages as of the 31st of August 2015 and the period, from the date of dismissal to dates when they each of the Applicants would have turned sixty five (65) years of age.

[41] Mr Mthiyane assisted the Applicants to lodge formal grievances with the Respondent dealing with their anticipated forced retirements but the Respondent adamantly maintained its stance that the age of

retirement was sixty (60) years.

[42] He made reference to the fact that the Respondent had wanted to reduce the age of compulsory retirement and to this end it had entered into a collective agreement under the auspices of the South African Local Bargaining Council on the 31st of April 2012.

[43] In terms of this agreement, the retirement age was pegged at sixty three (63) years for new employees who joined the Respondent after that date .

[44] In respect of existing employees such as the Applicants, the retirement age would continue to be sixty five (65) years of age.

[45] In his view and experience, most employees would only leave the Respondent’s service after reaching the sixty five (65) years but they could leave prior to that at their election.

[46] He went on to contend that at present the adopted policy of the Respondent is that compulsory retirement is at sixty five (65) years of age.

[47] Under cross examination Mr Mthiyane referred to three ages that had relevance to retirement:

1. Fifty five(55) years of age – which he indicated was the “early retirement date” where employees could at their election, take retirement but would suffer penalties for prematurely retiring;

2. Sixty (60) years of age-which he referred to as “the normal retirement age” where employees were entitled to retire at their election, but without loss of benefits;

3. Sixty five (65) of age- which he referred to as the “compulsory retirement age” beyond which employees could not work.

[48] It was suggested to him in cross examination, with reference to the Pension Fund Act and the Income tax Act, that sixty years (60) of age was the applicable retirement age.

[49] It emerged during the re-examination, that these reference were in fact incorrect and were not of any assistance in the determination of normal or agreed retirement age.

[50] Mr Mthiyane also contended that it was emotionally taxing on the Applicants when they were unexpectedly told that they were going to be forced to retire on the 31st of August 2015.

[51] He maintained his position that the Respondent had acted inconsistently by forcing these employees to retire some whom- as is apparent from pages “B”19 and “B”19A- were already well past 60 years as at 31 August 2015.

The case for the Respondent

[52] The Respondent called only one witness namely Mr Bantubenzani Sibiya who confirmed that he had been employed as the manager of labour relations with the Respondent since April 2010.

[53] In his evidence in chief, he explained that the Applicants who were members of the NJMPF retirement fund were employed directly by the Municipality but those who were members of the GEPF had been transferred from either provincial or national government to the Municipality and came over with continuity of membership at the GEPF.

[54] He confirmed in his evidence that there was no formal policy in place

regulating the age of compulsory retirement but maintained that the retirement age in respect of the Applicants was sixty (60) years.

[55] He also went on to point out that around 2017 the Respondent had adopted a policy in terms of which compulsory retirement age would be sixty five (65) with employees having the option of retiring from

fifty five (55) years or sixty (60) years.

[56] Employees were not allowed to be retained in employment by the Respondent beyond sixty five (65) years

[57] He maintained that, in respect of the Applicant employees, it would have been inconsistent for the Respondent to have not retired them as they all had reached sixty (60) years as at the 31st of August 2015.

[58] He referred to page “B”107 where one of the Applicants, Mr Mduli had ticked the box with the words “normal retirement”.

[59] According to him this indicated that the Applicants had all considered sixty (60) years as their normal retirement age and that this was the basis of them separating from the Respondent which was not an automatically unfair dismissal.

[60] Page “B107 had not been put to Mr Mthiyane by the Respondent’s

representative and it was agreed that Mr Mthiyane would be recalled and given an opportunity to comment on the document after Mr Sibiya had concluded his evidence.

[61] In cross examination, Mr Sibiya confirmed the three categories of retirement that Mr Mthiyane had alluded to.

[62] However, in his view working beyond sixty (60) was an exception not the norm

[63] During cross examination it was put to him that if one had regard to page “B”19A it was apparent that the Applicants had all been at different ages, beyond sixty (60) as at the 31 August 2015 which in itself indicated inconsistency.

[64] His response to this was that it was due to human error because the payroll systems were not automated and they had failed to detect that some of the Applicants had passed the age sixty (60) years.

[65] He also confirmed that he had been born on the 16th of May 1961 and had turned sixty two (62) on the 16th of May 2020 but had not been placed on retirement and continued work.

[66] Mr Mthiyane, who was recalled, explained that Mr Mduli would have completed page “B” 107 under pressure and with little choice as this was the only way which he could receive his pension pay-out.

[67] At the conclusion of the trial both parties requested, through their representatives, the opportunity to file closing arguments which were simultaneously provided on 02nd of June 2022.

Analysis

[68] Section 187 (1) (f) of the Act states as follows:

“(1) a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is-

…(f) the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility

[69] Section 187 (2) (b) on the other hand states that:

“(b) dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity”.

[70] The Respondent contends that the Applicants were duly given notice of

termination of employment in accordance with its policy and/or practice which is that employees must be retired on reaching the age of sixty (60) years.

[71] In support of this contention, the Respondent argued that the Applicants voluntarily filled out their respective retirement withdrawals forms, ticking the category of “normal retirement.

[72] As this argument goes, the exception in Section 187(2)(b) of the Act,

applies as the Applicants had reached the normal age of retirement and the Respondent was entitled to retire them at that age.

[73] Reference was made by the Respondent’s Counsel, to Mr Mthiyane’s testimony where he used the words “normal retirement age” synonymous with those employees retiring at sixty (60) years.

[74] In this regard it was submitted on behalf of the Respondent that Section 187 (2) (b) of the Act makes use of that very language used by Mr Mthiyane and Mr Sibiya when they described sixty (60) years as

being the “normal” retirement age at the Respondent.

[75] The Applicants’ Counsel, on the other hand, contended that the context in which the word “normal” was used by Mr Mthiyane was to illustrate the fact that if an employee wanted to

voluntarily retire at sixty (60) years, that employee would be entitled to receive benefits without penalty as opposed to the situation with early retirement (from fifty five (55) years of age upwards) where penalties would apply.

[76] The Applicants contend that the use of “normal” in that context must be distinguished from the meaning that is intended in Section 187 (2) (b) of the Act where it is used to signify the agreed

or compulsory retirement age.

[77] It was apparent from the evidence of Mr Mthiyane that his use of the word “normal” in relation to the age sixty (60” was intended to indicate that such employees would not have to suffer penalties on their withdrawal from the retirement funds.

[78] His evidence holistically was that employees wanting to retire from the Respondent at sixty (60) years could do so at their own election, whereas employees at sixty five (65) years had no option but to

retire.

[79] I am satisfied that his version is that sixty five (65) years is the actual applicable and compulsory date beyond which an employee may not work and may be retired by the Respondent.

[80] This was born out by the documentary evidence which was put in “exhibit B”.

[81] If one has regard to page “B”19A it is clear that the Respondent permitted all the Applicants to work beyond the age of sixty (60).

[82] That inconsistency in itself demonstrates that sixty (60) could never

have been intended as the normal applicable retirement age at which the Respondent could compel the Applicants to retire.

[83] Moreover the benefits statements from the NJMPF and the extract from the GEPF all refer to sixty five (65) years as the compulsory retirement date.

[84] Coupled with this is the fact that no policy was produced by the Respondent that evinces sixty (60) years as the normal retirement age nor is this apparent from any of the contracts of the Applicants included in exhibit “B”.

[85] Mr Sibiya himself could not cogently explain how it is that he continues to be employed on a full time basis by the Respondent at the age of sixty two (62) years.

[86] The explanation given by Mr Sibiya that it was human error that resulted in the Applicants being overlooked and not being asked to resign at sixty (60) years rings hollow.

[87] In SACTWU and Others v Rubin Sportswear [2003] 5 BLLR 505 (LC)[1] the court defined “normal retirement age” as the age at which the employer requires an employee to retire and not the age at which the employee may retire if he or she so wishes.

[88] In that case the dismissal of the employee the dismissal of the employee before he reached the normal retirement age was held to be automatically unfair.

[89] On appeal, the Labour Appeal Court found in Rubin Sportswear v SACTWU [2004] 10 BLLR 986 (LAC) that where an employee’s contract was silent as to retirement age, the employer cannot unilaterally impose a retirement age. Where this is done without the employee’s consent, this constitutes a repudiation of the contract and such a dismissal is automatically unfair.

[90] Having regard to the facts, and evidence placed before this court, I am satisfied that the dismissal of the Applicants was automatically unfair.

Relief

[91] As was indicated earlier in this Judgement, at the time at which the Applicant’s referred their dispute to this Court the primary remedy that they sought was for the termination of their respective

services to be declared automatically unfair. In consequences of this they also sought retrospective reinstatement, without loss or remuneration of benefits, until they reached the age of 65 years.

[92] As an alternative to the retrospective reinstatement prayer, the Applicants requested that in the event that the Court finds that reinstatement is inappropriate that they be awarded the maximum

compensation of twenty four (24) months remuneration as it is anticipated by Section 194 (3) of the Act.

[93] It is apparent from page “B”19A, that all of the Applicants reached the compulsory retirement age of sixty five (65) at various points in time commencing from as early as September 2017 with the last Applicant reaching this age at July 2020.

[94] In these circumstances the Applicants no longer ask for reinstatement

but have requested that they paid backpay from the 31 August 2015 to the date on which each of them would have reached the age of 65 years.

[95] In addition to this they persist with the claim for compensation in terms of Section 194(3) of the Act.

[96] It is clear that the Applicants have not amended their statement of case to alter the relief claims for both compensation and back pay.

[97] The pre-trial minute similarly contains a claim for reinstatement with compensation being claimed in the alternative.

[98] In my view, the Applicants are bound by the case pleaded in the statement of claim and as is articulated in the pre-trial minute.

[99] In the case of Knox D’Aracy AG & Another vs Land &Agricultural Development Bank of South Africa [2] the Courted stated as follows:-

“35 It is trite that litigants must plead material facts relied upon as a basis for the relief sought and define the issues in the pleadings to enable the parties to the action to know what the case is they have meet. Any party may not plead one issue and then at trial, and in this case on appeal, attend to canvass another which was not put in issue and fully investigated…”

[100] In the case of South African Clothing and Textile Workers Union and others vs Filtafelt (Pty) Ltd[3] the Labour Court found as follows:-

“72 This brings me to the second difficulty in the Applicants inconsistency case. This is the fact that the Applicants have not sought to rely on a dismissal as contemplated by Section 186(1)(d). No such case is pleaded, both in the statement of case and the pre-trial minute. The Applicants are bound by their case as pleaded in their statement of claim and articulated in the pre-trial minute.”

[101] Back pay is generally inextricably linked with a claim for reinstatement in terms of Section 193 (1) of the Act.

[102] If indeed the Applicants were still capable of being employed, and had they made out a case for reinstatement in terms of Section 193(1) of the Act with retrospective benefits as well as for compensation under Section 194(3) of the Act, this Court may very well have been in a position to have considered that claim.

[103] In the case of Equity Aviation Services Pty Limited vs CCMA and Others[4] the Constitutional Court found as follows:-

“41….. Grogan succinctly makes the point with which I agree:

Although the employer must pay a reinstated employee a sum of money if the reinstatement order is made retrospective, that sum is not compensation as contemplated in subsection (1) (c).….While ‘back pay’ is obviously a form of compensation for the loss of earning during the period of unemployment after the dismissal, it is generally regarded as distinct from compensation. Consistent with this view, the LRA deals with reinstatement and compensation in different sections, and suggests that reinstatement and compensation are alternative remedies. It seems clear that an employee who is awarded full retrospective reinstatement cannot be awarded compensation in addition to back pay. This would be inconsistent with the use of the disjunctive ‘or’ in section 193 (1).

“It follows that the sum of money paid to an unfairly dismissed employee subsequent to an order of reinstatement with retrospective effect is not compensation as contemplated in section 193 (1) (c) or section 194. The remedies in section 193 (1) (a) are thus an alternative and mutually exclusive”.

[104] In any event regard must be had to Section 193(2) of the Act which imperatively states that:

“(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; or

c. it is not reasonably practicable for the employer to reinstate or reemploy the employee…”

[105] Section 193(1) (c) clearly anticipates that if reinstatement or re-employment cannot be ordered then compensation may be ordered against the employer.

[106] In the present matter (and even if one were to ignore the apparent difficulty that the Applicants have with the manner in which they have pleaded their case for relief) it is apparent, on their own version as well as from objective facts, that this court cannot order re-instatement and hence they are not entitled to a claim for backpay.

[107] Backpay has not been pleaded as a separate claim and in any event it can only follow where an order for reinstatement has been made.

[108] It is curious that the Applicants did not bring a claim under both the Labour Relations Act and the Employment Equity Act 55 of 1995. Our courts have accepted that it is possible to bring a claim simultaneously under both statutes.[5]

[109] Counsel for the Applicants have asserted a claim for compensation in terms of Section 194(3) of the Act in the amount of 24 months remuneration at the rate of pay that the Applicants each earned as at the 31 August 2015.

[110] Section 194(3) provides the Court with clear guidelines with reference to compensation to employees whose dismissals are automatically unfair.

[111] It provides that the compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances but not more than 24 months remuneration calculated at the rate in remuneration of the date of dismissal.

[112] In considering whether or not to award compensation in this case regard must be had to the reason for the dismissal.

[113] The dismissal is automatically unfair on account of the fact the Respondent compelled each of the Applicants to retire on the basis of their age.

[114] Attempts were made to dissuade the Respondent from prematurely terminating the Applicants services but it paid no heed to these overtures and proceeded to nevertheless terminate their services prematurely.

[115] In determining the amount of compensation I have had regard to the guidelines that are set out in the Labour Appeal Court decision of Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and Another vs Glass and Aluminium 2000(CC)[6] where the Court noted that an award of compensation for an automatically unfair dismissal must reflect an appreciation of the fact that save in exceptional circumstances an employee whose dismissal was on automatically unfair grounds would be most deserving

of an order for reinstatement with full retrospective effect to the date of dismissal so as to be placed in the same position he/she

would have been in but for the dismissal but also to penalise an employer for dismissing the employee for a prohibited reason.

[116] I am mindful of the fact that the Applicants were dismissed as far back as August 2015 and it took a period of close on two (2) years for the litigation to commence in this Court.

[117] Relative to the time when that litigation only commenced, on 27 June 2017, some of the Applicants were already within touching distance of reaching the age of sixty five (65) years of age.

[118] This initial delay had a knock on effect in this matter eventually only getting to trial after almost a passage of close on seven (7) years.

[119] But for this extensive delay, which cannot be attributed to the Respondent, it may very well have been possible for the Applicants to have been granted their primary remedy of reinstatement with backpay, possibly with the prospect of working until age sixty (65) in some of their cases.

[120] Having regard to all of these factors and what is just and equitable, I am of the view that it would be fair to award the Applicants the maximum compensation permitted under Section 194(3) of the Act which is twenty four (24) months remuneration.

[121] In the circumstances I make the following order:-

1. The dismissal of the Applicants is declared to be automatically unfair.

2 The Respondent is ordered to pay the Applicants the following amounts as compensation within one (1) month of the date of this judgement namely:-

a. B Gumede-

R285,198.00;

b. B W Mabuyakhulu-

R310,648.32;

c. M H Mduli-

R291,198.00

d. T Msweli-

R493,119.60

e. T A Gazu-

R285,198.00

f. B S Maklina-

R490,687.44;

g. T P Mtshali-

R362,541.12;

h. S P Hlabisa

R285,198.00.

There is no order as to costs.

I Lawrence

Judge of the Labour Court of South Africa

Appearences:

FOR THE APPLICANT:

Adv S Harvey Instructed by

MacGregor Erasmus Attorneys

elco@meattorneys.co.za

glen@meattorneys.co.za

FOR THE RESPONDENT: Adv T Kadungure instructed by

M M Ntanzi Attorneys

mmtanzi@telkomsa.net

tendayi01@outlook.com

[1] SACTWU and Others v Rubin Sportswear [2003] 5 BLLR 505 (LC)

[2] Knox D’Aracy AG & Another vs Land &Agricultural Development Bank of South Africa (13) 3 All SA404(SCA) at paragraph

35.

[3] South African Clothing and Textile Workers Union and others vs Filtafelt (Pty) Ltd (JS263/15) [2017] ZALCJHB 483 (14 November

2017).

[4] Equity Aviation Services Pty Limited vs CCMA and Others 2008(12) BLLR1129(CC) at paragraph 41.

[5] Evans v Japanese School of Johannesburg [2006] 12 BLLR 1146 (LC).

[6] Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and Another vs Glass and Aluminium 2000(CC) (2002) 5 BLLR 399 LAC at par 50(g).