Solidarity and Another v Armaments Corporation of South Africa (Sco) Ltd and Others (JA40/17) [2018] ZALAC 39; [2019] 3 BLLR 248 (LAC); (2019) 40 ILJ 535 (LAC) (27 November 2018)

Solidarity and Another v Armaments Corporation of South Africa (Sco) Ltd and Others (JA40/17) [2018] ZALAC 39; [2019] 3 BLLR 248 (LAC); (2019) 40 ILJ 535 (LAC) (27 November 2018)

The court held that s37 of the Defence Act and Armscor's policies make it a prerequisite for employees to maintain appropriate security clearance. Mr Joubert's dismissal was based on supervening impossibility of performance, constituting incapacity. However, the procedural requirements of s39 and s41 of the Defence Act, and relevant Armscor policies, were designed to ensure that employees are given reasons for refusal and an opportunity to make representations before termination. The termination letter was issued before it was established that incapacity was permanent, and the review process had not concluded. Therefore, substantive fairness could not be determined in the absence of...

Citation
[2018] ZALAC 39
Parties
Appellant: Solidarity; Appellant: JM Joubert; Respondent: Armaments Corporation of South Africa (SCO) Ltd; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Willem Koekemoer N.O.
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
27 November 2018
Case Number
JA40/17
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside Arbitration Award
Outcome
Appeal upheld; Labour Court's judgment set aside; maximum compensation awarded to Mr Joubert; reinstatement not ordered.
Judges
Phatshoane, Davis, Murphy
Legal Topics
Incapacity Dismissal, Security Clearance, Procedural Fairness, Defence Act Compliance, Arbitration Review
Labour Law Civil Procedure Incapacity Dismissal Security Clearance Procedural Fairness Defence Act Compliance Arbitration Review

Case Brief

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 5 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Solidarity

Appellant

JM Joubert

Appellant

Armaments Corporation of South Africa (SCO) Ltd

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Willem Koekemoer N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of Mr Joubert was substantively fair given the denial of all grades of security clearance.
  2. 2 Whether Armscor's termination of employment was based on incapacity or impossibility of performance.
  3. 3 Whether Armscor complied with procedural requirements under the Defence Act and its own policies before dismissal.

Ratio Decidendi

The court held that s37 of the Defence Act and Armscor's policies make it a prerequisite for employees to maintain appropriate security clearance. Mr Joubert's dismissal was based on supervening impossibility of performance, constituting incapacity. However, the procedural requirements of s39 and s41 of the Defence Act, and relevant Armscor policies, were designed to ensure that employees are given reasons for refusal and an opportunity to make representations before termination. The termination letter was issued before it was established that incapacity was permanent, and the review process had not concluded. Therefore, substantive fairness could not be determined in the absence of...

Court Disposition

Appeal upheld; Labour Court's judgment set aside; maximum compensation awarded to Mr Joubert; reinstatement not ordered.

Orders

  • The appeal is upheld with costs.
  • The judgment and order of the Labour Court are set aside.