Tshazibane v Montego Pet Nutrition and Others (PR 72/21) [2022] ZALCPE 19; (2022) 43 ILJ 2610 (LC); [2022] 12 BLLR 1151 (LC) (12 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Reportable

Case no: PR 72/21

In the matter between:

AUBREY LUVUYO TSHAZIBANE Applicant

And

MONTEGO PET NUTRITION First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION Second

Respondent

COMMISSIONER ANTONIO MOODALEY Third Respondent

Heard: 7 July 2022

Delivered: 12 August 2022

(This judgment was handed down electronically by circulation to the Applicant and the Respondent’s Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 15h00 on 12 August 2022.)

JUDGMENT

KROON, AJ

Introduction

[1] Not all sins in the workplace are the same. Unfair discrimination is an offence of a special kind. Unlike other employment issues and aspects of unfairness, unfair discrimination is a phenomenon which is located outside of the province of self-determination and autonomy created by collective bargaining.[1] If proved, the extent of the relief which may be granted is without parallel in employment legislation[2]. Given the value which equality has as a foundational constitutional right and norm of fairness in a country with a history disfigured by classification, marginalization and oppression, it was not unexpected that our Courts would pronounce that unfair discrimination has its own DNA. When alleging unfair discrimination it is not sufficient for an employee to demonstrate that his[3] employer has acted unfairly. It is also not sufficient for an employee to show that his employer’s conduct was irrational,

arbitrary, capricious or even mala fide. Further, allegations of victimization or maltreatment do not simpliciter[4] amount to unfair discrimination. Still it is not enough for him to demonstrate favoritism, cronyism or nepotism. Even unconscionable and heinous conduct by an employer will not, by itself, suffice. More is needed.

[2] If an employee is to prevail in a claim of unfair discrimination he must, as a point of departure, lay a proper foundation for such a claim. This is a sine qua non[5]. In the absence of a valid ground of unfair discrimination, the claim will collapse. One cannot put something on nothing. In such

circumstances, the claim will be vulnerable to being extinguished by way of exception in this Court[6] or through a special defence in arbitration proceedings[7], it being an exercise in futility to conduct a trial or arbitration about alleged unfair discrimination in the absence of a legitimate

ground of unfair discrimination on which to base the claim.

[3] In pursuing a claim of unfair discrimination, an employee must either select one (or more) of the ‘listed’ grounds in Section 6(1) of the of the Equity Act or he can identify an ‘arbitrary’ ground (or grounds) contemplated by the same section. As to what constitutes an arbitrary ground, after some initial disharmony in the jurisprudence[8], it is now settled that such ground must be akin to a listed ground. In Naidoo it was, after a rigorous examination of the authorities[9], reaffirmed that unfair discrimination will only occur on an unlisted or arbitrary ground if the differentiation constitutes an affront to human dignity or has an adverse effect with a comparably serious consequence. An unlisted ground must thus be analogous to a listed ground in the sense that the legislature intended that both be cut from the same cloth.

[4] In Makau v General Public Service Sectoral Bargaining Council and Others[10], it was observed that the unfair labour practice jurisdiction created by the Labour Relations Act[11] (LRA) is not a ‘catch-all’[12] category for any constitutional rights which an applicant may have but only for those described in Section 186(2) of the LRA. Similarly,

it can be said that Section 6(1) of the Equity Act is not an all-embracing provision. Rather it exists to give effect to Section 9 of the Constitution[13] and it accommodates only those claims which meet the threshold endorsed in Naidoo. Section 6(1) of the Equity Act is then not so much a welcoming portal leading to all manner of claims as it is a veritable eye of the needle allowing admission only to those litigants who conform to the proverbial straight and narrow and who are able, with the requisite degree of precision, to describe a sustainable arbitrary ground of unfair discrimination. This much was pointed out 20 years ago by Waglay J (as he then was) in Numsa and Others v Gabriel (Pty) Ltd[14]. The Learned Judge endorsed the warning given in Ntai and others v SA Breweries Ltd,[15] about the then growing practice of litigants, in unfair discrimination claims, referring, vaguely and without more, to an arbitrary ground, commenting as follows:

‘Litigants who bring discrimination cases to the Labour Court and simply allege that there was ‘discrimination’ on some or other ‘arbitrary’ ground, without identifying such ground, would be well advised to take note that the mere ‘arbitrary’

actions of an employer do not, as such, amount to ‘discrimination’ within the accepted legal definition of the concept…’[16]

[5] To summarise, where reliance is placed on an arbitrary ground a complainant in an unfair discrimination claim is required to establish that he has been the object of unequal treatment based on attributes and characteristics he either possesses or with which he is associated and which have the potential to sully or diminish his intrinsic humanity and that of others in his situation.[17] It is the impact on the complainant which is decisive.[18]

[6] In this matter the Applicant (Employee) referred an unfair discrimination dispute to the Second Respondent, namely the Commission for Conciliation Mediation and Arbitration (CCMA). Unable, it would seem, to identify a listed ground which could find application to the facts of his case, the Employee contended that he had been unfairly discriminated against on an arbitrary ground. The Third Respondent (Commissioner) however dismissed the referral, the executive part of his award reading:

‘The application of the applicant, Mr Luvuyo Aubrey Tshizibane (sic), is dismissed as he was unable to prove that there was unfair

discrimination.’

[7] Aggrieved by the outcome of the arbitration, the Employee lodged a review application. He contended, in substance, that the Commissioner had failed to apply his mind to the dispute and the evidence before him. The review application was opposed by the First Respondent (Employer). It was also, unusually so, opposed by both the CCMA and the Commissioner.

Discussion

[8] Central to the reasoning of the award was the failure by the Employee to put forward a valid ground of unfair discrimination. The Commissioner’s analysis of the consequences of this omission is captured in the following passage:

‘The applicant bears the onus of proving the arbitrary ground. It is not enough for the applicant to merely allege that discrimination is based on an arbitrary ground without actually proving what the ground is. This was explained to the applicant at the commencement of the proceedings. The evidence that was led by the applicant speaks to alleged differential treatment of the application as a result of the harassment of his wife that he had lodged a grievance about. However there was nothing that spoke to the actual ground of discrimination. Even if I were to accept that the ground of discrimination was the fact that the applicant lodged a grievance regarding this wife, one still has to prove that such differentiation has an effect on the human dignity of the applicant. This was not evident from the evidence submitted. Lodging a grievance in relation to an incident that affects another person, albeit the applicant’s wife, cannot be classified as an arbitrary ground as it is not analogous to the listed grounds nor does the lodging of a grievance have an effect on an employee’s dignity. It is not part of the applicant’s personal attributes. Whilst I empathize with the applicant and the situation regarding his wife which occurred in 2015, the applicant must not confuse the duty to prove the ground of discrimination with the actual alleged discriminatory acts. For the applicant to succeed in this matter he would have to link the alleged discriminatory acts (false accusations) with a ground. This is not apparent from the evidence submitted... An employee is expected to do more than simply allege that the discrimination was on arbitrary grounds without pleading any unlisted ground analogous to the listed grounds” (My emphasis)

[9] As to the factual backdrop of the dispute, according to the Employee the employment relationship which he had enjoyed with the Employer began to deteriorate after an unfortunate incident in the workplace. It is not in dispute that the Employee’s then partner (they were subsequently married), who was also employed by the Employer, was sexually harassed by a co-employee, one Meyer. The Employee explained that he was deeply affected by the incident. He stated that he felt humiliated and emasculated because he construed the event as a failure on his part to protect his partner. He testified that, in the aftermath of the ordeal, he suffered from psychological and psychiatric illness. He subsequently received treatment from a psychologist, a psychiatrist and a general medical

practitioner. He further incurred financial expenses which were not insignificant and which he detailed at the arbitration through the production of medical bills.

[10] He also gave evidence that the perpetrator, Meyer, had not been dismissed by the Employer but only demoted and he was of the view

that justice had not been served. The position of the Employer on this aspect was in turn that Meyer had demonstrated remorse and that the partner of the Employee had indicated, at the disciplinary hearing, that she did not want him to lose his job notwithstanding

the circumstance that he had sexually harassed her. The Employee also complained that, to make matters worse, there was an occasion where his partner had to report to the perpetrator (apparently as a result of an admitted administrative error in shift scheduling) which the Court accepts must have been traumatic for her[19].

[11] The devastation which an offence of a sexual nature leaves in its wake is well known. The wounds suffered by the victim were described in Dr Beyers Naude Local Municipality[20]. Whilst it is the victim who suffers the injury, those close to him or her (such as a spouse) are not immune from its consequences.[21] That aside, and without wishing to minimize or detract from what was a serious incident in the workplace (the evidence suggests that there was a criminal prosecution), it needs to be emphasized that the circumstances pertaining to the sexual harassment incident do not support the contention by the Employee that he was the victim of unfair discrimination by the Employer. They are strictly irrelevant. As the Commissioner pointed out, if any person had a claim in terms of the Equity Act arising out of these circumstances it would have been the partner of the Employee[22]. She could also potentially have pursued a delictual claim on the basis of an alleged failure by the Employer to provide her with a safe working environment.[23] Indeed the evidence indicates that she followed this avenue. Whether the Employee himself might also have been possessed of a delictual

claim having either witnessed or heard of the sexual harassment would depend on the facts of the case.[24]

[12] The Employee, in addition, contended, without reference to any valid ground of unfair discrimination, that there was an incident where disciplinary charges were preferred against him on the back of which disciplinary proceedings were subsequently instituted but thereafter aborted without the outcome being communicated to him. Such conduct may or may not have been unfair. It may or may not have been unlawful. However, the immediate difficulty confronting the Employee here is that he did not refer a dispute about this. As the Commissioner again correctly observed, if this was his complaint then he was entitled to have referred an unfair labour practice dispute about disciplinary action short of dismissal per se[25] as envisaged by Section 186(2)(b) of the LRA[26]. I would add that the Employee could also have pursued a delictual claim for reparation of harm allegedly suffered by contending that the Employer knowingly relied on false or trumped-up allegations as a basis to institute disciplinary proceedings against him (a claim akin to that of malicious prosecution)[27]. He was not however permitted to dress up an unfair labour practice dispute, or a delictual claim for that matter, as an unfair

discrimination dispute.

[13] The Employee further averred that he had been victimized by the Employer. This complaint is similarly without merit. Firstly, this allegation, which was to the effect that the Employee had been repeatedly singled out for maltreatment through the vehicle of disciplinary proceedings, was not borne out by the evidence. The Employee’s own testimony revealed that he was not the only person to be charged with misconduct in the various disciplinary proceedings to which reference was made during the arbitration. Secondly, as appears from what I have stated in the introduction to this judgment, a claim of victimization in vacuo[28] or, as it were, in the dark, cannot, through itself, sustain an unfair discrimination claim[29]. An allegation of victimization does not, on its own terms, implicate the characteristics or attributes of an employee. It needs to be wedded to a valid ground of unfair discrimination if a claim based on a breach of Section 6(1) of the Equity Act is to be prosecuted.

[14] By way of amplification, an employee has no right of recourse in terms of labour legislation solely because he can demonstrate that his employer has been nasty or unkind or because, as appears to have been the argument advanced by the Employee in the arbitration in this matter, his employer was exacting some type of retaliation on him because of events which had their genesis in a sexual harassment incident. A litigant, if he is to engage the jurisdiction of the CCMA, needs to show more than that his employer, without justification, views him as a ‘troublemaker’ or ‘problem employee’ and for that reason is bent on making his employment difficult. He may, by way of illustration, be able to demonstrate that the alleged victimization made his employment intolerable with the result that he was constructively dismissed in terms of Section 186(1)(e) of the LRA. But that was not the case in front of the Commissioner.

[15] In Makau the facts were, in a sense, analogous in that, although that matter concerned an unfair labour practice dispute, the employee in those proceedings contended that he had been victimized and “singled out” for ill-treatment. In that matter the arbitrator recorded that the employee had lodged a grievance against his line manager and a chief director because they had, inter alia, been conducting themselves in a ‘discriminatory manner’ and had been inconsistent in applying policies and guidelines. That employee further contended that he had been victimized for lodging a grievance which victimization took the form of a threat of disciplinary action. The Court found this argument unpersuasive commenting, pithily, that:

‘In so far as the complaint of victimization is simply one of being unfairly singled out, there is no assistance to be obtained from the LRA.’[30]

Similarly, it may be said that if a complaint of an employee is sourced solely in the contention that his employer, with impure motive, picked on or bullied him or in any other manner treated him poorly because the employer had taken a disliking to him, the Equity Act can be of no assistance to him[31].

[16] The Employee also contended that the Employer had not attended to his grievance. This allegation was again made absent a reference to a valid ground of unfair discrimination. On a proper construction of the evidence, it would not be accurate to say that the Employer did not attend to his grievance. What occurred is that the grievance was addressed by correspondence. To contend, without more, that this process was inadequate would be to place form over substance. As is the position when it comes to a disciplinary code[32], even if the procedural rights contained in a grievance procedure had been granted to the Employee animo contrahendi[33] – there was no indication that this was the case – in Labour Law jurisprudence fairness does not require that a grievance procedure be legalistically applied in a mechanical and uncompromising fashion. Furthermore, a failure by an employer to follow a grievance procedure cannot, standing alone, give rise to a dispute which is either arbitrable or adjudicable in terms of employment legislation[34], let alone be characterized as unfair discrimination. A grievance procedure is a mechanism designed to avoid or quash potential

disputes. Whilst a complaint about a failure by an employer to attend to a grievance may be relevant in assessing the overall conduct of an employer in relation to a dispute properly before a commissioner, it is not justiciable on its own terms. If an employee is not satisfied with the outcome or manner in which an employer has dealt with his grievance then, as a matter of logic, his remedy would be to pursue the dispute (which was the subject of the grievance) in the appropriate forum.

[17] Looking at the matter broadly, it is difficult not to get the impression that the Employee is, in substance, doing no more than alleging pain and suffering associated with bodily injury caused by the Employer. He says the

Employer has inflicted psychiatric and psychological harm on him. He seeks to hold the employer vicariously liable through the conduct of its employees for his alleged mental suffering. If that is the high watermark of his case, then labour legislation cannot help him. In that event his remedy is to allege that he was the casualty of a civil wrong i.e. a delict. A claim of this nature would be actionable in a Civil Court, the weight of authority indicating that delictual claims, even those between employees and employers, are not actionable in the Labour Court[35]. The success or otherwise of such a claim would be dependent on whether the Employee would be able to prove the elements of the claim, namely that the conduct was wrongful and blameworthy, that it was the cause of the harm suffered by him and that he had indeed suffered damage[36] as a result of which the Employer is liable to pay him a solatium.

[18] Part of the litigation strategy of the Employee was to describe, in evocative detail, the anguish and hurt which he had experienced and which he said flowed from the sexual harassment incident. But an injury sustained, no matter how serious, cannot salvage a claim where the cause of action is bad. That would be for the tail to wag the proverbial dog. If anything, the detriment which the Employee alleges may be a component of a potential claim.

Conclusion

[19] When evaluating the assortment of allegations and claims made by the Employee through the lens of Section 6(1) of the Equity Act, I am, at every turn, inexorably reminded of the absence of a valid ground of unfair

discrimination. It follows that the legal challenge presented by the Employee to the Commissioner for determination was destined to fail at the first hurdle for the reason that he was unable to identify a valid ground on which to base his claim of unfair discrimination.

Stripped of all its embroidery, this case is yet another example of the outworking of the common, but wrongly held, perception of lay persons and, I might add, shared by some legal practitioners, that wrongful conduct in the workplace can somehow rise to the level of unfair discrimination contemplated by the Equity Act if it is the subjective impression of an employee that he has been singled out for ill-treatment. It is unnecessary for me to then consider, in any depth, the other reasons relied on by the Commissioner to refuse to come to the assistance of the Employee. It suffices to record that the Commissioner’s finding that there was no differentiation between the Employee and other employees is reasonable. So too the finding that the Employer had acted without a sinister motive when instituting disciplinary proceedings against the Employee. As the Commissioner found, save for the one instance where the Employer did not timeously or properly inform the Employee of the outcome of a disciplinary hearing, the Employer was, when it convened the respective disciplinary hearings, doing no more than exercising its prerogative and its contractual right to maintain discipline within its organization[37].

[20] The Commissioner was not without sympathy for the Employee, understandably so, given the genuine powerlessness and sorrow which the Employee appears to have felt on learning that his partner had been sexually harassed by another man in the place where he worked and, as it were, on his watch. Whether this Court should be as charitable and have the same level of sympathy for him in circumstances where he has approached the Court with the benefit of an award which ably detailed

the defects in his unfair discrimination claim, is a different matter.

[21] Lastly I mention that, in noting that other causes of action may potentially have arisen from the facts obtaining in this matter, I do not intend to suggest that such claims enjoy prospects of success. An evaluation of the merits or otherwise of any alternative claim as identified above is beyond the purview of this judgment. I do so solely for the purpose of endorsing the observations of the Commissioner that there were potentially other legal remedies available to the Employee.

Opposition by the Commissioner and the CCMA

[22] The review application was also resisted by the Commissioner and the CCMA. In answer to enquiries from the Bench as to why it was thought necessary to add the voice of the CCMA to the opposition, Ms Maharaj, who appeared on behalf of the Commissioner and the CCMA, inter alia, drew my attention to a passage in the record wherein the Employee, if I understood his evidence correctly, having briefly alluded, under cross-examination, to his perception that certain Commissioners at the CCMA were biased, proceeded to state, in accusatory vein, that the Employer was possessed of “…some influence…” over the Commissioner. It is not entirely clear as to what he meant by this utterance but I think it is safe to assume that whatever he intended to convey, it was not complimentary.

[23] There was no evidence to support any intimation of improper conduct on the part of the Commissioner or any notion that there was an untoward relationship between the Commissioner and the Employer representative. In Inxuba Yethemba Municipality v South African Local Government Bargaining Council and Others,[38] I had occasion to address the conduct of a litigant who, without foundation, had, under cover of affidavit, accused an arbitrator of ‘gross dishonesty’ and of having acted ‘immaturely’. I made the following observation[39]:

‘It is inappropriate, if not improper, for litigants, in court documents, to make wanton or gratuitous allegations against any person. It is a more serious matter where such allegations are made against a Public Official or a Judicial Officer such as an Arbitrator. Such conduct may also amount to professional misconduct.’[40]

In a similar vein, it would be improper for a witness, during the course of arbitration proceedings, to gratuitously question the integrity of a

commissioner.

[24] As to the submission by Ms Maharaj who, for the most part, stood by the submissions made on behalf of the Employer by Mr Le Roux, that the review application was obviously unsustainable, I agree. Commissioners operate under onerous time constraints. They are required to issue awards on matters which are not always straightforward and may sometimes be complex and challenging. More often than not, as in this case, they issue awards without the aid of legal argument from counsel and other forensic assistance which may be available to a Court. Allegations that a Commissioner has failed to apply his mind or has come to a decision to which no reasonable decision maker could have come should be made only after earnest reflection and introspection, having due regard to the reasoning in the award of the commissioner concerned and, in my view, only where the aggrieved party is satisfied there is an arguable case to be pursued. This Court is routinely required to scrutinise arbitration awards pursuant to the bringing of review applications in terms of Section 145 of the LRA. There are three broad categories of awards. Firstly, a significant number of awards are patently reviewable because of a gross irregularity in the conduct of the arbitration or because the award contains a decision to which no reasonable arbitrator could have come. Secondly, there are those awards which are less than perfect in that they are characterised by muddled thinking and are replete with errors of fact and law or are accompanied by some procedural irregularity but are, nonetheless, salvageable because either the procedural irregularity is not material or did not prevent a proper ventilation of the dispute or because, despite the errors made in evaluating the evidentiary material before the commissioner, the ultimate decision reached is not one to which a reasonable decision maker could not have come. Thirdly, there are the awards which are difficult to fault.

[25] The award in this matter, whilst brief, falls into the third category. The Commissioner correctly identified the material issues. He dealt with them in a structured and lucid manner and without unnecessary elaboration but against an accurate description of the factual context of the matter. The award was well reasoned and the prevailing authorities correctly applied. The fact that the Commissioner was able, in addition to correctly analysing the legal requirements which attach to an unfair discrimination claim, to allude to other causes of action which could potentially have arisen from the same facts is indicative of a broader understanding of the law. Importantly, the Commissioner was astute not to allow the emotionally laden circumstances surrounding the admitted sexual harassment of the Employee’s partner to overshadow or becloud the real issue before him, namely, whether the Employee had been the victim of unfair discrimination. In truth, the Commissioner gave the Employee a generous hearing and he was fortunate not to have had it curtailed given the absence of a valid ground of discrimination[41].

Costs

[26] Bearing in the mind the provisions of Section 162 of the LRA and how it has been interpreted by the Constitutional Court[42], there are no exceptional circumstances which would warrant a deviation from the principle that, in labour matters, costs do not usually follow the result. Whilst the review application was ill-advised and doomed to failure, the impression gained from the oral address, which was delivered by the Employee himself, was that he remained haunted by the sexual harassment of his partner and that he sincerely, albeit mistakenly so, believed that his application deserved the attention of this Court. [43] He also stated that he was unemployed.

[27] I note for the sake of completeness that the review application was four days out of time. The ensuant condonation application was not opposed.

[28] In the premises, the following order is made:

Order

1. Condonation for the late delivery of the review application is granted.

2. The review application is dismissed.

3. There is no order as to costs.

P. N. Kroon

Acting Judge of the Labour Court of South Africa

Appearances:

For Applicant: In

person[44]

For First Respondent: F

E Le Roux

Instructed by: Chris

Baker and Associates

For Second and Third Respondents: K Maharaj of the Commission for

Conciliation, Mediation and Arbitration

[1] See: Larbi-Odam v Member of the Executive Council for Education (North-West Province) and another [1997] ZACC 16; 1998 (1) SA 745 (CC) at para [28]. SA Airways (Pty) Ltd v Van Vuuren and another (2014) 35 ILJ 2774 (LAC)) at para [59].Cf Enderby v Frenchay Health Authority & another [1994] 1 All ER 495.

[2] See: Section 50(2) of the Employment Equity Act No 55 of 1998 (The Equity Act).

[3] The masculine gender is used in this judgment for the sake of conciseness. References to the masculine gender include the feminine

gender.

[4] Simply or unconditionally. Translations of Latin words are included for the benefit of the Applicant who was not legally represented.

[5] A thing that is absolutely necessary, literally ‘without which nothing’

[6] Naidoo and Others v Parliament of the Republic of South Africa (2020) 41 (ILJ) 1931 (LAC) at paras [30] and [31]; Scallan v Cadbury (Pty) Ltd [2006] 8 BLLR 811 (SE) at p818..

[7] Cf. Pioneer Foods (Pty)Ltd v Workers Against Regression and others (2016) 37 ILJ 2872 (LC) at paras [28], [29] and [33].

[8] Cf. Kadiaka V Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC).

[9] See in particular the references to New Way Motor and Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC) at paras [24] and [25] and Harksen v Lane NO [1997] ZACC 12; 1998 (1) SA 300 (CC) at paras [47] to [54].

[10] Unreported judgment under case no: JR 1638/2010 delivered on 10 March 2012.

[11]Act 66 of 1995, as amended.

[12] At para [29.8].

[13] Constitution of the Republic of South Africa, 1996.

[14] (2002) 23 ILJ 2088 (LC).

[15] (2001) 22 ILJ 214 (LC).

[16] Ibid at para [17].

[17] Cf Harksen at para [49].

[18] Harksen at para [50].

[19] Cf. PE v Dr Beyers Naude Local Municipality and another (2021) 42 ILJ 1545 (ECG) at paras [22] and [23].

[20] At paras [71] to [74].

[21] Cf. Dr Beyers Naude Local Municipality at para [69].

[22] Such a claim would be based, inter alia, on sections 6(3) and 60(3) of the Equity Act.

[23] See: E v Ikhwezi Municipality and Another [2016] 2 All SA 869 (ECG).

[24] Cf Bester v Commercial Union Versekeringsmaatskappy van SA Ltd 1973 (1) SA 769 (A) at 779G-H and 780G-H.

[25] Literally by itself.

[26] See: Laubscher v General Public Service Sectoral Bargaining Council (GPSSBC) and Others [2020] 10 BLLR 1053 (LC).

[27] See: Weitz v Goodyear SA (Pty) Ltd & Others (2014) 35 ILJ 441 (ECP) contra Kutu v Minister, Department of Justice and Correctional Services [2021] 9 BLLR 958 (MM).

[28] In a vacuum.

[29] In Makau, the Court observed at paras [37] and [38], that allegations of victimization may be pursued only in terms of Section 5 of the LRA and fall to be pursued in this Court in terms of Section 9(4) of the LRA. I would add that any claim of victimization so pursued must, in any event, concern

reasons relating to trade union membership and activities. See: Safcor Freight (Pty) Ltd t/a Safcor Panalpina v South African Freight and Dock Workers Union (2013) 34 ILJ 335 (LAC)

[30] Makau at para [29].

[31] Cf Solani Mtetwa v Howden Africa (Pty) Ltd unreported judgment under case no: JS90/16 delivered on 28 September 2017 at para [21].

[32] Cf Leonard Dingler (Pty) Ltd v Ngwenya [1999] 5 BLLR 431 (LAC) at para [44].

[33] With the intention to be bound contractually.

[34] Cf. Makau at paras [5.5]; [6.1]; [6.2]; [7]; [7.3]; [10]; [11] and, most importantly [42].

[35] See: Mphahlele v Ephraim Mogale Municipality (2018) 39 ILJ 879 (LC) at paras [4] to [6], Mohlaka v Minister of Finance and Others (2009) 30 ILJ 622 (LC) at para [46] and Ndlovu and Others v South African Commercial Catering and Allied Workers Union (2011) 32 ILJ 697 (LC) at paras [15] and [16]. Cf. Randwater v Stoop and Another (2013) 34 ILJ 579 (LAC) where the Court appeared, at para [18], to accept that the Labour Court did not have jurisdiction to pronounce on a delictual claim.

[36] Not to be confused with damages.

[37] See: Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others (2001) 22 ILJ 1603 (LAC) at para [100]. Laggar v Shell Autocare (Pty) Ltd and Another 2001 (2) SA 136 at para [13].

[38] Unreported judgment under case no: PR41/2020) delivered on 31 January 2022.

[39] Ibid at para 69.

[40] Footnotes omitted.

[41] Cf. Pioneer Foods at para [33] where the Court observed that: ‘… It is not fair to the employer for an arbitration to run without the complainant union being required to identify – and then being held to – the unlisted arbitrary ground of discrimination relied upon. That fact in itself would have made the award reviewable; there can be little doubt that it is also a valid ground for appeal.’

[41] Cf. Pioneer Foods at para [33] where the Court observed that:

‘… It is not fair to the employer for an arbitration to run without the complainant union being required to identify – and then being held to – the unlisted arbitrary ground of discrimination relied upon. That fact in itself would have made the award reviewable; there can be little doubt that it is also a valid ground for appeal.’

[42] Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and others (2021) 42 ILJ 2371 (CC) at para [42].

[43] It may also be that the Employee was wrongly advised on the merits of the matter. The Employee and his erstwhile attorney parted ways some time before the hearing of the matter. At the commencement of the hearing there was an eleventh-hour application for a postponement from the bar by Mr Mbenyana on behalf of the Employee. He recorded that his instructions were confined to applying for a postponement. The postponement application was opposed by both Mr Le Roux and Ms Maharaj. I was not satisfied that a case had been made for the granting of a postponement and I furthermore did not consider it to be in the interests of justice for it to be granted.

[44] Mr Mbenyana as instructed by Mphumzi Ngcayi Attorneys initially appeared on behalf of the Employee solely for the purpose of requesting a postponement.