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CONSTITUTIONAL COURT OF SOUTH AFRICA

                                                                                           Cases CCT 46/15 and CCT 47/15

In the matter between:

KARIN STEENKAMP                                                                                                      First Applicant

MZIMKHULU DE BOOI AND 3 OTHERS

VICTORIA SEKHOTO AND 132 OTHERS

GOODNESS KHUMALO AND 65 OTHERS                                       Second and Further Applicants

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA                                                                                                    Intervening Applicant

and

EDCON LIMITED                                                                                                                  Respondent

Neutral citation:     Steenkamp and Others v Edcon Limited [2016] ZACC 1

Coram:                      Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J

Judgments:               Cameron J (Van der Westhuizen J concurring): [1] to [86]

                                    Zondo J (Mogoeng CJ, Moseneke DCJ, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J and Wallis AJ concurring): [87] to [195]

Heard on:                  8 September 2015

Decided on:              22 January 2016

Summary:                 Labour Relations Act — dismissal for operational requirements — non-compliance with section 189A(8) — premature notices of termination — dismissal not invalid but may be unfair — requirements of section 189A(8) relating to procedural fairness — LRA remedy for LRA breach not common law remedy — workers to use LRA mechanisms — remedies in section 189A(8)(9) and (13) adequate — reinstatement not competent for invalid dismissal  — appeal from LAC — application dismissed

Minority judgment — section 189A(7) and (8) create a dismissal-free zone — dismissals in breach of section 189A invalid

ORDER

On appeal from the Labour Appeal Court:

(a)       Leave to appeal is granted.

(b)       The appeal is dismissed.

(c)       There is no order as to costs.

JUDGMENT

CAMERON J (Van der Westhuizen J concurring)

Introduction

[1] The Labour Relations Act[1] (LRA) provides that an employer undertaking large scale retrenchments may give notice to terminate the contract of employment only once 60 days have elapsed after extending an invitation to consult on an impending retrenchment.[2]  The statute further provides that, in these retrenchments, notice of termination of employment “must” be given in accordance with its provisions.  If an employer dismisses in violation of this injunction, are the dismissals invalid?  The applicants (employee applicants), joined by the National Union of Metalworkers of South Africa (NUMSA), say Yes.  The respondent, Edcon Limited (Edcon), says No.  Contradictory decisions of the Labour Appeal Court point in opposite directions.[3]  These proceedings seek an answer from this Court.

Background

[2] Edcon employed almost 40 000 sales, administrative and other staff in 1 300 retail outlets across nine countries in Southern Africa.  But its business began to falter.  During April 2013, it started restructuring for operational requirements.[4]  By mid 2014, the process had resulted in the retrenchment of about 3 000 employees.

[3] During the retrenchment process, Edcon first issued written notices in terms of section 189(3) of the LRA.[5]  These informed its workforce in general terms that it was contemplating dismissal for operational requirements and invited consultation.  Because of the size of the workforce, and the scale of the proposed retrenchments, section 189A applied.[6]  This requires that, in respect of any dismissal it covers, “an employer must give notice of termination of employment in accordance with the provisions of this section”.[7]  The effect of non-compliance with this provision is at issue.

[4] For large-scale retrenchments, section 189A provides the option of facilitation.[8]  This meant Edcon reached a critical point in the process.  Under the statute the parties may agree on facilitation,[9] or, if not, either the employer or a representative trade union may request that the matter be facilitated.  This entails a joint consensus-seeking process to mitigate adverse consequences.[10]

[5] But, if a facilitator is not appointed, section 189A(8) imposes a minimum 30 day time bar.[11]  The period is calculated from the date on which the employer issues notices in terms of section 189(3).  During that period, employees and employers are barred from taking further steps.  Neither party may refer a dispute about the impending retrenchments to the applicable bargaining council or to the Commission for Conciliation Mediation and Arbitration (CCMA).  It follows that employers, in particular, are not entitled to invoke the power the provision confers on them after the periods have elapsed, namely to give notice to terminate contracts of employment in accordance with section 37(1) of the Basic Conditions of Employment Act[12] (BCEA).

[6] The dispute arose because Edcon issued notices of termination before this 30 day period had elapsed.  In consequence, the employee applicants made 51 referrals, involving 1 331 employees, to the Labour Court.  These challenged the validity of the dismissals.  The first, second and further applicants are employees involved in four of these referrals.

[7] The time between Edcon’s section 189(3) notices and the notices of termination varied.  In the case of Ms Karin Steenkamp, the first applicant, it was six days.  In other cases, it was more than 60 days.[13]  Neither Edcon nor the applicants referred a dispute to the CCMA in terms of section 189A(8).  None of the employees sought to embark on a retaliatory strike and none approached the Labour Court to compel Edcon to comply with a fair procedure or to interdict or restrain it from dismissing them before complying with a fair procedure.[14]  Nor did the applicants refer an unfair dismissal dispute to the CCMA in terms of section 191(1)(a) of the LRA.

[8] More importantly, none of the employee applicants contest any aspect of the procedural or substantive fairness of the dismissals.  They have not sought to impugn the fairness of Edcon’s unauthorised conduct.  Nor have they tendered to return the severance packages Edcon paid them.  Their sole ground of complaint is formal.  It is that Edcon gave short notice under section 189A(2)(a) and (8).  And so the single issue before us is the effect of not complying with those provisions.

Labour Appeal Court

[9] Confronted with its non-compliance with the notice periods, Edcon initiated these proceedings with the specific object of challenging De Beers and Revan, the Labour Appeal Court decisions holding section 189A dismissals on short notice invalid.^[15]  The Judge President specially constituted the Labour Appeal Court, sitting as a court of first instance, to hear the case.^[16]  Edcon invited the Court to reinterpret section 189A(2)(a) read with section 189A(8) so as to conclude that dismissals in violation of those provisions’ time periods were not invalid.  The Court accepted the challenge, and upheld it.  It found in favour of Edcon.  It found the approach in that Court’s two earlier decisions “obviously wrong”.[17]

[10] At the base of the Court’s judgment lies the distinction between a failure by an employer to give proper and valid notice of termination in terms of the contract, on the one hand, and failure to give valid notice in breach of a statutory provision.  The former, the Court said, can be construed as a breach of contract.  If that breach is material, it may result in a wrongful or unfair termination of employment.  This in turn entitles the employee to seek specific performance or damages for wrongful termination, but also reinstatement or compensation for unfair dismissal under section 193 of the LRA.[18]

[11] By contrast, breach of a statutory notice requirement violates the principle of legality.  This allows the employee to challenge the lawfulness of the action by means of review proceedings to obtain an order of invalidity and reinstatement.  In essence, the Court held that the latter breach, with its consequences, is not found in the LRA.  Instead, it found, the statute contemplates and provides remedies for one kind of dismissal only: unfair dismissal, as defined in the statute.  This takes place when an employer unfairly terminates a contract of employment.  And a dismissal so defined is an unfair dismissal, whether or not the termination also violates section 189A(2)(a) and (8).

[12] The Court located this approach in the LRA’s definition of “dismissal”.  This, the statute provides, means amongst others that “an employer has terminated employment with or without notice”.[19]  The Court reasoned that the word “terminated” must be given its ordinary meaning.  This is “bringing to an end” – regardless whether the action is lawful, fair or otherwise.  A termination by an employer without giving proper or valid notice still constitutes a “dismissal” under the LRA.[20]  The statute provides remedies to address any wrongfulness or unfairness.  But this does not alter the factual consequence of the termination.  The employee is dismissed, fairly or unfairly, lawfully or unlawfully.

[13] The Court evoked the history of employment law jurisprudence in South Africa.  It explained that the concept of an employment relationship is broader than the concept of a contract of employment.  So a “dismissal” under the statute is not the equivalent of a lawful cancellation of a contract of employment.  It is much broader:

“The statutory concept of dismissal is therefore not restricted to the contractual notion of lawful cancellation and recognises that contract law is an insufficient instrument to regulate the modern employment relationship.”[21]

The Court found an “implicit acceptance” in Schierhout[22] that a wrongful or “invalid” termination can nevertheless in fact bring a contract of employment to an end.  This belief, it said, has persisted in our law.

[14] The purpose of the LRA’s wide definition of “dismissal” is to extend the statute’s scope to protect dismissed employees.  The important practical result is that a wrongful termination without notice that does not constitute a lawful cancellation or rescission of an employment contract may still constitute an effective dismissal under the LRA.[23]

[15] By contrast, the Court held, where dismissals contravene provisions in statutes other than the LRA, a fundamental principle comes into play; that they are void and of no effect, even though, the Court noted, this doctrine has softened somewhat because the remedies available are discretionary.

[16] Accordingly, the general principle that something done in contravention of a statute is void and of no effect, which Schierhout applied in the employment context, no longer applies in all cases.  It depends on the proper construction of the particular legislation.[24]  And the consequence of the contravention depends on the nature of the discretionary remedies available.  The enquiry is thus contextual.  The Court held that it involves consideration of: the right sought to be enforced and the wrong sought to be rectified; the subject matter of the prohibition; its purpose in the context of the legislation; the nature of the mischief the prohibition was designed to remedy or avoid; and any cognisable impropriety that may flow from invalidity.

[17] Here, the Court found, it was important that section 189A already offers the parties remedies to counteract non-compliance.  Section 189A(9) licenses an immediate retaliatory strike.  And section 189A(13) provides for an order compelling the employer to comply with a fair procedure, or for an interdict, reinstatement or compensation.

[18] Most pertinently, the Court held, De Beers and Revan introduce an anomaly:  they remove a conventional dismissal from the scope of the LRA so that it cannot be assessed on the basis of fairness.  This is because categorising the dismissal as totally invalid leads automatically to reinstatement.  By contrast, the remedies the LRA provides make it clear that reinstatement is not a competent remedy for mere procedural unfairness.[25]

[19] The Court concluded that De Beers and Revan were wrong.  Non compliance with these provisions does not lead to an invalid dismissal.  The employee applicants, NUMSA and the Minister of Labour were ordered to pay Edcon’s costs.

In this Court

[20] The employee applicants and NUMSA in essence contend that the Labour Appeal Court misread the clear language of the provisions.  Their purpose is to limit the employer’s unilateral use of economic power by imposing a time bar on dismissals.  The time bar creates a compulsory cooling off period for conciliation and for the possibility of settlement, thus avoiding job losses, to be explored.  The time bar is imperative and not directory.  It must be complied with.  And because disregard of it entails breach of a statutory prohibition, the remedy of specific performance must be available.

[21] NUMSA contends that section 189A(2)(a) of the LRA imports two effects into the mass retrenchment process.  It makes a notice of termination the only way to terminate the employment of an employee marked for retrenchment.  And it provides that the termination notice must be in accordance with section 189A(7)(a), where there is facilitation, or section 189A(8)(b)(i), where there is not.

[22] Edcon contends that, contrary to De Beers and Revan, where facilitation is not sought, an employer’s failure to refer a dispute to the CCMA for conciliation in terms of section 189A(8)(a) (where the employee does not do so), and the lapse of the time period thereafter, does not result in the ensuing dismissals being invalid.  The employees are dismissed for all purposes under the statute – and the statute confines them to their unfair dismissal remedies.  Section 189A affords them no additional contractual claim arising from an invalid dismissal when its notice provisions are breached.

[23] Edcon argues that the definition of “dismissal” in the statute must be interpreted widely, so as to include employees affected by a dismissal without proper notice (an “unlawful dismissal”).[26]  The recent amendment of the definition,[27] Edcon urged, demonstrates that the section must be interpreted broadly.  The purpose is to afford employees wide-ranging protection against unfair dismissal.  And taking “unlawful” dismissal out of it would prejudicially harm that protection.  Hence short-notice terminations should not be held invalid.

Issues

[24] The issues are—

a)        whether leave to appeal should be granted;

b)        whether non-compliance with the statutory time periods in section 189A of the LRA invalidates dismissals; and

c)        costs.

Jurisdiction and leave to appeal

[25]         Leave to appeal must be granted.  The interpretation of the LRA, a statute that gives effect to the constitutional right to fair labour practices,[28] is a constitutional issue.[29]  In addition, the ambit of the employment rights flowing from section 189A is an arguable point of law of general public importance, which this Court ought to hear.[30]  And prospects seem to me propitious.

Merits

The purpose of section 189A of the LRA

[26] The starting point is the provision that sets out the purpose of the LRA – section 1.  This provides:

“The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are—

(a)        to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution;

(b)        to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;

(c)        to provide a framework within which employees and their trade unions, employers and employers' organisations can—

(i)        collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and

(ii)        formulate industrial policy; and

(d)        to promote—

(i)        orderly collective bargaining;

(ii)        collective bargaining at sectoral level;

(iii)        employee participation in decision-making in the workplace; and

(iv)        the effective resolution of labour disputes.”

[27] This shows that the LRA places particular emphasis on promoting the participation of employees in decision-making in the workplace and the effective resolution of labour disputes.

[28] Section 189A was inserted into the LRA in 2002.[31]  As the Labour Appeal Court noted, it aimed to enhance the effectiveness of consultation in large-scale retrenchments by reducing friction.[32]  There had to be a better way to manage disputes about dismissals for operational requirements affecting large numbers of employees.  Section 189A sought to provide it.[33]

[29] First, the provision gave employees in mass retrenchments a new right.  It offered them a choice between industrial action and adjudication as the means to try to resolve the dispute.  Second, it introduced the option of facilitation at an early stage and spelt out the requirements and elements of due and fair process.  To minimise strikes and litigation, the provision allows for compulsory facilitation by the CCMA, if either the employer or a consulting party representing the majority of at-risk employees asks for it.  The parties are also free to agree to a voluntary facilitation.[34]

[30] The appointment of a facilitator suspends the employer’s power to dismiss for 60 days.  Once the notice of termination is given, the employees have the choice of either embarking on industrial action – an option not open in other dismissals – or referring a dispute regarding substantive fairness to the Labour Court.[35]  If facilitation is not requested or agreed, there is a 30-day bar on referring a dispute to a bargaining council or the CCMA from the date on which notice in terms of section 189(3) is given, and in addition the employer may give notice to terminate only once the further period mentioned in section 64(1)(a) has elapsed.  Edcon breached both time periods by issuing termination notices to retrenched employees early.[36]  But once a referral to the Labour Court has been made, the right to strike is no longer available.[37]  Thereafter the employer is free to give notice of termination.  For their part, once the periods have elapsed and notice of termination has been given, aggrieved employees may opt for industrial action or to refer a dispute about the substantive fairness of the dismissals to the Labour Court.[38]

[31] Section 189A expressly limits the disputes that can be referred to the Labour Court.  Only those concerning a fair reason for the dismissal can be referred – in other words disputes about substantive fairness.[39]  Both referral options expressly impose a time bar.[40]  Disputes about procedure under section 189A cannot be referred to the Labour Court by statement of claim, but must instead be brought by the speedier means of motion proceedings.[41]

[32] The effect of the provisions,[42] where the employees have opted for adjudication rather than to strike, is to separate process issues from questions of fairness.  Instead the section provides a mechanism to pre-empt procedural problems before the substantive issues become ripe for adjudication or industrial action.

[33] Seen thus, the first question is this: how distinctive are the provisions of section 189A?  What do they add to the LRA’s other provisions dealing with dismissal and particularly with retrenchments?  The answer to that question may indicate the true purpose of their enactment, and hence the effect of non-compliance with what they demand.

[34] In argument, counsel for Edcon described section 189A as a “bolt-on” to section 189.  Its sole purpose, he contended, is to add extra fair process protections to those that section 189 already affords.  Section 189 itself, counsel maintained, prescribes what steps the employer has to take.  And section 185, which confers the right not to be unfairly dismissed, or to be subjected to an unfair labour practice,[43] forms the basis of a comprehensive legislative scheme that provides remedies for all unfair dismissals[44] – including dismissals in breach of section 189A’s time periods.  Section 189A thus provides no distinctive remedies on dismissal.

[35] In this way, according to Edcon, a termination of employment that is premature under section 189A(2)(a) and (8) is just another section 186-defined dismissal, with merely ordinary section 185 unfair dismissal remedies that ensue to sanction it.  On this approach, the provisions of section 189A do confer on the employee at risk of being dismissed in a mass retrenchment the extra facilitation, strike and interdict tools the provision spells out.  But when it comes to the crunch of dismissal, they offer no special protection; in particular, they do not inflict the sanction of invalidity on short notice dismissals.

[36] This argument, like the reasoning of the Labour Appeal Court, is not without persuasive impact.  Its force rests on two considerations.  First, the statutory definition of unfair dismissal specifically encompasses dismissals without notice.  Second, section 189A itself seems to provide remedies to the at risk employees in a mass retrenchment and their representatives.  The question is whether its design and purpose indicate that non-compliant dismissals are, in addition, invalid.

[37] As the Labour Appeal Court pointed out, the contrary approach introduces an anomaly to the statute’s treatment of dismissals.  This is because it removes a non compliant section 189A dismissal entirely from the scope of Chapter 8 of the LRA.[45]  Hence it “will not be assessed on the basis of fairness, merely because it was procedurally premature and branded as invalid”.[46]

[38] The Labour Appeal Court’s response to this anomaly was to treat the concept of dismissal under the statute as uniform.  This approach, which Edcon supported in this Court, seeks to meld the dismissal provisions of the statute into a uniform whole, so that dismissal under section 189A doesn’t stick out.  Its correlative is that it offers the attraction of a unified taxonomy of remedies: one statutory concept of dismissal, with one single set of statutory remedies.  These are the remedies for unfair dismissal only, plus the specific strike and interdict remedies section 189A itself provides during the mass retrenchment process – but without the novel remedy of nullity for a failure to give proper notice, which is otherwise alien to the conceptions and scheme of the LRA.

[39] But there are considerable difficulties with this approach.  First, to see section 189A as a mere “bolt-on” to section 189 is to understate its significance.  Section 189 covers all retrenchments, big or small, individual or mass.  By contrast, section 189A deals with mass retrenchments only.  It exempts employers employing fewer than 50 employees from its provisions.  For those employing 50 plus, it provides a graduated scale of application, depending on how big the workforce is, and what proportion of it the employer proposes to retrench.[47]

[40] So the provision sequesters off large-scale retrenchments for special treatment.  By doing this, the legislature recognised their distinctive power to trigger labour unrest.  More importantly, it recognised their impact on large numbers of employees’ lives, and the lives of their dependants, should joblessness ensue.

[41] In keeping with this, the provision creates processes that are distinctive from those applicable to other retrenchments.  They do not apply to smaller employers.  It interposes compulsory facilitation, if either the employer[48] or consulting parties[49] ask for it.  And it makes facilitation available also if the parties agree.[50]  In addition, it creates special remedies – mandatory order or interdict,[51] plus strike[52] – that are otherwise foreign to the employee’s armoury in retrenchments and unfair dismissals.[53]

[42] Section 189A thus goes further than the general obligation, which the statute already imposes in section 189, to engage before retrenching in “a meaningful joint consensus-seeking process” so as to reach consensus on avoiding or minimising the threatened retrenchments.[54]  It creates a framework of inducements and constraints whose design is to impel the employer to engage in that exercise with added focus and with particular single-mindedness.

[43] The obligation the provision imposes on the employer to give notice in accordance with its provisions (“must”) has to be seen against this background.  It is not a mere procedural add-on to the processes that section 189 already creates.  Nor is it a mere palliative for the impending retrenchment.  On the contrary, it is foundational to the change of tone that section 189A signals, and pivotal to the shift of power its provisions seek to effect.

[44] In short, a dismissal that violates section 189A’s time periods does “stick out”.  It cannot be smoothed into the larger fabric of the LRA’s treatment of dismissals.  While it also constitutes a dismissal without notice under section 186(1)(a),[55] it is also signally different from other dismissals covered by Chapter 8.  Section 189A is exceptional, in wording and remedy and object and effect.  It was enacted precisely to oblige the employer to deal differently with big retrenchments.

[45] The obligation it imports to respect the time periods it sets out (“must”) was enacted to create a dismissal-free zone during which consensus may be sought and alternatives may be explored.  In other words, the employees must be safe from dismissal while the stipulated statutory periods elapse.

[46] To treat the time period obligation as merely directory – in other words, as having no consequence other than making the dismissal procedurally unfair for the purposes of section 185’s remedies – is to deny the powerful novelty the provision imports as well as to misjudge its structure.  The provision sought to effect a power shift from employers in mass retrenchments – and it did so in the best and most effective way.  It rendered dismissals in disregard of its notice provisions invalid.

[47] Recognising this consequence has indisputable clout.  It deprives the employer, for a specified period, of the ultimate power in the employment relationship – that of termination.  Dismissal has been called “tantamount to capital punishment” in the employment relationship.[56]  Section 189A abolishes this sanction for the limited time its provisions decree.

[48] At the same time, even though only temporarily, it affords at-risk employees the continued advantage of their employment benefits and security.  And all this in the service of focusing the employer’s attention, during the time freeze, on the possibility of avoiding the retrenchments altogether.  The employer must stay its hand, while the employees remain protected.  The possibly unappealing prospect of discussions and alternatives may, through force of circumstance, become more enticing.  That is the statutory design.

[49] So the time period is to run unhindered.  It is intended to quell employer steps that imperil the provision’s joint consensus-seeking aims.  The judgment of Zondo J, which I have had the pleasure of reading, finds that the LRA does not expressly confer a right to be dismissed lawfully.  It bolsters this conclusion through an exposition of the LRA’s predecessors.  It notes the removal of a criminal sanction for unauthorised conduct.^[57]  It reasons that, since the LRA does not expressly provide for a right to a lawful dismissal, a litigant is not entitled to a declaratory remedy when dismissed in breach of the LRA’s provisions.^[58]  This approach narrows the entitlement to a lawful dismissal.  It infers from the absence of an express provision in the statute that protection against unlawful conduct must be understood to have been absorbed into the statute’s fairness protections.

[50] These are not unattractive propositions.  But ultimately they do not seem convincing to me.  First, fairness and lawfulness overlap.  We cannot rigidly separate them, banishing the latter from the purview of the statute.  Evaluating fairness requires a judgment on competing interests and rights of both workers and employers.  This is a value judgment.^[59]  In this, a court must have regard to the statutory provisions before it, its scope and its objects.^[60]  In this weighing, lawfulness and fairness are not exclusionary opposites.

[51] Second, the LRA has not impoverished a wronged worker’s cache of weapons.  That the LRA creates specific remedies for most labour and employment disputes does not mean that it does not concomitantly create other remedies, especially when the claim is rooted in the language and logic of the LRA itself.^[61]  The lawfulness ground, in other words, is a claim seeking to enforce compliance with the provisions of section 189A.

[52] Reliance on Chirwa is inapposite.^[62]  The LRA did not extinguish causes of action.  It supplemented existing remedies.  It is open to a litigant to choose her remedy and to do so at her own peril.  This Court dealing with Chirwa in Gcaba, came to precisely this conclusion.  Van der Westhuizen J said:

“Furthermore, the LRA does not intend to destroy causes of action or remedies and section 157 should not be interpreted to do so. Where a remedy lies in the High Court, section 157(2) cannot be read to mean that it no longer lies there and should not be read to mean as much. Where the judgment of Ngcobo J in Chirwa speaks of a court for labour and employment disputes, it refers to labour – and employment – related disputes for which the LRA creates specific remedies.  It does not mean that all other remedies which might lie in other courts like the High Court and Equality Court, can no longer be adjudicated by those courts.  If only the Labour Court could deal with disputes arising out of all employment relations, remedies would be wiped out, because the Labour Court (being a creature of statute with only selected remedies and powers) does not have the power to deal with the common law or other statutory remedies.”[63]

[53] The applicants do not seek a remedy outside the LRA.  Nor do they seek a remedy alien to its provisions.  They rely on a unique remedy that section 189A has specifically afforded those vulnerable to mass retrenchment.

[54] Third, the failure to provide for a criminal sanction does not entail that there is no need to hold a party accountable for violating the provision’s prohibition on short service terminations.  When an employer trespasses onto the minimum 30-day period, it rides roughshod over the aim of encouraging consensus and seeking to avoid mass dismissals.  No criminal sanction is needed to spell this out.^[64]

[55] What of the remedies internal to section 189A?  The interdict to compel a fair procedure, and the retaliatory strike?  Understanding the unique character of section 189A’s dismissal protection entails certain correlative conclusions.  The first is that the provision’s compulsory time periods are not aspects of “a fair procedure” envisaged in section 189A(13).  The second is that employees given short notice may not go on strike for that reason.

[56] The Labour Appeal Court suggested that the mandatory and interdictory remedies of section 189A(13) are available to employees who receive short notice of termination.^[65]  It also considered that employees in this position have available the retaliatory strike that subsection (9) envisages.  From the availability of these remedies, the Court drew the conclusion that nullity did not follow from non compliance.

[57] The judgment of Zondo J reasons that the availability of these remedies must mean that non-compliance with section 189A(8) gives rise to a question of unfair procedure.  Hence, nullity is not visited upon non-compliance.^[66]  It also suggests that the other remedies in 189A provide “employees [with] . . . strong weapon[s] to deal with the employer”.^[67]

[58] The difference with the analysis here lies in the extent to which one recognises as distinctive the protections section 189A sought to introduce into a workplace at risk of large-scale retrenchments.  More particularly, it depends on appreciating the power that making a short-notice dismissal invalid has to constrain an employer to think again before effecting a mass retrenchment.

[59] The approach of the Labour Court and the judgment of Zondo J inhibit the efficacy of the process section 189A seeks to command.  It seems to me to place a burden on employees, requiring them to rush to court, or to invoke “the nuclear option”, namely a strike, in an effort to secure compliance with section 189A(8).^[68]

[60] If the consequence of invalidity is central to the shift of power the provision introduces, and if it is integral to the provision’s purpose of seeking, if at all possible, to avoid mass retrenchments, then the Labour Appeal Court’s characterisation of the other remedies in section 189A cannot be accepted.  The remedies in subsections (9) and (13) are not available for short notice.^[69]  This is because short notice is not merely a question of “fair procedure”.  It serves a more powerful and more radical purpose – to constrain a rethink.  And, unless disregard of the dismissal-free zone during a mass retrenchment process has a distinctive consequence, that pivotal statutory purpose will remain unattained.

[61] A further difference stems from the purposive interpretation of section 189A.  The strike remedy is inapposite.  It does not properly deal with the mischief section 189A(8) seeks to prevent.  Indeed, the strike option is of cold comfort, compared to the protection a statutory prohibition on dismissal for a 30 day period would afford.   A strike accentuates the workplace calamities section 189A seeks to avoid.  Strike action imposes severe perils on an already declining employer, on the industry as a whole and, worst, on employees who are not at risk of retrenchment, for the whole enterprise may be shut down.  Against these alternatives, reading the provisions at issue to entail the nullity of non-compliant dismissals seems both sound and sensible.

[62] Hence it is preferable to find that the dismissal is a nullity, and that a different set of statutory remedies ensues – those the employee applicants are seeking in these and related proceedings.  This purposive approach favours an interpretation that non compliance with section 189A(8) goes to unlawfulness.  It results in nullity and affords the workforce affected remedies the provision itself creates, rather than reducing their armoury to only procedural fairness.  This to me strikes an appropriate balance between workers’ and employers’ rights and interests.  Compliance with the notice period ought not to be construed as encouraging a “check list” approach to realising the protections in section 189A.^[70]  Requiring employers to adhere to the dismissal-free zone is not for ticking boxes in the interests of formal compliance with the LRA.  It is in the public interest to ensure, as far as possible, some measure of certainty in turbulent employment times.

[63] The provision’s wording reinforces this conclusion.  So does its cross incorporation of the provisions of the BCEA.  Section 189A(2)(a) stipulates that an employer “must give notice of termination” in accordance with the provisions of the section.  Section 189A(7)(a) provides that, where a facilitator is appointed, after the expiry of 60 days from the date of the section 189(3) notice of invitation to consult, an employer “may give notice to terminate the contracts of employment in accordance with section 37(1)” of the BCEA.^[71]  Its companion provision, section 189A(8)(b)(i), similarly provides that, where a facilitator is not appointed, after the expiry of the stipulated periods, the employer “may give notice to terminate the contracts of employment in accordance with section 37(1)” of the BCEA.

[64] The provision’s reference to “notice to terminate” is, as NUMSA contended, redolent of the language of the contractual termination of employment, rather than merely of statutory unfair dismissal.  Under the common law of contract, conduct by the employer that constitutes a repudiation of the contract does not, of itself, put an end to the contract.  What it does is to vest the employee with an election.  She can stand by the contract.  Or she can choose to accept the employer’s repudiation and bring the contract to an end.^[72]

[65] But at common law, that choice is the employee’s.  Except where summary dismissal is warranted,^[73] the unilateral act of the employer in terminating the contract, whether by notice or other conduct, does not without more bring an end to the contract of employment.^[74]  The same applies to an employee who gives short notice in violation of the contract: he or she may be obliged to serve out the notice period.^[75]  In neither case does the unlawful repudiation of the contract have to be accepted by the other party.^[76]

[66] It has been observed that the common law contract of employment is “the key relationship” in the application of South Africa’s labour relations legislation.^[77]  Understanding its terms is essential to appreciating how the LRA and its predecessor legislation use, and generally expand, the terminology of dismissal, termination and notice.  It is trite that a lawful termination of the contract of employment will not suffice to render the termination fair under the LRA.  But the requirement that a termination be fair does not entail that an employer need not adhere to the requirements of terminating the contract lawfully,^[78] whether these arise from the contract itself, or, as here, from statute.

[67] By corollary, the LRA’s remedies have not supplanted the whole of the common law of contract.^[79]  The right not to be unfairly dismissed, which the LRA affords, finds its application pre-eminently in circumstances where the employee’s contractual security of employment is tenuous.  Where, by contrast, the contract of employment affords the employee larger and firmer rights, and the employee wishes to rely on them, rather than on the LRA’s unfair labour practice remedies, he or she is entitled to do so.^[80]  The LRA did not extinguish entirely common law rights arising from an agreement of employment.^[81]  Hence, in this provision, the LRA by invoking the common law inhibition on unlawful termination, gives the employees additional protection.

[68] It is this common law location of the statute as a whole that the language of section 189A invokes.  The same applies to the BCEA.  Under that statute, it is well accepted that a dismissal on short notice is not effective to terminate the contract of employment.^[82]  When either employer or employee seek to terminate, the BCEA requires that each give notice in terms of section 37.  If either party does not, the contract of employment continues to subsist, affording both employee and employer a range of statutory remedies to enforce it.

[69] During the hearing, counsel for Edcon was asked whether, if the provisions of section 189A had appeared in the BCEA, rather than in the LRA, as a “bolt-on” to section 189, its stipulated notice periods would have to be considered peremptory.  His answer was Yes.  And it had to be Yes, for it would have been plain beyond contest, within the BCEA, that the provision’s notice requirements, like those of section 37, are peremptory, and that notice given in violation of them is null and void.  Counsel’s reply is nevertheless telling.  For it concedes the logic of the provision’s structure and language.  And those the location of the provision, in the LRA, rather than in the BCEA, cannot change.

[70] When section 189A was enacted in 2002 and provided that the employer “may” give notice of termination in mass retrenchments in accordance with the BCEA, but only after the specified periods had elapsed, its provisions had a specific meaning and effect.  This was to render short notice invalid, and to make any ensuing dismissals null and void.  The opposing reading would substantially attenuate the effect of the enacted employment protections.

[71] In addition to being faithful to statutory language of the provision, the conclusion here conforms with the doctrinal development of employment law, as overwritten by statute law.  Since the Labour Appeal Court derived support for its approach from that history, it is necessary to pause to consider it.

[72] In perhaps the most celebrated case, Schierhout, a public servant who had been “illegally retired”^[83] in breach of a peremptory provision of a statute sought, on tender of his services, to claim the salary he had lost.  His entitlement depended on whether his removal was a nullity.  The Appellate Division held per Innes CJ it was and applied the “fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no force”.^[84]  In doing so, it distinguished Mr Schierhout’s position as a statute-protected employee from that of ordinary employees who, on wrongful or “arbitrary” dismissal,^[85] cannot claim their salary, but instead are confined to claiming whatever damages they may be able to prove they suffered in consequence of the employer’s wrongful act in dismissing them.

[73] Schierhout thus afforded support for two propositions.  The first is that disregard of peremptory statutory requirements leads to nullity.  The second is that specific performance of an irregularly terminated contract of employment is not available to ordinary (non-statutory) employees.  Innes CJ said that “the only remedy open to an ordinary servant who has been wrongfully dismissed is an action for damages”, and that the courts “will not decree specific performance” of this class of contract.^[86]

[74] Since Schierhout, the rigidity of both propositions has been substantially tempered.  First, our courts accept that whether violating a statutory prohibition has the consequence of nullity depends on a broad understanding of the statute’s purpose and meaning.^[87]  That consequence depends on the subject-matter of the prohibition, its purpose in the context of the legislation, the remedies provided for disregard of it, the mischief it was designed to remedy and any untoward consequences that invalidity may wreak.^[88]

[75] It is the second proposition in Schierhout on which the Labour Appeal Court relied in coming to its conclusion.  This was the Appellate Division’s “implicit acceptance” that a wrongful or statutorily invalid termination can bring the employment contract to an end.  This, the Court said, had “persisted in our labour law”.^[89]  This led the Labour Appeal Court to observe that dismissal under the LRA includes forms of employment termination far broader than only lawful cancellation.  It was this consideration that persuaded the Court that dismissal under section 189A falls within the broad ambit of a section 186 dismissal, even if on short notice in breach of the provision.

[76] The Labour Appeal Court was also alert to the fact that the second proposition in Schierhout had been superseded by judicial development.^[90]  In Stag Packings, a Full Court held that there is no rule of law that a party’s wrongful cancellation of a contract of personal service puts an end to the contract even though the other party does not accept the repudiation.[91]  There is in other words no rule that the employment contract can be terminated unilaterally, and thereby brought to an end.^[92]  From this it follows that there is no absolute prohibition against granting a remedy of specific performance to wrongfully dismissed employees, even if not statute-protected.^[93]  Whether specific performance is in fact granted depends on practical considerations^[94] and lies in the court’s discretion.^[95]

[77] Despite this, the Labour Appeal Court found support for its approach in the broad notion, which it said Schierhout entailed, that an invalid termination could nevertheless put a unilateral end to a contract of employment.  In the balance the Court struck in approaching the meaning of the provisions, it erred.  In doing so, it ascribed too much weight to the original statement in Schierhout, and too little to significant later developments that have superseded it.  These have reaffirmed that unilateral conduct by the employer does not of itself terminate the contract of employment.

[78] Section 189A resonates with this strong stream of contractual employment doctrine.  And the stream contributes force to the conclusion that De Beers and Revan were correct, and the Labour Appeal Court in the present case incorrect.

Is retrospective reinstatement automatic?

[79] The Labour Appeal Court gave prominence in its reasoning to the idea that the inefficacy of short notice, and the nullity of resultant dismissals, would lead “automatically” to the remedy of reinstatement, with, it implied, full back pay for those reinstated.^[96]  This led the Court to reject the conclusion that non-compliant dismissals were null and void.  The Court seemed to adopt a more nuanced approach to remedy – finding that other provisions of the LRA dealing with unfair dismissal provided it.  Hence, according to the Labour Appeal Court, non-compliant dismissals in violation of section 189A were just ordinary unfair dismissals, subject to the ordinary remedies provided elsewhere in the LRA.

[80] The conclusion that short notice dismissals under section 189A are subject to the ordinary remedies in section 193, the Labour Appeal Court found, would “lead to more proportionate and less capricious consequences”^[97] for non-compliance.  In this Court, Edcon supported the Labour Appeal Court’s analysis and approach.

[81] These considerations are consequentialist in tone and effect.  But are they correct?  NUMSA in its argument disavowed them.  It rejected the notion that short notice dismissal in violation of section 189A would automatically entitle employees to reinstatement.  On the contrary, NUMSA contended that reinstatement was not automatic.  Whether the court hearing the employee applicants’ claim granted them reinstatement, and on what conditions, was a question for its discretion.

[82] In oral argument, the employee applicants endorsed this approach.  This led to the paradox that the employees embraced a weaker remedy for short-notice dismissals under section 189A than the employer insisted would be the consequence of their argument.

[83] The employee applicants and NUMSA are in my view correct.  The fact that the dismissals are null and void does not entitle employees subjected to them, without more, to the remedy of full retrospective reinstatement.^[98]  That has never been the approach of South African courts.  For instance, employees dismissed on short notice in violation of the BCEA have not always been granted full retrospective reinstatement.^[99]  This is in keeping with the long-standing notion that remedy depends on the discretion of the Court that hears the employee applicants’ claim.  There is no reason to think that the enactment of section 189A entailed a radical abandonment of this approach to remedy.

[84] It is worth stressing that the question of the remedy to be afforded to the employee applicants in the proceedings now pending elsewhere is not before us.  Despite this, the judgment of Zondo J undertakes an exposition of the remedies expressly provided in section 189A but fails to acknowledge the foundational remedy that lies in the breach of the statute, generally, itself.  We are concerned with it only so far as it bears on interpretation.  And once one removes the consequentialist sting from the arguments that induced the Labour Appeal Court to hold that a short-notice dismissal under section 189A is not a nullity, the statutory consequence may freely flow: the dismissal is indeed a nullity.  Section 189A(14) empowers the Labour Court to grant relief provided for in section 158(1)(a).  This includes a declaratory order.  This may also include an order declaring non-compliant dismissals invalid.^[100]

Conclusion

[85] If notice of termination in retrenchments subject to section 189A does not comply with the provisions of section 189A(8)(b)(i), where no facilitator has been appointed, as here, there is no valid termination.  In that event, the contract of employment is not terminated.  And if the contract of employment is not terminated, there is no dismissal in terms of section 186(1)(a) of the LRA.

[86] The employee applicants and NUMSA are thus right.  When Edcon dismissed the individual employees without waiting for the time periods in section 189A(8) to expire, it acted without effect in law.  The dismissals were a nullity.  They had no force and effect.  The question of what remedy flows in practice from this conclusion must await another day and another court.

ZONDO J (Mogoeng CJ, Moseneke DCJ, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J and Wallis AJ concurring):

Introduction

[87] The issue for determination in this matter is whether dismissals effected by an employer pursuant to notices given in breach of section 189A(8)[101] of the Labour Relations Act[102] (LRA) are invalid. I have had the pleasure of reading the judgment prepared by my Colleague, Cameron J (first judgment).[103]  It holds, by implication, that this Court has jurisdiction.  I agree.  This matter involves the interpretation of the LRA which is legislation enacted to give effect to the Constitution and the interpretation of such legislation is a constitutional matter.[104]  Indeed, this Court would also have jurisdiction on the basis that this matter raises an arguable point of law of general public importance which ought to be considered by this Court.^[105]  For the reasons given in the first judgment, I also agree that we should grant leave to appeal.  The first judgment goes on to hold that the dismissals of the applicants by the respondent are invalid, the appeal should be upheld and the decision of the Labour Appeal Court set aside.  I am unable to agree with this conclusion and outcome.  In my view, the dismissals cannot be held to have been invalid and the appeal should be dismissed.  I, therefore, write to set out my reasons for this conclusion and outcome.

Background

[88] The first judgment sets out the factual background to this matter.  For that reason I do not propose to do the same save to the limited extent required for a proper understanding of my approach.  What follows in the next few paragraphs is the limited background necessary for that purpose.

[89] Before the events that gave rise to the present dispute, the respondent employed about 40 000 employees throughout the country.  Between April 2013 and mid-2014 it dismissed about 3000 employees for operational requirements.[106]  It is common cause that section 189A was applicable to the dismissal.^[107]  The individual applicants, by which term I mean the applicants other than the National Union of Metalworkers of South Africa (the Union), are some of the employees who were dismissed during that period.

[90] The individual applicants were given notices as contemplated in section 189(3).  Those are notices that an employer is obliged to issue when it contemplates the dismissal of any employees for operational requirements.  By way of such notices an employer invites to the consultation process the parties with whom it is required to consult in terms of section 189(1).[108]  Section 189A(2)(a) provides that in respect of any dismissal covered by section 189A “an employer must give notice of termination of employment in accordance with the provisions of this section”  Section 189A(2) also provides that the period of the consultation period contemplated in section 189 may be varied by the parties.  It also provides that no consulting party may unreasonably refuse to extend the period of consultation if the extension is required “to ensure meaningful consultation”.  Section 189A(3) and (4) envisages the appointment of a facilitator to help the parties with the issues that are the subject of the consultation process.

[91] In terms of subsection (7) the employer is precluded from giving notice to terminate the contracts of employment unless “60 days have elapsed from the date on which notice was given in terms of section 189(3)”.  That is in a situation where a facilitator has been appointed.  In terms of subsection (8) a party to the consultation process is precluded from referring a dispute to a bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA) before the lapse of 30 days from the date on which notice was given in terms of section 189(3) and the periods envisaged in section 64(1)(a).  This is where no facilitator has been appointed.

[92] Where a facilitator is appointed, there is a period of 60 days during which employees may not be given notices of the termination of their contracts of employment (dismissal notices).  That is 60 days from the day of the giving of the section 189(3) notice.  However, in a situation where a facilitator is not appointed, the period during which the employees may not be given dismissal notices is 30 days from the date of the giving of the section 189(3) notice plus the period in section 64(1)(a).

[93] In this case no facilitator was appointed to assist the consulting parties in terms of section 189A(3) and (4) with the issue relating to the contemplated dismissal of employees for operational requirements.  This meant that subsection (8) was applicable.  Therefore, the respondent was precluded from giving employees dismissal notices during the period of 30 days from the date of the giving of section 189(3) notice and until the periods mentioned in section 64(1)(a) had elapsed.  The respondent gave the individual applicants dismissal notices during this period when it was precluded from doing so.  This is common cause.  The time periods between the issuing of the section 189(3) notices and the notices of termination varied from 6 days to in excess of 60 days.

[94] In response to the dismissal notices and the resultant dismissals, the applicants did not make use of the dispute resolution mechanisms of the LRA.  They did not make an application to the Labour Court for an order under section 189A(13)[109] nor did they give a notice of the commencement of a strike nor refer a dispute about whether there was a fair reason for the dismissal to the Labour Court for adjudication.  I shall say more about these avenues later.  They simply approached the Labour Court and asked for orders declaring the dismissals invalid and of no force and effect and for reinstatement orders.  However, the matter was heard by the Labour Appeal Court sitting as a court of first instance.  That Court rejected the applicants’ contention that the dismissals were invalid and upheld the respondent’s contention.[110] That judgment of the Labour Appeal Court overruled an earlier judgment of the same Court, differently constituted, in De Beers[111] which had upheld a similar contention and which was followed in Revan.[112]

The appeal

[95] This case is about a breach of the provisions of section 189A(8).  Section 189A(8) reads:

“If a facilitator is not appointed—

(a)   a party may not refer a dispute to a council or the Commission unless a period of 30 days has lapsed from the date on which notice was given in terms of section 189(3); and

(b)   once the periods mentioned in section 64(1)(a) have elapsed—

(i)     the employer may give notice to terminate the contracts of employment in accordance with section 37(1) of the Basic Conditions of Employment Act; and

(ii)     a registered trade union or the employees who have received notice of termination may—

(aa)   give notice of a strike in terms of section 64(1)(b) or (d); or

(bb)   refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11).”

[96] The dispute between the parties is whether the dismissals effected pursuant to the dismissal notices given in breach of section 189A(8) were invalid and of no force or effect.  The applicants contend that that is so.  The respondent contends that that is not so and seeks a conclusion that its breach of section 189A(8) did not render the dismissals invalid.  The respondent concedes that its conduct constitutes a breach of subsection (8) but contends that, while that may render the resultant dismissals unfair, it does not render them invalid and the applicants cannot be granted the declaratory order and order of reinstatement they seek.

[97] In support of their contention the applicants mainly rely upon the use of the word “must” in section 189A(2)(a).  The provision reads:

“(2)      In respect of any dismissal covered by this section—

(a)        an employer must give notice of termination of employment in accordance with the provisions of this section.” (Emphasis added.)

The applicants also rely on Schierhout[113] to argue that anything done contrary to law is a nullity.

[98] The first judgment holds that subsections (7) and (8) of section 189A create what it refers to as a “dismissal-free zone” during which an employer to whom section 189A applies may not give employees dismissal notices nor terminate their contracts of employment.  I would call it a “dismissal-free-period”.  With this proposition I have no quarrel.  However, the judgment then goes on to say that, if an employer issues notices of dismissals or dismisses employees during this period, the result is that the notices and the resultant dismissals are null and void and of no force and effect.  It also says, as I understand it, that its interpretation of subsection (8) provides greater protection to employees against dismissal during the “dismissal-free-period” because the employer would see dismissing employees during the period as too risky.  That interpretation is that the dismissal of employees in breach of the provisions of subsection (8) results in invalidity.  With this further proposition I am unable to agree.  The first judgment does not explain why the orders provided for in subsection (13) would not be a sufficient deterrent to the employer.  Nor does it explain why the employer would not consider a strike such as is envisaged in section 189A(8) and (9) as an equal, if not a greater, threat for the continued viability of its business.

[99] In this judgment I say that, just because the employer gave notices of termination or effected dismissals contrary to the procedural requirements of subsection (7) or (8) does not mean that the notices or dismissals are a nullity.  I further say that the mere use of the word “must” in section 189A(2) is not adequate to justify that conclusion.  It all depends upon a number of considerations including the purpose of the statute, whether the breach relates to an obligation that did not exist at common law and that has been created specially by the statute, whether the statute provides for remedies for such a breach and whether, having regard to all relevant provisions of the statute, it can be said that its purpose is that a breach of the relevant obligation results in the invalidity of the thing done contrary thereto.  This requires a proper examination of the relevant provisions of the statute.  In my view a proper examination of the provisions of the LRA, including its scheme, the purpose of section 189A, the remedies in subsection (13) and the availability of the strike option, drives one to the conclusion that the giving of notices of the termination of contracts of employment in breach of subsection (8) or the effecting of dismissals in breach of subsection (8) does not result in the notices of dismissals or the resultant dismissals being null and void.

Interpretive approach

[100] This matter requires us to interpret various provisions of the LRA.  That being the case, it is necessary that we have regard to the correct approach to the interpretation of this legislation.  The starting point is section 39(2) of the Constitution.  In so far as it is relevant, it reads:

“When interpreting any legislation . . . every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

We must also take into account the provisions of section 3 of the LRA.  Section 3 reads:

“Any person applying this Act must interpret its provisions—

(a)        to give effect to its primary objects;

(b)        in compliance with the Constitution; and

(c)        in compliance with the public international law obligations of the Republic.”

[101] The primary objects of the LRA appear in section 1 which sets out its purpose.  The purpose is—

“to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act.”

Thereafter the primary objects of the LRA are spelt out.  They are:

“(a)      to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution;

(b)        to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;

(c)        to provide a framework within which employees and their trade unions, employers and employers’ organisations can—

(i)         collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and

(ii)        formulate industrial policy; and

(d)        to promote—

(i)         orderly collective bargaining;

(ii)        collective bargaining at sectoral level;

(iii)       employee participation in decision-making in the workplace; and

(iv)       the effective resolution of labour disputes.”

It is trite by now that, in interpreting provisions of the LRA, the correct approach is purposive interpretation.

[102] In my view the applicants’ contention falls to be rejected and their appeal dismissed.  This view I take rests on three bases.  These are that—

(a)       the LRA does not contemplate invalid dismissals or an order declaring a dismissal invalid and of no force and effect;

(b)       the declaratory order sought is a wrong remedy for an LRA breach; and

(c)       for a breach of a section 189A(8) obligation, the applicants are limited to the remedies provided for in section 189A and those remedies are adequate.

I proceed to deal with these in turn.

A.     Relief sought not contemplated by the LRA

[103] My point of departure is that, if a litigant’s cause of action is contractual in nature, the remedy will have to be found within contract law.  If a litigant’s cause of action is based on the law of delict, the remedy will have to be in the law of delict.  The applicants’ cause of action is a breach of the procedural requirements laid down in section 189A(8) of the LRA that a relevant employer is required to comply with before it can dismiss employees to which the section applies.  On the same principle the relief to which the applicants may be entitled by virtue of that breach, if they make out a proper case, should be sought within the four corners of the LRA.  The applicants contend that Edcon’s non-compliance with the section 189A(8) procedure before the workers were dismissed rendered their dismissals invalid.  They do not contend that the non-compliance rendered their dismissals unfair.

[104] Non-compliance with the section 189A(8) procedure may result in the dismissals being unfair, not invalid.  Before a court may declare that a dismissal is invalid, it must first conclude that the dismissal is unlawful.  The LRA is legislation that was enacted to give effect to section 23 of the Constitution.  What we find in section 23 that is closely related to section 189A is the provision in section 23(1) that “everyone has a right to fair labour practices”.

[105] The LRA created special rights and obligations that did not exist at common law.  One right is every employee’s right not to be unfairly dismissed which is provided for in section 185.  The LRA also created principles applicable to such rights, special processes and fora for the enforcement of those rights.  The requirement for the referral of dismissal disputes to conciliation is one of the processes created by the LRA.  The CCMA, bargaining councils and the Labour Court are some of the fora.  The principles, processes, procedures and fora were specially created for the enforcement of the special rights and obligations created in the LRA.  Indeed, the LRA even provides for special remedies for the enforcement of those rights and obligations.  The special remedies include interdicts, reinstatement and the award of compensation in appropriate cases.  These special rights, obligations, principles, processes, procedures, fora and remedies constitute a special LRA dispensation.[114]

[106] Section 189A falls within Chapter VIII of the LRA.  That is the chapter that deals with unfair dismissals.  Its heading is: UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE.  Under the heading appears an indication of which sections fall under the chapter.  The sections are reflected as “ss 185-197B”.  The chapter starts off with section 185.  Section 185 reads:

“Every employee has the right not to be—

(a)        unfairly dismissed; and

(b)        subjected to unfair labour practice.”

Conspicuous by its absence here is a paragraph (c) to the effect that every employee has a right not to be dismissed unlawfully.  If this right had been provided for in section 185 or anywhere else in the LRA, it would have enabled an employee who showed that she had been dismissed unlawfully to ask for an order declaring her dismissal invalid.  Since a finding that a dismissal is unlawful would be foundational to a declaratory order that the dismissal is invalid, the absence of a provision in the LRA for a right not to be dismissed unlawfully is an indication that the LRA does not contemplate an invalid dismissal as a consequence of a dismissal effected in breach of a provision of the LRA.

[107] This indication is reinforced when one has regard to the definition of “dismissal” in section 186(1).[115]  It starts with what would ordinarily be understood as a dismissal, namely, a termination of employment with or without notice.  That encompasses the ordinary situation of the employer giving notice under the contract of employment and a summary dismissal.  But then in five further paragraphs it extends the concept of dismissal far beyond its ordinary meaning.  Once again the absence of any reference to an unlawful dismissal is telling.  It suggests that, if a dismissed employee wishes to raise the unlawfulness of their dismissal, they must categorise it as unfair if they are to obtain relief under the LRA.

[108] Another indication that the LRA does not contemplate an invalid dismissal is this.  In section 187 the LRA created a new category of dismissals.  It called them “automatically unfair dismissals”.  This is a special category of dismissals.  What makes this category of dismissals special is that the dismissals in this category are all based on reasons that we, as society, regard as especially egregious.  They include cases where an employee is dismissed for his or her race, gender, sex, ethnic origin, religion, marital status, political opinion, membership of a trade union, participation in a protected strike, exercise of rights provided for in the LRA and other such arbitrary reasons.  Another factor that makes this category of dismissals special is that for those cases where an employee’s dismissal has been found to be automatically unfair, the LRA provides the Labour Court with power to order the employer to pay double the maximum compensation that the Labour Court would have had the power to order if the dismissal had not been found to be automatically unfair but was found to simply lack a fair reason or was found to have been effected without compliance with a fair procedure.

[109] Most, if not all, of the reasons for dismissal that render a dismissal automatically unfair as contemplated in section 187 are reasons that would ordinarily render a dismissal unlawful and invalid.  If the Legislature had intended that under the LRA there would be a category of invalid dismissals, it would have been the automatically unfair dismissals.  The Legislature must have deliberately decided that the LRA would not provide for invalid dismissals but rather for automatically unfair dismissals instead.  Put differently, the Legislature deliberately provided in the LRA for unfair dismissals and automatically unfair dismissals to be outlawed and to attract a remedy but did not make any provision for unlawful or invalid dismissals. To understand this choice by the Legislature, it is necessary to look back at the legal position before the passing of the current LRA.

[110] The predecessor to the current LRA was the Labour Relations Act[116] (1956 LRA).  Section 66[117] of the 1956 LRA prohibited employers from victimising workers for actual or suspected union membership and made such conduct a criminal offence.  Dismissal for union membership and for taking part in a strike that was not prohibited by that Act constituted conduct prohibited by that provision.  Under the 1956 LRA those dismissals were recognised as unlawful and invalid.

[111] In Rooiberg Minerals[118] the Court held that, where an employer had victimised an employee in breach of section 66 of the Industrial Conciliation Act[119]  (1937 Act), the dismissal was invalid.[120]  Section 66 of the 1937 Act was, to all intents and purposes, similar to section 66 of the 1956 LRA.  In Makhanya[121] the dismissal was effected in contravention of section 25 of the Wage Act.[122]  That provision was materially the same as section 66 of the 1956 LRA.[123]  In that case the Court held, following Rooiberg Minerals, that a dismissal effected in contravention of section 25 of the Wage Act was null and void.[124]  In Stag Packings[125] the employer conceded that, if the reason for the dismissal of the workers brought the dismissal within the ambit of section 66 of the 1956 LRA, the dismissal constituted victimisation and would, therefore, be invalid.  The reason I refer to cases based on contraventions of section 66 of the 1937 Act and section 25 of the Wage Act is to show that dismissals that were effected in contravention of provisions materially similar to those of section 66 of the 1956 LRA were held by the courts to be invalid.

[112] The characteristic of all these cases and the statutory provisions with which they were concerned is that the conduct in question by the employer constituted a criminal offence and the criminal court had the power to reinstate an employee after conviction.  The position is different under the LRA.  Whilst previous labour legislation in this country had contained many provisions reinforced by criminal sanction, there was a deliberate choice in the LRA to move away from this model and not to use the criminal law to enforce obligations in the current LRA.  The context in which the dismissals were held to be invalid in those cases is different from the statutory context in which we are asked to hold that the applicants’ dismissals were invalid.  The LRA does not contemplate invalid dismissals.

[113] Unlike the current LRA, the 1956 LRA contemplated invalid dismissals and orders declaring dismissals invalid and of no force and effect.  Section 17(11)(a)[126] of that Act conferred upon the Industrial Court jurisdiction to decide any matter that a civil court could decide arising out of the administration of various pieces of labour legislation.  Section 17(11)(a) is the provision under which the workers in Ndawonde[127] brought their application for an order inter alia declaring that their dismissal for union membership or lawful union activities was invalid and of no force and effect.  In Ndawonde the court held that the applicants were entitled to seek an order declaring their dismissals invalid.  It rejected the employer’s contention that under the 1956 LRA they were limited to challenging their dismissals under the unfair labour practice provisions.

[114] The Court’s reason for rejecting that contention was that, unlike the current LRA, the 1956 LRA had section 17(11)(a) which gave power to the Industrial Court to adjudicate any case under that statute arising from the application of various pieces of labour legislation that any civil court could adjudicate.  That power enabled the Industrial Court to make an order declaring a dismissal invalid – a power that a civil court would ordinarily have.  The current LRA does not have a provision to that effect concerning the Labour Court.  In section 157(2) of the LRA the concurrent jurisdiction the Labour Court has with the High Court is confined to cases in which there is an alleged or threatened violation of the fundamental rights entrenched in the Bill of Rights arising from:

“(a)      employment and from labour relations;

(b)        any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer, and

(c)        the application of any law for the administration of which the Minister is responsible.”[128]

[115] It seems to me that section 157(2) is a replacement of section 17(11)(a) of the 1956 LRA because section 17(11)(a) also referred to matters arising from the application of various pieces of legislation falling under the Minister of Labour.  It appears that there was a deliberate decision by the Legislature not to frame section 157(2) in such a way as would have given the Labour Court jurisdiction to deal with all the matters that could be dealt with by the Industrial Court under section 17(11)(a) of the 1956 LRA.  Matters such as Ndawonde would be some of those matters.  Those are matters in which an order could be sought declaring a dismissal invalid.  The similarity of the idea represented from the words “arising from” to the end of paragraph (c) to the idea represented in section 17(11)(a) of the 1956 LRA could not have been a coincidence.

[116] I think that the rationale for the policy decision to exclude unlawful or invalid dismissals under the LRA was that through the LRA the Legislature sought to create a dispensation that would be fair to both employers and employees, having regard to all the circumstances, including the power imbalance between them.  In this regard a declaration of invalidity is based on a “winner takes all” approach.  The fairness which forms the foundation of the LRA has sufficient flexibility built into it to enable a court or arbitrator to do justice between employer and employee.  For example, where a dismissal is unlawful by virtue of the employer having failed to follow a prescribed procedure before dismissing an employee and the dismissal is declared invalid, in law the employee is regarded as never having been dismissed and will be entitled to all arrear wages from the date of the purported dismissal to the date of the order.  Under the LRA a dismissal will be recognised as having taken place irrespective of whether the dismissal is held to have been automatically unfair or unfair because there was no fair reason for it or because there was no compliance with a fair procedure in effecting it.

[117] Furthermore, the fairness required by the LRA dictates that the relief that is granted by the Labour Court or an arbitrator for an unfair dismissal must take account of all the relevant circumstances of the case and the interests of both the employer and employee.  As a result of this approach, there is flexibility in the relief that may be granted in a particular case.  The remedy may be reinstatement with or without retrospectivity.  It may be an award of compensation.  The compensation is capped at 12 months’ remuneration or 24 months’ remuneration, depending on whether it is for an automatically unfair dismissal or a substantively or procedurally unfair dismissal.  If the dismissal is substantively fair but procedurally unfair, reinstatement is not competent but an award of compensation is competent.

[118] All of these enable the Court or an arbitrator to grant relief for unfair dismissal that is just and equitable to both the employer and the employee in a particular case.  The common law which gives us the concept of the invalidity of a dismissal is rigid.  It says that if a dismissal is unlawful and invalid, the employee is treated as never having been dismissed irrespective of whether the only problem with the dismissal was some minor procedural non-compliance. It says that in such a case the employer must pay the employee the whole backpay even if, substantively, the employer had a good and fair reason to dismiss the employee.

[119] Whereas the LRA requires a number of factors to be taken into account in deciding what the appropriate remedy is for an unfair dismissal including an automatically unfair dismissal, the common law’s remedy of an invalid dismissal takes into account one fact and one fact only.  That is that the dismissal was in breach of statutory provisions.  Under the LRA if the remedy that is considered fair is compensation, the Court grants compensation.  The compensation is limited to 12 months’ or 24 months’ remuneration, as the case may be, in terms of section 194 of the LRA.  Under the LRA if the Court thinks reinstatement would be an appropriate remedy, it will grant reinstatement.  When considering the flexibility required by the LRA in the grant of a remedy for unfair dismissal, one thinks of the flexibility in regard to a remedy that section 172(1)(b) of our Constitution contemplates. Section 172(1)(b) confers on the courts the power to make “any order that is just and equitable” when dealing with constitutional matters within their powers.  I make these points to show that the exclusion of the remedy of an invalid dismissal under the LRA was deliberate.  It did not fit into the dispensation of the LRA which required flexibility so as to achieve fairness and equity between employer and employee in each case.

[120] Section 188(1) of the LRA refers to unfair dismissals that fall outside the category of automatically unfair dismissals.  Section 188(1) provides:

“(1)      A dismissal that is not automatically unfair, is unfair if the employer fails to prove—

(a)        that the reason for dismissal is a fair reason—

(i)         related to the employee’s conduct or capacity; or

(ii)        based on the employer’s operational requirements; and

(b)        that the dismissal was effected in accordance with a fair procedure.”

Section 188(2) is also important.  It reads:

“Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.”

[121] The Code of Good Practice contemplated in section 188(2) appears as Schedule 8 to the LRA.  When one goes to the Code of Good Practice, one finds that it covers only dismissals for misconduct and dismissals for incapacity.  It has no provisions relating to dismissals for operational requirements.  There is a reason for this.  It is that, whereas there are no detailed provisions in the LRA itself about dismissals for misconduct and for incapacity, there are detailed provisions in the LRA relating to dismissals for operational requirements.  Those detailed provisions are contained in sections 189 and 189A.

[122] The Code of Good Practice provides for guideline procedures that are expected to be followed to ensure procedural fairness in the case of dismissals for misconduct and dismissals for incapacity.  The Code of Good Practice seeks to give effect to section 188(1)(a)(ii) of the LRA in relation to dismissals for misconduct and dismissals for incapacity.  That is the provision that requires a dismissal to be effected in accordance with a fair procedure.

[123] The provisions of sections 189 and 189A were enacted to give effect to sections 185 and 188 in regard to dismissals for operational requirements.  That means the two sections were enacted to give effect to an employee’s right not to be unfairly dismissed provided for in section 185 read with section 188(1).  They were not enacted to give effect to every employee’s right not to be unlawfully dismissed for which the LRA does not make any provision.  In particular, in so far as sections 189 and 189A provide for procedures and processes that must be complied with before any dismissal for operational requirements can be effected, they seek to give effect to the requirement in section 188(1)(a)(ii) that a dismissal must be effected in accordance with a fair procedure.  Therefore, both sections 189 and 189A have nothing to do with unlawful or invalid dismissals.

[124] The first judgment is wrong that section 189A cannot be smoothed into the fabric of the unfair dismissal provisions of the LRA.  That section fits comfortably into those provisions.  If non-compliance with section 189A results in dismissals being procedurally unfair, the ordinary unfair dismissal provisions of the LRA as well as the special remedies that section 189A provides may be invoked.  If the employer’s operational requirements for dismissals are inadequate, this can be challenged as rendering the dismissal substantively unfair with the advantage of immediate access to the Labour Court or the right to strike provided for in section 189A may be invoked.

[125] If the procedural requirements of section 189 or 189A are not complied with in circumstances where there is no acceptable reason for non-compliance, the result will be that the dismissal was not effected in accordance with a fair procedure as contemplated in section 188(1)(a)(ii).  It is, therefore, procedurally unfair – not unlawful, invalid and of no force or effect.  In substance the applicants’ complaint is that the dismissals are procedurally unfair.  However, the applicants have dressed their complaint up as something else so that they can avoid the mechanisms and remedies under the LRA and seek a remedy that falls outside of the LRA in relation to dismissals.  They do so in an attempt to get maximum benefit that is available only when the breach relied upon is not that of the provisions of the LRA.  What the applicants are doing is not exactly forum-shopping but it is analogous to forum-shopping.  Where the law permits forum-shopping, a litigant cannot be denied relief just because it is engaging in forum-shopping.  However, in this case there is no room for granting the remedy sought by the applicants.

[126] As already stated, the applicants’ complaint is the respondent’s breach of its procedural obligations in section 189A(8) by failing to observe the time limits imposed by that provision.  The procedural obligations placed upon an employer in section 189A, including those in section 189A(8), relate to the procedural fairness contemplated in section 188(1)(b).  Then, when subsection (13) refers to non- compliance with a fair procedure, it refers to procedural fairness made up of the procedural obligations and rights provided for in section 189A.  That being the case, subsection (13) is of great significance.  Not so much for what it provides but rather for what it does not provide.

[127] Subsection (13) reads:

“(13)     If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order—

(a)        compelling the employer to comply with a fair procedure;

(b)        interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure;

(c)        directing the employer to reinstate an employee until it has complied with a fair procedure;

(d)        make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate.”

If section 189A had contemplated that, for a breach of a procedural obligation in section 189A(8), the Labour Court could grant a declaratory order that the resultant dismissal is invalid and of no force and effect, it would have been the easiest thing to include another paragraph in subsection (13), a paragraph (e), reading as follows: “(e) declaring the dismissal invalid”.  The drafters did not include an order to that effect among the orders in subsection (13) because invalid dismissals were not contemplated for the dispensation created by the LRA.

[128] The orders that the Labour Court is given power to make under subsection (13) are so extensive as to make it unnecessary for the LRA to contemplate invalid dismissals and an order declaring a dismissal invalid and of no force and effect.  Those orders include an order for reinstatement which could be with retrospective effect to the date of dismissal and, thus, entitling an employee to full backpay and other benefits and to be treated as if he had never been dismissed.  Any power to enable the Labour Court to make an order declaring an employee’s dismissal invalid and of no force or effect is redundant in the presence of a power to make a fully retrospective order of reinstatement in subsection (13)(c).

[129] One of the strange features of the applicants’ case is that, although their complaint is based upon a breach of an LRA obligation, the remedy that they seek, namely, a declaratory order that the dismissal is invalid and of no force and effect is a common law remedy and not an LRA remedy.  Instead of seeking an LRA remedy for an LRA infringement, they seek a common law remedy for an LRA infringement.  There is a disjuncture about that.  As if that is not enough, when they seek to identify from where the Labour Court must derive its jurisdiction to adjudicate a dispute arising out of a breach of an LRA obligation, they do not go to the LRA.  This is done despite the fact that the LRA does deal with the jurisdiction of the Labour Court.[129]  They go outside the LRA to the Basic Conditions of Employment Act[130] (BCEA) and rely upon section 77[131] of that Act to say that the Labour Court has jurisdiction to deal with a dispute concerning a breach of an LRA obligation.  They could not find a single provision in the LRA which gives the Labour Court the jurisdiction to entertain a dispute whether a dismissal in breach of an LRA provision is invalid.  That is telling.

[130] The scheme of the LRA is that, if it creates a right, it also creates processes or procedures for the enforcement of that right, a dispute resolution procedure for disputes about the infringement of that right, specifies the fora in which that right must be enforced and specifies the remedies available for a breach of that right.  A well-known example is every employee’s right not to be unfairly dismissed which is provided for in section 185.  In section 186 there is a definition of what dismissal means.  In section 187 there is a special category of dismissals, namely, automatically unfair dismissals.  In section 188 other categories of dismissals are created, namely, dismissals that lack a fair reason and procedurally unfair dismissals.

[131] In section 189 the LRA sets out the process or procedure that an employer must follow when contemplating the dismissal of any employee for operational requirements.  In section 189A the LRA creates rights and obligations for a certain category of employers and their employees in regard to dismissals for operational requirements which did not form part of the LRA before 2002.[132]  It also creates the processes or procedures to be complied with.  Section 189A also specifies the process for the adjudication of disputes.  In this regard it makes provision for the referral to the Labour Court for adjudication of a dispute about whether there is a fair reason for dismissal.  It makes provision for the route of a strike and lock-out for the resolution of a dispute.  It is particularly significant that section 189A(9) expressly contemplates the very eventuality that arises in this case.  That is the eventuality of an employer giving notice of dismissals prematurely.  It provides the remedy of an immediate strike for a breach of the section’s provisions.  In section 189A(13) the LRA specifies special remedies for non-compliance with a fair procedure.  All of that – including subsection (8) – is about the right not to be unfairly dismissed which the LRA creates in section 185.  In section 191 the LRA sets out the dispute procedure that must be used to resolve disputes concerning alleged infringements of the right not to be unfairly dismissed.  No provision is made anywhere for a dispute procedure that must be used for a dispute about the validity or lawfulness or otherwise of a dismissal.

[132] One can take other rights provided for in the LRA and do the same exercise.  These include organisational rights, collective bargaining rights, the right to strike and others.  There is even a special dispute resolution chapter in the LRA but it says nothing about a right not to be dismissed unlawfully or about disputes concerning invalid dismissals.  There is no reference to a right not to be unlawfully dismissed.  There are no processes or procedures for the enforcement of such a right.  There are no fora provided for in the LRA for the enforcement of such a right.  Nowhere in the entire LRA is there mention of the words “dismissal” and “unlawful” or “invalid” in the same sentence.  Yet there are many sentences in the LRA in which the words “dismissal” and “unfair” appear.  The LRA makes no provision for dispute procedures to be followed in the case of a dispute arising out of the infringement of such a right.  The only sensible explanation for these omissions in the LRA is that the LRA does not contemplate a right not to be unlawfully dismissed nor does it contemplate invalid dismissals or orders declaring dismissals invalid and of no force and effect.

[133] The absence in the LRA of any provision for a right not to be dismissed unlawfully and of any dispute procedures or processes for the enforcement of that right explain why the applicants have been forced to go to another statute i.e. the BCEA to enforce a right that is not provided for in the BCEA which they say is provided for in the LRA.  The explanation is simply that the LRA does not contemplate the right and the invalid dismissals on which they base their case.  If the LRA contemplated such a right in regard to dismissals, it would have made provision for it and for a dispute procedure to be followed in disputes concerning its infringement.

[134] One factor in determining whether a breach of the procedural requirements of section 189A(8) results in the invalidity of the dismissal notices or of the resultant dismissals is whether the LRA provides any consequences for the breach.  The first point is that the LRA does not say that the invalidity of the dismissal notices or of the resultant dismissals is part of the consequences of a breach of section 189A(8).

[135] The LRA spells out the consequences of an employer’s breach of the procedural requirements of section 189A(8) both in section 189A(9), which is the strike route, and in subsection (13).  That the subsection (13) orders are consequences of non-compliance with the procedural requirements is made clear when subsection (13) refers to “non-compliance with a fair procedure”.  That phrase is a reference to the procedure set out in section 189A.  If the provisions that cover the “fair procedure” referred to in subsection (13) include the procedural requirements of subsection (8), then logically that would lead to the conclusion that the subsection (13) orders represent the consequences of non-compliance with subsection (8).  Furthermore, in many cases the invalidity of an act performed contrary to a statutory provision is inferred from the fact that the statute makes that act a criminal offence.  The LRA does not have a comparable provision.

[136] I conclude that invalid dismissals and a declaratory order that a dismissal is invalid and of no force and effect fall outside the contemplation of the LRA.  Such an order cannot be granted in a case based on the breach of an obligation under the LRA concerning a dismissal.  Accordingly, on this ground alone, the appeal falls to be dismissed.

B.     LRA remedy for an LRA breach

[137] The second basis for my conclusion that the applicants’ appeal should be dismissed is a principle that, for convenience, I call “LRA remedy for an LRA breach”.  The principle is that, if a litigant’s cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA.  It cannot go outside of the LRA and invoke the common law for a remedy.  A cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute resolution mechanisms of the LRA to obtain a remedy provided for in the LRA.

[138] The approach is in line with this Court’s decision in Chirwa.[133]  Ms Chirwa had been employed by the Transnet Pension Fund (Fund), an organ of state established by legislation.  She was dismissed for poor performance.  She referred a dispute of unfair dismissal to the CCMA for conciliation in terms of section 191 of the LRA.  After the conciliation process had failed to produce a resolution of the dispute, she was entitled to request that the dispute be resolved through arbitration in terms of section 191(5) of the LRA.  However, she did not make this request.  Instead, she brought an application in the High Court to have the decision to terminate her contract of employment reviewed and set aside under the Promotion of Administrative Justice Act (PAJA).[134]  She contended that the decision to terminate her contract of employment constituted administrative action under PAJA.

[139] In the High Court Ms Chirwa’s case was based on a contention that the Fund had been obliged to comply with the provisions of the Code of Good Practice contained in Schedule 8 of the LRA.  In this regard she was relying on an alleged breach by the Fund of provisions of the Code relating to procedural fairness applicable to dismissals for poor performance.  She contended that the decision to terminate her contract of employment constituted administrative action under PAJA and fell to be reviewed and set aside because of the Fund’s alleged non-compliance with the LRA procedural requirements.  From this it is clear that the Chirwa case shares an important feature with the present case.  In Chirwa the employee’s cause of action was non-compliance with a procedural requirement provided for in the LRA and the Code but the relief she sought fell outside the LRA.  She sought relief in PAJA.  In the present case the applicants’ cause of action is also non-compliance with a procedural requirement of the LRA but the relief that they seek falls outside the LRA.  It is to be found in the common law.

[140] I have said above that a litigant who bases its case on a breach of an obligation in the LRA must seek a remedy in the LRA and not outside of the LRA.  This Court has already laid down this principle.  In one of the two majority judgments in Chirwa Ngcobo J[135] said:

“Where, as here, an employee alleges non-compliance with provisions of the LRA, the employee must seek the remedy in the LRA.  The employee cannot, as the applicant seeks to do, avoid the dispute resolution mechanisms provided for in the LRA by alleging a violation of a constitutional right in the Bill of Rights.  It could not have been the intention of the legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of section 157(2).  To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute resolution provisions of the LRA.  This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case ‘for practical considerations’.  What is in essence a labour dispute as envisaged in the LRA should not be labelled a violation of a constitutional right in the Bill of Rights simply because the issues raised could also support a conclusion that the conduct of the employer amounts to a violation of a right entrenched in the Constitution.”[136]

[141] Ms Chirwa’s application in the High Court was based upon a contention that the Fund had dismissed her in breach of the provisions of items 8 and 9 of Schedule 8 to the LRA and the Code of Good Practice issued in terms of section 188(2) of the LRA.  This Court pointed out that Ms Chirwa’s claim was based on section 188 of the LRA read with items 8 and 9 of the Code.[137]

[142] In another majority judgment in the same case Skweyiya J said:

“Thus, unlike in Fredericks, the applicant here expressly relies upon those provisions of the LRA which deal with unfair dismissals.  Indeed, this is the claim she asserted when she approached the CCMA.  It is apparent that when she approached the High Court, she made it clear that her claim was based on a violation of the provisions of the LRA, including items 8 and 9 of Sc[hedule] 8 to that Act.  However, she elected to vindicate her rights not under the provisions of the LRA, but instead under the provisions of PAJA.”[138]

Skweyiya J concluded that Ms Chirwa was not “at liberty to relegate the finely-tuned dispute resolution structures created by the LRA”.[139]

[143] Ngcobo J also said:

“The question therefore is whether a dispute about a failure to comply with the mandatory provisions of item 8 and 9 of Schedule 8 to the LRA is a dispute which falls to be resolved under the dispute resolution provisions of the LRA.  In the light of the principles to which I have referred, the answer is clear; a dispute concerning the alleged non-compliance with the provisions of the LRA is a matter which under the LRA, must be determined by the Labour Court.  This result cannot be avoided by alleging, as the applicant does, that the conduct of Transnet violates the provisions of the LRA in question and violates a constitutional right to just administrative action in section 33 of the Constitution and is therefore reviewable under PAJA.”[140]

[144] Applying this passage to the present case, the dispute concerns the breach by Edcon of the procedural requirements of section 189A(8).  Accordingly, the dispute “falls to be resolved under the dispute resolution provisions of the LRA”.  The applicants cannot avoid this result by alleging that the dismissal is invalid and of no force and effect.  What this passage means in part is also that, if a litigant’s case is based on a breach of an LRA obligation, the dispute resolution mechanism used must be that of the LRA and the remedy must also be a remedy provided for in the LRA.  Accordingly, on this ground, too, the appeal falls to be dismissed.

C.     Applicants limited to section 189A remedies and those remedies are adequate

[145] Under this heading I seek to show that, since the applicants rely upon a breach of an obligation in section 189A, their remedies are limited to those provided for in that section and that those are adequate remedies.  In Madrassa[141] it was held that, as a general rule of construction, if it is clear from the language of a statute that, in creating an obligation, the Legislature has confined the party complaining of its non -performance or suffering from its breach to a particular remedy, such party is limited to that remedy and has no further remedies.  One exception to this general rule is the grant of an interdict.  This general rule has been followed in a number of cases.[142]

[146] After referring to Madrassa, the Court in Kubheka went on to say:

“As a matter of construction of the statute, the express provision of a forum for the enforcement of the liability shows that the Legislature intended that forum to have jurisdiction to enforce the remedy, and where the statute is silent on the question whether any other forum would have a similar jurisdiction, the finding of an intention on the part of the Legislature that such a concurrent, unexpressed jurisdiction should exist, can of necessity only be based on an implied provision to that effect, which is to be derived from the provisions of the statute as a whole.”[143]

In the present case the obligation which the applicants seek to enforce is a new obligation introduced into the LRA in 2002.  It did not exist at common law nor did it exist in the LRA before 2002.  It was inserted by section 45 of the Labour Relations Amendment Act.[144]  Prior to this amendment, section 189 governed all dismissals for operational requirements.  The obligation is found in section 189A(8).  It is a procedural obligation.  Subsection (9) provides for a strike option for employees in a case where notices of dismissals are given or the actual dismissals are effected before the expiry of the period referred to in subsection (8)(b)(i).  Section 189A was not part of the LRA prior to 2002.

[147] At this stage it is necessary to deal with section 189A(2).  However, as it has been quoted already, it is not necessary to quote it again.  The purpose of section 189A(2)(a) is to make sure that there is no doubt that any notice of the termination of a contract of employment given in a situation governed by section 189A cannot be said to be a notice in terms of any other law.  This is in line with the idea that section 189A creates special rights and obligations for which it provides special remedies.  Subsection (2)(b) makes this even clearer.

[148] Subsection (2)(b) permits employees to resort to a strike in regard to the fairness of the reason for dismissal.  In terms of our law governing industrial action the normal position is that employees may not resort to a strike in respect of an issue in dispute that they may refer to arbitration or to the Labour Court nor may an employer institute a lock out in respect of such an issue in dispute.[145]  A complaint about the fairness of a dismissal covered by section 189A is a complaint that can be referred to the Labour Court.  It is, therefore, an issue that would ordinarily not be strikeable.  In the case of dismissals to which section 189A applies, the LRA has gone out of its way and created an exception to that normal rule.  Section 189A makes an exception to this rule in order to enable workers and employers to resort to strikes and lockouts, respectively, to try and resolve disputes concerning dismissals governed by section 189A.  In this situation an extraordinary remedy is provided for an extraordinary situation.

[149] Subsection (7) deals with what may or may not happen where a facilitator has been appointed.  It also lays down certain procedures.  Subsection (7), inter alia, provides:

“(7)      If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189(3)—

(a)        the employer may give notice to terminate the contracts of employment in accordance with section 37(1) of the Basic Conditions of Employment Act; and

(b)        a registered trade union or the employees who have received notice of termination may either—

(i)         give notice of a strike in terms of section 64(1)(b) or (d); or

(ii)        refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11).”

[150] The provisions of subsection (7)(a) mean that, in a case where a facilitator was appointed, a period of at least 60 days from the date on which the section 189(3) notice was given must lapse before the employer may give employees dismissal notices.  An employer may not give an employee notice of the termination of his or her contract of employment before the expiry of 60 days.  If an employer were to do so, that would be a breach of section 189A(7).  It would immediately give the employees the right to strike.[146]

[151] Subsection (8) has already been quoted above.  It is therefore, not necessary to quote it again.  In terms of subsection (8) a period of at least 30 days must elapse from the date of the giving of the section 189(3) notice before a party may refer a dispute to a council or the CCMA.  A referral of a dispute before the expiry of that period would be a breach of the provision.  Once the period of 30 days has elapsed, the employer must also wait for the periods referred to in section 64(1)(a) to elapse before it may give the employees dismissal notices.  If the employer were to give employees dismissal notices prior to the expiry of those periods, that would be a breach of subsection (8)(a).  That is dealt with under subsections (8)(a) and (8)(b)(i).

[152] Subsection (8)(b)(ii) deals with what the employees and a registered trade union may do in response to dismissal notices.  In construing subsection (8)(b)(ii), the use of the word “may” before subparagraph (aa) and the use of the disjunctive word “or” between (aa) and (bb) must be noted.  It seems to me that employees and a registered trade union are given an election between two routes.  The one route is a strike.  The other is adjudication by the Labour Court of a dispute about whether there is a fair reason to dismiss.  The employees and a registered trade union may not have both at the same time or one after the other.  They have to choose one and their choice cannot be changed once it has been communicated to the employer.

[153] Subsection (9) is also important.  It is also about the strike weapon for the workers.  It reads:

“Notice of the commencement of a strike may be given if the employer dismisses or gives notice of dismissal before the expiry of the periods referred to in subsections (7)(a) or (8)(b)(i).”

This provision deals specifically with the situation where the employer gives employees notices of dismissal or dismisses employees before the expiry of the statutory time periods prescribed in subsection (7)(a) and subsection (8)(b)(i).  It provides a clear remedy in addition to the remedy under section 189A(13).  It provides that, as a response to the employer giving employees notices of dismissal or dismissing employees before the expiry of the periods in subsections (7)(a) and (8)(b)(i), the employee may give notice of a strike and resort to a strike immediately after the expiry of the strike notice.  That is a further strong indication that the Legislature was aware of this possibility and provided for it by way of remedies in section 189A under the LRA.

[154] The right to strike in this provision can be invoked only where the employees decide not to refer the question whether the employer had a fair reason to dismiss to the Labour Court.  Subsection (10)(a) makes it clear that the avenue of a strike under subsection (9) is not in addition to the avenue of referring a dispute concerning whether there is a fair reason for the dismissal to the Labour Court for adjudication.  It is in the place of such a referral.  Subsection (10)(a) also makes it clear that, if the union or the workers elect to refer a dispute concerning whether there is a fair reason for a dismissal to the Labour Court, that is not in addition to the avenue of a strike.  It is in its place.

[155] Subsection (9) is important to trade unions and workers because it gives them an opportunity to carefully assess which avenue or weapon has a better chance of producing the outcome they want when the employer acted prematurely in either issuing notices of dismissal or dismissing without issuing notices.  The provision gives them an election.  Once they have made their election, they are bound by it and may not later explore the other avenue.  If they elect the strike route, they cannot later seek to refer a dispute about whether there is a fair reason for dismissal to the Labour Court for adjudication.  If they elect to refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court, they cannot later resort to a strike.  Importantly, the time constraints that previously applied to them fall away and they are entitled immediately to invoke the option of a strike.

[156] Under normal circumstances workers do not have an election whether to use a strike to deal with a dismissal to which they are opposed.  In terms of section 65(1)(c) they may not resort to a strike in respect of such a matter because it is an issue in dispute that they have a right to refer to the Labour Court for adjudication.^[147]  They are obliged, if they want to challenge the dismissal in any way under the LRA, to refer the dispute to the Labour Court for adjudication.  The fact that section 189A gives workers and trade unions the election that it gives them means that the protection it gives to employees is greater than the protection given to employees to whom section 189A does not apply.  It is also important to point out that in terms of subsection (11)(a)(ii) the employer is precluded from instituting a lock-out in a case where the workers do not elect the strike route.

[157] Subsections (8)(b)(ii)(aa) and (bb) provide the only remedies available to workers or their trade union if they dispute the fairness of the reason for their dismissal.  They do not have any other remedies.  However, they are still better off than their colleagues to whom section 189A does not apply.  That is in so far as they may be challenging the fairness of the reason for their dismissal.  What if they challenge only the procedural fairness of the dismissal?

[158] It is to be noted that in such a case subsection (8)(b)(ii)(bb) does not contemplate the referral of a dispute concerning the procedural fairness of a dismissal to the Labour Court for adjudication.  In terms of that provision only a dispute concerning whether there is a fair reason for dismissal may be referred to the Labour Court for adjudication.  In fact subsection (18) precludes the Labour Court from adjudicating any dispute about the procedural fairness of a dismissal for operational requirements referred to it in terms of section 191(5)(b)(ii).  It reads:

“The Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal based on the employer’s operational requirements in any dispute referred to it in terms of section 191(5)(b)(ii).”

Subsection (18) may seem very drastic and harsh on employees who may be having a dispute with their employer concerning the procedural fairness of their dismissal.  However, it will be seen that, when read with subsection (13), it is not harsh at all.  Subsection (13) provides extensive protections to employees where the employer has failed to comply with a fair procedure.[148]

[159] I cannot think of any relief that an employee could ask for which is not provided for in this section.  Subsection (17)(a) provides that an application such as the one contemplated in subsection (13) must be made not later than 30 days after the employer has given notice to terminate the employees’ contracts of employment or if notice is not given, the date on which the employees were dismissed.  So, a challenge based on procedural unfairness may be brought after the dismissals have taken place.  However, subsection (17)(b) gives the Labour Court power to condone, on good cause shown, any failure to comply with that time limit.

[160] If an employer has not issued notices of dismissal but has failed or is failing to comply with a fair procedure in the pre-dismissal process, a consulting party may make use of the remedy in subsection (13)(a).  In such a case the consulting party would apply to the Labour Court for an order compelling the employer to comply with a fair procedure.  If an employer gives employees notices of dismissal without complying with a fair procedure, or, if an employer dismisses employees without complying with a fair procedure, the consulting party may apply to the Labour Court for an order interdicting the dismissal of employees in terms of subsection (13)(b) until there is compliance with a fair procedure.  This would include giving premature notices of dismissal.

[161] If an employer has already dismissed employees without complying with a fair procedure, the consulting party may apply to the Labour Court in terms of subsection (13)(c) for an order reinstating the employees until the employer has complied with a fair procedure.  The significance of the remedy of reinstatement in subsection (13)(c) is that it is made available even for a dismissal that is unfair only because of non-compliance with a fair procedure.  That is significant because it is a departure from the normal provision that reinstatement may not be granted in a case where the only basis for the finding that the dismissal is unfair is the employer’s failure to comply with a fair procedure.[149]  In such a case the norm is that the Labour Court or an arbitrator may award the employee only compensation.

[162] Subsection (13)(d) provides that a consulting party may apply to the Labour Court for an award of compensation “if an order in terms of paragraphs (a) to (c) is not appropriate”.  It seems to me that the phrase “if an order in terms of paragraphs (a) to (c) is not appropriate” constitutes a condition precedent that must exist before the Court may award compensation.  The significance of this condition precedent is that its effect is that the Labour Court is required to regard the orders provided for in subsection (13)(a) to (c) as the preferred remedies in the sense that the Labour Court should only consider the remedy in subsection (13)(d) when it is not appropriate to make any of the orders in subsection (13)(a) to (c).

[163] This is a reversal of the legal position that obtains in the case of dismissals for the employer’s operational requirements governed by only section 189 where dismissal is only procedurally unfair and not substantively unfair as well.  In these cases the Labour Court is required not to order reinstatement at all.  So, in making the remedy of reinstatement available for a procedurally unfair dismissal and also making it one of the preferred remedies in subsection (13), the Legislature has gone out of its way to give special protection for the rights of employees and to protect the integrity of the procedural requirements of dismissals governed by section 189A.

[164] The extensive remedies in subsection (13) provide at least partial compensation for the fact that in respect of disputes concerning the procedural fairness of dismissals the employees have been deprived of the right to adjudication that other employees have.  In part the extensive remedies in subsection (13) for non-compliance with procedural fairness have been provided because of the importance of the pre-dismissal process.

[165] Subsection (14) provides:

“Subject to this section, the Labour Court may make any appropriate order referred to in section 158(1)(a).”

The orders referred to in section 158(1)(a) include a declaratory order.  However, I do not think that subsection (14) empowers the Labour Court to make a declaratory order of invalidity in respect of a dismissal when the LRA makes no provision for a right not to be dismissed unlawfully or for an invalid dismissal.  This means that whatever declaratory order may be made in terms of subsection (14) may be made only if it is contemplated in section 189A.  This is so because of the opening phrase: “subject to this section” which appears at the beginning of subsection (14).

[166] I referred earlier to the fact that section 189A(8) gives employees and a registered trade union a right to strike as one of the “weapons” they may use when they have received notices of the termination of contracts of employment of the employees.  That avenue is provided by subsection (7)(b)(i) and subsection (8)(b)(ii)(aa).  Both those provisions say that a registered trade union or employees who have received dismissal notices may “give notice of a strike in terms of section 64(1)(b) or (d)” or “refer a dispute whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11)”.

[167] A question that arises out of these provisions is whether the strike contemplated in these provisions can only be about a dispute whether there is a fair reason for the dismissal or can also be about a dispute concerning non-compliance with a fair procedure or whether it can be about both.  It can also be asked whether the strike can relate to such dispute as may have existed between the parties prior to the dismissal or prior to the giving of the notices of dismissal by the employer and whether it can relate to all three disputes or to any one of them.

[168] The reason for considering what the position is in this regard is that it is necessary to assess whether the strike route is available to employees and a trade union if the dispute is confined to non-compliance with a fair procedure.  It seems from subsection (10)(a)(i) and (ii) as well as subsection (2)(b) that the strike contemplated in subsections (7) and (8) relates simply to dismissals.  What we know is that:

(a)              before a strike notice can be given, the employees would have received notice of the termination of contracts of employment because that must precede the giving of a strike notice;

(b)             in terms of subsection (10)(a)(i) the strike route is not available to a consulting party “if [the consulting party] has referred a dispute concerning whether there is a fair reason for that dismissal to the Labour Court”;

(c)             in terms of subsection (10)(a)(ii) the option of referring to the Labour Court for adjudication a dispute whether there is a fair reason for the dismissal is not available to a consulting party “if [the consulting party] has given notice of a strike in terms of this section in respect of that dismissal”;

(d)             whereas, in respect of a dispute whether there is a fair reason for the dismissal, there is a clear provision that there will be no strike if that dispute has been referred to the Labour Court for adjudication, there is no corresponding provision in respect of a dispute about whether there has been compliance with a fair procedure in regard to a dismissal;[150]

(e)             there is also no provision to the effect that, if a consulting party has applied to the Labour Court for any of the orders listed in subsection (13), the consulting party may not give notice of a strike; and

(f)               there is no provision to the effect that, if a consulting party gives notice of a strike in respect of a dispute whether there has been compliance with a fair procedure in respect of a dismissal, the consulting party may not apply to the Labour Court for any order listed in subsection (13).

[169] If a strike may be resorted to in respect of a dispute whether there was compliance with a fair procedure in respect of a dismissal, not only would that mean that the LRA makes it possible for employees to strike in respect of a dispute about the procedural fairness of a dismissal but also it would mean that employees are not precluded from using both a strike and the Labour Court to deal with an employer who fails to comply with a fair procedure in dismissing them or in issuing notices of termination.  This would be quite extraordinary not only because it goes against the norm but also because in respect of a dispute about a more serious matter – namely whether there is a fair reason for the dismissal – the LRA does not permit the use of both avenues.  Even if a strike may not be resorted to in respect of a dispute on whether there was compliance with a fair procedure in regard to a dismissal, the remedies in subsection (13) are still sufficiently extensive and adequate.  They make it unnecessary for the LRA to contemplate orders declaring dismissals invalid.

[170] It may well be that a strike in respect of a dispute on whether there has been compliance with a fair procedure in respect of a dismissal is not permissible under section 189A because, maybe, the LRA must be construed to mean that the exception to the norm is only in respect of a dispute whether there is a fair reason to dismiss.  Having said this, I note that subsection (2)(b), which provides for the exception to the norm with regard to the right to strike, simply provides that, “despite section 65(1)(c), an employee may participate in a strike and an employer may lock-out in accordance with the provisions of this section”.  This does not help us in clarifying whether the strike route is available in respect of both types of dispute or only in respect of the dispute whether there is a fair reason for the dismissal.

[171] Where section 189A permits a strike, whether in respect of a dispute concerning the existence of a fair reason for the dismissal only or both types of dismissal disputes, the position is that section 189A gives employees a strong weapon to deal with the employer.  It is a strong weapon because in a particular case, a strike, particularly one that lasts long, has the potential to financially ruin an employer’s business.  This is more so when a strike is resorted to against an employer who may be facing financial difficulties as is to be expected of an employer who seeks to dismiss a significant number of its workforce for operational requirements.

[172] A protected strike may be a potent collective bargaining weapon against an employer.  This can be seen, in part, from the fact that the LRA permits various actions to be taken against an employer in contemplation or furtherance of a protected strike.  The actions that the employees and their union may take against the employer in contemplation or in furtherance of a protected strike include breaches of contracts and the commission of delicts.  In respect of both a breach of contract and the commission of a delict the employer is precluded from taking any legal action against the union or employees.  This is based on section 67(1) and (2) of the LRA.  This section reads:

“(1)      In this Chapter, ‘protected strike’ means a strike that complies with the provisions of this Chapter and ‘protected lock-out’ means a lock-out that complies with the provisions of this Chapter.

(2)        A person does not commit a delict or a breach of contract by taking part in—

(a)        a protected strike or a protected lock-out; or

(b)       any conduct in contemplation or in the furtherance of a protected strike or a protected lock-out.” (Emphasis in original and added.)

Even under the 1956 LRA there was a provision to this effect although it was differently formulated.  It was section 79 of that Act.[151]

[173] The meaning of section 67(2)(b) is that, for example, in the case of a protected strike, a trade union and employees may resort to any conduct in contemplation or furtherance of a protected strike and the employer may not interdict them or sue them for damages for such conduct even if the conduct causes the employer financial loss.  The only limitation to this extensive right is that such conduct may not constitute a criminal offence.[152]

[174] Conduct referred to in section 67(2)(b) would include the calling of a boycott of the products of the employer.  It would also include the union and workers peacefully dissuading potential temporary workers not to take up employment with the employer for the duration of the strike.  Picketing is also provided for in section 69.[153]  The point about all this is that the strike under section 189A is a far reaching “remedy” itself and that there is, therefore, no need to include the invalidity of dismissals as a consequence of non-compliance with the procedural obligations in subsection (8) on the basis that, otherwise, there would be no serious consequences for non-compliance.  Another point about all this is also to show that the remedies provided by the LRA to employees who are dismissed or who receive notices of dismissals in terms of section 189A(7) and (8) are adequate.

[175] May it be said that the remedies provided for in subsection (13) are inadequate and fall short of proper remedies for the employees?  No.  Not only is the choice of remedies wide but also the protection is itself very extensive.  They are remedies that do justice between employer and employee.  If these remedies are adequate, the question that arises would be: why would the LRA require the invalidity of dismissals as another consequence?  The remedies in subsection (13) are sufficient and they represent serious consequences for non-compliance with the procedural requirements of, among others, subsection (8).

[176] The order provided for in subsection (13)(c) can in effect give employees the same relief as an order declaring a dismissal invalid.  An order that a dismissal is invalid and of no force and effect means that in law there was never any dismissal.  That means that the employee has always remained in the employ of the employer.  An employee whose dismissal has been declared invalid does not need an order of reinstatement because he or she is in his or her employer’s employ.

[177] In the case of an employee whose dismissal is automatically or substantively unfair, the law recognises the dismissal but regards it as unfair.  Unless the employee has been granted an order of reinstatement with retrospective effect to the date of dismissal, he is not regarded as having been in the employer’s employ between the date of the dismissal and the date of the grant of the order of reinstatement.  However, once an order of reinstatement is made retrospective to the date of dismissal, whether it is in the case of an automatically unfair dismissal or a substantively unfair one, the employee will in effect be regarded as not having been dismissed.  In that case the employee is in no worse a position than an employee whose dismissal has been found to have been invalid.  An employee whose dismissal has been declared invalid only needs to report for duty or to tender his or her services but an employee whose dismissal is valid but unfair needs an order of reinstatement in addition to an order declaring the dismissal unfair in order to report for duty.

[178] Two employees, one whose dismissal has been declared invalid by a court and another whose dismissal has been declared unfair but who, in addition, secures an order of reinstatement with retrospective effect to the date of dismissal, are exactly in the same position.  Both may report for duty and resume their jobs and get backpay for the post-dismissal period.

[179] In Pottie v Kotze[154] the Court held that non-compliance with the requirements of subsections (1) and (3) of section 13 bis of the Transvaal Motor Vehicle Ordinance[155] when a second-hand motor vehicle was disposed of did not render the transaction null and void.  In that case the fact that the Ordinance in question had ample remedies for enforcing the prohibition or requirement in question was an important factor that the Court took into account in reaching the conclusion that the purpose of the Ordinance was not to visit a transaction entered into in breach of subsections (1) and (3) of section 13 with nullity.  The Court said:

“In the Ordinance under discussion there are ample remedies for enforcing the requirement that the vehicle should be examined and pronounced fit for the road; when once that pronouncement has been made, there is no mischief left, and nothing could then be gained, while serious inequities might be caused, by invalidation of the contract.”[156]

[180] The LRA does not contemplate orders of invalidity in respect of dismissals.  This is because through orders of reinstatement that operate with retrospective effect to the date of dismissal the same result may be achieved as is achieved through an order declaring a dismissal invalid.  Furthermore, that is achieved while retaining the flexibility that comes with fairness and equity which are the foundation of the LRA dispensation and without the rigidity of the common law on which the invalidity of dismissals is based.  Therefore, under the LRA the need for invalid dismissals does not arise.

The approach of the Labour Court and Labour Appeal Court

[181] In considering whether the dismissal notices in De Beers I,[157] De Beers II[158] and Revan,[159] were valid, the Labour Court (in respect of De Beers I) and the Labour Appeal Court (in respect of De Beers II and Revan), respectively, adopted the approach that, if an act was done contrary to a statutory obligation, it was invalid and of no force and effect and should be so declared.  This was based mainly on the fact that the statutory provision contains the word “must”.  This was not the correct approach.

The correct approach

[182] The approach that the use of the word “shall” in a statutory provision means that anything done contrary to such a provision is a nullity is neither rigid nor conclusive.  The same can be said of the use of the word “must”.  Many factors must be considered to determine whether a thing done contrary to such a provision is a nullity.  There are cases where the performance of an act in breach of a statutory obligation does not necessarily result in the act being invalid and of no force and effect.^[160]  When the question arises whether something that was done contrary to a statutory provision is invalid and of no force and effect, the proper approach is to ascertain what the purpose of the legislation is in this regard.  Sometimes, the purpose of the legislation will be to render it a nullity.  At other times the purpose will not be to render such a thing a nullity.  In each case the legislation will need to be construed properly to establish its purpose.

[183] Some of the factors that should be taken into account in the construction of the statute to establish its purpose are the following: the purpose of the legislation as a whole, the purpose of the relevant section of the Act, the mischief sought to be addressed, whether the statute makes provision for remedies for its breach or whether, if the act is not held to be null and void, it would mean that the provision may be breached with impunity.[161]  Where the statute does make provision for some remedies for the breach of the relevant provision, the Court would also have to take into account whether the remedies provided are adequate.  Where they are adequate, there seems to be no justification for the conclusion that the purpose of the legislation is to visit an act committed in breach of the provision with nullity.  It would be a different case where the remedies provided by the statute are not adequate, particularly if they are substantially inadequate or where such remedies cannot be easily obtained.

[184] This approach is consistent with that taken in Standard Bank,[162] Metro Western Cape (Pty) Ltd,[163] Palm Fifteen (Pty) Ltd,[164] Pottie v Kotze[165] and Swart v Smuts.[166]  In Palm Fifteen Miller JA said:

“. . . the subject matter of the prohibition, its purpose in the context of the legislation . . ., the remedies provided in the event of any breach of the prohibition, the nature of the mischief which it was designed to remedy or avoid and any cognisable impropriety or inconvenience which may flow from invalidity, are all factors which must be considered when the question is whether it was truly intended that anything done contrary to the provision in question was necessarily to be visited with nullity.”[167]

This passage was quoted with approval in Absa Insurance Brokers (Pty) Ltd.[168]  In that case the Supreme Court of Appeal made the following important point after quoting the above passage from Palm Fifteen (Pty) Ltd:

“In answering the question as to whether a contract entered into in contravention of the provisions of s 20bis is a nullity, the purpose of the section is crucial.”[169] (Emphasis added.)

[185] If one were to apply to the present case the factors mentioned by Miller JA, one would need to point out that—

(a)              the purpose of the procedural obligation that has been breached is to give effect to the employer’s obligation to ensure compliance with a fair procedure before there can be a dismissal for operational requirements and to give the parties enough time to try and reach an agreement on the various issues;

(b)             the statute is silent on whether a breach of the procedural obligation in question results in the invalidity of the dismissal;

(c)             there is no provision in the statute making a breach of the procedural obligation a criminal offence; and

(d)              this is not a case where a breach of the procedural obligation will have no consequences if it is held that the purpose of section 189A(8) is not to visit the dismissal or notices with nullity; this is a case where the statute spells out serious consequences for the employer if the employer acts in breach of the procedural obligation including an order that would effectively reverse the decision of the employer until the employer has complied with the procedural obligation; that reversal may include reinstatement of employees; also included is that the employer may be “hit” with a strike.

[186] Having regard to the purpose of the LRA in general, the purpose of section 189A, the purpose of section 189A(8) and the provisions of section 189(a) and of 189A(13) in particular, and other factors, there is no sufficient basis for the proposition that the purpose of the LRA is that the consequence of a breach of section 189A(8) is the nullity of the act done contrary thereto.

[187] Two cases were referred to during the hearing in which dismissals that were effected in breach of statutory provisions relating to notice were declared invalid and of no force and effect.  One was NTE Ltd[170] and the other was Natal Co-operative Timbers (Pty) Ltd.[171]  Both cases are distinguishable.  The statutory context in which they were decided differs significantly from the statutory context in which we have to decide the present case.  In both cases the legislation involved had a provision that made non-compliance with the relevant notice provisions a criminal offence.  The LRA has no such provision.  In both cases the legislation involved did not have any non-criminal consequences such as we have in section 189A(13) and (9) in the present case.  Schierhout[172], upon which there was much reliance by the Union and the other applicants, is similarly distinguishable.

Is an order of reinstatement competent in the case of an invalid dismissal?

[188] One of the factors on which the first judgment relies to reach the conclusion that dismissal notices given, or, dismissals effected, in breach of the procedural requirements of section 189A(8) are invalid is the proposition that the grant of an order of reinstatement in the case of an invalid dismissal is not automatic but discretionary.  Obviously, that implies that an order of reinstatement is competent in the case of a dismissal that has been declared invalid and of no force and effect.  I am unable to agree with this proposition.  In my view an order of reinstatement is not competent where the dismissal is invalid and of no force and effect.  To speak of an order of reinstatement in that case is a contradiction in terms.

[189] An invalid dismissal is a nullity.  In the eyes of the law an employee whose dismissal is invalid has never been dismissed.  If, in the eyes of the law, that employee has never been dismissed, that means the employee remains in his or her position in the employ of the employer.  In this Court’s unanimous judgment in Equity Aviation, Nkabinde J articulated the meaning of the word “reinstate” in the context of an employee who has been dismissed.^[173]  She said, quite correctly, it means to restore the employee to the position in which he or she was before he or she was dismissed.[174]  With that meaning in mind, the question that arises in the context of an employee whose dismissal has been found to be invalid and of no force and effect is: how do you restore an employee to the position from which he or she has never been moved?  That a dismissal is invalid and of no force and effect means that it is not recognised as having happened.  It is different from a dismissal that is found to be unfair because that dismissal is recognised in law as having occurred.

[190] When a dismissal is held to be unfair, one can speak of a reinstatement but not in the case of an invalid dismissal.  This, therefore, means that an order of reinstatement is not competent for an invalid dismissal.  An employer against which an order has been made declaring the dismissal of its employees invalid and who does not want to continue or cannot continue the employment relationship with those employees will have to dismiss them again.  Otherwise, they remain in its employ and, if they tender their services or are prevented by the employer from performing their duties, will be entitled to payment of their remuneration.

[191] The distinction between an invalid dismissal and an unfair dismissal highlights the distinction in our law between lawfulness and fairness in general and, in particular, the distinction between an unlawful and invalid dismissal and an unfair dismissal or, under the 1956 LRA a dismissal that constituted an unfair labour practice.  At common law the termination of a contract of employment on notice is lawful but that termination may be unfair under the LRA if there is no fair reason for it or if there was no compliance with a fair procedure before it was effected.  This distinction has been highlighted in both our case law and in academic writings.[175]

[192] It is an employee whose dismissal is unfair that requires an order of reinstatement.  An employee whose dismissal is invalid does not need an order of reinstatement.  If an employee whose dismissal has been declared invalid is prevented by the employer from entering the workplace to perform his or her duties, in an appropriate case a court may interdict the employer from preventing the employee from reporting for duty or from performing his or her duties.  The court may also make an order that the employer must allow the employee into the workplace for purposes of performing his or her duties.  However, it cannot order the reinstatement of the employee.

[193] The appeal must fail.  Does this mean that this is the end of the road for the employees in this case?  Not necessarily.  Until the decision of this Court, the employees acted on the strength of decisions of the Labour Court and Labour Appeal Court whose effect was that in this type of case it was open to them not to use the dispute resolution mechanisms of the LRA and not to seek remedies provided for in section 189A but instead to simply seek orders declaring their dismissals invalid.  It is arguably open to them to seek condonation and pursue remedies under the LRA.  Obviously, Edcon would be entitled to oppose that.

[194] Originally, all the parties had sought costs if they were successful.  However, during argument they all abandoned costs.  In any event I am of the view that the dictates of fairness and equity require that no order as to costs should be made.  This is a labour matter and it raised an important issue of law that required to be considered by this Court.

[195] In the result, the following order is made:

(a)       Leave to appeal is granted.

(b)       The appeal is dismissed.

(c)       There is no order as to costs.

For the First, Second and Further Applicants: A Redding SC and E S J Van Graan SC instructed by Keith Whitaker Attorney.

 

For Intervening Applicant: J G Van der Riet SC and H Barnes instructed by Ruth Edmonds Attorneys

 

For the Respondent: A Myburgh SC and F Boda instructed by Norton Rose Fulbright South Africa Inc

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