Steenkamp and Others v Edcon Ltd

• Jurisdiction: South Africa
• Citation: 2016 (3) SA 251 (CC)

Steenkamp and Others v Edcon Ltd
2016 (3) SA 251 (CC)

2016 (3) SA p251

Citation	2016 (3) SA 251 (CC)
Case No	CCT 46/15; [2016] ZACC 1
Court	Constitutional Court
Judge	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
Heard	September 8, 2015
Judgment	January 22, 2016
Counsel	A Redding SC (with ESJ van Graan SC) for the first, second and further applicants.; JG van der Riet SC (with H Barnes) for the intervening party.; A Myburgh SC (with F Boda) for the appellant.

Flynote : Sleutelwoorde B

Labour law — Dismissal — Notice of termination — Dismissal for operational requirements by employers with more than 50 employees — Prescribed statutory notice periods — Non-compliance not rendering dismissal invalid — Declaration of invalidity not remedy contemplated by LRA — C Employees limited to LRA remedies for LRA breach — LRA remedies adequate — Labour Relations Act 66 of 1995, ss 189A(2)(a) and 189A(8).

Statute — Interpretation — 'Must' — Meaning of in statutory provision — Mere use of word 'must' not enough to justify conclusion that thing done contrary to it a nullity. D

Headnote : Kopnota

Section 189A(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) provides that for dismissals based on operational requirements by employers with more than 50 employees, notice of termination of employment 'must' be given 'in accordance with the provisions of this section'. In this case the provisions of s 189A(8) applied, precluding an employer from giving E dismissal notices during a period of 30 days from giving a s 189(3) notice and not before the periods mentioned in s 64(1)(a) had elapsed.

The respondent (Edcon) had given dismissal notices prematurely during this 30-day period to a number of employees, including Ms Steenkamp, in breach of s 189A(8). She and other affected employees, together with their representative trade union (the applicants), approached the Labour Court F for orders declaring the dismissals invalid and of no force and effect, and for reinstatement orders. The Labour Appeal Court (the LAC) heard the matter as a court of first instance and held that the dismissals were not invalid but that they may have constituted an unfair labour practice.

In their application for leave to appeal to the Constitutional Court the applicants relied on the peremptory word 'must' in s 189A(2)(a) and on the principle that anything done contrary to law was a nullity. G

Held

The approach that the use of the word 'shall' in a statutory provision meant that anything done contrary to it was a nullity, H was neither rigid nor conclusive. The same could be said of the use of the word 'must' — its mere use was not sufficient to justify a conclusion that a thing done contrary to it was a nullity. The proper approach was to ascertain the purpose of the legislation in this regard. This required an examination of the relevant provisions of the statute. (Paragraphs [99] and [182] – [183] at 284D – G and 311C – H.)

The applicants' contentions fell to be rejected and their appeal dismissed for the following reasons:

The LRA did not contemplate invalid dismissals or an order declaring a I dismissal invalid and of no force and effect

Non-compliance with the s 189A(8) procedure could result in the dismissals being unfair, and not invalid. Before a court could declare that a dismissal was invalid, it first had to conclude that it was unlawful. The LRA created special rights and obligations that did not exist at common law, and also created applicable principles and special processes and fora for the enforcement of those rights. J

2016 (3) SA p252

A One such right was the right not to be unfairly dismissed, but no right not be unlawfully dismissed featured in the LRA. This was an indication that the LRA did not contemplate invalidity as a consequence of a dismissal effected in breach of a provision of the LRA, and this conclusion was reinforced by the absence of 'unlawful dismissal' from the LRA's definition of 'dismissal', and by the inclusion in the LRA of the category of 'automatically unfair dismissals'. (Paragraphs [104] – [108] at 285J – 287F.)

B The legislature deliberately provided in the LRA for unfair dismissals and automatically unfair dismissals to attract a remedy, but did not make any provision for unlawful or and invalid dismissals. The rationale for the policy decision to exclude unlawful or invalid dismissals from the LRA was that the legislature sought to create a dispensation that would be fair to both C employers and employees, with sufficient flexibility to do justice between employer and employee. Under the LRA a dismissal was recognised as having taken place irrespective of whether it was held to have been unfair or automatically unfair because there was no fair reason for it or because there was no compliance with a fair procedure in effecting it. The exclusion of the remedy of an invalid dismissal under the LRA was deliberate because it did D 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. (Paragraphs [109] and [116] at 288B – C and 291C – E.)

If the procedural requirements of s 189 or s 189A were not complied with (in circumstances where there were no acceptable reason for non-compliance), the result would be that the dismissal was not effected in accordance with E a fair procedure as contemplated in s 188(1)(a)(ii). It would therefore be procedurally unfair — not unlawful, invalid and of no force or effect. (Paragraph [125] at 293E – F.)

The orders that the Labour Court could make under ss (13), should an employer not comply with fair procedure, were so extensive as to make it unnecessary for the LRA to contemplate invalid dismissals or orders declaring dismissals F to be invalid and of no force and effect. These included an order for reinstatement which could be with retrospective effect to the date of dismissal, thus entitling the employee to full back-pay and other benefits and to be treated as if he had never been dismissed. (Paragraph [128] at 294D – E.)

Another factor was that while the LRA spelled out the consequences of non-compliance G with the procedural requirements of s 189A(8), it did not mention that the invalidity of the dismissal notices or of the resultant dismissals were part of such consequences. (Paragraphs [134] – [136] at 296G – H.)

The declaratory order sought was a wrong remedy for an LRA breach

H A cause of action based on a breach of an LRA obligation compelled the litigant to utilise the dispute-resolution mechanisms of the LRA to obtain a remedy provided for in the LRA. The litigant could not go outside of the LRA and invoke the common law for a remedy. If a litigant's case were based on a breach of an LRA obligation, the dispute-resolution mechanism used had to be that of the LRA, and the remedy had to be a remedy provided for in the LRA. (Paragraphs [137] – [144] at 297C – 299D).

I Remedies for breach of s 189A were limited to those provided, and were adequate

As a general rule of construction, if it were clear from the language of a statute that in creating an obligation the legislature confined the party complaining of its non-performance, or suffering from its breach, to a particular remedy, such party would be limited to that remedy and had no further remedies. J (Paragraph [145] at 299E – G.)

2016 (3) SA p253

Subsection (18) read with ss (13) provided extensive protection to employees A where an employer failed to comply with a fair procedure. The strike option permitted by s 189A gave employees a strong weapon to deal with the employer and was a far-reaching remedy itself. And by an order of reinstatement that operated with retrospective effect to the date of dismissal, the same result could be achieved as by an order declaring a dismissal invalid. These were adequate remedies, and therefore there was B no need to include the invalidity of dismissals as a consequence of non-compliance with the procedural obligations in ss (8) on the basis that there would otherwise be no serious consequences for non-compliance. (Paragraphs [158], [164], [171], [174] – [175] and [180] at 303E, 304G, 306H – I, 307F – 309D and 310G – I.)

Cases Considered

Annotations C

Case law

Absa Insurance Brokers (Pty) Ltd v Luttig and Another NNO 1997 (4) SA 229 (SCA) ([1997] 3 All SA 267; [1997] ZASCA 61): dictum at 239B applied D

Alpha Plant & Services (Pty) Ltd v Simmonds [2001] 3 BLLR 261 (LAC) ([2000] ZALAC 26): referred to

Anderson v Toyota SA Motors (Pty) Ltd (1993) 14 ILJ 452 (LC): dictum at 454C – D applied

Balagooroo Senaithalway Educational Trust v Soobramoney 1965 (3) SA 627 (N): referred to E

Callinicos v Burman 1963 (1) SA 489 (A): referred to

Chester Wholesale Meats (Pty) Ltd v Niwusa [2006] 3 BLLR 223 (LAC): referred to

Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) ((2008) 29 ILJ 73; 2008 (3) BCLR 251; [2008] 2 BLLR 97; [2007] ZACC 23): applied

Coetzee v Fick and Another 1926 TPD 213: referred to F

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): compared

Da Silva and Another v Coutinho 1971 (3) SA 123 (A): referred to

De Beers Group Services (Pty) Ltd v National Union of Mineworkers (2011) 32 ILJ 1293 (LAC) ([2011] 4 BLLR 319; [2010] ZALAC 26) : criticised

DE v RH 2015 (5) SA 83 (CC) (2015 (9) BCLR 1003; [2015] ZACC 18): referred to G

Edcon v Steenkamp and Others 2015 (4) SA 247 (LAC) ([2015] ZALAC 2): confirmed on appeal

Engen Petroleum Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 1507 (LAC) ([2007] 8 BLLR 707; [2007] ZALAC 5): referred to H

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