LABOUR

Facts and issue: The commissioner issued an arbitration award. In the arbitration award, the commissioner made a finding that the dismissal of the employee, by the applicant, was substantively unfair. The applicant seeks to review and set aside the award. The employee worked as a winch operator at the mine. He was charged ad dismissed for misconduct relating to illegal mining activities.

Discussion: The CCMA did not have jurisdiction to arbitrate the employee’s dispute. The referral to the CCMA was late and there was no condonation application made by the employee. The commissioner did not have jurisdiction to arbitrate the dispute. The commissioner failed to resolve the factual dispute between the parties. The factual dispute was whether the employee committed the misconduct or not. Instead, the commissioner’s focus was on the photographs taken by the applicant, and he completely ignored the viva voce evidence of the applicant’s witnesses. The commissioner’s focus on the photographs was totally misplaced and resulted in an unreasonable arbitration award. The commissioner failed to properly apply his mind to all the material evidence before him and this constituted gross irregularity and rendered the arbitration award unreasonable. The finding made by the commissioner that the photographs do not demonstrate the commission of unauthorised possession of the GBM by the employee, illustrate that the commissioner misconceived the nature of the inquiry and failed to properly apply his mind to the material evidence before him.

Findings: There was no requirement at the workplace that photographs have to be produced which shows the employee in the act of committing the misconduct. The direct evidence showing the employee involvement in the misconduct came from the security officers who observed the employee committing the misconduct. The commissioner failed to appreciate the purpose for which the photographs were tendered as evidence in the arbitration. This failure influenced the outcome of the arbitration award. Photographs constitute real evidence. The efficacy of photographs tendered as evidence, was based on the evidence tendered by the security officers. The commissioner’s arbitration award falls outside the band of reasonableness. The arbitration award of the commissioner was disconnected with the evidence at arbitration.

Order: The arbitration award is reviewed and set aside. The dismissal of the employee was substantively fair.

Facts: Woolworths is a departmental retailer with footprints in all the strategic centres in South Africa and employs a diverse workforce from the citizens of the Republic. The applicant, Ms Arunachellam, was employed by Woolworths as a supervisor for a period of 28 years. The witnesses testified that on the day in question the applicant was asked to take certain staff members to the customer service tills and the applicant said she was not going to take them that day because she had dumb cashiers. The human resources staff member testified that the applicant’s comment was seen in the light that calling a predominantly Black group of cashiers “dumb” did not bode well with the employer and the staff.

Application: The applicant was dismissed and approached the CCMA. The commissioner found that the dismissal of the applicant was premised on a valid reason and was substantively fair.

Discussion: The applicant avers that the commissioner ignored the material prejudice suffered by her due to the employer’s departure from its disciplinary procedure and policy. This court has previously stated that there is no place for formal disciplinary procedures that incorporate all the accoutrements of a criminal trial including technical and complex charge sheets. Disciplinary charges are not intended to be a precise statement of the element of an offence but need only be sufficiently precise to allow the employee to identify the incident which forms the subject-matter of the complaint in order for the employee to prepare a suitable defence. (See also para [71].) The commissioner took into consideration that in terms of the disciplinary code and procedure, the sanction for such offence and imprudence was dismissal for the first offence. The commissioner also considered that the applicant’s conduct took place within hearing distance of other employees. He properly considered that the dismissal was the appropriate sanction taking into account the nature of the offence and the employer’s disciplinary code and procedure.

Procedural fairness: The applicant and her representative understood the allegations faced by the applicant in the way they conducted their case. The applicant complained that the chairperson prevented the applicant from asking certain questions to witnesses. That is normal in any disciplinary enquiry and the court is persuaded that the applicant was offered an opportunity to ask questions. However, the employer failed to give the applicant enough time to prepare for her case. The 15 minutes given to the applicant were not enough. The commissioner failed to apply his mind when dealing with the question of procedural fairness.

Order: The arbitration award is set aside and replaced with an order that: (1) The dismissal of the applicant was substantively fair; and (2) Woolworths is ordered to compensate the applicant with three months salary for failure to adhere to procedure. There is no order as to costs.

MHLONGO AJ

Facts and issue: The relief sought is two-fold: (a) that the interim interdict granted to the applicant interdicting the respondents from, amongst others, damaging the applicant’s property; threatening and assaulting non-strikers; and unlawfully interfering with the applicant’s operation be confirmed/made final; (b) that the respondents be found guilty of breaching the interim order and thus contempt of court.

Discussion: The court is constrained to accept the respondents’ case that a final interdict is not competent. This is based on two grounds. The relief sought was moot by the time of the hearing of the matter. Even if one accepts unlawful conduct occurred as claimed by the applicant, the applicant failed to sufficiently link each of the various respondents to the alleged actual or threatened unlawful conduct. The relief sought has become moot given that the alleged unlawful conduct that is the subject of the rule nisi ended months ago. For a final interdict to be granted, it must be shown, on a balance of probabilities that unless restrained by an interdict, the respondent will continue committing an injury against the applicant or it is reasonable to apprehend that injury will follow. The alleged unlawful conduct that is the subject of the rule nisi exists no interest other than a historical one and accordingly the practical effect of a final order has become moot.

Findings: The applicant failed to establish all the alleged unlawful conduct and, in any event, failed to draw the required link between the respondents and the alleged unlawful conduct. It therefore failed to show it had reasonable apprehension that it would suffer injury at the hands of these respondents if they were not placed under interdict.

Order: The contempt of court application is dismissed.

Facts: The applicant, Mr Mabhaso, commenced employment at Astron Energy during 2012 as an Operating Standards Specialist. He signed up for a course to start in 2019 at the University of Cape Town and the company paid the initial amount required of R25,500 into his bank account. The applicant’s account was overdrawn and he only paid the university R10,000 and did not inform the company. The company later asked the applicant for proof that he paid the full amount and a disciplinary hearing followed. He was dismissed for misappropriation or unauthorized use of company funds provided to him for his studies.

Application: The commissioner at the bargaining council found that the applicant’s dismissal was fair and that the applicant was guilty of a serious charge which went to the core of the employment relationship and that he was a senior employee and not unsophisticated. The applicant seeks condonation for the late delivery of the review application and an order reviewing and setting aside the arbitration award. The applicant received the arbitration award in August 2020 and the condonation and review applications was delivered in January 2024.

Condonation: The reason for the delay is that the applicant instructed a legal representative but on his enquiries about progress he was met with excuses. He later questioned whether a review application had been launched and ended up filing a complaint at the Legal Practice Council against the legal representative for his failure to properly deal with his instructions. The explanation, for an educated and sophisticated individual, simply amounts to no explanation. He offers no explanation as to why he never enquired how the review process works and failed to attach any correspondence between himself and his attorney in respect of this period. The applicant, based on his own version, took no responsibility for his matter.

Prospects of success: The payment was specifically earmarked to pay the university fees. It was not paid to him to pay personal expenses or rearrange his debt. Consequently, the applicant’s conduct amounted to misappropriation of funds. Misappropriation of funds constitutes a serious offence and it was the company’s case that the applicant’s conduct caused a breach of the trust relationship, particularly in light of the applicant’s senior position. More concerning was the way he responded to the company when queried about the payment and that he initially asked the company to pay the full outstanding amount which included the amount not paid by him. The applicant does not have any prospects of success.

Order: The condonation application is dismissed. There shall be no order as to costs.

DE WET AJ

Facts: The applicant commenced trading as a close corporation and was incorporated as a private company in 2019. It specialises in hot and cold thermal insulation application (specifically to mechanical systems), as well as sheet metal work, and the fabrication and installation of chilled water and hot water piping for HVAC systems. The applicant contends that its trade connections are a key facet of its business, which is ultimately dependent on its continued client satisfaction. The applicant and the respondent executed a written contract of employment. The respondent held a senior management position which required him to report to the managing director of the applicant. The respondent’s exposure to sensitive client information, including business operations and proprietary data, enabled the respondent to attain a firm grasp upon the applicant’s trade connections. Eight days after submitting his letter of resignation to the applicant, the respondent had incorporated SMTI Projects. He is its sole director. SMTI Projects is a direct competitor of the applicant.

Application: The applicant applied to the court for certain interdictory relief against the respondents predicated upon an agreement of employment between the applicant and the respondent, its former employee. The issues to be determined are whether the applicant had discharged the onus upon it of proving that there is a valid and binding covenant in restraint of trade and that there had been a breach thereof by the respondent; and if it is held that a restraint of trade covenant came into existence between the applicant and the respondent, whether it is enforceable, in respect of which the respondent bears the onus.

Discussion: The respondent resigned from the applicant, which was immediately accepted. Although he gave a month’s notice as required in terms of his contract of employment, the applicant did not require him to work out the notice period and paid him in lieu thereof. This was decided upon, so the applicant contends, to avoid misconduct by the respondent being perpetrated as witnessed on 24 April 2024, while he was still employed by the applicant. At that time, he had commenced the solicitation of at least one existing client of the applicant, presumably in preparation for his resignation, by rendering a quotation to the SFI Group (SFI), but he did so on behalf of SMTI Projects, rather than the applicant. After obtaining the assistance of a professional computer technician who inspected the laptop that had been issued to the respondent, the applicant discovered that the respondent had misused its confidential information and intellectual property by, among other things, copying and pasting the contents of the applicant’s quotes and inserting them under the name of SMTI Projects, in order, so it seems, to intercept work from the applicant and obtain the work for the benefit of SMTI Projects. The applicant discovered, only after the respondent’s resignation, that he had encroached upon the client relations of the applicant to promote the commercial interests of SMTI Projects by utilising the applicant’s trade connections, and he had wilfully diverted the resources of the applicant for his own benefit and for the benefit of SMTI Projects. This, so the applicant contends, amounted to a breach of the restraint obligations.

Findings: Positioned as it is under a heading “Restraints” and after two contractual provisions (clause 16.1 and clause 17.1) directed at protecting the applicant’s proprietary interests during the period of employment, it is improbable that the parties intended that clause 17.2 create a permissive regime mandating the respondent after termination of his employment to actively compete or assist other persons to compete with the applicant by deploying the very proprietary interests the respondent was enjoined to protect while still employed. The applicant has proved that it enjoys a clear right, that actual injury has been committed and is reasonably apprehended, and there is no other satisfactory remedy. The court considered the factors which might favour a punitive award against the respondent: the respondent’s deceitful conduct, his breach of his own undertakings, his calculated plans to divert business to his entity even while employed by the applicant, and the effort that had to be directed by the applicant and the court at dealing with unworthy technical defences at odds with what the respondent knew to be the truth regarding his employment agreement and his trading entity. The most compelling factor was the lack of good faith shown by the respondent, both by breaching the restraint of trade, and by devising the defences he mounted to justify such breaches, protesting to the end that no restraint existed.

Order: The first respondent is interdicted and restrained for a period of one year dated from 3 May 2024, either on his own behalf or on behalf of any person, firm or company from competing or endeavouring to compete with the applicant. The first respondent is directed to pay the applicant’s costs of the application jointly and severally, on a scale as between attorney and client.

GORDON-TURNER AJ

Facts and issue: The applicant brought an application to review and set aside an award issued by arbitrator in the dispute before the Bargaining Council. The applicant applied for a position, was shortlisted and interviewed. The applicant was not successful in the interview; he was number four and was not appointed by the employer. The applicant retired from the service and therefore is now seeking protected promotion.

Discussion: The applicant submitted that the arbitrator’s analysis of the evidence in his award reached a finding that the respondent’s conduct in not promoting him was both procedurally and substantively unfair and this conduct amounted to an unfair labour practice. After accepting the applicant’s version, the arbitrator concluded that the respondent committed an unfair labour practice both procedurally and substantively. The arbitrator thereafter in his award after making a finding of procedural and substantive unfairness commences on to the remedy and the powers of an arbitrator. The arbitrator committed an error of law in respect of the remedies that an arbitrator can award in respect of an unfair labour practice is limited to not more than 12 months remuneration and further the compensation must be calculated on the appointee’s current remuneration and not the promotion job that he has applied for. Protective promotion is an equitable remedy in an unfair labour practice in non-promotions.

Findings: The arbitrator failed to pay attention to the evidence that in the case of unfair labour practices, the arbitrator’s powers are much wider and confined himself to the compensation of not more than 12 months which is irregular. The arbitrator failed to apply his mind on what evidence to consider when dealing with protected promotion where there would be no interference with the decision of the respondent to appoint the incumbent. The court failed to find a reason as to why the applicant was not granted promotion. A protected promotion is a remedy awarded to employees who successfully prove that they ought to have been promoted but due to unfair labour practice he or she was overlooked by the employer.

Order: The arbitration award is reviewed and set aside. The applicant is granted protective promotion.

Facts: The applicant operates as a mining facility and the matter concerns the open cast mining facility at its premises. The applicant recognises three registered trade unions at the mining facility, namely AMCU, NUM and Solidarity and over time the applicant has entered into various collective agreements with the aforesaid trade unions. As these unions meet the threshold of 15% representativity of the bargaining unit, they are afforded collective bargaining and organisational rights. The third respondent (NUPSAW or the union) approached the applicant to enter into a recognition agreement and to be afforded organisational rights, as it managed to recruit 15% of its members and therefore met the required threshold. The applicant refused to recognise NUPSAW because it held the view that the union did not fall within the scope of the mining sector. NUPSAW referred an organisational rights dispute to the CCMA. The arbitrator found that it would be unwise to categorize or limit the scope of a trade union solely based on its name.

Review: The arbitrator held that there is no legal prohibition on a trade union either limiting their scope to a particular sector or industry or adopting a more open approach. The arbitrator rejected the applicant’s argument that clause 6.1 of the union’s constitution should be read with reference to its name and "all workers" refer to all workers within the public service and related industries. He found that in terms of its constitution, NUPSAW was entitled to organise within the mining sector and should they have sufficient representation of at least 15%, they should be granted organisational rights. The applicant seeks to review the arbitrator’s findings.

Discussion: According to the applicant, the arbitrator, by confining the enquiry and interpreting the provisions of clause 6.1 of NUPSAW’s constitution, misdirected himself in that he confined the inquiry too narrowly, endorsed an approach which would wreak havoc in collective bargaining, afforded an interpretation which is diametrically incongruent and at variance with the objectives of the Labour Relations Act 66 of 1995 and fundamentally encroached on the terrain of specialised trade unions that have legitimately and compellingly narrowed their registered scope to specialised areas of activity, as was envisaged in the LRA. NUPSAW submitted that clause 6.1 of its constitution was intentional to allow organisation and recruitment as members of all workers within the Republic of South Africa. The constitution of a trade union informs the employer and the trade union on whether a particular union is entitled to recruit members and to have organisational rights in a specific sector. Clause 6.1 of NUPSAW’s constitution provides the answer and it is not dependent on the view or the opinion of the applicant. If the Registrar is satisfied that the applicant meets the requirements for registration, he/she must register the applicant by entering the applicant’s name in the register of trade unions, issue a certificate of registration and send the said certificate and a certified copy of the registered constitution to the applicant.

Findings: NUPSAW is a registered trade union, and the Registrar has registered its amended constitution, signifying that the Registrar was satisfied that the amended constitution met the requirements for registration. Clause 6.1 does not record or define any specific industry, service, sector or trade to which the workers must belong to become members of NUPSAW. A proper interpretation dictates that the union would be entitled to represent members only within the sectors, trades, entities, undertakings and or occupations for which it is registered in terms of the scope of its constitution. Applying the rules of interpretation, it is evident that the purpose and intention of NUPSAW’s constitution was to include all workers in South Africa within its scope of membership, as is specifically provided for in the constitution. NUPSAW’s constitution sets out the membership qualifications and by implication, its scope in broad terms. The Registrar has certified and accepted the amended constitution and as such, the Registrar was clearly satisfied that the constitution provided the qualifications for and admission to membership. NUPSAW’s constitution does not limit its scope to any specific region, sector or industry and therefore the mining industry is not excluded. There is no merit in any of the grounds for review as the arbitrator’s decision was rational and reasonable.

Order: The review application is dismissed.

PRINSLOO J

Facts and issue: Appeal against the judgment of the Labour Court in terms of which it reviewed and set aside the arbitration award of the commissioner of the CCMA. The Labour Court further ordered that the matter be remitted back to the CCMA for consideration de novo by a commissioner other than the commissioner. Regarding the arbitration award, the commissioner ordered the respondent to reinstate the appellant retrospectively as a manager, a position he occupied before his demotion.

Discussion: The employee challenged his demotion after signing new employment contract appointing him at a lower level than he occupied before the demotion. The Labour Court correctly found that “absent a legal challenge to the new agreement, this agreement stands”. However, the court misdirected itself by remitting the matter back to the CCMA for a fresh determination by a different commissioner from the one whose arbitration award was challenged. This means the remittal of the matter to the CCMA would serve no purpose as long as the new employment agreement is neither resiled from nor set aside on the grounds recognized by the law. One ground upon which a court may set aside an agreement is where it is shown that one of the parties was forced to agree to the terms of the agreement. There is no evidence that the appellant was forced to accept the demotion. The Labour Court provided no reason for remitting the matter to the CCMA.

Findings: It is evidently clear, even from the Labour Court’s own reasoning, that remitting the matter to the CCMA would serve no purpose, as the new commissioner would be faced with the same legal hurdle concerning the force and effect of the new employment contract. In other words, the new agreement is effective and binding on the parties until set aside. The Labour Court misdirected itself by remitting the matter to the CCMA for a re-hearing. To this extent, the appeal against the Labour Court's decision stands to succeed.

Order: The appeal is upheld. The decision of the Labour Court is set aside and substituted. The commissioner’s arbitration award is reviewed and set aside.

Facts and issue: This is a review in terms of section 158(1)(h) of the Labour Relations Act 66, of 1995. The applicants seek to review and set aside a disciplinary enquiry outcome issued by the chairperson, and in which he dismissed a disciplinary charge against the Matlala (first respondent). The parties are subject to a disciplinary procedure collective agreement. Matlala was charged with contravening Clause 1.2.4 Code of Conduct. Matlala raised several points in limine. The chairperson upheld one of them and dismissed the charges against Matlala.

Discussion: The applicants contend that in making this ruling the chairperson committed a gross irregularity in failing to properly apply his mind to the disciplinary procedure, and to the facts before him. The three points are dilatory in nature, and without more they should not result in a dismissal of the charges. Rather, they should only result in a postponement of the enquiry to secure a suitable prosecutor or chairperson, or to remedy any prejudice caused by a late preparation of the charges. The dismissal of the charges was unnecessary, and it has exposed the employer to the prejudice of an opportunistic double-jeopardy defence if the charges are brought again. By dismissing the charges, the chairperson seems to have converted a procedural objection against his and the prosecutor’s appointments into a substantive defence against the charges. Logically, if Mabalanganye was precluded from prosecuting the charges, the chairperson should also have been excused from hearing the enquiry. The ruling should have gone no further than to uphold the two points in limine relating to the appointments, and the enquiry should have been postponed for the allegedly irregular appointments to be remedied.

Findings: The court is not satisfied that the points in limine were well brought, and in upholding the point in limine against Mabalanganye’s eligibility to act as prosecutor the chairperson made a decision that no reasonable decision-maker could or should have made. The chairperson’s ruling was not just wrong, but that it is also one that no reasonable decision-maker could or should have made. The ruling is contradictory, and it evidences no analysis of the points in limine which were in any event not well taken. The ruling was not made in accordance with the clear and unambiguous language of the disciplinary procedure, and there was no basis for the charges to have been dismissed. The ruling is incoherent and irrational.

Order: The review application is upheld. The matter is remitted to be heard de novo before a new disciplinary chairperson appointed by the applicants.

Facts and issue: The case was brought before the court with the main intent to appeal the whole judgment and order handed down by the court a quo at the Regional Magistrate court. The appellant’s case against the three respondents was dismissed in its entirety on the ground that the appellant failed to prove her case on a balance of probabilities. It is the appellant’s case that the court a quo failed to appropriately appraise relevant facts and legal principles. Consequently, it arrived at a wrong decision by finding that the appellant did not prove her case under the actio iniuriarm and the actio legis aquiliae causes of action.

Discussion: The appellant was employed as a teacher by the Department of Education. The case relates to the events that led to her dismissal and subsequent general and special damages that she suffered as a result. However, the Department realized its oversight concerning the appellant’s dismissal, retracted the unfair dismissal, and reinstated the appellant. For the appellant, the damages suffered were irreversible. Thus, the appellant instituted civil proceedings against all three respondents for a total sum of R315,161.67 jointly and severally. The appellant’s case makes out her causes of action based on the actio legis aquiliae and actio iniuriarum respectfully, and thus the onus rested on the appellant to prove her case on a balance of probabilities for both causes of action. The legislators did not intend the unfair dismissal remedy to eliminate a party’s civil remedies under the law. As such, the court a quo’s view that “an employer’s statutory duty not to unfairly dismiss an employee is not wrongful in a delictual sense,” should not be narrowly interpreted, in essence, it calls for a wider interpretation.

Findings: It is clear from the evidence presented that the appellant could not have suffered such severe hardship and harm because of the wrongful dismissal in that we are talking about a one-month salary payment that was paid one month late. On the realisation that the dismissal was erroneous and that it should not have happened in the first place, the Department detected and corrected its oversight without any delay. Taking public policy and public interest into account, the appellant’s case cannot be supported in finding the unlawful dismissal to be wrongful in a delictual sense, because doing so would expose public institutions to unnecessary litigation for bona fide mistakes that may creep in from time to time.

Order: The claim is dismissed with costs.

Facts and issue: Urgent application to enforce a restraint of trade agreement and certain confidentiality provisions in a contract of employment. The applicant (Interwaste) employed the respondent (Potgieter) until she left its employment and took up employment with the third respondent (Averda). It is common cause that Pretorius was bound by the restraint provisions in her contract. The central issues to be determined are whether her employment with Averda was in breach thereof and, if it was, whether it would be reasonable to enforce the restraint.

Discussion: From the perspective of a customer looking for a medical waste management service, it could approach either Averda or Interwaste to address that need. It is difficult to escape the conclusion that they do compete with each other in providing medical waste management services, even if their respective abilities to perform the work in-house is different. Interwaste claims that Pretorius’s access to its monthly ‘Customer Movement Reports’ (CMRs) was integral to the performance of her duties and gave her knowledge of significant proprietary customer information. Pretorius does not dispute she had access to CMRs, nor does she dispute their content. Pretorius had direct knowledge of Service Level Agreements concluded between it and major customers and that she was the interface between Interwaste’ legal department and the customer when an SLA was negotiated. Pretorius does not dispute this. Another category of information, which Interwaste alleged that Pretorius was privy to, was its profitability model. It is described as a costing model which encapsulates the financial offer and performance of contracts with each customer.

Findings: By virtue of her role and duties, that Pretorius had access to extensive information about the business relationship between Interwaste and the customers she dealt with. It is difficult to see how her knowledge of that information and her relationship with customers of her former employer would not be of commercial value to a competitor of Interwaste, which it could exploit to the detriment of Interwaste. Most of the information she had access to was acquired by her in the course of her work for Interwaste and is not in the public domain. Interwaste has established it has a protectible interest in safeguarding against Pretorius sharing such knowledge with Averda and that interest is threatened by Pretorius’s employment by Averda. Interwaste is entitled to preserve the confidentiality of the information to the extent it is possible, and Pretorius must respect its right to limit its dissemination to third parties.

Order: Until 8 July 2025, the first respondent is interdicted and restrained from being employed or engaged, in any capacity whatsoever, by the second respondent to perform any work or render any service directly or indirectly related to the waste management and disposal business it carries on in the Western Cape Province, including any activity which is ancillary to that business.

Facts: The applicant was employed by the respondent’s predecessor in law, Ladysmith Autohaus in terms of an oral agreement as a sales consultant. There was no agreed retirement age between the applicant and Autohaus. The applicant was promoted to the position of sales manager at the time he was 65 years of age. His role was then refined as that of new car sales manager. At that stage, he was almost 70 years of age. The respondent purchased Autohaus. A schedule to the sale agreement identified the applicant as being of retirement age. After purchasing the business, the respondent took transfer of Autohaus as a going concern. Consequently, the applicant’s terms and conditions of employment in place immediately preceding the transfer of the business were transferred to the respondent in terms of section 197 of the Labour Relations Act 66 of 1995. Mr Mngadi advised the applicant that he had reached retirement age, based on what he argued is the normal retirement age of 65 in the motor industry. Mnagadi proposed an option for the applicant to continue earning an income from the respondent post-retirement on a sales commission basis, basically 50% of the profits from all vehicles sold. The applicant rejected the offer. Immediately following the meeting with Mr Mngadi, the applicant was served with a notice of retirement.

Application: In terms of the pre-trial minute concluded by the parties, the court is required to decide whether the reason for the applicant’s dismissal by the respondent was a transfer, or a reason related to a transfer, contemplated in section 197 of the LRA, alternatively whether the applicant’s dismissal based on age was automatically unfair. The applicant seeks monetary relief.

Discussion: On the evidence, the schedule to the sale agreement, the applicant’s discussion with Mngadi and the termination notice, viewed together, the most proximate cause of the dismissal was based on age as claimed by the respondent. The fact that the respondent gave the applicant “notice of his retirement” immediately after the transfer of the business took place is not a sufficient basis to conclude that the reason for the dismissal was the transfer, or a reason related to the transfer. More was needed from the applicant for the court to have drawn that inference. That was not provided. The collective agreements relied on by the respondent establish that the retirement age of 65 years is a term and condition of employment of only certain categories of employees employed within the registered scope of MIBCO. Given that the applicant was not a member of the Motor Industry Provident Fund and given the absence of any averment, let alone proof, that he fell into the category of employees who are obliged to join the Fund, it follows that the retirement age of 65 years was not a term and condition of the applicant’s employment.

Findings: No evidence was adduced that in the motor industry employees who fall outside the prescripts of the Rules of the Fund also retire at the age of 65 years. The respondent was not entitled to use the retirement age of 65 years as a guideline to impose retirement on the applicant because of the wording of section 187(2)(b), namely “normal . . . for persons in that capacity”. The provision enjoined the respondent to show that the retirement age of 65 years was normal to employees employed in the capacity as the applicant in Autohaus, which it did not. In all the circumstances, the dismissal of the applicant could not be justified based on section 187(2)(b) of the Act, but was contrary to the provisions of section 187(1)(f) and was automatically unfair. Given the applicant’s age at the time of dismissal, it is just and equitable to award the applicant compensation equivalent to 12 months remuneration (made up of his gross salary plus average commission), plus costs of suit.

Order: The dismissal of the applicant was automatically unfair. The respondent is ordered to pay the applicant the amount of R953,496 within 30 days of receipt of the judgment, plus costs of suit.

WHITCHER J