IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
                                               CASE NO. D239/98

In the matter between

PUREFRESH FOODS (PTY) LTD                                                                Applicant

and

ADVOCATE L DAYAL                                                                          First Respondent

MERVYN ROSCHER                                                                             Second Respondent
----------------------------------------------------------------------------------------------------------------------

 JUDGMENT
-------------------------------------------------------------------------------------------------------------------
JAMMY,AJ

[1]	This is an application in terms of section 145 of the Labour Relations Act 1995 (“the Act”) in which the applicant seeks an order reviewing and setting aside the ruling made by the first respondent, in arbitration proceedings in the Commission for Conciliation, Mediation and Arbitration on 12 March 1998 under case number KN8108.

[2]	That ruling was that, consequent upon his undisputed retrenchment by the second  respondent, “the employee is entitled to severance pay”.

[3]	The following material facts are common cause:
 
3.1.	In terms of an agreement concluded in 1996 between the applicant and Clover SA  Ltd (“Clover”), the applicant sold to Clover certain of its business operations.

        	3.2.    	That transaction, and certain subsequent concomitants, necessitated a reduction in the staff complement of the applicant and consequent retrenchments.

        	3.3.    	Negotiations between the applicant and Clover in the context of the sale were held in an effort by the applicant to procure the employment by Clover of the employees being retrenched and in due course, discussions were held regarding  the possible employment by Clover of the second respondent.

        	3.4.	Following an interview conducted by Clover representatives with the second respondent, he was offered the position of motor mechanic with that company-the same position as that which he had held with, but at a better salary than that paid   to him by, the applicant.

         	3.5.	The offer was accepted by the second respondent on 3 September 1997, and by   agreement between the applicant and Clover, the termination date of the second respondent’s employment with the applicant was anticipated and he was released to commence work with Clover on 8 September.

          	3.6.	The second respondent was informed by letter dated 5 September 1997 that “due to the fact that the company has secured you alternative employment, you will not be entitled to receive a severance package”.

[4]	It was that refusal of severance pay which was disputed by the second respondent and eventually referred to arbitration before the first respondent.  The core finding of the first respondent  which is the substance of this application, is stated in her arbitration  award in the following terms: 

                    “It is the employer’s contention that it was instrumental in procuring the position 
                      with the new employer in that it advised the employee that a position was 
                      available with the new employer and that it arranged an interview with the
                      employee.  This is confirmed by the new employer in the letter dated
                      13 October 1997.
                      The letter states clearly that the employee was interviewed for “possible
                      placement”, and that he proved to be a suitable candidate.
                      This does not amount to an offer of employment by the employer.
                      There was in fact no offer in definite terms, capable of acceptance that was
                      made to the employee by the employer.

                      The offer of employment to the employee was made by the new employer.
                      In terms of section 196 (3) the offer of alternative employment must be made by
                      the retrenching employer if that employer is to be absolved of the duty to make 
                      severance payment to retrenched employees.
                      The employee is therefore entitled to severance pay from the employer.

[5]	The first respondent’s ancillary finding that the second respondent’s contract of employment with the applicant was not transferred to Clover as contemplated by section 197 of the Act, is not now in dispute.

[6]	Sections 196 (1) and 196 (3) of the Act read respectively as follows:

                     “(1) An employer must pay an employee who is dismissed for reasons based
                       on the employer’s operational requirements severance pay equal to at least
                       one week’s remuneration for each completed year of continuous service 
                       with that employer, unless the employer has been exempted from the 
                       provisions of this subsection.

                     (3) An employee who unreasonably refuses to accept the employer’s offer of
                      alternative employment with that employer or any other employer is not 
                      entitled to severance pay in terms of subsection (1).

[7]	Arguing for the applicant, Mr. A. Redding submitted that those provisions must be interpreted in the context of the fundamental legal principle that legislative enactments are presumed to be intended to leave the common law unaltered as far as possible.  Prior to the 1995 Act, there was no legislated or other entitlement to severance pay for any retrenchee.  The question whether a failure or refusal to pay it might in certain circumstances constitute an unfair labour practice within the ambit of the Labour Relations Act of 1956 was a contentious one, but the issue ceased to be of any application or relevance with the enactment of section 196 (1) of the present act.

[8]	The purposive rationale of sections 196 (1) and 196 (3) when read together, evidences a clear intention on the part of the legislature, he argued, - when regard is had to the employment objectives of section 189, - to “reward” a retrenching employer for procuring alternative service for persons thereby affected.  That reward, in the form of relief from the added financial burden of severance pay, is no less appropriate, he inferred, where the employer procures acceptable alternative employment for the retrenchee with another employer, than where it is offered by the employer himself and is unreasonably rejected.  It cannot have been the intention of the legislature that a retrenched employee who accepts a viable offer of immediate alternative employment, should be financially better off  than would have been the case had retrenchment not been imposed upon him.       

[9]	The language of section 196 (3) is unambiguous.  A retrenched employee forfeits the right to severance pay provided for in section 196 (1) and to which he would ordinarily be  absolutely entitled unless the retrenching employer is exempted from the obligation to pay it, if the employer unreasonably refuses an offer made by that employer of alternative employment either with that employer or with any other employer.

[10]	For the section to apply in its literal terms, three requirements must be satisfied.  They are that:-

             10.1.    -there must be an offer of alternative employment either with the retrenching
                          or another employer;

             10.2.    -that offer must emanate from the retrenching employer; and
 
             10.3.    -the offer must be refused and such refusal must be unreasonable.

[11]	It was the absence, on the undisputed facts in this matter, of the second of those elements  which formed the basis of the first respondent’s finding that the second respondent was  entitled to severance pay in terms of section 196 (1).  The applicant, whilst instrumental in the procurement of an offer of employment by Clover to the second respondent, was not the offeror.  That, as far as the first respondent was concerned, was the end of the matter. There was no issue of unreasonable rejection since there was no offer as contemplated by the section at all, and the second respondent was entitled to be paid.

[12]	Whilst the inapplicability of the literal terms of the  section is not disputed, it is the first respondent’s conclusion that that entitlement is an absolute consequence thereof, that is challenged by the applicant as an unjustifiable failure to have regard to the purpose and legislative intention of section 196.

[13]	What is clearly intended, the applicant submits, is the protection of employees against  loss of employment in circumstances not attributable to them, not only by ameliorating  the financial consequences to them, but by introducing a consequence to the employer which will ensure that the retrenchment exercise is not lightly embarked upon.

[14]	That objective is negated if the right to severance pay is absolute unless the employer is exempted from paying it or the strict letter of section 196 (3) has no application.

[15]	It is in her failure to take those factors into account in her interpretation of the provisions of section 196(3) that the first respondent, it is contended, committed either a gross irregularity or, in reaching an unjustifiable conclusion, exceeded her constitutionally constrained powers, thereby rendering her award reviewable within the ambit of section 145 of the Act.

[16]	The issue of gross irregularity was examined by the Labour Appeal Court, as it was then constituted, in  
Ventersdorp Town Council v President, Industrial Court and Others: (1992) 13 ILJ 1465  

in which the court, at page 1476, referred with approval to the dicta in Ellis v Morgan 1909 TS 576, a decision of the full bench of the then Transvaal Supreme Court which held that:-

                “.....an irregularity in proceedings does not mean an incorrect judgment; it refers
                 not to the result, but to methods of a trial, such as, for example, some high-handed
                 or mistaken action which has prevented the aggrieved party from having his case 
                 fully and fairly determined.”

[17]	There was no question, in my view, based on the acknowledged facts of this matter, of the  first respondent having acted in any manner or respect which can justifiably be said to have been grossly irregular and indeed, that contention was not pursued by Mr. Redding with any great vigour.

[18]	Whether or not she may be held to have exceeded her powers by reaching a conclusion which was constitutionally unjustifiable, must be examined in the light of the dicta in:

                                Carephone (Pty) Ltd v Marcus N.O and Others (LAC),
                                Case No. JA 52/98

        At paragraph 20 of the judgment, Froneman DJP said this-
                  
                     “The constitutional imperatives for compulsory arbitration under the LRA are 
                        thus that the process must be fair and equitable; that the arbitrator must be 
                        impartial and unbiased; that the proceedings must be lawful and procedurally
                        fair; that the reasons for the award must be given publicly and in writing; that
                       the award must be justifiable in terms of those reasons; and it must be consistent
                       with the fundamental right to fair labour practices.”

[19]	That the conclusion reached by an arbitrator in compulsory arbitration proceedings under the Act may not, on one or another assessment, be correct, will not necessarily render it not justifiable.  That principle is succinctly expressed in,
                               
                  Johannesburg City Council v Chesterfield House 
                  1952 (3) SA 809 (AD) at 825

        where, at page 825 Centlivres C.J., in reference to the compensation court as it was then
        constituted, said this:-

                             “That court was entitled to and bound to decide the legal issues involved
                               and even if it came to a wrong decision in law we cannot in review 
                               proceedings set its decision aside on that ground alone.”

        adding, at pages 825/6;

                               “There being no appeal from a decision of a compensation court, a court
                                 of law is not a court of appeal from a compensation court, and it can, 
                                 according to South African law set aside the decision of such a tribunal
                                 by way of review only on some recognised ground.  A mistaken view 
                                 that the appellant was not in law entitled to compensation is not such
                                 a ground.”

[20]	Whilst such an error may be the subject of appeal, the distinction between that process and review was highlighted in the Carephone judgment (supra), at paragraph 32:-

                             “But it would be wrong to read into this section an attempt to abolish the
                              distinction between review and appeal.  According to the New Shorter
                                 Oxford English Dictionary ‘justifiable’ means “able to be  legally or morally
                              justified, able to be shown to be just, reasonable, or correct; defensible.’
                                It does not mean ‘just’, ‘justified’ or ‘correct’.  On its plain meaning the use
                              of the word ‘justifiable’ does not ask for the obliteration of the difference
                              between review and appeal.  Neither does the LRA itself: it makes a very 

                              clear distinction between reviews and appeals.”

           and again, at paragraph 36 and 37, as follows

                              “In determining whether administrative action is justifiable in terms of the
                                  reasons given for it, value judgments will have to be made which will, 
                                  almost inevitably, involve the consideration of the ‘merits’ of the 
                                  matter in some way or another.  As long as the judge determining this 
                                  issue is aware that he or she enters the merits not in order to substitute 
                                  his or her own opinion on the correctness thereof, but to determine 
                                  whether the outcome is rationally justifiable, the process will be in 
                                  order.

                                  Many formulations have been suggested for this kind of substantive
                                  rationality required of administrative decision makers, such
                                  as ‘reasonableness’, ‘rationality’, ‘proportionality’ and the like (Cf. e.g.
                                  Craig, Administrative Law, above, at 337-349; Schwarze, European
                                  Administrative Law, 1992 at 677).  Without denying that the application
                                  of these formulations in particular cases may be instructive, I see no
                                  need to stray from the concept of justifiability itself.  To rename it will
                                  not make matters any easier.  It seems to me that one will never be able 
                                  to formulate a more specific test other than, in one way or another, 
                                  asking the question: is there a rational objective basis justifying the 
                                  connection made by the administrative decision-maker between the
                                  material properly available to him and the conclusion he or she 
                                  eventually arrived at?  In time only judicial precedent will be able to 
                                  give more specific content to the broad concept of justifiability in the 
                                  context of the review provisions in the LRA.”

[21]	Whilst the basis of the applicant’s contention that the first respondent’s finding is wrong in law may be persuasive, it is at least, on the respondent’s counter-submissions in that regard, debatable.  Section 196(1) of the Act is peremptory, Mr. Rall, representing the second respondent, submitted.  Whilst an employee who unreasonably refuses a viable offer of alternative employment is disentitled to the prescribed, or any, severance payment, it does not follow as a necessary concomitant that an employee who accepts  an offer of alternative employment is not entitled to it.  The applicant cannot source its argument on the law as it stood prior to the enactment of the LRA.  The express and unambiguous provisions of section 196 are definitive of the right to payment and the only circumstances in which it is not now absolute.  There was no obligation or requirement on the part of the second respondent to direct her enquiry beyond those parameters.

[22]	That issue however is not one which, in my view, I am required to determine in these   proceedings. The first respondent’s reasons for her finding are clearly and  unambiguously stated in her award.  They satisfy in every respect, the imperatives defined in the Carephone case to which I have referred.  Whether she is right or wrong in her conclusions is irrelevant to the issues to be here decided, unless, if she is mistaken in law, the result is the perpetration of an injustice.  In that regard, the dicta in the unreported Labour Court case of:-

                             University of the North v Nthombeni and Another: Case No. J630/97 
                             at paragraph 28, page 11,

       have relevance:-

                                “It is open to this court in terms of Section 145 to review the awards of 
                                  the Commission even where a bona fide mistake of fact or law is 
                                  committed only where it can be shown that as a result thereof an injustice
                                  has been perpetrated.  Where no injustice has been occasioned by such
                                     a mistake, the award is immune to legal challenge in terms of section 145.
                                 An injustice is perpetrated where it is shown that a party was deprived 
                                 of a fair hearing or that the Commissioner did not apply his mind to the

                                 matter before him, either by ignoring direct evidence before him, or 
                                 relying on evidence not placed before him.”

[23]	Neither of those criteria are applicable in this matter and for those and the other reasons which I have stated, I have concluded that the first respondents’ award is not one properly subject to review in terms of section 145 of the Act I accordingly make the following order:-
   
 	The application is dismissed with costs.

---------------------------
B.M.JAMMY
ACTING JUDGE OF THE LABOUR COURT

Date of hearing:                     17 February 1999

Date of judgment:                  26 February 1999

For the applicant:                   Adv. A.L.S. Redding

For the respondent:                Adv. A.J. Rall