CONSTITUTIONAL COURT OF SOUTH AFRICA
Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile, N A and Others
Case CCT 72/09 Date of Hearing: 19 November 2009
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 19 November 2009 the Constitutional Court will hear an application for leave to appeal against a judgment of the Labour Appeal Court. In terms of this judgment, Billiton Aluminium SA Ltd t/a Hillside Aluminium (Billiton) was ordered to reinstate a former employee, Mr Ntokozo Khanyile, to a position he occupied eight years ago, with retrospective back-pay to the date of dismissal. The case concerns whether the order of retrospective reinstatement, made in terms of section 193 of the Labour Relations Act 66 of 1995, is an appropriate and just and equitable remedy in the circumstances of this case.
Mr Khanyile was dismissed by Billiton on 2 August 2001 following a disciplinary enquiry which found him guilty of unauthorized disclosure of company information. Mr Khanyile challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA), which found the dismissal to be unfair, and directed Billiton to reinstate Mr Khanyile with retrospective effect to the date of his dismissal. At that stage the back-pay owed by Billiton amounted to R436 000, 00.
Billiton instituted review proceedings in the Labour Court against the arbitration award of the CCMA. The Court held that although the dismissal was unfair, the Commissioner did not consider the appropriateness of reinstatement as a remedy. The Court held that the employment relationship had broken down, and replaced the arbitration award with an order that Billiton pay Mr Khanyile compensation in the amount of 12 months' remuneration.
Mr Khanyile appealed this decision to the Labour Appeal Court. The Labour Appeal Court overruled the Labour Court and restored the arbitration award.
In this Court, Billiton concedes that Mr Khanyile's dismissal was unfair, but challenges the decision of the Labour Appeal Court on two grounds: first, that the CCMA arbitration award indicates that it failed to consider the appropriateness and lawfulness of an order of reinstatement; second, that even if the Commissioner were correct, the Labour Appeal Court
was under a constitutional duty to grant an order that is just and equitable in terms of section 172 of the Constitution. Billiton argues that in terms of the Labour Appeal Court's decision, Billiton is required to pay Mr Khanyile R1,8 million in back-pay, an award that is not just and equitable and does not constitute appropriate relief.
Mr Khanyile opposes the application for leave to appeal and supports the decision of the Labour Appeal Court. He submits further that section 172 of the Constitution was not applicable in the matter before the Labour Appeal Court, because no constitutional issues were raised.
