Billiton Aluminium SA Ltd t/a Hillside Aluminium v Ntokozo Archibald Khanyile

The employee (first respondent) was employed by Billiton Aluminium (applicant) from 1995. In 2001, he testified as a witness at a CCMA arbitration for a co-worker and disclosed information the employer deemed confidential under its rules. He was summoned to a disciplinary hearing for this transgression. At the hearing, he stated he would do the same again if circumstances demanded it. He was found guilty and dismissed. The dismissal was referred to the CCMA for arbitration. The first arbitration award on 18 March 2002 found the dismissal substantively unfair and ordered reinstatement from the time of dismissal. The employer applied for review in the Labour Court, which set aside the award on 15 April 2003 for lack of proper record and remitted the matter to the CCMA. A second arbitration was held on 30 March 2004, resulting in a similar reinstatement order on 20 April 2004. The employer again sought review in the Labour Court. On 10 April 2006, the Labour Court found the dismissal substantively unfair but set aside reinstatement, ordering compensation instead based on alleged breakdown of trust. The employee applied for leave to appeal, which was refused. The Labour Appeal Court granted leave to appeal on petition and on 24 February 2009 reversed the Labour Court's finding, confirming reinstatement retrospective to dismissal. The employer sought special leave to appeal to the SCA (dismissed 3 June 2009) and then to the Constitutional Court. The entire process from initial dismissal to Constitutional Court hearing spanned over 8 years, with significant institutional delays including the Labour Appeal Court taking 9 months to deliver judgment.

• Whether there is a constitutional duty on an appellate or review court to fashion a just and equitable remedy by having regard to facts that occurred after the decision appealed against or taken on review
• Whether systemic delays in the labour dispute resolution system create constitutional duties for courts to create remedies where none previously existed
• Whether the Labour Appeal Court erred in restoring the second arbitration award of reinstatement
• Whether the Labour Appeal Court was under a constitutional duty in terms of section 172(1)(b) of the Constitution to grant an order that was appropriate, just and equitable having regard to post-judgment facts, including alleged earnings by the employee during dismissal
• Whether an employee has a duty to mitigate loss after dismissal in the context of unfair dismissal claims
• Whether constitutional issues can be raised for the first time on appeal when they were not raised in the courts below

The applications for condonation were granted. The application for leave to appeal was dismissed with costs.

The binding legal principles established are: (1) Constitutional issues must be raised in the courts below before they can form the basis of an appeal to the Constitutional Court, save in exceptional circumstances. It is not in the interests of justice to grant leave to appeal where constitutional issues are raised for the first time in the Constitutional Court without adequate explanation. (2) Systemic delays in the labour dispute resolution process do not create a constitutional duty on appellate or review courts to fashion remedies by considering post-judgment facts where: (a) the original order was justified on the facts at the time it was made; (b) no application to lead further evidence on appeal was made by the parties; and (c) the delays were substantially caused by the unsuccessful litigation strategies of the party seeking the new remedy. (3) There is no legal duty on dismissed employees to mitigate their loss in the context of reinstatement claims under the LRA. Reinstatement is aimed at placing employees back in the position they would have been but for unfair dismissal, and any income earned during dismissal does not reduce the employer's obligations upon reinstatement. (4) An employer who appeals against an order of reinstatement knowingly runs the risk of any prejudice which may be the consequence of delaying implementation of the order. Whether reinstatement is appropriate must be judged as at the time the matter came before the tribunal or court of first instance. (5) The established procedural rules for leading further evidence on appeal (section 174 of the LRA for the Labour Appeal Court; Rules 30 and 31 for the Constitutional Court; section 22 of the Supreme Court Act for other courts) cannot be circumvented by invoking constitutional duties to fashion just and equitable remedies under section 172(1)(b) of the Constitution where a party has failed to comply with those rules without adequate justification.

The Court made important non-binding observations: (1) On delays in the labour system: The Court expressed serious concern about delays in labour dispute resolution, noting they undermine confidence in courts and the LRA's objective of expeditious dispute resolution. Froneman J stated: "There is nothing inevitable that causes delays in the dispute resolution process under the provisions of the LRA. If there is an underlying cause it may be because problems in the process are not addressed timeously and are then acknowledged as being the acceptable norm." The Court called for accountability from all actors in the system: if delays in CCMA are due to insufficient resources, this should be addressed through NEDLAC and Parliament; if individuals are failing in their duties, steps must be taken with their employers; practitioners causing delays should be disciplined through court-managed processes; and judges must produce judgments expeditiously. (2) On use of appeals by powerful litigants: The Court observed that "'systemic delay' is often also caused by rich and powerful litigants who use their superior financial capabilities to take the review and appeal opportunities available to them to the very end in the hope of wearying out an opposing litigant who may be in a less advantageous financial position." (3) On reinstatement vs specific performance: The Court noted that until National Union of Textile Workers v Stag Packings, reinstatement under common law employment contracts was regarded as almost invariably undesirable as it entailed enforcement of personal services. The LRA has changed this, making reinstatement the primary remedy, so little help can be expected from common law in developing new principles. (4) On mitigation and survival: The Court observed that "In real life, dismissed employees will seek alternative means of income in order to sustain their own survival and that of their dependants. It requires little imagination to appreciate that for many people in South Africa obtaining employment is, at best, a very difficult task. Equitable considerations militate against transforming this practical necessity of life into a legal burden on employees to mitigate their loss in dismissal cases."

This case is significant in South African labour law jurisprudence for several reasons: (1) It affirms that reinstatement is the primary statutory remedy for unfair dismissal under section 193 of the LRA, as established in Equity Aviation, and that retrospective reinstatement to the date of dismissal is the default position unless circumstances justify otherwise. (2) It confirms the strict approach that constitutional issues must be raised timeously in lower courts and that the Constitutional Court will not ordinarily sit as a court of first and last instance. (3) It clarifies that there is no duty on dismissed employees to mitigate their loss in reinstatement cases under the LRA, distinguishing reinstatement from common law damages claims. (4) It addresses the relationship between systemic delays and remedies, making clear that delays caused by a party's own unsuccessful litigation strategies cannot ground new constitutional remedies. (5) It firmly places responsibility for delays in the labour dispute resolution system on the actors within it (parties, representatives, CCMA officials, judges) rather than treating delay as an impersonal, inevitable force. (6) The judgment contains important obiter dicta calling for accountability in the labour dispute resolution process and condemning delays that undermine the LRA's objective of expeditious, cheap and accessible dispute resolution. (7) It confirms the proper standard of review for CCMA arbitration awards following Sidumo – whether the decision is one a reasonable decision-maker could not reach. (8) It clarifies the limited circumstances in which appellate courts can receive further evidence, confirming that the requirements that such evidence be credible, material and practically conclusive, with explanation for why it was not led earlier, apply in labour matters.