Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others

The first respondent, Mr Khanyile, was dismissed by Billiton Aluminium SA Ltd after disclosing information at a CCMA arbitration involving a co-employee, which the employer regarded as confidential. He was found guilty at a disciplinary hearing and dismissed. Arbitration proceedings before the CCMA found the dismissal substantively unfair and ordered reinstatement. The first arbitration award was set aside on review due to the absence of a proper record, and a second arbitration again ordered retrospective reinstatement. The Labour Court upheld the unfairness of the dismissal but replaced reinstatement with compensation, citing a breakdown of trust. On appeal, the Labour Appeal Court reinstated the arbitration award, ordering retrospective reinstatement. After further delays and failed appeals, the employer approached the Constitutional Court, arguing that due to systemic delays and post-award developments (including the employee earning other income), the Labour Appeal Court had a constitutional duty to fashion a just and equitable remedy under section 172(1)(b) of the Constitution.

Condonation for procedural non-compliance was granted, but leave to appeal was refused. The Labour Appeal Court’s order confirming retrospective reinstatement remained intact.

The case reinforces the principle that constitutional issues must be raised at the earliest opportunity in the appropriate lower courts. It affirms the primary role of specialist labour courts in developing labour law remedies and limits the circumstances in which systemic delay can be relied upon to invoke constitutional remedial powers on appeal.