Costs in Labour Courts

In National Union of Mineworkers obo Masha and Others v Samancor Limited (Eastern Chromes Mines) and Others 2021 (10) BCLR 1191 (CC), LAC erred in departing from the general rule that losing parties in labour matters should not be ordered to pay the successful parties’ costs, unless there were reasons.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Costs in Labour Courts - Rule of practice that costs follow the result does not apply in labour matters: In National Union of Mineworkers obo Masha and Others v Samancor Limited (Eastern Chromes Mines) and Others 2021 (10) BCLR 1191 (CC), the applicant, the National Union of Mineworkers, acting on behalf of five of its members, employed by the first respondent, Samancor Ltd (Eastern Chromes Mines) sought leave to appeal to the CC against a judgment and order of the Labour Appeal Court (LAC).

The employee applicants were charged with insubordination, found guilty at a disciplinary inquiry, and dismissed. The charge of insubordination was based on an allegation that the employee applicants had disobeyed instructions to install certain safety measures before resuming actual mining work. They referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). They alleged that the employer had been inconsistent in disciplining them in that one of them, Ms Maseko, had not been charged along with the others until the applicant complained. Once charged, Ms Maseko and another employee were not dismissed. The CCMA arbitrator found that there had been an unjustifiable differentiation in the treatment of the employees, holding that the dismissal was unfair and awarded reinstatement. First respondent challenged the award on review to the Labour Court (LC). The LC found that the misconduct charged had not been proven and dismissed the review application, making no order as to costs. On appeal, the LAC held that the LC failed to consider the actual issue, which was whether there had been inconsistency of discipline. The LAC held that on the evidence Ms Maseko’s acquittal was appropriate. It found that the employees’ complaint of inconsistent application of discipline was thus founded on an incorrect premise. As the employees had been aware of the rules, dismissal was an appropriate sanction, given the seriousness of the misconduct. The LAC set aside the LC’s order. It held that the dismissal was procedurally and substantively fair and ordered the applicant to pay the costs incurred both in the LC and the LAC.

The CC held that the LAC’s finding that there was no inconsistency of discipline was unassailable. The court held that, given the nature of the mining industry and its often-unsafe conditions, the disregard of the instructions that had been given was a serious matter and dismissal was an appropriate sanction. The application for leave to appeal against the dismissal fell to be dismissed. In relation to costs, however, the LAC had erred in awarding costs against applicant. Where such an order was made, reasons had to be provided. The LAC had failed to provide reasons. This was compounded by the fact that the LAC substituted the order of the LC on costs and issued a costs order against the applicants where the LC had not done so. The LAC had erred in departing from the general rule that losing parties in labour matters should not be ordered to pay the successful parties’ costs, unless there were reasons warranting the imposition of a costs order. The LAC had not exercised its discretion judicially. The CC was thus entitled to interfere. The appeal on costs was upheld and the costs orders set aside.

Merilyn Rowena Kader
Legal Editor at LexisNexis