THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 483/09

In the matter between:

DR B M RAWLINS
Appellant

and

DR D C KEMP t/a CENTRALMED
Respondent

Neutral citation: Rawlins v Kemp (483/09) [2010] ZASCA 102
(7 SEPTEMBER 2010)

Coram:
NAVSA, NUGENT, SNYDERS and MHLANTLA JJA
and BERTELSMANN AJA

Heard:
26 AUGUST 2010

Delivered:
7 SEPTEMBER 2010

Summary:
Labour Relations Act of 1995 – unfair dismissal – refusal
to order payment of compensation.

_____________________________________________________________________

ORDER
_____________________________________________________________________

On appeal from: Labour Appeal Court (Zondo, JP and Willis and
Waglay JJA sitting in the court below):

The appeal is dismissed.
_____________________________________________________________________

JUDGMENT
_____________________________________________________________________

NUGENT JA (NAVSA, SNYDERS and MHLANTLA JJA and
BERTELSMANN AJA concurring)

[1] There are troubling aspects of this case that go beyond the
particular issues that it raises. The case arises from the dismissal of Dr
Rawlins (the appellant) from the employment of Dr Kemp (the
respondent). Soon after the dismissal occurred Dr Kemp accepted that it
was unfair. What remained in dispute was only what remedy Dr Rawlins
should have. Indeed, the dispute was even narrower than that, because Dr
Kemp offered to reinstate Dr Rawlins on numerous occasions but on each
occasion the offer was refused. Dr Rawlins said in evidence that she
refused the offers because the relationship of trust had broken down. The
dispute in the litigation that followed was confined to whether she should
be awarded compensation and, if so, what amount that should be.

[2] Even before the litigation commenced Dr Rawlins found
alternative employment at a higher salary than she had been paid by Dr
Kemp and it was conceded by her counsel that the financial loss she

sustained in consequence of the dismissal did not exceed R40 000.1 In a
long line of cases courts have held that compensation for unfair dismissal
is limited to financial loss (even then it need not compensate for that loss
in full).2

[3] It is now more than twelve years since Dr Rawlins was dismissed
and the case has passed through the hands of nine judges. It was decided
by the Labour Court – albeit incorrectly – more than seven and a half
years after the event. The order of the Labour Court was corrected by the
Labour Appeal Court eleven years after the event. It is now before us one
and a half years later. Yet the claim is of the kind that the mechanisms of
the Labour Relations Act 66 of 1995 are designed to bring to expeditious
finality.

[4] Briefly, the claim arose as follows. Dr Kemp is a medical
practitioner in private practice in Bloemfontein. In 1997 he purchased a
second practice – what he called a ‘satellite’ practice. With effect from 1
February 1997 he employed Dr Rawlins to run the satellite practice at a
net salary of R10 000 per month. The satellite practice was financially
separated from his own practice, it was conducted from separate
premises, and Dr Rawlins was left to exercise her medical skills without
interference.

1 Four months’ remuneration.
2 See the long line of cases under the Labour Relations Act 28 of 1956 of Camdons Realty (Pty) Ltd v
Hart (1993) 14 ILJ 1008 (LAC) 1018F-1019D; Alert Employment Personnel (Pty) Ltd v Leech (1993)
14 ILJ 655 (LAC) 661E-G; Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC) 981C-H;
Amalgamated Beverages Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC) 1256B-1257E; SA
Quilt Manufacturers (Pty) Ltd v Radebe (1994) 15 ILJ 115 (LAC) 126C-127B; Robecor v Durant
(1995) 16 ILJ 1519 (LAC) 1521I-1522H; Chevron Engineering (Pty) Ltd v Nkambule 2004 (3) SA 495
(SCA) para 31. That principle has since been endorsed by the Labour Appeal Court in relation to the
Labour Relations Act of 1995: Le Monde Luggage CC t/a Pakwells Petje v Dunn NO (2007) 28 ILJ
2238 (LAC) para 30.

[5] In about June 1997 Dr Rawlins informed Dr Kemp that she was
pregnant. They agreed that she would take maternity leave for two
months with effect from 1 February 1998. She would be paid for two
weeks of her maternity leave and the balance would be taken as unpaid
leave. Shortly before her leave commenced Dr Kemp suggested to Dr
Rawlins that she should take the opportunity to look for alternative
employment in view of the financial difficulty of the practice. According
to Dr Kemp he hoped to find a more junior doctor who would be willing
to run the satellite practice at a lower salary.

[6] Dr Rawlins took the suggestion to mean that she was being
dismissed. She informed her husband who immediately telephoned Dr
Kemp and demanded a letter advising Dr Rawlins that she had been
dismissed. There was some acrimony between the parties at that time but
the detail is not important. Suffice it to say that although Dr Kemp
maintained that he had not intended to dismiss Dr Rawlins he
nonetheless, unaccountably, furnished Dr Rawlins with a letter informing
her that she was dismissed with effect from the end of February 1998 on
account of the financial difficulties of the practice.

[7] Alleging that she had been dismissed on account of her pregnancy,
Dr Rawlins referred the matter to the Commission for Conciliation,
Mediation and Arbitration through the offices of her union, claiming
compensation from Dr Kemp. Had she indeed been dismissed on account
of her pregnancy the dismissal would have been ‘automatically unfair’
under s 187(1)(e) of the Labour Relations Act. The statutory maximum
that may be awarded to an employee for an ‘automatically unfair’

dismissal is the equivalent of 24 months’ remuneration.3 Where a
dismissal is otherwise unfair the statutory maximum is the equivalent of
12 months’ remuneration.4

[8] Counsel for Dr Kemp told us frankly that we can accept that Dr
Kemp behaved poorly towards Dr Rawlins at the time that he dismissed
her and no doubt she was entitled to feel aggrieved. But within a month,
on 12 March 1998, Dr Kemp acted sensibly when, on the advice of his
attorney, he offered to reinstate Dr Rawlins, alternatively, to pay her one
month’s salary in lieu of notice, severance pay of one week’s salary for
each completed year of service, and unspecified compensation for the
period 1 February 1998 to 12 March 1998. It was accepted by counsel for
Dr Rawlins that the offer of reinstatement was made genuinely and in
good faith. At first there was no response to the offer but it was repeated
in the course of attempts at conciliation on 17 March 1998 and was
summarily rejected.

[9] Conciliation failed to resolve the dispute and Dr Rawlins
commenced proceedings in the Labour Court on 22 September 1998 in
which she claimed a declaration that her dismissal had been
‘automatically unfair’ or, alternatively, a declaration that her dismissal
had been otherwise unfair. She claimed in each case the maximum
amount of compensation that the statute allows.

[10] By then Dr Rawlins had found and taken up alternative
employment (with effect from 1 September 1998) at a higher salary than
she had been paid by Dr Kemp (precisely what her new salary was does

3 Section 194(3).
4 Section 194(1).

not appear from the evidence). Her financial loss had thus been fixed by
then at no more than four months’ remuneration – amounting to R40 000
– though in truth it might even have been less. Before the matter came to
trial Dr Kemp again offered to reinstate Dr Rawlins. Nonetheless, Dr
Rawlins persisted in her claims.

[11] The Labour Court (Gush AJ) found that Dr Rawlins had not been
dismissed on account of her pregnancy (a finding that she did not
challenge in the subsequent appeal) but that her dismissal was
nonetheless unfair (a finding that was not challenged by Dr Kemp). The
learned judge went on to hold that her refusal of the offer of reinstatement
had been reasonable and he awarded compensation of R120 000 (twelve
months’ remuneration), observing that ‘the manner in which [Dr Kemp]
went about dismissing [Dr Rawlins] and his timing is deserving of
censure’. The basis upon which he made the award was a clear
misdirection. I have already referred to the long line of cases that have
held that a court’s remedial powers are compensatory and not punitive
and her loss amounted to no more than four months’ remuneration.

[12] An appeal to the Labour Appeal Court5 was confined to the
questions whether Dr Rawlins should have been awarded compensation
at all and, if so, whether the amount awarded was excessive.

[13] In separate judgments the majority (Zondo JP and Waglay JA)
enquired into the nature of the discretion that is exercised by a court when
it considers questions of compensation and the grounds upon which a
court might interfere on appeal. We need not consider that question
because counsel for the appellant accepted that the Labour Appeal Court

5 Reported as Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC).

was at large to substitute its discretion for that of the Labour Court. His
argument was confined to the correctness of its conclusion.

[14] The majority found that Dr Rawlins should not have been awarded
compensation, while Willis JA was of the view that she should have been
awarded compensation, but no more than six months’ remuneration. The
principal reason for the decision of the majority was that Dr Rawlins had
unreasonably refused the offer of reinstatement. Zondo JP expressed that
as follows:
‘[Dr Kemp] may have treated [Dr Rawlins] the respondent unfairly when he
dismissed her in the manner in which he did but he had “a right to seek to right the
wrong” that he had committed by offering to put the respondent back in the position
in which she would have been had she never been dismissed. It is what I call an
employer's “right to right a wrong”. And, if the offer was genuine and reasonable, as
it has been conceded on behalf of [Dr Rawlins] it was, I cannot see why [Dr Kemp]
must be ordered to pay her compensation which would not have arisen if the
respondent had accepted the offer of reinstatement. In my view it is very important to
affirm the employer’s “right to right a wrong” that he or she has made in these kinds
of circumstances. If an employer unfairly dismisses an employee and he wishes to
reverse that decision, he must be able to do so, and if the employee fails to accept that
offer for no valid reason, the employer has a strong case in support of an order
denying the employee compensation.’6

[15] The difference between the Labour Court and the Labour Appeal
Court was thus within a decidedly narrow compass – the Labour Court
felt that the rejection of the offer of reinstatement was reasonable and the
Labour Appeal Court felt that it was not. In each case the court concerned
was called upon to make a value judgment on the same facts. And we are
asked by the parties to do no more than to say whether we agree with the
value judgment of the one court or the other.

6 Para 26.

[16] It is questionable whether an appeal of that kind should be before
us at all in view of the decision in National Union of Metalworkers of SA
v Fry’s Metals (Pty) Ltd7 – though I hasten to add that the petition to this
court might have cast the matter in a different light. In that case the test
for special leave to be granted was expressed as follows:
‘No doubt every appeal is of great importance to one or both parties, but this Court
must be satisfied, notwithstanding that there has already been an appeal to a specialist
tribunal, and that the public interest demands that labour disputes be resolved
speedily, that the matter is objectively of such importance to the parties or the public
that special leave should be granted. We emphasise that the fact that applicants have
already enjoyed a full appeal before the LAC will normally weigh heavily against the
grant of leave. And the demands of expedition in the labour field will add further
weight to that.’8

[17] Now that the appeal is before us I mention that decision only to
indicate that the principle upon which it is founded is that this court will
not lightly interfere with the decisions of the specialist tribunal that has
been established to hear appeals in labour disputes. That is consistent
with the observation by the Constitutional Court in Dudley v City of Cape
Town9 that:
‘[t]he LAC is a specialised appellate Court that functions in the area of labour law.
Both the LAC and the Labour Court were established to administer labour legislation.
They are charged with the responsibility for overseeing the ongoing interpretation and
application of labour laws and the development of labour jurisprudence.’

[18] That applies particularly where the decision of the Labour Appeal
Court is the product of a value judgment that is arrived at in its continuing

7 2005 (5) SA 433 (SCA).
8 Para 43.
9 2005 (5) SA 429 (CC) para 9.

development of its own jurisprudence. Whatever view we might have
taken on the matter it seems to me that we would be remiss if we were not
to defer to that court’s value judgment in a matter of this kind. In any
event I agree with the conclusion of the majority. No doubt Dr Rawlins
genuinely felt that there had been a breach of trust. But these are two
professional people who might be expected to resolve any acrimony that
might earlier have existed. No objective grounds were advanced why any
perceived breach of trust between them was not capable of being restored.
Dr Rawlins chose not even to explore that possibility but rejected it out of
hand. That is not how labour relations should be conducted and I agree
that the rejection of the repeated offers of reinstatement was unreasonable
and she has only herself to blame for her financial loss.

[19] In heads of argument counsel for Dr Kemp asked for the costs of
the appeal but generously did not press that claim in argument. I might
only add that I think he cannot be faulted for having adopted that course.

[20] The appeal is dismissed.

_________________
R W NUGENT
JUDGE OF APPEAL

APPEARANCES:

For appellant:
P R Cronjé

Instructed by:

Phatshoane Henney Inc, Bloemfontein

For respondent:
S Snyman

Instructed by:

Snyman Attorneys, Johannesburg

Honey Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
7 September 2010
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *
DR B M RAWLINS v DR D C KEMP t/a CENTRALMED

Twelve years after the event the Supreme Court of Appeal (SCA) today dismissed an
appeal against a finding by the Labour Appeal Court that a medical doctor who had
been dismissed was not entitled to compensation.

The case arose when a Bloemfontein medical doctor was dismissed from her
employment in the practice of another medical doctor.  She approached the Labour
Court, which awarded her compensation equivalent to twelve months’ remuneration.
On appeal the Labour Appeal Court (LAC) found that she had unreasonably refused
an offer by her employer of reinstatement that was made shortly after she had been
dismissed.  Had she accepted the offer, the LAC found, she would have suffered no
loss at all, and she was accordingly not entitled to compensation.  She appealed to the
SCA.

The SCA expressed concern at the course that the matter had followed, pointing out
that the Labour Relations Act specifically requires disputes of that kind being to be
resolved expeditiously.  It also reiterated that the SCA will be slow to interfere with a
value judgment made by the Labour Appeal Court, which was established especially
to develop labour jurisprudence.  The appeal against the finding of the LAC was
dismissed.