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2024
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[2024] ZALCJHB 88
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Amalungelo Workers Union obo Jabulani v Cilliers and Others (JR 245/20) [2024] ZALCJHB 88 (16 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: Jr 245 / 20
In
the matter between:
AMALUNGELO WORKERS’
UNION obo
MAYISELA STEVEN
JABULANI & 29 OTHERS Applicants
and
LANCE CILLIERS
N.O.
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
UNILEVER SOUTH AFRICA
(PTY) LTD
Third Respondent
Decided:
In Chambers
Delivered:
16 February 2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 16 February 2024
Summary:
Leave to appeal – no proper grounds made out –
application for leave to appeal dismissed
JUDGMENT
– LEAVE TO APPEAL
SNYMAN,
AJ
Introduction
[1]
In this
instance, the applicants in the main application brought an
application to review and set aside a jurisdictional ruling
made by
the first respondent in his capacity as an arbitrator of the
Commission for Conciliation, Mediation and Arbitration (CCMA),
the
second respondent. The application was brought in terms of section
145 of the Labour Relations Act
[1]
(LRA). The review application was opposed by the third respondent.
[2]
The review application came before me on 24 August 2023 for argument.
After hearing argument by both parties, I reserved judgment.
Written
judgment in the review application was then handed down on 29
November 2023, in terms of which the applicants’ review
application was dismissed, with no order as to costs.
[3]
Dissatisfied with the judgment, the applicant, on 13 December 2023,
filed an application for leave to appeal. The application for
leave
to appeal was accompanied by written submissions as contemplated by
Rule 30(3A) of the Labour Court Rules and clause 15.2
of the Practice
Manual. The third respondent did not engage in the application for
leave to appeal. The time limit in terms of
the Practice Manual for
filing submissions has now passed, and the application is ripe for
determination.
[4]
Clause 15.2 of the Practice Manual further provides that an
application for leave to appeal will be determined by a Judge in
chambers,
unless the Judge directs otherwise. I see no reason to
direct otherwise and will therefore determine the applicants’
leave
to appeal application in chambers.
Analysis
[5]
In
J
& L Lining (Pty) Ltd v National Union of Metalworkers of SA and
Others (2)
[2]
the Court summarized the legal position that applies when a litigant
seeks leave to appeal from this Court as follows:
‘
Leave
to appeal is not there for the asking. When deciding whether to grant
leave to appeal to the Labour Appeal Court, the Labour
Court must
determine whether there is a reasonable prospect that another court
would come to a different conclusion to that of
the court a quo, or
in other words, whether the appeal would have a reasonable prospect
of success. This was summarised in
SA
Clothing & Textile Workers Union & others v Stephead Military
Headwear CC
, as follows:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the Labour Appeal Court, would come to a different
conclusion
to that reached in the judgment that is sought to be taken
on appeal.’’
[6]
As to the
meaning of ‘
reasonable
prospects of success’
,
the Court in
Member
of the
Executive
Council for Health, Eastern Cape v Mkhitha and Another
[3]
said the following:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success. Section
17(1)(a) of the Superior Cou
rts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have a reasonable prospect of
success; or there is some other compelling reason why it should be
heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’
[7]
Dealing then with the grounds raised by the applicants in seeking
leave to appeal, the first ground raised is that I was not entitled
to determine that the CCMA had no jurisdiction because the individual
applicants were not dismissed, because all that was before
me to
decide was whether the CCMA lacked jurisdiction on the basis that the
individual applicants were dismissed for operational
requirements.
There can be no substance in this ground raised by the applicants.
The issue to be decided concerned whether the
first respondent’s
determination that the CCMA had arbitration jurisdiction was correct.
As set out in my judgment, such
a jurisdictional issue to be decided
by the Labour Court is a decision
de novo
of its own accord,
because the CCMA cannot finally decide its own jurisdiction. It
follows that the reasons given by the first
respondent in his
jurisdictional ruling for finding that the CCMA lacked jurisdiction
is of little importance. It is always up
to this Court to finally
decide, on the facts, whether the CCMA had jurisdiction, One of these
facts, which were actually brought
forward in the arbitration, was
whether the individual applicants had been dismissed in the first
place. This was always a live
issue where it comes to the CCMA’s
jurisdiction, and even though the first respondent’s reasoning
is not important,
he actually mentioned it. The applicants
accordingly have no prospects of success on appeal where it comes to
this ground for seeking
leave to appeal.
[8]
The applicants complain that the issue of whether the individual
applicants were dismissed or not was not argued before me. That
is
not correct. This issue arose from the developments that occurred in
this matter relating to whether the individual applicants
were
dismissed which, at the time of the arbitration, was subject to a
Court challenge that was still in its infancy. When the
matter was
argued, the legal challenge had been concluded, and its consequence
was that the earlier arbitration award that the
individual applicants
had been dismissed as set aside. This accordingly left the dismissal
question open before me, and this was
pertinently raised by the third
respondent in argument. All of this became part of the review record,
and all the information contained
in my judgment, I extracted from
the review record. I must reiterate that as a final order and
outcome, the ruling of the first
respondent was that the CCMA had no
jurisdiction, and the question on review is whether that decision is
correct. If the evidence
before me shows that the individual
applicants were not dismissed, then that decision must be correct,
even if it is for different
reasons, and the review must fail. I can
see no reasonable prospects that another Court would come to a
different conclusion.
[9]
The
applicants then contend that in terms of the judgment of the LAC in
Amalungelo
Workers
Union on Behalf of Mayisela and Others v Commission for Conciliation,
Mediation and Arbitration and Others
[4]
,
the Court found that the individual applicants had been dismissed. I
specifically referred to the
Amalungelo
judgment of the LAC in my original judgment, and being familiar with
it, it is simply wrong for the applicants to suggest that
any finding
was made by the LAC that the individual applicants had been
dismissed. The reasoning of the Court referred to by the
applicants
in the application for leave to appeal took place in the context of
determining when a dispute as contemplated by section
198B would have
arisen, as this was the question the Court actually had to decide.
The Court never found that the individual applicants
had been
dismissed, and simply upheld the judgment of the Labour Court that
the CCMA did not have jurisdiction to decide the dispute
because it
was referred out of time with no condonation application. The
ultimate consequence of this is that the decision by the
CCMA
arbitrator that the individual applicants were dismissed was set
aside, meaning that there was no such determination in existence.
It
also meant that section 198B could not longer be relied upon, as any
such dispute had expired.
[10]
What the
applicants appear incapable of understanding is that the third
respondent consistently held the view that the employment
of the
individual applicants terminated because their fixed term contracts
of employment had expired. This was the case first argued
by the
third respondent before the CCMA. The CCMA however decided there was
a dismissal, because of the application of section
198B, and this was
the decision that was successfully challenged. This means that if the
individual applicants wanted to challenge
their termination of
employment, and as I said in my original judgment,
that
challenge must be based on either section 186(1)(a), or section
186(1)(b), of the LRA, as the two grounds of dismissal are
mutually
exclusive.
In casu
, the individual applicants squarely relied
on section 186(1)(a), contending they were permanent employees that
had been dismissed
by notice on 31 July 2019. As said, the ultimate
outcome of the judgment of the LAC meant that section 198B could not
be relied
on to establish permanent employment. It must follow that
the third respondent’s case that the individual applicants are
not permanent employees of the third respondent, and they were
employed on fixed term employment contracts which expired on 31 July
2019 is still live, and concerns the jurisdiction of the CCMA. In my
view, the applicants have no prospects of success at all where
it
comes to raising the aforesaid ground of appeal before another Court.
[11]
Another argument raised by the applicants is that the third
respondent conceded that a dismissal of the individual applicants on
31 July 2019 was established. But once again, this is simply not
true. What was conceded was succinctly summarized by the first
respondent in his award, where he said that: ‘
The strategy
of the employer in this issue before me is quite clear: If the Labour
Court finds against Commissioner Lerumo, then
the employer will
simply fall back on the termination of employment as being the
completion of a fixed term contract. If the Labour
Court finds
against the employer, then the fairness of the termination of
employment of the employees will be categorised, as per
the evidence
in the application and the bundle, as an operational requirement
dismissal which, in terms of the numbers involved,
falls squarely
within the jurisdiction of the Labour Court
.’ Simply
put, what the third respondent thus said was that firstly, the
individual applicants were not dismissed, and
secondly, if they were
dismissed, it was for operational requirements. The issue of whether
the individual applicants were dismissed
always remained in issue.
There is no reasonable prospect that another Court would come to a
different conclusion.
[12]
The applicants even say that the first respondent found the
individual applicants were dismissed. Again, this is not true. In
simple terms, the first respondent said that if the individual
applicants were dismissed, applying the earlier arbitration award
which was at the time still subject to challenge in the Labour Court,
that dismissal would be for operational requirements, over
which the
CCMA had no jurisdiction. It would seem that the applicants are
desperately contriving a case to justify leave to appeal.
I remain
unconvinced that this ground has any hope of success on appeal.
[13]
In their application for leave to appeal, the applicants now seek to
rely on section 186(1)(b) of the LRA to establish the existence
of
their dismissal. However, no such dispute was ever referred to the
CCMA or ventilated in the CCMA. In short, the individual
applicants
never said they were fixed term contract employees that had a
reasonable expectation that their contracts of employment
would be
extended. The applicants in fact said they were not fixed term
contract employees, but were actually permanently employed,
and by
the third respondent terminating their employment purportedly as
fixed term contract employees, it dismissed them. The applicant
cannot raise this new argument in seeking leave to appeal, for the
simple reason that no such dispute was before the CCMA at any
time.
There is simply no reasonable prospect that another Court would
decide otherwise.
[14]
Any finally, on the facts, there is little doubt that if the
individual applicants were indeed dismissed, it was for operational
requirements. In a nutshell, the work the individual applicants were
employed for had concluded because the project they were working
on
ended. The third respondent thus had no more work for them. That
would be why they were dismissed (if they were dismissed).
If that is
not operational requirements, I do not know what would be. I dealt
with this in detail in my original judgment, and
nothing the
applicants have submitted in the application for leave to appeal
convinces me that I erred in any respect, and certainly
not to the
extent that it would establish a reasonable prospect that another
Court would come to a different conclusion.
[15]
Despite concluding remarks by the applicants that the matter raises
constitutional issues, there is simply no substance in this.
There is
no particular constitutional issue at stake in this case. It is a
simple issue of jurisdiction, as determined by the unique
facts of
this particular case. There are also no conflicting judgments on this
issue, as suggested by the applicants. None of these
contentions can
serve as a legitimate basis for seeking or establishing a proper case
for leave to appeal.
[16]
In summary, I am unpersuaded that any of my findings with regard to
the jurisdiction of the CCMA in this case was erroneous to
the extent
that it would justify interference with on appeal. Overall
considered, I believe that the applicants in effect simply
disagree
with the findings I had made, however such a disagreement does not
make out a case for leave to appeal. Where it comes
to these
findings, I simply do not believe that there exists a reasonable
prospect that another Court would find otherwise, and
the applicants
have no prospects of success on appeal in this regard.
[17]
Accordingly,
the applicants have thus failed to show that there exists a
reasonable prospect that another Court would come to a
different
conclusion, and that the applicants have little prospect of success
on appeal. The application for leave to appeal falls
to be dismissed.
I believe the following
dictum
from the judgment in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[5]
to be appropriate in deciding to refuse leave to appeal, especially
considering the delay that has already taken place in this
case:
‘…
The Labour Relations Act
was designed to ensure an expeditious resolution of industrial
disputes. This means that courts, particularly
courts in the position
of the court a quo, need to be cautious when leave to appeal is
granted. …’
[18]
This only leaves the issue of costs. I shall follow the same approach
as I have adopted in my original judgment and similarly decide
that
it would be fair that no order as to costs be made in the application
for leave to appeal. This is especially so, considering
that the
third respondent has not engaged in the application for leave to
appeal.
[19]
In the premises the following order is made:
Order
1.
The applicants’ application for leave to appeal is dismissed.
2.
There is no order as to costs.
S. Snyman
Acting Judge of the
Labour Court of South Africa
[1]
Act
66 of 1995 (as amended).
[2]
(2019)
40 ILJ 1303 (LC) at para 5.
[3]
[2016]
JOL 36940
(SCA) at paras 16 – 17.
[4]
(2022)
43 ILJ 600 (LAC)
[5]
(2014)
35
ILJ
2399 (LAC)
at
2405J-2406A