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2024
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[2024] ZALCJHB 116
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National Union of Public Service and Allied Workers obo Lutendo v Commission for Conciliation, Mediation, and Arbitration (JR2086/20) [2024] ZALCJHB 116 (13 March 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:
JR 2086/20 and jr 2111/20
CCMA
case number: gatw 9858-19
In
the matter between:
NATIONAL UNION OF
PUBLIC SERVICE AND ALLIED Applicant
WORKERS (“NUPSAW’)
obo LUTENDO & 284 OTHER
and
COMMISSION FOR
CONCILIATION, MEDIATION AND First Respondent
ARBITRATION
COMMISSIONER
KRUGERSecond Respondent
DIS-CHEM PHARMACIES
LTDThird Respondent
Decided: In Chambers
Delivered: 13 March
2024
JUDGMENT
IN APPLICATION FOR LEAVE TO APPEAL
NORTON
AJ
Introduction
1.
On 5 January 2024 I delivered my judgment dismissing NUPSAW’s
review application, and thereby leaving intact the
arbitrator’s
finding that the dismissal of 285 employees was fair. Furthermore I
upheld Dis-Chem’s cross review, and
found that the arbitrator’s
finding that the dismissal of Mr Mayengisa was unfair should be
reviewed and set aside and replaced
with an order that his dismissal
was fair.
2.
On 26 January 2024 NUPSAW sought leave to appeal to the Labour Appeal
Court and sets out grounds in their application and
in their written
submissions filed on 8 February 2024. Dis-Chem has opposed their
application for leave to appeal and filed their
submissions on 20
February 2024.
3.
The application has been made in terms of rule 30 of the Labour Court
rules read with clause 15 of the Practice Manual.
4.
I intend to summarise NUPSAW’s submissions, and answer the
salient points, and thereafter analyse whether or not
the union has
passed the legal threshold for leave to appeal.
NUPSAW’s
submissions and the court’s response
5.
The court
erred by finding that the arbitrator did not misapply the parity
principle
[1]
In particular that
with respect to two employees Ms Mndebele and Ms Jaca, who had
committed misconduct, but were sanctioned with
a FWW. (By implication
then other employees who had committed misconduct should too receive
the lesser sanction, and not dismissal.)
5.1. Whilst like
misconduct should be met with like sanction as a general principle;
differentials are legitimate if based
on individual valid factors
like length of service, remorse and disciplinary records. Furthermore
in circumstances in which there
are many disciplinary processes
before a multitude of different chairpersons, there will inevitably
be different outcomes as reasonable
chairpersons differ reasonably.
5.2. The arbitrator
was alive to these factors, (as was Ms Schafer the company’s
witness) and thus found that the company
did not violate the parity
principle.
5.3. With respect
to the two identified employees Ms Schafer testified that at the time
of their disciplinary enquiries the
company was not aware of further
misconduct they had committed. She did not rule out the possibility
of a further disciplinary
enquiry to take this “new”
misconduct into account.
5.4.
Employees
who had been dismissed may not profit from the lesser sanctioned
meted out to the two employees.
[2]
That is what the union seeks to achieve with this challenge, ignoring
the serious misconduct of the majority of employees which
led to
their dismissal.
5.5. There is no
reason for the court to interfere with this finding.
6.
Noting that
the court found that the commissioner had misconceived the principle
of common purpose, the court should have reviewed
and set aside the
award and remitted the matter back to the CCMA to be heard
de
novo
before a different commissioner.
[3]
6.1. I disagree,
the nature of the misconduct was such that the ultimate finding of a
fair dismissal could be sustained, despite
the finding that the
commissioner had misconceived the doctrine of common purpose.
6.2. The members
who remained on the bus, had violated two court orders, and showed
their support for the members who disembarked
off the bus and
vandalised the stores at Woodmead and Sunninghill.
6.3. There is no
reason for the court to interfere with this finding.
7.
The court
erred by finding that Mr Mayengisa had committed misconduct
warranting the sanction of dismissal.
[4]
7.1. I disagree, Mr
Manyengisa blocked traffic, threw bricks on the road and threatened
members of the public. This constituted
material misconduct
justifying dismissal.
7.2. Mr
Manyengisa’s actions were distinguishable from employees who
gathered outside the picketing area contravening
the first court
order, who were sanctioned with a Final Written Warning.
7.3. There is no
reason for the court to interfere with this finding.
8.
The number
of employees dismissed – over 200 – warrant the LAC’s
consideration.
[5]
8.1.
I agree that this is a material consideration, but I am not persuaded
that for this reason alone the matter warrants
the LAC’s
attention. More is required.
Legal
considerations
9.
When considering the standard in applications for leave to appeal,
section 17(1) of the Superior Courts Act 2013 (the “Act”)
applies. That section reads,
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that (a)(i) the appeal would have a reasonable
prospect of success; or (a)(ii) there is some other compelling reason
why the appeal should be heard, including conflicting judgments
on
the matter under consideration
.”
10.
The threshold to cross for an audience with an appeal court is a high
one, requiring a strong prospect that another court
would come to a
different decision, or that there are compelling reasons justifying
the attention of that court.
11.
In
Seathlolo
& others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
[6]
Judge Van Niekerk, discussing the test to be applied states,
“
The
traditional formulation of the test that is applicable …requires
the court to determine whether there is a reasonable
prospect that
another court may come to a different conclusion to that reached in
the judgment that is sought to be taken on appeal.
…the use of
the word “would” in s 17(1)(a)(i) is indicative of a
raising of the raising of the threshold since
previously, all that
was required for the applicant to demonstrate was that there was a
reasonable prospect that another court
might come to a different
conclusion…Further this is not a test to be applied lightly –
the Labour Appeal Court has
recently had occasion to observe that
this court ought to be cautious when leave to appeal is granted…The
statutory imperative
of the expeditious resolution of labour disputes
necessarily requires that appeals be limited to those matters in
which that there
is a reasonable prospect that the factual matrix
could receive a different treatment or where there is some legitimate
dispute
on the law
…”
[7]
Analysis
12.
Noting the requirement of strong prospects with respects to the
facts, or a compelling reason based on the law as set
out in the Act,
and described more fully above, I am not persuaded that the union has
made out a persuasive argument for leave
to appeal. Each ground
presented by the union has been addressed and discounted. The only
issue of some merit is the number of
employees involved.
Unfortunately that is a factor, and a risk, with strike action,
strike misconduct, and consequential dismissals.
13.
In my view the union has not demonstrated that the LAC would come to
a different conclusion on the matter, nor that there
are compelling
circumstances with respect to the matter, which would warrant the
attention of the LAC.
14.
Accordingly I make the following order:
Order
The
application for leave to appeal is dismissed.
No
order as to costs.
D
Norton
Acting
Judge of the Labour Court of South Africa
[1]
Paragraph 1 of application for leave to appeal, and paragraph 12 of
the written submissions
[2]
Mphigalale
v Security Sectoral Bargaining Council and Others
(2012) 33 ILJ 1464 (LC)
[3]
Paragraphs 9 and 10 of the Application for leave to appeal
[4]
Paragraph 20
[5]
Paragraph 27
[6]
(2016) 37 ILJ 1485 (LC). See too
Sepheka
v Du Pont Pioneer (Pty) Ltd
(2019) 40 ILJ 613 (LC)
[7]
At para 3