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2024
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[2024] ZALCJHB 148
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South African Airways (SOC) Ltd v South African Cabin Crew Association obo Members and Others (J 604/23) [2024] ZALCJHB 148 (27 March 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J 604/23
In
the matter between:
SOUTH
AFRICAN AIRWAYS (SOC) LTD
Applicant
and
SOUTH
AFRICAN CABIN CREW ASSOCIATION obo MEMBERS
NATIONAL
UNION OF METALWORKERS OF SOUTH AFRICA obo MEMBERS
First
Respondent
Second
Respondent
COMMISSIONER
PHALA N.O
Third
Respondent
CCMA
Fourth
Respondent
Decided:
In Chambers
Delivered:
27 March 2024
JUDGMENT
IN APPLICATION FOR LEAVE TO APPEAL
NORTON
AJ
Introduction
1.
On 5 January 2024 I delivered my judgment making the following
orders:
1.1.
The ruling of the Third Respondent under case number HO 104-21 dated
11 April 2023 is reviewed
and set aside.
1.2.
SAA’s application for the dismissal of the unfair labour
practice succeeds.
1.3.
The ruling of the Third Respondent under case number HO 104 –
21 dated 12 October
2022 that the CCMA has jurisdiction to arbitrate
the dispute is reviewed and set aside.
1.4.
The CCMA has no jurisdiction to arbitrate the unfair labour practice
dispute made by the
Unions in August 2021.
1.5.
The Unions are to pay SAA’s costs, limited to one counsel.
2.
On 19 January 2024, the First and Second Respondents (the “Unions”)
filed an application for leave to appeal against the whole of the
judgment and order, inclusive of the cost order.
3.
On 2 February 2024, the Unions filed their submissions.
4.
On 12 February 2024, SAA filed its’ opposition to the
Unions
application for leave to appeal.
5.
The application has been made in terms of rule 30 of the Labour
Court
rules read with clause 15 of the Practice Manual.
6.
I replicate the Unions’ grounds of appeal below. Thereafter
I
intend to summarise the Unions’ and SAA’s submissions,
and respond to the salient points. I will then address the
question
of whether or not the Unions have passed the legal threshold for
leave to appeal. I conclude with the relevant orders.
The
Unions’ grounds of appeal
7.
Ground 1:
That the Learned Judge erred by incorrectly finding that
the Commissioner should have granted the Applicant’s dismissal
application
(“Dismissal application”
)
8.
Ground 2:
That the Learned Judge erred by incorrectly finding that
the exception to Section 158(1)(B) of the LRA found application in
this
matter.
(“Section 158(1)(B) exception”
)
9.
Ground 3
: That the learned Judge erred by incorrectly finding that
the CCMA lacked jurisdiction based on a finding that the dispute did
not constitute an unfair labour practice (“
No Jurisdiction
– no ULP”
)
10.
Ground 4
:
That the Honourable Judge erred in finding that the trade Unions
should pay the costs of the application
[1]
(“
Costs”
)
The
Unions submissions, SAA’s response and the court’s view
Ground
1: Dismissal Application
11.
The Unions submit that the court erred by incorrectly finding that
the Commissioner
should have granted the Applicant’s dismissal
application. Whilst the Unions agree that the Commissioner made a
material
error of law when he held he did not have the power to
dismiss the matter, the court should not have held that he should
have dismissed
the matter, and should instead have remitted the
matter back to the CCMA for a decision on the matter.
12.
The Unions point to SAA as equally responsible for the delay in the
matter.
They also submit that the pre arbitration minute was close to
finalisation. They say that the reason for the delay in signing the
pre arbitration minute was that they could not specify the exact
nature of their members complaints with respect to the ULP. Finally
the Unions argue that the court failed to appreciate the
organisational difficulties confronting them.
13.
SAA argues that there was a delay of some 20 months since the
referral of the
Unions’ dispute and that the parties were no
closer to commencing the arbitration. Furthermore the Unions’
consistently
failed to comply with the undertakings made at the CCMA
to conclude the pre arbitration minute. SAA further points to the
concession
by the Unions that SAA had good reason to complain about
the delays.
14.
What is striking to me is that the Union sought to obtain clear
instructions
from their members about the nature of the ULP in March
2023 some 1.5 years after they had referred the dispute (in August
2021).
Surely that process should have preceded the referral. It is
not surprising that the Unions delayed the arbitration process and
kicked the can down the road, because at the heart of the matter,
they were unclear about the very case they had brought to the
CCMA. I
was in as good a position as the CCMA Commissioner to decide on the
dismissal application, with pleadings and bundles of
documents before
me. I thought it efficient to do so, rather than sending the matter
back to the CCMA, causing a further delay
in the matter. In my view
this ground has no merit.
Ground
2: Section 158 (1B) Exemption
15.
The Unions argue that the extent of the delay was only three months,
as previous
postponements were agreed to or condoned. The Unions also
argue that the circumstances in which the exception to section
158(1B)
should be invoked is an important matter worthy of the Labour
Appeal Court’s consideration, which constitutes compelling
reasons for why the matter should be heard on appeal as envisaged in
s 17(1)(a)(ii)
of the
Superior Courts Act, 2013
.
16.
SAA disputes that the delays in the arbitration were consensual. SAA
argues
that it was only when the dismissal application was dismissed
that there was finality, and could approach the Labour Court on the
basis of an expedited review.
17.
Section
158(1B)
prohibits the Labour Court from reviewing any decision or
ruling made during conciliation or arbitration before the issue in
dispute
has been finally determined, unless it is just and equitable
to do so. The court referred to the
case
Ntombela & others v United National Transport Union &
others
[2]
as an example of the exception (to review a commissioner’s
contradictory rulings). The court considered the review launched
by
SAA and found in SAA’s favour, after taking account the
commissioner’s legal error that he did not have the power
to
dismiss for reasons of inordinate delay, and that some 20 months down
the line since the referral the Unions did not appear
to have
established their ULP case. I am though persuaded that the
circumstances in which the court may invoke the exception and
hear a
review whilst a conciliation or arbitration is incomplete is worthy
of the LAC’s attention.
Ground
3: No Jurisdiction – no ULP
18.
The Unions
argue that the court’s reliance on
Telkom
SA Ltd v CCMA
[3]
was misplaced as the employee was retrenched, but incorrectly pursued
an ULP claim. The court in
Telkom
found that an employee aggrieved about a restructuring process must
challenge the procedure as part of the
S189A
process, and not through
an ULP. In the Unions case before this court there is no dismissal
and therefore they were correct to
pursue their dissatisfaction
through the ULP regime.
19.
SAA disagrees, and argue that the employees should have challenged
the mitigating
attempts by the business rescue practitioners through
section 189A(13)
of the LRA.
20.
The court agrees with SAA, and furthermore points to the factual
paucity of
the Unions evidence that they had been the subject on an
ULP. Nonetheless the court is of the view that the legal question of
whether
attempts to mitigate and avoid retrenchment, which give rise
to a demotion; may be challenged by aggrieved employees through a
section 189A(13)
process in the Labour Court or an ULP dispute as
envisaged in
section 186
(2)(a) of the LRA through an arbitration
process at the CCMA or Bargaining Council is worthy of the LAC’s
attention.
Ground
4: Costs .
21.
The Unions
argue that they should not be saddled with costs. They point to a
current relationship between the parties, trade Unions
are
organisations not for gain, and that labour related disputes are an
exception to the general rule that costs follow the result.
Noting
the Constitutional Court decision in
Zungu
v Premier of the Province of KwaZulu-Natal
[4]
,
the Unions concluded that “
courts
adjudicating labour matters must prefer an approach to costs that
will not have a chilling effect on bona fide litigation
intended to
vindicate labour rights
”.
[5]
22.
SAA argues
that the court was not influenced by wrong principles or a
misdirection of the facts. SAA points out that there is no
collective
bargaining relationship between SAA and the Unions. SAA maintains
that the Unions did not meaningfully engage with the
grounds of
review, and that their opposition to the review challenge with
respect to the dismissal ruling was “
vexatious
and reckless
”.
[6]
A cost order was warranted.
23.
The court remains of the view that the Unions pursued the dispute at
the CCMA
unclear about their facts, and responsible for repeated
delays. Costs as contemplated in
section 162(2)(b)
of the LRA were
justified.
Legal
considerations
24.
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
.”
25.
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.
26.
In
Seathlolo
& others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
[7]
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
…”
[8]
Analysis
27.
There are two legal issues emerging from grounds 2 and 3 which I
believe warrant
the LAC’s attention and meet the criteria of
section 17(1)(a)(ii)
of the
Superior Courts Act 2013
. Those are:
27.1.
the circumstances in which the court may invoke the exception of
Section 158(1B)
and hear a review whilst a conciliation or
arbitration is incomplete; and
27.2.
whether attempts to mitigate and avoid retrenchment during a
section
189A
process, which gives rise to a demotion; may be challenged by
aggrieved employees through a
section 189A(13)
process in the Labour
Court or an ULP dispute as envisaged in
section 186
(2)(a) of the LRA
through an arbitration process at the CCMA or Bargaining Council?
28.
I am mindful that there too are public interest considerations in
this matter,
noting that SAA is the first State Owned Company to
embark on a voluntary business rescue process, and that there have
been hundreds
of employees affected by the re-organisation of the
entity.
29.
I therefore grant the Unions leave to appeal to the Labour Appeal
Court.
Order
Leave
to Appeal to the Labour Court is granted.
No
order as to costs.
D
Norton
Acting
Judge of the Labour Court of South Africa
[1]
Paragraph 3 of the Unions Submissions Application for Leave to
Appeal
[2]
(2019) 40 ILJ 874 (LC)
[3]
(2019) 40 ILJ 1093 (LC)
[4]
(2018) 39 ILJ 523 (CC) at
[5]
Unions submissions, para 48
[6]
SAA submissions, para 26
[7]
(2016) 37 ILJ 1485 (LC). See too
Sepheka
v Du Pont Pioneer (Pty) Ltd
(2019) 40 ILJ 613 (LC)
[8]
At para 3