About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 16
|
|
Xaba v Revlon (Pty) Ltd (JR1291/2006) [2008] ZALCJHB 16 (19 March 2008)
LOM
Business Solutions t/a Set LK Transcribers
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO
: JR1291/2006
DATE:
2008-03-19
In
the matter between
ELIZABETH
XABA Applicant
And
REVLON
(PTY)
LIMITED Respondent
J U D G M E N T
CELE
J
:
This
is an application in terms of
Section 166
of the
Labour Relations
Act, 66 of 1995
hereafter referred to as the Act, for leave to appear
before the Labour Appeal Court against a final decision of this
court. It
was an
ex tempore
judgment,
delivered on 5 September 2007.
Both parties were in
attendance and one would have expected that both would have noted the
judgment, however, the application for
leave to appeal was filed only
on 13 December 2007 and this was after an edited copy of the judgment
had been served to the parties.
The matter came before me
on 20 February this year and I pointed out that the application for
leave to appeal was not properly before
me because it was not lodged
in time, there was a period of 56 days for which there was a
deviation from the rule.
It is clear in terms of
Rule 30
of the rules of this court, that is particularly
Rule 30(2)
that the application should have been lodged within 15 days of the
date of the judgment. The rule reads:
“
If
leave to appeal has not been made at the time of judgment or order,
an application for leave must be made and the grounds for
appeal
furnished within 15 days of the date of the judgment or order against
which leave to appeal is sought, except that the court
may on good
cause shown extend that period”.
In this case, the
exception does not apply because there was no application for this
court to extend the period, no good cause was
shown. So we are
dealing with a condonation application for the late filing of the
application for leave to appeal and as
is the law, one has to find
guidance, among others in
Melane v Santam Insurance
1962 (4)
SA 531
(A)
532C-F
, which is a judgment by Holmes JA. It sets
out those considerations that apply when a condonation application
has to be considered.
In the present case,
having identified the period being 56 days out of time, the next
aspect is to look at the reasons or the rationale
underlying the
delay. The only reason that has been proferred here is that the
attorney who was in attendance was negligent
in not noting the
judgment and thereafter in advising the applicant to proceed
immediately within 15 days to file the application
for leave to
appeal. Regrettably, there is no confirmatory affidavit coming
from the attorney who had appeared on that day
and from the address
that has been given to me today by Mr Mashego, all is not well
between that attorney and the union which
represents the applicant.
Regrettably, this was not covered through any affidavit which would
then have to substantiate the
position of the applicant. The
reason itself is not so plausible a reason.
I am dealing with the
period of 56 days which is a material period. I would not say
it is an excessive period but it is a
considerable period and
therefore I have to weigh that period, look at the reasons in favour
of this applicant who suddenly finds
herself back to the help of the
union and not the attorney. I am called upon here to look further at
the prospects of success,
having noted that the reason provided is
not a plausible one, it is not so good a reason. It is not a
worse off reason. Clearly
it suggests that the problem lay at the
door of an attorney as Mr Mashego has suggested. A court should not
always blame or attribute
the blame of an attorney to the client and
necessarily there is a limit beyond which that can be accommodated
I look then at the
prospects of success. It was always common cause during the
hearing of this matter at the arbitration and
during the review
application that, the applicant had lent money to one of her
colleagues at work. There was a question about
whether or not
this was done during or after working hours. In my judgment I
accommodated a scenario where such lending could
have taken place
after the working hours, that is how I found it. I then went on
to check on whether this rule which had
clearly been proved, could be
used in a situation where money lending activity took place after
working hours, if it would have
impacted on the productivity of the
company, put otherwise, if it had a negative effect on the employer.
There are a number
of cases that deal with that principle. I
found that this rule, would be incorrectly limited if it applied only
to a situation
where money is lent outside working hours and that
there should be proof of loss of productivity. I said, one may
not have
to go so far as proving the loss of productivity.
We have here two
supervisors of the employer who were approached by the applicant, she
complained that the person she had lent money
to was not playing the
game, was not bringing the money back as promised. The two
appeared to be helping her or in fact the
one, because the first one
did not do much about it but the second manager took this matter up
to the human resources.
Human resources personnel
said the applicant was to put this complaint of hers in writing as if
to help the applicant to deduct
that money from the salary of the
other colleague. Law and behold there is the applicant now
being charged for infringing
a rule of the company. This is a
case where the applicant shot herself on the foot. She knew
about this rule, it is
not been disputed but she thought for a moment
she could escape it merely because her version would have been that
the money lending
activity took place at her house and outside of the
company premises.
It is clear that by her
involving the services of the two supervisors, she was interfering
with them performing their duties.
I dealt with this in the
judgment. It extended to the human resources personnel.
Again, the applicant was seeking to
utilise the tools of trade, the
tools of work of the employer to recoup her money. What more
does one need to have to find
that this was interfering with the
workings of the company? This company was not designed to be
running a money lending scheme,
it had therefore created a rule
against money lending.
In my view, the grounds
that have been proferred by applicant, there are four of them, they
revolve around how I interpreted this
rule. In my view these
grounds are not unassailable. In my view the applicant has not
shown that another court is likely
to arrive at different
conclusion. In fact, if one looks carefully at authorities I
have intimated before, once an employee
behaves himself in such a way
that his or her behaviour negatively affects his working environment,
even if that behaviour happened
outside, it could have an impact and
therefore that may well be taken into consideration against such
employee.
The other consideration
to come to play when an application for leave to appeal is dealt with
relates to whether or not this is
a matter of importance, this is an
dismissal of a single employee, in my view there is not really much
importance in this matter.
Of course, I am aware of the fact
that – to the applicant and the applicant alone it probably is
important because it revolves
around her having lost her employment
but when seen against a bigger picture and when seen against the
peace that ought to be maintained
in a working environment of the
applicant, clearly it is more important for the working environment
to be conducive to good working
relationships of the employees.
In this case already, because of this money lending scheme, the
applicant and the person
who loaned money from her were no longer in
good terms, again creating problems, that could have divided the
staff into two.
Clearly in my view
therefore, the case did not have any much more importance so that one
would find that it merits granting the
application for leave to
appeal. Therefore, the test for success has not been met by the
applicant in this matter, in terms
of the prospects of success.
The prejudice, indeed the
respondent, the company is entitled to a finality of this matter.
I think that point has long been
reached.
Accordingly,
the application for condonation of the late filing of the application
for leave to appeal is not granted,
the
application is dismissed with costs.
__________________
CELE
AJ
---oOo---
On
behalf of the Applicant:
Mr Mashego
On
behalf of the Respondent:
Advocate Wesley