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[2008] ZALCJHB 5
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Mokatsane v Commission for Conciliation, Arbitration and Mediation and Others (JR1596/05) [2008] ZALCJHB 5 (21 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1596/05
In
the matter between:
RICHARD
SETHLOTLO
MOKATSANE Applicant
And
COMMISSION
FOR CONCILIATION
ARBITRATION
AND
MEDIATION 1
ST
Respondent
M
E PHALA N O
2
ND
Respondent
NATIONAL
HEALTH LABORATORY
3
RD
Respondent
SERVICES
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
The applicant seeks leave to appeal against the order issued by this
court dismissing his review application dated 21
st
August
2007.
[2]
The third respondent raised a
point in limine
against the
application contending that the leave to appeal is defective because
the applicant failed to transcribe the judgment
of the court.
Background
facts
[3]
The applicant, a former employee of the third respondent resigned
from his employ with immediate effect on the 3
rd
February
2003. He however continued working until the 28
th
of
February 2003. He then lodged a constructive dismissal dispute with
the Commission for Conciliation Mediation and Arbitration
(the CCMA)
about 3 (three) months later on the 28
th
May 2003.
[4]
Because the referral of the dispute to the CCMA was late the
applicant had to apply for condonation. In his application
for
condonation the applicant contended that he was late because he was
not aware of his rights and that he was overlooked for
training and
promotion on the basis that he was regarded as over qualified.
[5]
The second respondent dismissed the condonation application on the
1
st
October 2003. On the 3
rd
March 2005,
in the review proceedings which came before this court under case
number JR7224, the applicant contended that the CCMA
recorded an
incorrect date on his LRA form 711. This contention was not
raised on the papers but at the review application
hearing itself.
It was upon this submission that the court referred the matter back
to the CCMA for arbitration.
[6]
The matter was then arbitrated by the second respondent, commissioner
Phala on the 6
th
June 2005. In the arbitration
hearing the applicant testified that the main reason for claiming
constructive dismissal was
that he applied for a post which was not
given to him but he believed he qualified for it. The other reason he
put forward for
claiming constructive dismissal was that he felt that
his manager, Mr Moodley trained staff according to colour. He further
stated
that there were other reasons which he may put forward during
that hearing. The applicant’s claim that he was
constructively
dismissed was dismissed in the arbitration award of
the second respondent dated 17
th
June 2005.
[7]
The applicant challenged the outcome of commissioner Phala’s
award on review under case number JR1596/05 and after setting
out in
his founding affidavit the background to the facts, it would appear
that his grounds for review are those set out under
the heading:
“
PROHIBITION
OF UNFAIR DISCRIMINATION ON GROUNDS OF RACE”.
[8]
The applicant then proceeded to state the grounds of review as
follows:
“
Subject to
section 6, no person may unfairly discriminate against any person on
grounds of race including- discrimination, of propaganda
or idea,
which pronounced the racial superiority on inferiority on any person
including- incitement or participation in any form
of racial
violence.
All the above acts Mr
Moodley ignored them and he applied his misconduct actions and made
continued employment conditions intolerable.
Mr Phala who was a
commissioner dismissed this matter on vague and unsubstantive grounds
like he did on the condonation application
which he dismissed on the
same grounds. The application was reviewed and set aside by
Acting Justice Broster on the 03/03/05
and referred it back to the
ccma for determination with no order as to costs”.
[9]
During the cause of presenting his argument the applicant made
certain serious allegations against the conduct of the commissioner
Phala. When called upon by this court to explain these
allegations, the applicant suddenly indicated that he was not feeling
well and requested leave to go to the toilet. He later conceded
that the allegations against commissioner Phala, were unfounded
and
that he had written a letter withdrawing them and apologising.
[10]
As indicated earlier the applicant’s review application was
dismissed on the 21
st
September 2007 by this court.
On the 8
th
October 2007, the applicant filed his
application for leave to appeal against the said order. He was
then on the 7
th
November 2007, directed to file further
grounds for leave to appeal by the 14
th
November 2007.
The matter was set down without the applicant ever filing the
transcribed judgment or any further grounds
for leave to appeal.
Grounds
for leave to appeal
[11]
The applicant has raised 9 (nine) grounds for leave to appeal. The
first ground of appeal is based on the contention
that this court
permitted the respondent’s attorneys to base their review on
the outcome of case number JR722/04, which concerned
the condonation
ruling, which was reviewed and set aside by Broster AJ. The
applicant further indicated under the same ground
that he will uplift
the file under case number JR722/04 to check the original documents
which exercise he will perform before the
hearing of this appeal.
[12]
The second ground of leave for appeal is in essence the same as the
first. The third ground of leave to appeal which
is interlinked
to the first and the second is that this court did not review case
number JR1596/05, but instead considered an “
appeal of case
number JR722/04”.
[13]
The rest of the grounds of leave to appeal relates to the background
history of the case of the applicant. In this regard the
applicant
states that during August/ September 2002, he approached one of his
managers, Mr Moodley (Moodley) and complained to
him about the
attitude and behaviour of his fellow employee, a certain Steven.
He complained that instead of addressing the
issue, Moodley, simply
told him that Steven was short tempered. When he asked him
about his own temper Moodley continued
with his work and disregarded
him.
[14]
The applicant then continues to relate what happened during October
2002. During this period he lodged a grievance with the
IR manager
and instead of it being addressed his position was suddenly “
changed
without training
”.
[15]
In the same paragraph where the issue concerning the grievance and
the change in his position are raised the applicant raises
the issue
concerning the loss of a blood specimen. This specimen
according to him was not supposed to have gone to the receiving
stores but to the main receiving. Arising from this a
disciplinary action was instituted against him but was found not
guilty.
[16]
The applicant lodged another grievance subsequent to not being found
guilty concerning the missing of the blood specimen.
He
requested that either he or Steven be moved from that branch.
Instead of one of them being moved from the branch, Steven
was
appointed to stores where he worked closely with him.
[17]
The applicant further complaints that despite there being posts which
were on the same level as his and for which he applied
for he was
unsuccessful. He also states that Steven was chosen above him
for a position of a stock controller which he could
do better than
him because he had been given a better training by the person who had
occupied that position.
[18]
The applicant further states that after assuming his duties during
January 2003, Steven was found by a supervisor repairing
his car
during working hours. It would appear that Steven received a warning
for this conduct. He further states that a week after
these incident
someone overheard him (it would appear that it was Steven) asking his
supervisor permission to go to a supermarket
to purchase scones.
Steven then sent an email to Moodley stating that the applicant was
allowed to go and buy motor spares.
[19]
It would again appear that the applicant complained to the supervisor
about the email which was sent to Moodley regarding the
purchase of
motor spares. The response from the supervisor seem to have been that
the applicant had no option but to talk to Steven
because the 2 (two)
were working together.
[20]
The applicant states that on the 31
st
January 2003, which
was a Friday he received TB items from a supplier and it would appear
that the person who was responsible for
receipt of this item was
Steven who on that day was not at his work station. The
following Monday the applicant was approach
by Steven and enquired
about the where about of the said items. The applicant
respondent by informing him that he did not
know where they were.
Steven apparently got offended by this response and started insulting
the applicant and also informing
him that he was not scared of him.
It was for this reason that the applicant decided to resign.
[21]
The applicant further contended under ground 8 (eight) of leave to
appeal contended that commissioner Phala “
twisted most of
the evidence
” and did not know the difference between
Steven and himself. In the last ground of leave to appeal the
applicant contended
that the court erred by not considering his
grounds for review.
[22]
In terms of Section 166 (1) of the Labour Relations Act 66 of 1995
(the Act) an appeal lies for judgment of the Labour Court
to the
Labour Appeal Court with leave of the Labour Court. The test to
be applied in deciding whether leave to appeal should
be granted is,
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached by
me.
[23]
In the first instance the applicant’s leave to appeal stands to
be dismissed on the ground of non compliance with the
rules in that
he did not transcribe the judgment of the court. Rule 9 (5)
provides as follows:
(5)
“The notice of appeal must, in addition, contain a notice
calling upon the responsible person
…whose decision is under
appeal, to provide a written record of the proceedings, and the
reasons for the decision, within
15 days of the delivery of the
notice of appeal.
(5A) (a)
the person or body upon whom a notice of appeal in terms of sub rule
(3) is served must
timeously comply with the direction in the notice
of appeal.
(a)
……..
(b)
……..
(c)
……..
(d)
The appellant must furnish the registrar and each of the parties with
a copy of the record or portion
of the record, as the case may be,
and a copy of the reasons filed by the person.
[24]
There is secondly no merit in the applicant’s ground for review
and including leave to appeal. The commissioner
in considering
the constructive dismissal dispute filed by the applicant applied his
mind and arrived at a decision which is reasonable.
It is not a
decision which a reasonable decision maker could not have reached.
[25]
In the circumstances of this case I am not convinced that another
court may come to a different conclusion from that reached
by me.
The circumstance of the case also dictates the costs should in law
and fairness be granted against the applicant.
[26]
In the circumstances I make the following order:
1.
The applicant for leave to appeal is dismissed.
2.
The applicant is to pay the costs of the respondent.
_____________
Molahlehi
J
Date
of Hearing: 31 March 2008
Date
of Judgement: 21 July 2008
APPEARANCES:
For
the Applicant: MR R S MOKATSANE (in person)
For
the Respondent: ADV R M M TOLOBISA
Instructed
by: HOFMEYR HERBSTEIN