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[2008] ZALCJHB 44
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Radovanovic v Metal And Engineering Bargaining Council and Others (JR696/07) [2008] ZALCJHB 44 (10 October 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO:JR696/07
In
the matter between:
MOMCILO
RADOVANOVIC
Applicant
AND
METAL
AND ENGENEERING
BARGAINING
COUNCIL
1
st
Respondent
DAVID
LEVY N.O
2
nd
Respondents
ALFRED
TEVES BRAKE SYSTEMS
(PTY)
LTD
3
rd
Respondent
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application for leave to appeal
to the Labour Appeal Court against the order made by this Court on
the 22
nd
November 2007. In terms of that order this Court dismissed the review
application of the applicant.
Background
facts
[2]
The applicant was prior to his dismissal
employed by the respondent as a designer draftsman. One of his
responsibilities was to
conceptualise and design a production line
for the manufacturing of brake callipers for the BMW cars.
[3]
The applicant was dismissed by the
respondent for poor work performance. The essence of the issue of
poor performance arose from
the task given to the applicant to
separate the production lines for both the back and front calliper
breaks of the BMW cars. Apparently
because of the specifications by
BMW there was a delay in the separation of the production lines which
was supposed to have been
completed by March 2005.
[4]
According the respondent despite the
promise by the applicant to deliver the line by June 2006 he failed
to do so, and a decision
was then taken to abandon the project which
at that stage had cost the applicant R2.5 million.
[5]
The applicant testified during the
arbitration hearing that he was tasked to design and produce drawings
which were to be used to
manufacture a machine to produce the break
callipers. He designed and produced the drawings but it turned out
later that the parts
of the machine had many faults which required
regular repairs. The pallets were for instance incorrectly sized.
[6]
The applicant contended during the
arbitration hearing that he was dismissed for loss of production
which had not yet started and
therefore the reason for his dismissal
was invalid. He further contended that the reason for his dismissal
was to avoid having
to pay his commission for work he had already
completed.
Grounds
for review and the arbitration award
[7]
The commissioner found in his arbitration
award that it was common cause that the production line had failed to
live to its expectations
and that the applicant was not blameless for
these results. He further found that the evidence before him
indicated that there
were problems experienced on the manufacturing
side but this had little to do with the applicant. In this regard the
commissioner
further found that the failure of the assembly line
could not be attributed to the applicant alone and therefore the
dismissal
was unfair because the disciplinary proceedings were
inconsistently applied in that only the applicant was charged for the
poor
results.
[8]
Because the applicant had indicated that he
did not wish to be reinstated, the commissioner in the light of his
findings considered
compensation in terms of section 194 of the
Labour Relations Act 66 of 1995 (the Act). In this respect the
commissioner took into
account in compensating the applicant in the
amount of R35 000,00, “
the likely
role of the applicant in the matter that gave rise to the dispute as
well as the his relative short period of his employment”
with
the respondent
.
The
compensation award was equivalent to one month’s remuneration.
[9]
The grounds of review as set out in the
applicant’s founding affidavit were as follows:
“
Commissioner
Mr DG Levy awarded unfair dismissal and compensation in the amount of
one month’s remuneration package, explaining
that I worked
short time in the company.
I worked in the
company 21 months, but I resigned in the previous company HUBCO
Forgings, because of the great promises in the Alfred
Teves Brakes
systems. Unfortunately, I was unfair (sic) dismissed and for all the
years of my honest work in other companies (that
must be taken into
consideration). I have got one salarie (sic).”
[10]
The applicant also complained that the
commissioner criticised him when he challenged the questions which
were being asked by the
respondent. These are the questions he
regarded as being “stupid”. The applicant further
complained that the commissioner
failed to take into account that the
real reason for his dismissal was because the respondent was avoiding
having to pay him his
10% savings incentive.
[11]
The respondent raised two points in limine
during these proceedings. The one point related to the late filing of
the review application
by the applicant and the other one to the
failure to deliver a proper record upon which the Court could
consider the review.
[12]
It is common cause that the arbitration
award was faxed to both parties on the 8
th
January 2007 and therefore the 6 (six) weeks for filing the review
application in terms of
section 145
of the
Labour Relations Act 66 of
1995
would have expired on the 19
th
February 2007. The applicant filed his application on the 23
rd
March 2007 a delay of about 4 (four) weeks without applying for
condonation for this delay.
[13]
It is trite that condonation for the late
filing of a review application can be granted on good cause shown for
failure to comply
with the prescribed time frame. In the present
instance, the applicant failed to apply for condonation despite it
being brought
to his attention by the respondent that he needed to do
so.
[14]
In
Allround
Tooling (Pty) Ltd v NUMSA (1998 )
8 BLLR 847
(LAC)
the Court held that a litigant is obliged to apply for condonation
for failing to comply with the time frames as required by the
law as
soon as he or she becomes aware of the delay.
[15]
Therefore the applicant’s application
stand to be dismissed on the ground that the Court does not have
jurisdiction to consider
the application because it is outside the 6
(six) weeks period provided for in section 145 of the Act and the
applicant has resolved
not to apply for condonation for the lateness
of his application.
[16]
As concerning the inadequate record of the
arbitration proceedings, it is clear from the record that there are
certain portions
of the transcription which is missing. It is also
apparent that there is a substantial part of the transcription that
is inaudible.
The applicant was informed about this problem but chose
to ignore it.
[17]
In terms of rule 7A (6) of the Rules of
this Court, the duty to ensure that a proper record is placed before
the Court for purposes
of review rests with the applicant. The reason
for a proper record is to assist the Court in determining in a fair
manner the issues
which were before the commissioner during the
arbitration proceedings including the assessment of the
reasonableness of the conclusion
reached in the award.
[18]
In dealing with the issue of the
missing part of the record the Labour Appeal Court, in the case of
Papane v Van Aarde N.O &Others
2007
JOL 20412(LAC)
,
confirmed its decision
in
Lifecare Special Services (Pty) Ltd
t/a Ekuhlengeni Care Centre v Commissioner for Conciliation Mediation
& Arbitration &
others (2003) 24 ILJ 931 (LAC)
,
and per Kruger AJA said:
“
In
the ordinary course the appellant should first have endeavoured to
establish, by way of further investigation and affidavits,
whether or
not the missing part was irretrievably lost. If not, then the parties
and the commissioner should have endeavoured to
reconstruct the
missing part.
[19]
In the
Papane’s
case (supra), on the facts the Court found that the appellant failed
to initiate any step towards the reconstruction of the missing
part
of the record and to this extend the Court held that, the court a quo
should have declined to hear the matter on its merit
and should have
either dismissed the application or struck it off the roll.
[20]
It is therefore my view that the applicant
has failed to place before this Court a complete record to enable the
Court to assess
and evaluate the reasonableness of the conclusion
reached by the commissioner. In the absence of an explanation as to
why the applicant
has failed to place before this Court a proper
record and or what steps he took to address the problem of the
defective record,
the review application stands to be dismissed on
that ground alone. .
[21]
The other ground upon which the applicant’s
application stand to be dismissed, is on basis that he has failed to
make out
a case justifying interference with the arbitration award of
the commissioner. The test to apply in this regard is the reasonable
decision-maker test as enunciated in
Sidumo
& Another v Rustenburg Platinum Mines (Pty) Limited & Others
(2007) 12 BLLR 1097
(CC).
The enquiry
to be conducted in the application of the reasonable decision-maker
test is that of determining whether the decision
of the commissioner
is one which a reasonable decision maker could not reach.
[22]
In the present instance the decision
reached by the commissioner to award the compensation equivalent to
a month’s salary
cannot, in my view, be said to be one which a
reasonable decision-maker could not reach. The conclusion of the
commission is reasonable
because the reading of the arbitration award
reveals very clearly that the commissioner appreciated the task he
was confronted
with and properly applied his mind as to the
appropriate relief. His conclusion is supported by his reasoning
which cannot be faulted
for unreasonable. He arrived at the
conclusion after analysing the evidence before him and evaluating
what the appropriate sanction
would be, in the circumstances of this
case.
[23]
It was on the basis of the above reasons
that the review application of the applicant was dismissed.
Leave
to appeal
[24]
The applicant set out his grounds for leave
to appeal as follows:
“
I
am asking the honourable court to consider my case very seriously.
WHY? I must say that I did not see democracy or justice from
the
Labour Court, in my case. It looks to me that the justice system is
designed to protect the companies and employers but not
employees.
In my case the Labour
Court’s judge Mr Molahlehi accepted the lies as a truth and
this way helped the company to steal my
money for the savings that I
made (incentive) as well as to avoid the payment of contribution for
the big damage they made to me
and my family by unfair dismissal.”
[25]
The other complaints of the applicant are
set out in his application for leave to appeal which I do not deem
necessary to repeat
herein.
Applicable
principles- leave to appeal
[26]
In terms of s166(1) of the Act a party
whishing to appeal to the Labour Appeal Court against a
judgment of the Labour Court
has to obtain leave to do so from the
Labour Court. The test to apply when considering whether or not to
grant leave to appeal
is whether there is a reasonable prospect that
another Court may come to a different conclusion to that of the
Labour Court.
[27]
I have carefully considered the purported
grounds for leave to appeal as set out in the applicant’s
application for leave
to appeal. I have also considered the above
reasons for dismissing the review application of the applicant
including the submissions
made by both parties. I am not persuaded
that another Court may come to a different conclusion to the one
reached by me in this
judgment.
[28]
In the circumstances make the following
order:
(i)
The application for leave to appeal to the
Labour Appeal Court against my decision of dismissing the review
application of the applicant
is dismissed.
(ii)
There is no order as to costs.
_______________
MOLAHLEHI
J
DATE
OF HEARING
:
16 MAY 2008
DATE
OF JUDGMENT
:
10 OCTOBER 2008
APPEARANCES
For
the Applicant : Applicant in person
For
the Respondent: Mr Olivier of Brink Cohen Le Roux Inc