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[2011] ZALCJHB 127
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Maree v Moneyline Financial Services (Pty) Ltd and Another (JR1309/09) [2011] ZALCJHB 127 (1 January 2011)
3
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR1309/09
In the
matter between:
ANNIELA
MAREE
............................................................................................................................
Applicant
and
MONEYLINE
FINANCIAL SERVICES
(PROPERIETARY)
LIMITED
...................................................................................................
First
Respondent
FINBOND
PORERTY FINANCE LIMITED
...........................................................................
Second
Respondent
JUDGMENT
SHAI AJ
Introduction
[1]
This is an application for leave to appeal against the whole
judgement including the cost order made by the Court on 12 August
2011, in which the Court made the following order:
‘
(1) The dismissal of the applicant is
automatically unfair.
(2) First and Second respondents are ordered to pay applicant
compensation equivalent to 17 months remuneration, calculated at
her
monthly rate as at the date of her dismissal, jointly and severally ,
the one paying the other being absolved.
(3) First and Second respondent to pay the applicant’s costs in
respect of application to compel on opposed basis.
(4) First and Second respondents are ordered to pay the costs of the
applicant on client and attorney scale including the cost
of a Senior
Counsel jointly and severally, the one paying, the other being
absolved.’
[2] The
applicant favoured by the judgment is opposing the application and
has filed the necessary papers in this regard.
Grounds
of appeal
[3] The
First and Second respondents listed four grounds of appeal as
follows:
3.1 The
above Honourable Court erred in refusing the respondents’
application to amend their pleadings to introduce an alternative
defence. If the amendment was granted, the Applicant would not have
succeeded in proving that she had been dismissed. In terms
of Section
192(1) of the
Labour Relations Act 66 of 1995
, as amended (“the
Act”), the onus rests on an employee “to establish the
existence of the dismissal”. The
applicant would not have been
able to discharge this onus.
3.2 The
above Honourable Court erred in ordering the Respondents to pay the
applicant’s costs in respect of the application
referred to in
paragraph 1 above.
3.3 The
above Honourable Court erred and misdirected itself in awarding the
Applicant an unreasonably large quantum of the compensation.
3.4 The
Court erred in finding that the department in which the applicant was
employed, formed part of the business that was transferred
to Second
Respondent.
The
test
[4] The
test in the application for leave to appeal was stated as follows in
the case of Van der Merwe v Du Plessis:
1
‘
Leave
to appeal is granted only if this Court is satisfied that another
Court might reasonably reach a conclusion different from
that
appealed against.’
[5]
Having read the submissions from both parties and the judgement
herein, and having applied my mind thereon, I am satisfied that
no
other Court will reasonably reach a different conclusion than the one
the Court reached. I am aware of the fact that in matters
of
compensation, any Court may come to a different conclusion, however
due to the manner in which the dismissal was effected and
the conduct
of the respondents in connection therewith leads me to the conclusion
that no other Court would reach a different conclusion.
[6] In
the premise, the order is as follows:
(1) The
application for leave to appeal is dismissed with costs.
____________________
SHAI AJ
ACTING
JUDGE OF THE LABOUR COURT
Appearances:
No appearances – decided on paper.
1
(1999)
20 ILJ 1305 LC para 4 at 1306.