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[2011] ZALCJHB 239
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Armstrong v South African Civil Aviation Authority (J504/11) [2011] ZALCJHB 239 (29 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J504/11
In the matter between:
JOHAN ARMSTRONG
Applicant
and
SOUTH
AFRICAN CIVIL AVIATION AUTHORITY
Respondent
JUDGMENT ON LEAVE TO APPEAL
LAGRANGE, J:
Introduction.
This
is an application for leave to appeal against a judgment handed down
on 5 May 2011 in an urgent application to prevent the
respondent
from
continuing
with disciplinary proceedings against the applicant. The principal
basis for the application was that the applicant contended
that the
employer had already decided not to proceed with disciplinary
proceedings in the matter, which should have settled the
matter. In
the alternative, he asked the court to order the employer to postpone
the disciplinary hearing until such time as it
reviewed the
‘decision’ mentioned and, in the event that the
disciplinary proceeding did take place, to replace the
chairperson.
I
was not persuaded that the employer’s initial action in not
proceeding against the employee was equivalent to the dismissal
of
charges against an employee after an employee had been charged. I
also found that the applicant had not demonstrated any exceptional
circumstance that would be the basis for an intervention by the
court in incomplete disciplinary proceedings in line with the
principles set out in
Booysen v Minister of Safety and
Security and others
(2011) 32
ILJ
112
(LAC
.
In
his application for leave to appeal the applicant essentially
reiterates his argument that the former CEO’s decision
not to
pursue charges against him is binding on the respondent unless set
aside on review. The applicant suffered no prejudice
as a result of
the respondent revisiting that decision in the light of the
subsequent complaints lodged against him, as the employer
is not
seeking to rectify deficiencies in a previous disciplinary process:
no disciplinary process took place previously.
The
respondent rightly points out that the earlier deliberations of the
respondent were in fact about what steps if any the respondent
should have taken against a third party as a result of the
applicant’s own complaint.
The
only prejudice facing the applicant is that he is now facing the
prospect of an enquiry for the first time, which does not
detract
from his right to be subject to fair disciplinary procedures. The
applicant has advanced no basis why the court’s
finding on the
alleged apprehension of bias on the part of the chairperson was
wrong.
The
applicant reiterates allegations about his rights to representation
in the disciplinary proceedings, but never sought any
relief in this
respect in the original application. Consequently, it is not a
matter that can be raised on appeal.
I
do not believe there is any reason why another court would have
dealt differently with this application on an urgent basis,
and
accordingly the application must be dismissed.
Order
The
notice of the application for leave to appeal was signed on 23 May
2011, but was only filed on 14 June 2011, unnecessarily
delaying the
appeal process. I see no reason why in the circumstances, the
respondent should have to continue incurring further
legal costs in
defending this matter when there is so little merit in the case.
Accordingly,
the following order is made:
The
application for leave to appeal is dismissed.
The
applicant is ordered to pay the respondent’s costs of this
application on an attorney own client scale.
ROBERT
LAGRANGE
JUDGE OF THE LABOUR COURT
Date of judgment: 29 September 2011
(In chambers)