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[2014] ZALCJHB 3
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PPC Dwaalboom (Pty) Ltd v Commission for Conciliation, Mediation And Arbitration and Others (JR 2572/10) [2014] ZALCJHB 3 (14 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO. JR 2572/10
Not
Reportable
DATE:
14 JANUARY 2014
In
the matter between:
PPC
DWAALBOOM (PTY)
LTD
.....................................................................................................................................
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
................................................
First
Respondent
COMMISSIONER
SAM ALIDZULWI MUVHANGO
N.O.
.......................................................................
Second
Respondent
NUM
OBO PERCY
MALEBYE
......................................................................................................................
Third
Respondent
Date
of Judgement: 14 January 2014
JUDGMENT
FOR LEAVE TO APPEAL
MOTHIBI
AJ
[1]
The Third Respondent seeks leave to appeal against the decision of
this court on 19 July 2013 in which an award of the Second
Respondent
was reviewed and set aside and the award was substituted with a
ruling that his dismissal by the Applicant was fair
(the judgment).
[2]
The application for leave to appeal was lodged with the Registrar on
or about 23 September 2013. The application is approximately
six
weeks out of the time period provided for in terms of rule 30 of this
court.
[3]
There has been no application for condonation.
[4]
The Applicant’s appeal is limited only to the finding that his
dismissal was substantively unfair. The Applicant does
not challenge
the Court’s ruling that the arbitration award issued by the
Commission for Conciliation, Mediation and Arbitration
(CCMA) be set
aside. The order sought is leave to appeal only in respect of the
order substituting the award with an order that
the dismissal of
Malebye was substantively unfair. In this regard the Applicant
contends that it ought to have been found by this
Court that the
dismissal of the Applicant as a sanction was too harsh under the
circumstances and was inappropriate considering
“the fact that
the employer retained one of the employees that was involved in the
fight”. In effect based on alleged
inconsistency.
[5]
Leave to appeal is refused. It is refused for the following two
reasons:
5.1The
application for leave to appeal is late. There has been no
application for condonation.
5.2
The Court is satisfied that there is not a reasonable prospect that
another Court would come to a different conclusion. This
Court
having set aside the CCMA’s ruling exercised its discretion to
substitute the arbitration award. The court was furnished
with a
full record of the arbitration proceedings under review. The Court
is satisfied that having regard to the record that dismissal
was the
appropriate sanction in the circumstances. It will be remembered
that the Applicant did not deny having committed the
misconduct for
which he was dismissed. Furthermore, the Court is satisfied that the
inconsistency argument raised by the Application
has no merit
whatsoever in the circumstances that would justify a finding that the
Applicant’s dismissal was too harsh a
penalty.
Order
[6]
Based on the aforegoing two reasons the application for leave to
appeal is dismissed with costs.
MOTHIBI
AJ
Acting
Judge of the Labour Court of South Africa