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[2014] ZALCJHB 44
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Medscheme Ltd v Pillay and Others (JR1483/2012) [2014] ZALCJHB 44 (26 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1483 /
2012
In the matter between:
MEDSCHEME LTD
Applicant
and
VENESSA PILLAY
First Respondent
ROB MCCANN N.O.
Second Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
Third Respondent
Heard:
Considered in Chambers
Delivered:
26 February 2014
Summary:
Application for leave to appeal – Test to be applied –
reasonable prospect of different
conclusion
Leave
to appeal – no proper grounds made out – application for
leave to appeal dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This matter concerned an application by the applicant to review and
set aside an arbitration award of the second respondent
in his
capacity as arbitrator of the CCMA (the third respondent).
[2]
The review application was argued on 16 July 2013, and in a judgment
handed down on 19 November 2013, the applicant’s
review
application was upheld by me. I reviewed and set aside the
determination of the second respondent that the dismissal of
the
first respondent was substantively and procedurally unfair, and
replaced such determination with an award that the dismissal
of the
first respondent by the applicant was substantively and procedurally
fair.
[3]
The first respondent has now sought leave to appeal against my
judgment as referred to above. Applications for leave to appeal
are
now dealt with in Clause 15 of the Labour Court Practice Manual. In
terms of Clause 15.2, the applicant in an application for
leave to
appeal must file written submissions in support of its application
for leave to appeal within 10 days of filing such application.
Should
a respondent party in such application seek to oppose the
application, the respondent party must file its written submissions
within 5 days after having received the applicant’s
submissions.
[4]
The first respondent filed written submissions on 6 February 2014. At
the time of consideration of this application for leave
to appeal, I
have received no written submissions from the applicant. I will
therefore consider the leave to appeal application
on the basis of
the written submissions by the first respondent.
[5]
Clause 15.2 of the Practice Manual further determines that an
application for leave to appeal will be determined by a Judge
in
chambers, unless the Judge directs otherwise. I see no reason to
direct otherwise and will therefore determine the first respondent’s
leave to appeal application in chambers.
Test
for leave to appeal
[6]
In
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether or not there is
a reasonable
prospect that another Court might come to a different conclusion to
that of the Court a quo.
[1]
[7]
As was specifically said in
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others:
[2]
‘
I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge to ask
whether
there is a reasonable prospect that another court may come to a
different conclusion. See
North
East Cape Forests v SAAPAWU and Others
(1997)
18
ILJ
729 (LC)
;
[1997] 6 BLLR 705
(LC) at 710A-B;
NEWU
v LMK Manufacturing (Pty) Ltd and Others
[1997]
7 BLLR 901
(LC) and Landman and Van Niekerk
Practice
in the Labour Courts
(Service 1) at A-41.’
[8]
The first respondent thus has to show in this instance that there is
a reasonable prospect of another Court coming to a different
conclusion. The third respondent has raised 11 individual grounds of
appeal, some of which in my view overlap. I will not individually
address each and every ground of seeking leave to appeal, but will
deal with these grounds under the broad categories set out hereunder.
The
merits of the application for leave to appeal
[9]
The first respondent firstly contends that I have considered the
review application as one of appeal in some parts, and as a
process
related review in other parts. I am compelled to say that there is no
merit in these contentions. The first respondent,
with respect,
completely misconstrued what I believe to be clear reasoning in my
judgment where it concerns the issue of the review
test. I in fact
specifically recorded that the concept of a process related review
test was not valid or contemplated by the review
test as articulated
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[3]
I
specifically referred to and dealt with the recent judgments in
Herholdt
v Nedbank Ltd and Another
[4]
and
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[5]
concerning
the proper review test as envisaged by
Sidumo
.
[10]
What I have set out in paragraph 44 of my judgment are examples of
what may be considered to be material irregularities for
the purposes
of the first enquiry to be made by a review Court in the application
of the
Sidumo
review test. The point is that if no
irregularity exists, there is nothing further to consider and any
review application must fail
on this basis alone. Without an existing
irregularity, which must also be material, there can be no merit in
any review. The next
point I then make in paragraph 45 of my judgment
is that even if such an irregularity indeed exists, that is not the
end of the
enquiry and that does not mean the review succeeds. The
irregularity must lead to an unreasonable outcome, and whether this
is
the case must then be determined next. I had clearly illustrated
that even where an irregularity exists, but the outcome arrived
at by
the arbitrator is still considered to be a reasonable outcome based
on the record of evidence as a whole (even for different
reasons than
those relied on by the arbitrator), then the review must equally
fail.
[11]
The above approach is fully in line with what is envisaged by
Sidumo.
It is simply a practical manifestation of an outcome based review
test, being the proper test. It is this review test process that
I
applied in determining the review application. With this test
now being settled in the
Gold Fields Mining South Africa
judgment, I simply cannot see any reasonable prospect of another
Court coming to a different conclusion.
[12]
The first respondent submitted that in paragraphs 62 and 72 of my
judgment, I approached this matter in a manner that is tantamount
to
that of an appeal. I have to disagree. To illustrate the point –
the second respondent found it was unclear whether illness
was
permanent or temporary. This conclusion was then compared by me to
the evidence properly on record, as a whole, to determine
whether or
not the conclusion is a material irregularity (for example pertinent
evidence was ignored). I having done so, I then
concluded that this
finding was indeed an irregularity, considering the evidence properly
before the second respondent as a whole.
That was however, not the
end of my determination in this respect. I then considered whether,
even if the second respondent’s
reasoning was an irregularity,
the outcome arrived at by the second respondent with regard to the
issue of the nature of the illness
was nonetheless reasonable,
including for any other cause or reason apparent from the record of
evidence as a whole. Unfortunately,
and in this case, it was not.
Thus, the irregularity was the
sine quo non
for the outcome.
Without it, the second respondent’s reasoning simply was not a
reasonable outcome. I considered all the
evidence on record as a
whole to come to this conclusion. This is certainly not the process
one would follow in an appeal, and
there is thus no merit in this
ground raised by the first respondent.
[13]
I remain of the view that a proper reading of my judgment clearly
illustrates the proper application of the review test as
contemplated
by
Sidumo
. The fact that the first respondent may disagree
with the outcome I arrived at in applying this test does not change
the nature
of the test applied. I simply can see no reasonable
prospect that another Court may come to a different conclusion in
this regard.
[14]
The first respondent contends that I have misconstrued the medical
report of Dr Mahabeer. In my view, the report speaks for
itself. It
does not indicate progress towards a recovery. Far from it. A proper
reading of the report shows no definitive date
of recovery and in
fact contemplates that call centre work by the first respondent would
not be possible in the future. Also, the
consideration simply cannot
be what the first respondent may say about her voice at arbitration.
It is about what the applicant
was confronted with at the time of
determining the incapacity. There is simply reasonable prospect that
another Court may come
to a different conclusion in this regard.
[15]
The first respondent contends that I should not have interfered with
the conclusion that she had a proper explanation for not
being
present at the enquiry on 30 November 2011. There can in my view be
no merit in this contention. The purported explanation
must be
considered in context and the evidence in this regard speaks for
itself. There is no reasonable prospect that another Court
may come
to a different conclusion.
[16]
The first respondent takes issue with my conclusion that the second
respondent failed to consider the evidence before him.
This is an
unfortunate paraphrasing from my judgment, completely ignoring the
reasoning having preceded such conclusion. I pertinently
stated why
it was apparent that the second respondent failed to consider all the
evidence before him. In my view, there is little
prospect of another
Court concluding otherwise, considering the evidence as whole.
[17]
The first respondent also raises a ground of leave to appeal based on
my finding that the dismissal of the first respondent
was
procedurally fair. The first respondent refers to Item 9(1) of
Schedule 8 of the LRA in this regard. I assume this is an incorrect
reference, as the provision the first respondent refers to is
actually found in Item 10. I dealt with this in detail in my
judgment.
Other than a general statement to the effect that I should
not have interfered with the award of the second respondent, and that
the applicant did not comply with these provisions, no actual case is
made out as to why another Court would reasonably find differently
in
this respect. I considered these issues in some detail in my
judgment, with reference to all of the relevant and applicable
authorities. I remain unconvinced that another Court could reasonably
come to a different conclusion in this regard.
[18]
It is also contended that I erred in concluding that there was no
duty on the applicant to conduct a further medical examination
after
18 October 2011. I cannot accept this. The simple point is –
where does this all end. Does the fact that the situation
is not a
static one, as the first respondent contends, mean that one must
continuously obtain medical report after medical report
ad
infinitum
? At some point an employer is entitled to call the
game. In my view, this point had been arrived at in this instance,
and on the
evidence as a whole, I do not believe I erred in so
concluding. In this respect also, I have to conclude that there is no
reasonable
prospect of another Court coming to a different
conclusion.
[19]
A final issue to refer to is the fact that the first respondent was
found by me to have been the cause of any failure in the
incapacity
process, which the first respondent contends is an error. With
respect, the facts speak for themselves. I dealt
with this
evidence in detail in my judgment. The first respondent says the
applicant was in a rush to finish the process. In my
view, the
opposite is true, considering the period that had passed. I do not
believe that there is any reasonable prospect that
another Court may
come to a different conclusion in this regard as well.
[20]
I
thus conclude that as a whole, the first respondent has
shown no reasonable
prospect that another Court may come to a different conclusion. As to
the issue of costs, I shall follow the
same approach as in my
original judgment, and make no order as to costs.
Order
[21]
In the premises, I make the following order:
1.
The first respondent’s application for leave to appeal is
dismissed.
2.
There is no order as to costs.
____________________
Snyman AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
For the
Applicant:
Cliffe
Dekker Hofmeyr Inc
For the First
Respondent: Cheadle
Thompson & Haysom
Inc
[1]
See
National Education Health and
Allied Workers Union v University of Cape Town and Others
(2003) 24 ILJ 95 (CC) at paras 25-26;
Ngcobo v Tente Casters
(Pty) Ltd
(2002) 23 ILJ
1442 (LC);
Volkswagen SA
(Pty) Ltd v Brand No and Others
(2001) 22 ILJ 993 (LC);
Singh
and Others v Mondi Paper
(2000) 21 ILJ 966 (LC);
Glaxo
Welcome SA (Pty) Ltd v Mashaba and Others
(2000) 21 ILJ 1114 (LC).
[2]
(1999)
20
ILJ
2889 (LC)
at
2890B.
[3]
(2007)
28 ILJ 2405 (CC).
[4]
[2013]
11 BLLR 1074
(SCA)
Cachalia
and Wallis JJA.
[5]
(JA 2/2012)
[2013] ZALAC 28
(4 November 2013)
(4
November 2013) not yet reported, per Wag
lay
JP.