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[2014] ZALCJHB 144
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Monare v South African Tourism and Others (JR2298/11) [2014] ZALCJHB 144 (30 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO JR 2298/11
In
the matter between:
TEBOGO
BRIAN MONARE
APPLICANT
and
SOUTH
AFRICAN TOURISM
1
ST
RESPONDENT
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
COMMISSIONER
MOOI NO
3
RD
RESPONDENT
Date
heard: 30 April 2014
Ruling
made: 30 April 2014
RULING: APPLICATION
FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against a judgment
delivered by this court on 31 March 2014. In its judgment, the
court
reviewed and set aside an arbitration award issued by the third
respondent, on the basis that the CCMA had no jurisdiction
to
entertain the claim before it.
[2]
The test to be applied is well-established – the applicable
threshold is whether another court (in this instance, the
Labour
Appeal Court) might reasonably come to a different conclusion.
[3]
The primary ground of appeal relates to certain factual issues. In
particular, the applicant contends that the court erred by
making
certain factual assumptions relating to the circumstances of the
applicant’s employment. These are recorded in paragraph
(i) of
the application, and I do not intend to repeat them here. While it is
correct that the issue of the application of the LRA
was never raised
in the proceedings under review, the parties were invited to make
submissions on whether the Act had any application
given that the
applicant had been employed and dismissed in London. Both parties
made submissions, dealing with the facts as they
appeared from the
record. What the applicant seeks now to do is to introduce new facts,
and to contend that they are supportive
of a finding that the CCMA
had jurisdiction. Regardless of whether the applicant is entitled to
raise new facts at this stage,
is difficult to appreciate how those
facts might possibly make any difference to the outcome.
[4]
The real issue for present purposes is whether another court might
reasonably conclude, given the above, that the CCMA had jurisdiction
to entertain the applicant’s unfair dismissal claim. The answer
to that question lies in the judgment of the LAC in
Astral
Operations
, referred to and applied in the judgment that is the
subject of these proceedings. In that case, the LAC held that the
question
to be asked where a referral was made to the CCMA was
‘
whether the employer’s undertaking in which the
employees work is carried on inside or outside the Republic
.’
The facts of that case are illustrative of the definition to be
accorded to the term ‘undertaking in which the employees
work’.
The employee had been appointed as the respondent employer’s
general manager: Africa Operations, in terms of
a contract concluded
in South Africa. In this capacity, he moved to and worked in Malawi
to oversee the sale of the respondent’s
business and assets in
that country. When the Malawian operations came to an end, the
employee returned to South Africa and continued
working for the
respondent company in South Africa until his retrenchment some 6
weeks later. The LAC held that the undertaking
in which the employee
had worked was in Malawi and that the CCMA accordingly had no
jurisdiction to entertain his claim
[5]
In the present instance, the claim to jurisdiction is significantly
more tenuous. The applicant, as I have indicated, on the
undisputed
facts, was recruited in Amsterdam and engaged in terms of a fixed
term contract to work in London. He worked there and
was dismissed
there. At no stage did he return to South Africa, nor did he have any
right to return to South Africa to work for
the respondent after the
conclusion of his fixed term contract. The applicant was left to
argue that the CCMA had jurisdiction
because the respondent is a
statutory body, and that its London office was a ‘branch’
of its South African base. On
the principles established in
Astra
Operations
, this is insufficient. In that case, as I have
indicated, the employee was employed by a South African entity,
deployed to Malawi
to perform work, returned to South Africa and was
dismissed here. On this basis, even if the applicant in the present
instance
had been employed by the respondent in South Africa in terms
of a contract signed here and thereafter deployed to London with some
residual right to return to South Africa, the CCMA would not have had
the jurisdiction to entertain his claim. It is quite conceivable
that
even if the applicant had been brought to South Africa to face
disciplinary proceedings and had been dismissed here, that
the
undertaking in which he worked (and the defining jurisdictional
factor) would have remained the respondent’s operation
in
London.
[7]
I am bound by the principles established in
Astral Operations
.
I see no reason why the LAC would come to a different conclusion on
any application of the principles in that judgment to the
facts of
the present case, nor is there any reason why the LAC might wish to
revisit the principles that it established in that
case. The
Astral
Operations
decision has injected a degree of certainty into the
law where there was previously a degree of confusion, and little
purpose would
be served in reopening the debate closed by that
judgment.
[7]
For the above reasons, the application for leave to appeal stands to
be dismissed. There is no reason why costs should not follow
the
result.
I
make the following order:
1.
Leave to appeal is refused, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT