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[2014] ZALCJHB 243
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Shoprite Checkers (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR 1482/12) [2014] ZALCJHB 243 (9 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR1482/12
In
the matter between
SHOPRITE
CHECKERS (PTY)
LTD
.....................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
.....................................................................................................
First
Respondent
CHRISTOPHER
AZWINDINI MANNDE,
N.O
.....................................................
Second
Respondent
CALVIN
NDADZA
.......................................................................................................
Third
Respondent
JUDGMENT
(LEAVE TO APPEAL)
BALOYI AJ
Introduction
[1]
The Applicant is seeking an order granting
leave to appeal the Judgment handed by this Court on 10 January 2014
wherein an order
dismissing the Applicant’s review application
was made. Parties were after following necessary processes of
securing a transcribed
record of
ex
tempore
Judgment invited to file
written submissions for determination of this application in chambers
in accordance with practice directive
for conduct of proceedings in
this Court. The Applicant is according to records the only party who
filed the written submission.
Grounds
of appeal
[2]
The Applicant relied on the following
grounds as set out in its notice of appeal.
‘
1
.
The Court
erred in holding that the Commissioner, in coming to his conclusion,
properly applied his mind to the totality of the
material before him;
2. The Court erred
in holding that, in reaching his conclusion on the fairness of
Ndadza’s dismissal, the Commissioner did
not rely on the
medical certificate as constituting justification Ndadza’s
absence;
3. Further to
paragraph 2 above, the Court erred in holding that the Commissioner’s
finding that the Applicant’s challenge
of the medical
certificate was futile as none of the parties was a qualified medical
practitioner who could properly evaluate the
medical certificate;
4. The Court erred
in accepting that a telephone discussion took place between Ndadza
and Masenya due to the clear mistake appearing
at paragraph 12 of the
Applicant’s founding affidavit despite the record of the
arbitration proceedings making it abundantly
clear that was
persistently disputed by the Applicant before Commissioner;
5. The Court erred
in holding that the Commissioner had properly assessed the
probabilities of each party’s version in this
matter (relating
to both substantive and procedural fairness) and had not committed
any reviewable irregularities in this regard;
6. Finally, the
Court erred in dismissing the Applicant’s application with
costs’.
[3]
In the Applicant’s written
submissions issues relating to the interpretation of the award and
the Judgment came to the fore.
The reasons and findings made in the
Judgment do not deserve repetition herein, so is the nature of
arguments made in the written
submissions.
Evaluation
Test for leave to
appeal
[4]
The underlying principle for determination in applications for leave
to appeal is well settled in our law. The central issue
being whether
a different Court will under the circumstances reach a different
conclusion. Reasonable prospects of success also
playing a
substantial role towards determination thereof. In
Westinghouse
Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
[1]
the
Court held that:
‘
(3)
Where the matter turns mainly on factual issues and lacks the
qualities referred to in (1) and (2) above, but the prospects
of
success are so strong that the refusal of leave to appeal would
probably result in a manifest denial of justice. In this regard
it
must be appreciated that the concept “reasonable prospects of
success” covers a fairly …reasonable prospect
to virtual
certainty of success. This is particularly so in factual matters
involving the evaluation of (often conflicting) evidence…’.
On
Substance
[5]
The essence of the Applicant’s case is still centered on
whether the Third Respondent was truthful about his illness for
days
on which he did not report for duty which the Applicant viewed as
uncommunicated absence. On whether the Third Respondent
was telling
the truth or not the medical certificate was nucleus to the issues
for determination as far as the Applicant’s
case was concerned.
The salient points herein being the Third Respondent’s failure
to submit the medical certificate in dispute
and to explain its
contents.
[6]
The Third Respondent’s failure to submit the medical
certificate in the same manner as he did with the previous one goes
parallel with the argument whether the Applicant was aware of reasons
for his absence. From what was placed before the Court, it
latently
became undisputable that a telephonic communication between the Third
Respondent and Mr Masenya took place wherein the
reason for the Third
Respondent’s absence was established coupled with extension of
his time off work. In this regard chances
of another Court reaching a
different conclusion are not in this respect in existence.
On Procedure
[7]
Based on the findings already made, it still remains unproven that
the notice to attend disciplinary hearing served by sms did
reach the
Third Respondent, let alone concessions made by the Applicant’s
witness that the method used was not in accordance
with the
Applicant’s disciplinary procedures. The Second Respondent’s
conclusion that the Applicant failed to notify
the Third Respondent
about the hearing is not unreasonable as well as his finding on the
Applicant’s failure to afford the
Third Respondent an appeal
hearing.
[8]
Consequently, the Applicant has not shown that a different Court will
be in a position to reach a different conclusion. The
cumulative
effect of what has been placed before this Court is that no prospect
of the appeal succeeding has been shown. The Application
for leave to
appeal stands to fail. No papers were filed in opposition of this
application. It will therefore not be appropriate
to make a cost
order under the circumstances.
Order
[9]
In the premises the following order is made:
9.1 The application
for leave to appeal is dismissed.
9.2 No order as to
costs is made.
___________________
Baloyi AJ
Acting Judge of the
Labour Court of South Africa
[1]
1986(2) SA 555 (A) at page 565 B-C