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[2014] ZALCCT 28
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Rogers v Exactocrafty (Pty) Ltd (C1142/10) [2014] ZALCCT 28 (23 May 2014)
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REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
CASE
NO: C 1142/10
In
the matter between:
PAUL E ROGERS
Applicant
AND
EXACTOCRAFTY (PTY)
LTD
First Respondent
Delivered:
23 May 2014
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The respondent, Exactocraft, seeks leave to
appeal against my judgment of 16 April 2014 in which I made the
following order:
“
The
respondent is ordered to pay the applicant the following amounts:
1.
Compensation of R 136 593, 84, being
the equivalent of three months’ remuneration;
2.
R 20 033, 00 as damages for short
notice;
3.
Costs of suit.”
[2]
In
considering this application, I am mindful of the cautionary note
recently sounded by Davis JA in
Martin
and East (Pty) Ltd v NUMSA & others
[1]
:
“
Before
I conclude there is a further comment I wish to make. I
indicated that the events in this case took place in 2010.
The
Labour Relations Act was designed to ensure an expeditious resolution
of industrial disputes. This means that courts,
particularly
courts in the position of the court
a
quo,
need to be cautious when leave to
appeal is granted, as should this Court when petitions are granted.
There are two sets of
interests to consider. There are the interests of the parties
such as appellant, namely who are entitled
to have their rights
vindicated, if there is a reasonable prospect that another court
might come to a different conclusion.
There are also the
rights of employees who land up in a legal “no-man’s-land”
and have to wait years for an appeal
(or two) to be prosecuted.
This
was a case which should have ended in the labour court. This
matter should not have come to this court. It stood
to be
resolved on its own facts. There is no novel point of law to be
determined nor did the Court
a quo
misinterpret existing law.
There
was no incorrect application of the facts; in particular the
assessment of the factual justification for the
dismissals/alternative
sanctions.
I would urge labour
courts in future to take great care in ensuring a balance between
expeditious resolution of a dispute and the
rights of the party which
has lost. If there is a reasonable prospect that the factual matrix
could receive a different treatment
or there is a legitimate dispute
on the law, that is different. But this kind of case should not
reappear continuously in
courts on appeal after appeal, subverting a
key purpose of the Act, namely the expeditious resolution of labour
disputes.”
[3]
In the case before me, Rogers has not
cross-appealed on the one aspect that did raise a novel point of law
– that is, the
application of s 84(1) of the Basic Conditions
of Employment Act. Had he done so, I would have been inclined to
grant leave to
appeal on that point as it did raise a novel point of
law. But he did not. It remains to consider the other grounds of
appeal.
First ground: procedural
fairness
[4]
In considering the appropriate amount of
compensation to be awarded, I restricted it to three months’
compensation because
Rogers did not come up with any viable proposals
and did very little to explore any alternatives. That does not mean,
as the company
would have it, that his dismissal was procedurally
fair. I am satisfied that I did not misinterpret the facts or
misapplied the
law, to use the test set out by the Labour Appeal
Court in
Martin and East
.
Leave to appeal should not be granted on this ground.
Second ground: notice of
termination of fixed term contract
[5]
The second ground of appeal raised by the
company is not entirely clear. It appears to suggest that notice was
only given of the
termination of the fixed term employment contract,
and not of the employment relationship. There is no merit in this
submission.
It is common cause that the company dismissed Rogers and
that the reason for dismissal was its operational requirements. In
the
trial, the company no longer relied on its earlier mistaken
advice that it could simply terminate the contract on three months’
notice.
Third ground: application
of section 189 of the LRA
[6]
The company submits that the court erred in
its interpretation of the initial notice given to the employee in
terms of section 189
(3) of the LRA. What the court found in para
[45], is that, “without following a formalistic checklist
approach, the notice
fell far short of that envisaged by the
subsection.” Ms Painczyk conceded as much under
cross-examination. That is not an
incorrect interpretation of the law
or the facts.
Fourth ground: joint
consensus seeking process
[7]
This ground is formulated as follows:
“
That
the honourable court erred in finding that they could accordingly not
have been a joint consensus seeking process, although
it admitted
that it was due to the [employees]’s resistance that the
[company] was not afforded the opportunity to do so.”
[8]
It is not clear what the company means with
this submission. Although the employee’s lack of cooperation
was open to criticism,
the company gave notice of the termination of
his contract before proposing alternatives and a mere two days after
the initial
notice of 18 May 2010. Any consultation after 20 May
would have been meaningless. As I found in paragraph 47, there was no
prospect
of meaningful consultation in those circumstances. That
finding is not open to appeal.
Fifth ground: the letter
of 18 May 2012 [sic]
[9]
The company submits that the court erred
“in not taking notice of the content of the letter of 18 May
2012”. Presumably
that refers to the initial notice of 18 May
2010. The company then submits that “the probabilities favoured
the respondent
version, i.e. that it eventually had to send the
letter registered mail to the applicant as he did not want to engage
in the process
at all and that he did not attend the meetings so
stipulated in the said [
sic
]
letter of 18 May 2012 [
sic
]
.”
[10]
On the contrary, the court did find that
the company sent the letter by registered mail. But the company had
already told the employee
that he would be dismissed on 20 May 2010.
Further meetings would have served no purpose. And Ms Paynczyk could
not recall why
she sent the letter by registered mail.
[11]
These findings do not constitute grounds
for appeal.
Sixth ground: two weeks’
notice
[12]
The company submits that the court “erred
in compensating the applicant by granting in the two weeks’
short notice when
the evidence led does not support such a
conclusion.”
[13]
The award of two weeks’ notice is not
a compensation award. It is an award for damages. The evidence was
that notice was two
weeks short. That is a correct factual
conclusion.
Seventh ground:
compensation for procedural unfairness
[14]
This is merely a regurgitation of the first
and fourth grounds raised by the company. I have already addressed
it.
Eighth ground: costs
[15]
The granting of costs is within the
judicial discretion of the court.
Conclusion
[16]
Taking into account the factors set out by
the Labour Appeal Court in
Martin and
East
, there is no reason why leave to
appeal should be granted in this case. There is no reasonable
prospect that another court will
come to a different conclusion. The
novel point of law raised in the court a quo is not subject of the
appeal or of a cross appealed.
The employee was dismissed four years
ago. He is [……] years old. There is no valid reason why
he should wait any
longer to be paid the compensation due to him and
why he should incur further costs on appeal.
Order
The
application for leave to appeal is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
B
Schiff of Bagraims.
RESPONDENT:
C
Brümmer
Instructed
by Chris Smit attorneys, Langebaan.
[1]
CA 23/2012, unreported 10 March 2013.