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[2015] ZALCJHB 115
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Fuelogic (Pty) Ltd v Schoeman and Others (JR 1253/2013) [2015] ZALCJHB 115 (15 April 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 1253/2013
DATE: 15 APRIL 2015
Not Reportable
In the matter between:
FUELOGIC (PTY)
LTD
...........................................................................................................
Applicant
And
J SCHOEMAN &
OTHERS
.................................................................................................
Respondent
Decided in Chambers
Delivered: 15 April 2015
Summary: Application for leave to
appeal
LEAVE TO APPEAL
JUDGMENT
EUIJEN, AJ
[1] This is as an application for leave
to appeal against my judgment dated 12 February 2015, in which I
dismissed the applicant’s
review application which sought to
set aside an award of a bargaining council commissioner, reinstating
Mr Schoeman into the applicant’s
employ. As stated in my
earlier judgment, the reasonableness or otherwise of the
Commissioner’s award turns mainly on the
refusal of the
applicant’s application to postpone those proceedings.
[2] The grounds on which the
application for leave to appeal are based are, in summary, that this
Court and the Commissioner gave
insufficient consideration to the
balance of prejudice between the parties; failed to take account
that the applicant’s
representative, as a layperson, did not
receive sufficient guidance at the arbitration proceedings; and that
the employee’s
evidence at the arbitration proceedings related
to events after those with which he was charged.
[3] As far as the prejudice to the
applicant is concerned, the fact that the applicant consistently
overlooks in its applications
to this Court, is that it took a
conscious decision to prioritise the attendance of its crucial
witness at its own MANCOM meeting
over the statutory arbitration
proceedings. There is no suggestion that the MANCOM meeting could not
have been re-scheduled for
another day or was cast in concrete. In
those circumstances, the situation being entirely of the applicant’s
own making,
it ought to be more prepared to accept the consequences
of that decision.
[4] The prejudice to the respondent
employee could not merely have been cured with a costs order. The
dismissed employee had been
unemployed for five months and was
entitled to have his dispute heard on the allocated day on the
bargaining council’s roll.
The fact remains that the applicant
provided no good or reasonable explanation for its request for a
postponement.
[5] The appeal to a lack of guidance
afforded by the Commissioner to the applicant’s representative
is similarly mis-placed.
The applicant had taken a decision prior to
the arbitration hearing what approach it was going to take at that
hearing. There was
no contingency plan in place in the event that the
postponement application was refused. In those circumstances, it is
difficult
to conceive what guidance the Commissioner could or should
have given.
[6] Whether the applicant wished to
call one or ten witnesses or whether Mr Church could or could not
drive back from Johannesburg
are all irrelevant issues. The fact
remains that once its postponement application was refused, the
applicant had no witnesses
to proceed with. The applicant knew, prior
to the hearing, that the application for a postponement was opposed
and in the event
that it was refused, the hearing would proceed by
default.
[7] Finally, as far as the merits are
concerned, I do not recall that the employee had merely alleged that
another had taken over
his responsibilities. I recall his evidence as
disputing whether he was responsible for charges which he faced at
all. The applicant
also now appears to be relying on evidence which
was not before the Commissioner. Insofar as the applicant suggests
that there
is a duty on the Commissioner to attempt to ascertain what
the applicant’s case might have been had it presented evidence,
I disagree. Our evidentiary system requires parties to place evidence
before the Commissioner; not for the Commissioner to undertake
investigations which the parties ought to have done themselves.
Indeed the latter course would expose the Commissioner to allegations
of bias.
[8] In conclusion, I am not persuaded
that there is any reasonable prospect that the Labour Appeal Court
will reach a different
conclusion about this review application to
that held by this Court.
[9] For the reasons given above:
i. The application for leave to appeal
is refused with costs.
Euijen, AJ
Acting Judge of the Labour Court of
South Africa