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[2015] ZALCJHB 287
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Motene v Public Health and Social Development Sectoral Bargaining Council and Others (JR 724/2014) [2015] ZALCJHB 287 (9 September 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
JOHANNESBURG
Case no: JR 724/2014
DATE: 09 SEPTEMBER 2015
In the matter between:
KABELO
MOTENE
.................................................................................................................
Applicant
And
PUBLIC HEALTH AND SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
...................................................................
First
Respondent
COMMISSIONER J MPHAPHULI
N.O. …
.........................................................
Second
Respondent
DEPARTMENT OF HEALTH (NORTH WEST
PROVINCE)
.............................
Third
Respondent
Delivered: 9 September 2015
ORDER AND REASONS IN THE APPLICATION
FOR LEAVE TO APPEAL
FOURIE AJ
Order
[1] I make the following order:
1.1 The application for leave to appeal
is dismissed with costs.
Reasons for order
[2] On 9 July 2015, in an ex tempore
judgment, I dismissed an application to review and set aside an
arbitration award in which
the second respondent (the arbitrator)
issued a preliminary ruling in terms of which he ruled that the third
respondent could lead
evidence of the charges proffered against the
applicant during pre-dismissal arbitration proceedings (that were
abandoned by the
employer), in order to prove the fairness of the
applicant’s dismissal.
[3] The applicant seeks leave to appeal
to the Labour Appeal Court against the whole of the judgment and
order.
[4] Having considered the grounds put
forward in the application for leave to appeal, I am not satisfied
that there are reasonable
prospects of another court reaching a
different conclusion, for the following reasons:
4.1 The Labour Relations Act encourages
the speedy resolution of labour disputes. Recent amendments serve to
further advance this
goal, which in practice is often not achieved,
sometimes due to systemic delay, and sometimes (as in the present
litigation) due
to tactical piecemeal objections, review applications
and the like.
4.2 Particularly in the case of
individual dismissal disputes, the courts have made it clear that
disputes must be finalised speedily,
and that delays will not easily
be condoned. See for example, Queenstown Fuel Distributors CC v
Labuschagne NO & others (2000)
21 ILJ 166 (LAC).
4.3 The effect of the order is that the
applicant remains entitled to exercise his statutory rights to
challenge the fairness of
his dismissal at arbitration. No doubt the
decision by the third respondent to abandon the pre-dismissal
arbitration proceedings
and to dismiss the applicant in a peremptory
fashion will be subjected to scrutiny during the arbitration
proceedings. But the
true reason for the dismissal was clearly the
employer’s belief that the employee had been involved in
fraudulent procurement
activities, and it is clearly in the public
interest that this dispute be aired in the CCMA arbitration.
4.4 The courts are generally loathe to
entertain piecemeal reviews in arbitration proceedings.
4.5 The award of costs is a matter of
judicial discretion, which a court sitting on appeal would only
interfere with in exceptional
instances where the discretion was
exercised capriciously. I do not believe that the punitive costs
order that I made falls in
this category.
[5] For these reasons, the application
for leave to appeal is refused, with costs.
GA Fourie
Acting Judge of the Labour Court of
South Africa