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[2015] ZALCJHB 311
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Department of Public Enterprises v Vermooten and Others (JR191/2012) [2015] ZALCJHB 311 (14 September 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR 191/2012
In the matter between:
DEPARTMENT
OF PUBLIC
ENTERPRISES
Applicant
and
DR JOACHIM
VERMOOTEN
First Respondent
COMMISSIONER
JM MATSHEKGA
N.O.
Second Respondent
THE
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
Third
Respondent
Delivered:
14 September 2015
ORDER
AND REASONS IN THE APPLICATION FOR LEAVE TO APPEAL
FOURIE AJ
Order
[1]
I
make the following order:
1.1
Condonation
is granted for the late filing of the application for leave to
appeal.
1.2
The
first respondent is granted leave to appeal to the Labour Appeal
Court, against the entire
ex
tempore
judgment and Order handed down on 9 July 2015.
1.3
Costs
of this application are to be costs in the appeal.
Reasons for order
[2]
On
9 July 2015, in an
ex
tempore
judgment, I upheld a review application, set aside an arbitration
award, and replaced it with an award to the effect that the first
respondent was not an employee of the applicant. The effect of this
award is to non-suit the first respondent from contesting the
fairness of an alleged dismissal by the applicant.
[3]
The
first respondent seeks leave to appeal to the Labour Appeal Court
against the whole of the judgment and order. The application
for
leave was filed some 18 days out of time, but was accompanied by an
application for condonation in which the reason for the
delay is set
out, primarily being a change in legal representatives, a delay in
obtaining the transcribed judgment, and the need
to conduct
investigations into whether all relevant information was placed
before the review court.
[4]
According
to the condonation application, it appears that the full review
record was not before court when the matter was argued,
and the first
respondent will seek to present further evidence on appeal which is
relevant to the question as to whether he was
an employee.
[5]
Having
considered the grounds put forward in the application for leave to
appeal, I am satisfied that there are reasonable prospects
of another
court reaching a different conclusion, for the following reasons:
5.1
Further
evidence may be admitted on appeal, and may prove to be decisive of
the issue, and while I do not know the exact nature
of this evidence,
the first respondent should be given the benefit of the doubt in this
regard.
5.2
The
first respondent clearly feels aggrieved by the manner in which the
matter was presented by his erstwhile attorneys, who apparently
neglected to ensure that all relevant evidence was placed before the
review court. This perception may well have merit, and it
is in the
interests of justice that the first respondent be given a full and
fair hearing, on all relevant (and admissible) evidence.
At the very
least, the first respondent should be given the opportunity of
seeking leave from the Labour Appeal Court to supplement
the record
and/or to adduce further evidence.
5.3
The
question of whether the first respondent is an employee or
independent contractor, does entail the application of various
possible
tests, which are in themselves not entirely free of
controversy. As is apparent from the
ex
tempore
judgment, I am of the firm view that (on the evidence as it was
before me) the first respondent was not an employee. However, I
accept that another court may reasonably have a different
interpretation of the evidence and the applicable law on this issue.
5.4
As
this issue is probably decisive of the first respondent’s claim
in its entirety, the effect of the Order is to deprive
him of any
remedy in terms of labour law. It is therefore in the interests of
justice that leave to appeal be granted, particularly
in
circumstances where the decision under appeal may have been reached
on incomplete information (which was not apparent at the
time).
________________
GA Fourie
Acting Judge of the
Labour Court of South Africa