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[2015] ZALCJHB 322
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Hagios v HR Solutions for Tomorrow (Pty) Ltd (JS1133/10) [2015] ZALCJHB 322 (14 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG.
JUDGMENT
Not Reportable
Case no: JS 1133/10
VIVIAN
HAGIOS Applicant
and
HR
SOLUTIONS FOR TOMORROW (PTY)
LTD Respondent
Decided
in Chambers.
Delivered
on: 14
September 2015
RULING
- LEAVE TO APPEAL
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
applicant’s claim before the court pertained to an alleged
constructive dismissal which she had contended was automatically
unfair as contemplated in section 187 (1) (f) of the Labour Relations
Act (the LRA). She had further claimed that the intolerability
of the
employment relationship was predominately caused by unfair
discrimination based on an arbitrary ground.
[2]
The
Applicant’s claim was dismissed following a trial in terms of a
judgment handed down on 17 March 2015. The Applicant has
since filed
an application for leave to appeal against the whole of that
judgment. The Respondent opposed this application.
The
legal framework:
[3]
When considering an application for leave to appeal, the issue is
whether there are reasonable prospects that another court,
in this
case the Labour Appeal Court may take a different view on the
matter
[1]
. In
S
v Smith
[2]
Plasket AJA observed that:
‘
What the test of reasonable
prospects of success postulates is a dispassionate decision, based on
the facts and the law, that a
court of appeal could reasonably arrive
at a conclusion different to that of the trial court. In order to
succeed, therefore, the
appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those
prospects are not
remote, but have a realistic chance of succeeding.
More is required to be established than that there is a mere
possibility of
success, that the case is arguable on appeal or that
the case cannot be categorised as hopeless. There must, in other
words, be
a sound, rational basis for the conclusion that there are
prospects of success on appeal.’
[4]
When considering applications of this nature, the Labour Court should
be mindful of the cautionary note sounded by Davis JA
in
Martin
and East (Pty) Ltd v NUMSA & others
[3]
where he stated that:
“
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.”
[5]
Bearing the above caution in mind, the Labour Court is also reminded
by
the words echoed in
Minister
of Safety and Security and Another v Madyibi
[4]
that;
“
In
giving consideration to the issues at hand I am enjoined by judicial
authority to take due cognisance of the test which is of
application
in matters of this nature. Judicial authority requires of a Judge
considering an application for leave to appeal to
reflect
dispassionately upon the decision sought to be appealed against and
decide whether or not there is a reasonable prospect
that the Appeal
Court may come to a different conclusion. This necessarily requires
of me to disabuse my mind of the fact that
I was of the view when I
delivered my judgment that it was supportable both on the facts of
the case and the law applicable thereto”.
The
grounds of appeal:
[6]
As already indicated, the Applicant’s claim was based on an
alleged constructive dismissal, which dismissal she had also
alleged
was automatically unfair as contemplated in section 187 (1) (f) of
the LRA. Notwithstanding the fact that the Applicant
is in agreement
with the manner with which the essential dispute was captured by the
court, she holds the view that the court erred
in finding that it had
the necessary jurisdiction to adjudicate the constructive dismissal
dispute in circumstances where the Commission
for Conciliation,
Mediation and Arbitration has exclusive jurisdiction over that
dispute in terms of the provisions of section
191 (5) (a) (ii) of the
LRA.
[7]
In seeking leave to appeal, it was submitted that a constructive
dismissal, even if in part precipitated by discriminatory acts
of the
employer, remains a constructive dismissal, and to this end, the
court erred as it did not have jurisdiction to adjudicate
the dispute
of constructive dismissal, as it was bound to exercise its discretion
in terms of section 158 (2) (a) & (b) of
the LRA. Furthermore, to
the extent that it would be determined that the court did have
jurisdiction, it was submitted that the
judgment was not justified by
the evidence before it.
Evaluation:
[8]
In terms of the parties’ pre-trial minutes
[5]
,
they had recorded the issues to be determined by the Court as being;
a)
Whether the
Applicant resigned, or whether she was constructively dismissed?
b)
Whether or
not the Applicant was subjected to unfair discrimination by the
Respondent?
c)
Whether the
dismissal of the Applicant was substantively fair?
d)
Whether the
dismissal of the Applicant was procedurally fair?
e)
Whether or
not the dismissal (if any) of the Applicant was automatically unfair?
[9]
In regards to ‘Resolution of Preliminary Points’, the
parties in the same pre-trial minutes recorded that no preliminary
points were raised. As correctly pointed out by the Respondent in its
opposition to the application for leave to appeal, the onus
was
placed on the Applicant to establish that she was dismissed and that
the dismissal was for a reason that rendered it automatically
unfair
as contemplated in section 187 (1) (f) of the LRA.
[10]
It was common cause that the Applicant had initially referred a
dispute to the CCMA on 10 August 2010 and a certificate of
outcome
was issued on 8 September 2010. She had nevertheless made an election
to file this claim on the basis that her alleged
constructive
dismissal was automatically unfair on account of being allegedly
discriminated against. In the light of the dispute
that the parties
had agreed should be determined as recorded in their signed pre-trial
minutes, it is indeed strange that the Applicant
would contend that
the court lacked jurisdiction to determine those issues.
[11]
I further have difficulties in comprehending the basis that leave to
appeal is sought in circumstances where the court was
required to
first establish whether there was a constructive dismissal, which the
Applicant claimed was automatically unfair. To
the extent that the
Applicant had pleaded her case in that manner, I failed to appreciate
how it can be said that the court erred
in determining the issues
that were placed before it, and how it was expected of it to
determine the issue of automatically unfair
dismissal without first
establishing whether there was a dismissal as the provisions of
section 192 of the LRA require.
[12]
An enquiry in terms of section 187 (1) (f) of the LRA is preceded by
an enquiry in terms of section 192 of the LRA where constructive
dismissal is alleged. In the heads of argument, it was submitted on
behalf of the Applicant that she had shown that she was
constructively
dismissed and that the dismissal was automatically
unfair because of the intolerability complained of was based on
unfair discrimination
based on arbitrary grounds.
It
is inexplicable how that finding could have been made without
embarking on the nature of the enquiry as described above.
[13]
The
court had jurisdiction to adjudicate automatically unfair dismissal
disputes where that dismissal was alleged to have been based
on an
alleged constructive dismissal. The court’s jurisdiction is
founded on the provisions of section 191 (5) (a) (ii) and
191 (5) (b)
(i) of the LRA. In the light of these conclusions, it is not even
necessary to deal with other grounds upon which leave
to appeal is
sought in the light of these not having been substantiated as
correctly pointed out on behalf of the Respondent.
[14]
It therefore follows from the above that based on the facts and the
law, there are no reasonable prospects that the Labour
Appeal Court
may come to a different finding to that arrived at by this court. The
application for leave to appeal in my view was
ill-considered, and
considerations of law and fairness dictate that it should be
dismissed with costs.
Order:
i.
The
application for leave to appeal against the judgment handed down on
17 March 2015 is dismissed with costs.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa.
[1]
National Union
of Metal Workers of South Africa v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B
[2]
2012 (1) SACR 567
(SCA) at para [7]
[3]
(2014) 35 ILJ 2399
(LAC)
[4]
(1034/2004)
[2008]
ZAECHC 180
(30 October 2008) at para 20
[5]
Pages 43 of Index
to Pleadings