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[2016] ZALCJHB 7
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Air Chefs (Pty) Ltd v Letlatsa and Others (J1074/13, JR1155/13) [2016] ZALCJHB 7 (12 January 2016)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1155/13
J1074/13
In the matter between:
AIR CHEFS (PTY) LTD
Applicant
and
LEHLOHONOLO FORTUNE
LETLATSA
First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
Second Respondent
MBHELE, NOMUSA
N.O.
Third Respondent
Decided in chambers
Delivered
on: 12 January 2016
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE, J
Introduction:
[1]
This
is an application for leave to appeal against the whole of the
judgment and order granted on 5 October 2015. In the judgment,
the
applicant’s review application was dismissed with costs, and
the arbitration award which was the subject of the review
application
was made an order of court in terms of section 158(1)(c) of the
Labour Relations Act.
[2]
The
application for leave to appeal is opposed by the first respondent.
The opposition to the application and submissions in that
regard were
filed some five days late. The applicant does not oppose the late
filing of these submissions. Having had regard to
the application for
condonation in this regard and the principles applicable to such
applications as enunciated in
Melane
v Santam Insurance Co. Ltd
[1]
and other authorities, it is my view that good cause has been shown
and as such, the late filing of the opposing papers should
accordingly be condoned.
Grounds upon which
leave to appeal is sought:
[3]
The
application for leave to appeal centres around two findings in the
judgment. The first is the significance of the first respondent’s
withdrawal of a section 24 dispute which was before the CCMA and the
implications thereof and secondly, that the first respondent’s
dismissal in consequence to his withdrawal of the section 24 dispute
before the CCMA without consulting with the applicant or its
legal
representatives was too harsh a sanction.
[4]
The
applicant argues that the Court erred in number of respects in
relation to these issues. In short it was submitted that the
first
respondent’s withdrawal of the section 24 dispute was reckless
and contrary to the mandate that he had been given by
the applicant,
and further that he had acted without consulting with the applicant’s
management or its legal representatives.
[5]
The
applicant further submitted that the withdrawal of the section 24
dispute resulted in the underlying
causa
of the pending appeal before the Labour Appeal Court being removed
and in effect rendering the appeal moot. The applicant argues
that
the Court erred in not finding that the first respondent’s
conduct was grossly negligent and had warranted dismissal.
[6]
The
applicant’s further contention in relation to the withdrawal of
the section 24 dispute was that the Court erred in relation
to
finding that a new dispute could still be referred to the CCMA, as
the crux of its complaint was that the withdrawal affected
the appeal
and the interdict in place pending the appeal, and it went contrary
to its legal strategy.
Opposition to the
application for leave to appeal:
[7]
The
first respondent denied that his actions amounted to gross negligence
and submitted that the possible outcomes of his actions
as referred
to by the applicant are only partially relevant as the matter
focussed on his conduct i.e. whether he was negligent
or grossly
negligent. It was submitted that the alleged misconduct was not gross
as he had not been apprised of the full
legal strategy. He
further submitted that the withdrawal of the section 24 dispute had
no impact on the strike interdict which
was subject to the appeal.
[8]
The
first respondent also placed reliance on the omission of applicant in
tendering evidence at the arbitration in relation to the
alleged
breakdown in the trust relationship between the parties. He had
submitted that even if there was any wrongdoing on his
part,
progressive discipline should have been implemented and not
dismissal.
The legal framework
and evaluation:
[9]
The
test for determining whether to grant an application for leave to
appeal is whether there are reasonable prospects that another
Court
(on appeal) may come to a different conclusion as reached by the
Court a
quo
.
This test was described by Corbett CJ in
National
Union of Metal Workers of South Africa v Jumbo Products CC
[2]
in the following terms:
“
In such a case the enquiry
is whether there are reasonable prospects of success, i.e. whether
there is a reasonable prospect that
the Court of appeal may take a
different view and hold the trial Judge to have been wrong (see S v
Ackerman en 'n ander
1973 (1) SA 765
(A); Botes and Another v Nedbank
Ltd
1983 (3) SA 27
(A), at 28 D)”
[10]
In
seeking leave to appeal, the applicant appears to rely on the fact
that in the judgment, a conclusion was reached that the first
respondent had failed to consult with its management or its attorneys
of record prior to and after the withdrawal of the dispute.
It was
further contended that the court had erred in finding that before a
dismissal was merited, there had to be some consequence
flowing from
the misconduct, and this was a dangerous precedent to set as regard
had to be taken of potential prejudice.
[11]
Having
reflected on my judgment and considered the submissions made by both
parties in regards to the grounds upon which leave to
appeal is
sought, and further having had regards to the facts of this case and
the law, I am of the view that there are no reasonable
prospects that
another court would come to a different finding to that arrived at by
the court
a
quo
for the following reasons;
[12]
The
applicant as already indicated does not take issue with the finding
in respect of its rights in law to have re-referred the
section 24
dispute to the CCMA, nor does it take issue with the legal exposition
in respect of dismissals as dealt with in the
judgment.
[13]
However,
on the basis that a finding was made to the effect that the
withdrawal of the dispute constituted an act of misconduct,
the
applicant nevertheless expected a dismissal to be confirmed. The
applicant’s submissions in this regard are without substance
in
that the appropriateness of a sanction of dismissal was looked at in
consideration of a variety of factors which the Commissioner
had had
regard to. It is further incorrect to suggest that a precedent was
set with a remark that before a dismissal is merited
there had to be
some consequence flowing from the misconduct to the exclusion of
potential prejudice. This is further borne out
by comments made in
paragraph [27] of the judgment to the effect that the sanction of
dismissal was disproportionate to any potential
prejudice or
inconvenience caused as a result of the withdrawal of the dispute. In
the light of these comments, I fail to appreciate
how it can be said
that an error of law was committed.
[14]
Further
in the light of the applicant’s acceptance of the finding that
it could have re-referred the dispute or referred a
section 24
dispute afresh, no purpose will be served with a regurgitation of the
issues surrounding the significance of the withdrawal
of the section
24 dispute. This is even more so in view of the fact that the
applicant continuously referred to what could and/or
could not have
happened before the Labour Appeal Court had the dispute not been
withdrawn, or what could or could not have happened
had SATAWU gone
or not gone on strike. As it was correctly pointed out on behalf of
the first respondent, these issues are partly
relevant, and in my
view, pertains to the potential prejudice already alluded to and
sufficiently dealt with in the judgment.
[15]
On
the whole, I am not satisfied that there are reasonable prospects
that another court may come to a different conclusion, and
this
application is found to be without merit. To this end, and further
having had regard to considerations of law and fairness,
the
application for leave to appeal ought to be dismissed with costs.
Order:
i.
The
application for leave to appeal is dismissed with costs.
_______________
Tlhotlhalemaje,
J
Judge of the Labour Court
of South Africa
[1]
1962
(4) SA 531
(A) at 532B-E
[2]
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B. See also
K
arbochem Sasolburg (A
Division of Sentrachem Ltd) v Kriel and Others
(1999) 20 ILJ 2889 (LC) at 2890B where it was held that:
“
I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge to ask
whether
there is a reasonable prospect that another court may come to a
different conclusion
.'