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[2016] ZALCJHB 18
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Department of National Treasury v General Public Service Sectoral Bargaining Council and Others (JR2044/12) [2016] ZALCJHB 18 (27 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2044/12
THE
DEPARTMENT OF NATIONAL
TREASURY
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
PZG
PEKALSKI
N.O.
Second Respondent
K
MOODLEY
Third Respondent
MS
BALOYI
N.O.
Fourth Respondent
Decided
in Chambers:
Delivered:
27 January 2016
JUDGMENT –
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J
[1]
Judgment was handed down on 16 September 2015 in terms of which the
arbitration award issued by the Second Respondent dated
2 July 2012
under case number GPBC992/2012 was reviewed and set aside. The matter
was remitted back to the First Respondent to
be heard
de novo
by an Arbitrator other than the Second Respondent, and no order was
made as to cost.
[2]
For the sake of convenience, the parties will remain cited as they
were in the review application. The Third Respondent has
since filed
an application for leave to appeal against the whole of that
judgment. The application remained unopposed until 20
January 2016
when the Applicant filed its Notice of intention to oppose and heads
of argument. These came to my attention in the
afternoon of 26
January 2016 at a stage where this judgment was to be completed. The
notice of application for leave to appeal
was lodged and filed on 8
October 2015. Written submissions in this regard were filed on 22
October 2015. Despite filing its opposition
belatedly, no effort was
made on the part of the Applicant to seek an indulgence from the
Court in this regard. To this end, the
application will be treated as
unopposed.
[3]
The grounds upon which leave to appeal is sought are summarised as
below. It is essentially contended that;
a)
The
court erred in its finding that the arbitrator’s (Second
Respondent) decision was unreasonable.
b)
The
court erred in finding that an employer may change a sanction of a
disciplinary chairperson when it is not merely a recommendation.
c)
The
court erred in proceeding with the matter in terms of section 145 of
the Labour Relations Act (LRA), after the Applicant disavowed
any
reliance on section 158 (1) (h) of the LRA.
d)
The
court erred in that it failed to take the Applicant’s complete
disregard for the Rules of the court and erred in condoning
certain
defects associated with the review application.
[4]
It is trite that the test applicable in such applications is whether
there is a reasonable
prospect that another Court (the Labour Appeal
Court) may come to a different conclusion to that reached by the
Court whose judgment
is sought to be taken on appeal. Furthermore,
the possibility that the Labour Appeal Court may come to a different
conclusion is
to be assessed with reference to the facts and the law,
and will further involve a consideration of factors such as whether
they
have satisfied the Court that there is a reasonable prospect of
the appeal succeeding. A further consideration is whether the matter
is of substantial importance for the parties
[1]
.
[5]
I have had regard to the submissions made in regards to this
application and the grounds upon which leave to appeal is sought.
I
am also of the view that that I have dealt in depth with all the
issues raised by the Third Respondent in her application for
leave to
appeal against my judgment. Having reflected on my judgment, and
further having had regard to the most recent Labour Appeal
Court
decision on the issues that were the subject of the review
application
[2]
, I am satisfied
that there is a sound, rational basis for a conclusion to be reached
that there are reasonable prospects of success
on appeal. To this
end, the following order is made;
Order:
1.
The
application for leave to appeal is granted.
___________________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
[1]
See
S
v Smith
2012 (1) SACR 567
(SCA) at para [7];
Dince
v Department of Education, North West
[2010] 6 BLLR 631
(LC) para [3] and
GA
Motor Winders (Eastern Cape) cc v CCMA
(1999) 20 ILJ 1802 (LC) para [3].
[2]
South African
Revenue Service v CCMA and Others
(JA06/11)
[2015] ZALAC 52
(8 December 2015)