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[2017] ZALCJHB 166
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Nadel v Johannesburg Jewish Helping Hands and Burial Society (JS135/2014, JS306/2015) [2017] ZALCJHB 166 (3 May 2017)
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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:
JS135/2014
JS306/2015
In the
matter between:
AVIEL TILON NADEL
Applicant
and
JOHANNESBURG JEWISH HELPING
HANDS AND
BURIAL SOCIETY
Respondent
Heard
:
In Chambers
Delivered
:
03 May 2017
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEALMALINDI AJ
[1]
The Applicant for leave
to appeal (Claimant in the main action) filed an application for
leave to appeal against the whole of the
judgment and order of this
Court delivered on 9 December 2016.
[2]
The Respondent
(Defendant in the main action) opposes the application. For
convenience, the parties will be referred to as in the
main
application.
[3]
The grounds upon which
the application is based are set out comprehensively in the
application. The gist of the application is set
out in paragraphs 21
and 23 thereof which read as follows:
“
21
In toto, in respect of the dismissal it is submitted that another
Court acting reasonably,
may find it probable that the dominant
reason for the dismissal was because the applicant exercised his
rights under the Labour
Relations Act; and that he was discriminated
against on the basis of his religious belief, political beliefs and
conscience.
23.
His Lordship should have found that the respondent had breached the
preclusion in the Employment
Equity Act precluding psychological
testing and should have found that the dignity of the applicant was
impugned by this testing.
The applicant was at that point an employee
of WOW, alternatively a candidate for employment.”
[4]
I
was referred to
Kroukam
v SA Airlink (Pty) Limited
[1]
for the proposition that the dominant reason for the dismissal of the
Claimant is that he exercised his rights under the LRA.
[5]
I
was referred to
Stellenbosch
Farmers’ Winery Group Ltd v Martell et Cie
[2]
for
the approach to be adopted when applying the degree or standard of
proof in civil, as opposed to criminal matters. The case
applies the
technique generally employed by courts in resolving factual disputes
that have a bearing on the probabilities.
[6]
The judgment canvasses
all the issues that the Claimant raised as his causes of complaint. I
am satisfied that all the factors were
taken into account in the
judgment.
[7]
The standard of proof
that the Applicant urges me is the one I should have applied is the
one that was applied in respect of each
aspect of the evidence that
needed to be evaluated. Having done so I came to the conclusions,
inter alia
,
that:
6.1
on the probabilities,
it was not the dominant reason for the Claimant’s dismissal
that he had exercised his rights under the
LRA because the Claimant
had been advised in every notice of disciplinary action that he had a
right to approach the CCMA should
he not be satisfied with the
outcome of the disciplinary hearing;
6.2
although Weber was a
hard taskmaster and difficult, as testified to by the Respondent’s
other witnesses, Weber had not done
anything to support the
contention that the Claimant was being persecuted for utilising the
labour laws to air his grievances with
the Respondent;
6.3
the issue of begging
does not detract from the final decision I will take because I did
not make a definitive finding on the issue
as it was not referred to
the Labour Court. However, it would also fail as one of the building
blocks to sustain a thesis that
there was a concerted effort to
punish the Complainant for utilising the LRA processes;
6.4
subjecting the Claimant
to psychological or psychiatric testing was not for the purpose of
assessing his suitability to be employed
or to continue to be
employed. It was to address the issues of his conduct, including the
common cause issue that he had severely
assaulted a Mr Greenberg, and
was admittedly also tempestuous.
[8]
I concluded that the
Respondent, who bears the onus as the employer in an admitted
dismissal, has discharged the required onus on
a balance of
probabilities.
[9]
In the circumstances I
am not satisfied that the Applicant has reasonable prospects of
success on appeal. I therefore make the following
order.
1.
The application for
leave to appeal is dismissed.
2.
There is no order as to
costs.
______________________
Malindi,
AJ
Acting
Judge of the Labour Court
Submissions:
For
Applicant: Adv Desai (011) 535-1800
Instructed
by Nishlan Moodley
Attorneys
Tel (011) 462-9032
c/o Maharaj Attorneys (011) 782-0924
For
Respondent: Mr Berry (Employer Representative)
Member
of: Guardian
Employers Organisation (GEO)
Tel: 0861 436 436
[1]
2003 (1) SA 11
(SCA) at [5]
[2]
(2005) 26 ILJ 2153 (LAC) at [90] and [91]