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[2017] ZALCJHB 184
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South African Clothing and Textile Workers' Union and Others v Stephead Military Headwear CC (JS791/14) [2017] ZALCJHB 184 (23 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 791/14
In
the matter between:
SOUTH
AFRICAN CLOTHING AND TEXTILE
WORKERS’
UNION
First Applicant
MAGGIE
MALALA
Second Applicant
LESEGO
RACHEL NKHUMANE
Third Applicant
and
STEPHEAD MILITARY HEADWEAR CC
Respondent
Considered
in chambers.
Delivered:
23 May 2017
RULING:
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE
J
Introduction
[1]
Following upon trial proceedings, judgment in this matter was
delivered on 20 March 2017, in terms of which the dismissal
of the second and third applicant was found to have been procedurally
and substantively unfair. The respondent was consequently
ordered to
reinstate the second and third applicant in its employ, with
retrospective effect from the date of their dismissal.
[2]
The respondent has since filed an application for leave to appeal
against that judgment and order. The applicants opposed the
application.
[3]
The material facts of this case that gave rise to the current
application are recorded in the main judgment, and no purpose
will be
served in burdening this judgment with a repetition thereof. In its
application, the respondent contends that this Court
erred and/or
misdirected itself in several respects, inclusive of that:
i.
It held that the
respondent was not permitted to justify the dismissal of the two
employees concerned on a basis other than upon
which it purported to
rely when it dismissed them. In so holding the Court departed from
the principle expressly endorsed by the
Labour Appeal Court to which
it was bound;
ii.
It evaluated the fairness
of the dismissal of the employees by the respondent with reference to
the criteria applicable to dismissals
for operational reasons rather
than those applicable to dismissal for poor performance or lack of
competence.
iii.
It held that the
respondent had not proven that the employees were poor performers and
had not been given sufficient warning or
counselling. This finding,
made in the context of the respondent having taken performance into
account as a selection criterion
for an operational dismissal, was
not supported by evidence which was replete with incidents,
articulated in the judgment, showing
that the employees were not
rendering competent service as pattern makers.
iv.
The Court failed to
determine the real issue before it. Put differently, this Court did
not decide the true reason for the second
and third respondent’s
dismissal.
[4]
The respondent nevertheless
accepted that it did not prove a valid reason for dismissal for
operational requirements. It further
accepted that the procedure
followed in dismissing the second and third applicant did not conform
to procedural fairness contemplated
in the Labour Relations Act
[1]
in respect of retrenchments. It however contended that the Court
ought to have determined the real reason for the dismissal, and
that
the failure to do so rendered the judgment appealable. In this
regard, reliance was placed on the decision of the Labour Appeal
Court in
Fidelity Cash
Management,
[2]
where it was held:
“
It is an
elementary principle of not only our labour law in this country but
also of labour law in many other countries that
the
fairness or otherwise of the dismissal of an employee must be
determined on the basis of the reasons for dismissal which the
employer gave at the time of the dismissal. The exception to this
general rule is where at the time of the dismissal the employer
gave
a particular reason as the reason for dismissal in order to hide the
true reason such as union membership.
In such
a case the court or tribunal dealing with the matter can decide the
fairness or validity of the dismissal not on the basis
of the reason
that the employer gave for the dismissal but on the basis of the true
reason for dismissal.” [Emphasis
added.]
[5]
As I understand the respondent’s contentions and its
interpretation of the above
dictum,
in circumstances where a
court is confronted with a dispute where the employer changed the
initial reasons for a dismissal as advanced
at the time of the
dismissal, the court is then obliged to evaluate the fairness of the
dismissal on the reason provided subsequent
the dismissal. That
obligation is maintained even if the true reason unveiled in the
pleadings after the conciliation process.
[6]
The respondent further
submitted that the distinctions provided for in the LRA on how
specific types of dismissals must be resolved
and the specific
procedures applicable was immaterial for the current dispute. It
contended that the fact that the LRA prescribed
certain procedures in
cases of misconduct, or poor work performance, or in respect of a
no-fault dismissal is immaterial, as this
Court is empowered in terms
of the provisions of section 158(2)(b) of the LRA to adjudicate such
dismissal and the court may grant
relief as if it were the arbitrator
or commissioner.
[3]
[7]
It is trite that for an
application for leave to appeal to be successful, it is required of
the party seeking such leave to demonstrate
that there are reasonable
prospects that another court, in this instance, the Labour Appeal
Court, would come to a different conclusion
to that reached in the
judgment that is sought to be taken on appeal.
[4]
As to what this test entails was addressed by the Supreme Court of
Appeal in
S v Smith
[5]
as follows:
“
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 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 an appeal.”
[8]
The Labour Court in
Seathlolo
& others v Chemical Energy Paper Wood & Allied Workers Union
& others
[6]
in reference to section 17(1) recently held that:
“
. . . As the
respondents observe, the use of the word “would” in
s17(1)(a)(i) are indicative of a raising of the threshold
since
previously, all that was required for the applicant to demonstrate
was that there was a reasonable prospect that another
court might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is not a test
to be applied lightly – the Labour Appeal Court has recently
had occasion to
observe that this court ought to be cautious when
leave to appeal is granted, as should the Labour Appeal Court when
petitions
are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires that appeals be
limited
to those matters in which there is a reasonable prospect that
the factual matrix could receive a different treatment or where there
is some legitimate dispute on the law. . . ”
[7]
[9]
The applicants’ main contention was that there was no
reasonable prospect that another Court would reach a different
conclusion in that
inter alia
, they (applicants), had pleaded
in their main claim that the respondent dismissed them for
operational reasons, and that despite
pleading to the contrary, the
respondent’s witness confirmed that the individual applicants
were dismissed for operational
reasons, but had nevertheless applied
performance as selection criteria. It was submitted further on the
applicant’s behalf
that having chosen operational requirements
as its reason to dismiss, the respondent was bound by that decision,
and to prove that
the dismissal was both procedurally and
substantively fair.
[10]
In considering the application
before the Court, it is taken into account that that the Labour
Appeal Court has directed that caution
must be exercised by judges of
this Court when seized with applications for leave to appeal. There
is a further requirement that
judges of this Court must ensure that
the matters that are sent to the Labour Appeal Court are limited to
those in which there
is a reasonable prospect that the facts could be
treated differently and/or where there is some legitimate dispute on
the law.
[8]
[11]
I have carefully considered the grounds upon which leave to appeal is
sought, and the submissions made by both parties in support
of and in
opposition to the application. I have further reflected upon my
judgment and hold the firm view that the issues raised
by the
respondent in this application and grounds upon which leave to appeal
is sought were adequately dealt with in that judgment.
To this end, I
am of the view that there exist no sound or rational basis for the
conclusion that there are reasonable prospects
that the Labour Appeal
Court would on the facts or the law, come to a different conclusion.
[12]
In the light of the above conclusions, it is further my view that
this application was ill-conceived, and the requirements
of law and
fairness therefore dictate that the individual applicants should not
be burdened with costs of this application.
Order
[13]
In the premises, I make the following order:
1.
The application for leave to appeal is dismissed with costs
__________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
66 of 1995, as amended, (LRA). See section 189 thereof.
[2]
Fidelity Cash Management
Services v CCMA & Others
(2008) 29 ILJ 964 LAC;
[2008] 3 BLLR 197
(LAC) at para 32.
[3]
Wardlaw v Supreme Moulding
(Pty) Limited
[2007] ZALAC
2
;
[2007] 6 BLLR 487
(LAC) at para 24 it was held:
In
the light of the above it seems to us that the employee’s
allegation of the reason for dismissal as contemplated in sec
191(5)
is only important for the purpose of determining where the dispute
should be referred after conciliation but the forum
to which it is
referred at that stage is not necessarily the forum that has
jurisdiction to finally resolve the dispute on the
merits. That may
depend on whether it does not later appear that the reason for
dismissal is another one other than the one alleged
by the employee
and is one that dictates that another forum has jurisdiction to
resolve the dispute on the merits. Once a dispute
has been referred
to, for example, the Labour Court, the Labour Court provisionally
assumes jurisdiction. That assumption of
jurisdiction is conditional
upon it not later becoming “apparent” to the Court
within the contemplation of sec 158(2)
of the Act that the reason
for the employee’s dismissal is one that falls within sec
191(5)(a) of the Act. We say it is
provisional or conditional
because if it later becomes “apparent” that the dispute
is one that ought to have been
referred to arbitration, the Court
will decline jurisdiction and have the dispute referred to
arbitration.
[4]
See
Superior Courts Act 10 of 2013
:
Section 17(1)
thereof provides:
“
(1)
Leave to appeal may only be given where the judge or judges
concerned are of the opinion
that—
(a)
(i) the appeal would
have a reasonable
prospect of success; or
(ii)
there is some other compelling reason why the appeal should be
heard, including
conflicting judgments on the matter under
consideration;
(b)
The decision sought on appeal does not fall within the ambit of
section 16(2)(a)
; and
(c)
Where the decision sought to be appealed does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.”
[5]
2012 (1) SACR 567
(SCA) at para 7.
[6]
(2016) 37 ILJ 1485 (LC).
[7]
Id a
t para
3.
[8]
See also
Khena
v Passenger Rail Agency of South Africa
(J2767/16) [2017] ZALCJHB 32 at para 4;
Martin
and East (Pty) Ltd v NUM
(2014) 35 ILJ 2399 (LAC) at 2406.