About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 289
|
|
McCarthy v Michelangelo Hotel (Roberto Rosa) (J1236/16) [2017] ZALCJHB 289 (8 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1236/16
In
the matter between
DAVID MARK MCCARTHY
Applicant
and
MICHELANGELO HOTEL (ROBERTO
ROSA)
Respondent
Heard:
8 June 2017
Order:
8 June 2017
Reasons:
8 August 2017
REASONS
FOR ORDER
TLHOTLHALEMAJE, J:
Introduction:
[1]
The applicant approached this
Court in terms of section 158(1)(c)
[1]
of the Labour Relations Act
[2]
for an order making the settlement agreement entered into between the
parties under case number GAJB 10149-16, under the auspices
of the
Commission for Conciliation Mediation and Arbitration (CCMA) an order
of this Court.
[2]
The matter came before me on the pre-enrolment hearing roll on 8 June
2017. Upon having had regard to the substance of the matter,
the oral
submissions by the parties, I had issued an order in the following
terms:
(1)
The application is dismissed;
(2)
There is no order as to costs.
[3]
The applicant appeared before me in person when his application was
dismissed. He has since requested the reasons for my order.
What
follows hereunder is a brief background to the application and the
reasoning behind the order;
Background:
[4]
The applicant was before his
dismissal, employed by the respondent as a Maintenance Supervisor.
During April 2016, he was charged
and found guilty of four (4) counts
of misconduct.
[3]
The charges were framed as follows:
“…
(1)
Failure to produce a valid sick note from a
doctor for dates 30/03/2016 up to 31/03/2016 when you claimed to be
sick and were not
on duty as per duty roster.
(2)
Unauthorised absence from work on the 01/04/2016.
(3)
Bringing the Company’s name into disrepute
in that you wearing company uniform and name badge at an adult
Entertaining Centre
on the evening of the 29/03/2016 and early
morning of the 30/03/2016.
(4)
Dishonesty in that you misrepresented your
wellbeing to go off duty at 15h00 on 04/04 for not feeling well, but
later in the evening
you were at the Marco Polo.”
[5]
Upon being found guilty of the aforesaid charges in an internal
disciplinary enquiry, the applicant was then dismissed. He
subsequently referred an unfair dismissal dispute to the CCMA. The
matter was successfully conciliated on 2 June 2016
by
Commissioner D.H Smith, resulting in the parties concluding a
settlement agreement in terms of which an amount of R11 000
(Eleven Thousand Rand Only) was to be paid to the applicant. It was
further agreed that in order to assist him with prospects of
future
employment, all future references and requests were to be directed to
the General Manager, who would in turn give a neutral
reference,
which would also indicate that the parties had separated by mutual
consent.
[6]
On 8 June 2016, the respondent paid an amount of R9 030 (Nine
Thousand and Thirty Rand Only) in satisfaction of the monetary
component of the settlement agreement. The total amount paid is in
exclusion of the statutory tax deductions.
The
Section 158(1)(c) application:
[7]
On 16 February 2017, the applicant approached the Court with his
application to make the settlement agreement an order of court.
He
did so by using the
pro forma
notice of motion as obtained
from the office of the Registrar. In his application, and to the
extent that it is relevant, he merely
contended that the respondent
had failed or refused to comply with the settlement agreement. Not
much particularity was given in
this regard.
[8]
The respondent had filed a statement of response, and submitted that
it had fully complied with the terms of the settlement
agreement. At
the proceedings, Counsel for the respondent, Ms Collet had further
submitted what she termed an ‘explanatory
affidavit’ in
response to the application, wherein it was reiterated and averred
that the respondent had fully complied with
the settlement agreement
on 8 June 2016, after having obtained a tax directive on the
settlement amount from SARS. It was pointed
out in the affidavit that
the applicant had not in his application, set out any instances in
which the respondent had not complied
with the settlement agreement.
Ms Collet further submitted that although the respondent was not
averse to the settlement agreement
being made an order of court, no
purpose would be served with such an order in the light of the
respondent having fully complied
with the terms of the settlement
agreement.
[9]
The applicant upon being questioned by this Court as to whether the
settlement amount was paid had indicated that he was unsure,
and that
however, the issue remained that of the references as stipulated in
the agreement. His contention was that the respondent
had not
fulfilled its obligations in respect of providing neutral references,
and had instead, provided negative references.
[10]
It is trite that courts should
not adjudicate or determine matters which will only have an academic
effect.
[4]
Our courts should only determine matter, which have a live factual or
legal dispute unless there are exceptional circumstances
that
dictates otherwise.
[5]
The reasoning is that a court does not need to make an order that
will be incapable of execution by virtue of the matter having
become
academic.
[6]
This Court is further enjoined with wide powers in terms of section
158(1) (c) of the LRA to make arbitration awards and/ or settlement
agreements orders of the Labour Court. However, for a party to
succeed in an order sought in terms of section 158(1)(c), such party
must demonstrate that the respondent has failed or refused to comply
with the terms of the settlement agreement or arbitration
award
[7]
.
[11]
In view of the submissions made on behalf of the respondent as
further supported by the responses to the applicant’s
application, I was satisfied that the settlement amount had been
paid. Crucially, the applicant failed to demonstrate that the
respondent had not complied with the terms of the settlement
agreement. To the extent that there might be merit in the allegation
that the applicant had received a negative reference, I had further
directed the him to approach Ms Collet privately with a view
of
sorting out this outstanding issue.
[12]
In the light of the above, I
did not see any need whether based on law or fact, it was necessary
that the settlement be made an
order of court, as it had been
complied with. In my view the granting of the application would have
no practical effect and therefore
would only be academic
[8]
.
It was in the light of these considerations that the application was
dismissed.
_______________________
E
Tlhotlhalemaje
Judge of the Labour Court of South
Africa
Appearances:
For
the Applicant:
In person
For
the Respondent:
Adv. S Collet
Instructed
by:
Shapiro-Aarons
Inc.
[1]
Section 158. Powers of the Labour Court
(1)
The Labour Court may-
(a)
…
(b)
…
(c)
Make any arbitration award or any settlement agreement an order of
Court.
[2]
Act 66 of 1995
[3]
Page 3, para 6.2 of the answering affidavit
[4]
Legal Aid South Africa V Magidiwana And Others
2015 (2) SA 568
(SCA)
at para 2
[5]
City of Cape Town v SA
Municipal Workers Union on behalf of Abrahams & others supra
at para 11 in was held:
“
The
principle implicit in this provisions has been applied by our courts
for some time to the effect that courts are there to
resolve real
and existing disputes and not to deal with issues that are academic
or to provide advice on abstract questions.
In
Geldenhuys and
Neethling v Beuthin
the principle was articulated in the
following terms: ‘After all, courts of law exist for
settlement of concrete controversies
and actual infringements of
rights, not to pronounce upon abstract questions or to advise upon
differing contestations, however
important.’
In National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs,
the Constitutional Court explained that: “a case is moot and
therefore not justiciable if it no longer presents an existing
or
live controversy which exist if the Court is to avoid giving
advisory opinion on abstract propositions of law. [Footnotes
omitted]
[6]
Potgietersrust Platinum Limited & another v Godfrey Ditsela &
2 Others Case No. JA66/12 at para 9
[7]
See
South African Post
office Ltd v CWU obo Permanent Part-Time Employees
[2013] ZALAC 20
; (2014) 35 ILJ 455 (LAC);
[2013] 12 BLLR 1203
(LAC)
at para 21, where it was held that;
“
Section
158(1)(c) of the LRA provides that the Labour Court has the
jurisdiction to make any settlement agreement, concluded in
respect
of a matter arising within the scope of the LRA, an order of court.
This does not mean that the order is there for the taking. The
Labour Court has a discretion to make it an order of court even if
it otherwise meets the criteria provided in section 158(1A), read
with section 158(1) (c) of the LRA
…”
[8]
See
section 16(2)(a)
of the
Superior Courts Act 10 of 2013