About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 14
|
|
Food and Allied Workers' Union and Others v Seun (JS831/13) [2018] ZALCJHB 14 (24 January 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
JOHANNESBURG
Case no: JS 831/13
In
the matter between:
FOOD AND ALLIED
WORKERS’
UNION
First Applicant
NYANGULA, J &
138 OTHERS
Second and further
Applicants
and
LA VISAGIE &
SEUN
Respondent
Delivered:
24 January 2018
JUDGMENT
ON LEAVE TO APPEAL
LAGRANGE
J
[1]
In terms of
section 17
(1) (h) (i) of the
Superior Courts Act, 10 of
2013
, aside from other circumstances which are not applicable in this
case, leave to appeal may only be granted if a judge is of the
opinion that the appeal would have “a reasonable prospect of
success”. That does not mean that merely because another
court
might come to a different conclusion leave to appeal should be
granted. The court must also consider if such a result is
not merely
a theoretical possibility but there is some likelihood that this
would be the case.
[2]
In Seathlolo & others v Chemical Energy Paper Printing Wood &
Allied Workers Union & others this court
summarised
the approach to be adopted to applications for leave to appeal under
s 17:
“
As
the respondents observe, the use of the word 'would' in
s 17(1)(a)(i)
is 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 & others v Crocodile
Valley
Citrus Co (Pty) Ltd & 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 (see the judgment by Davis JA in Martin & East
(Pty) Ltd v National Union of Mineworkers
& others (2014) 35 ILJ
2399 (LAC), and also Kruger v
S 2014
(1) SACR I 369 (SCA) and the
ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning &
another (C536/15 6 November 2015).”
[3]
In this matter the employer (‘Visagie’) has applied for
leave to appeal against the judgement handed down on 10
August 2017
in which I found that the dismissal of the individual applicants for
embarking on unprotected strike action was substantively
unfair
because dismissal was too harsh a sanction in the circumstances.
There had been unprotected strike action over the implementation
of a
controversial exemption from a wage determination. That strike was
effectively resolved and strikers returned to work, but
went out on
strike again when certain individuals were prevented from reporting
to work on account of being suspended pending disciplinary
action for
strike misconduct. Workers who went on strike in protest against this
were dismissed after disciplinary enquiries. The
circumstances I
considered in deciding that the dismissals were substantively unfair
are set out in paragraphs [90] to [100] of
the judgement.
[4]
In the grounds of appeal, Visagie argues that the sole reasons for
finding the dismissals to be substantively unfair was that
no further
warning was issued before taking steps to dismiss the workers when
they went on strike again over the disciplinary action
and this was
the reason for their dismissal.
[5]
Firstly,
Visagie contends that this was not a case where it was necessary to
issue a further ultimatum and alludes to the LAC decision
in
Mndebele
& others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
[1]
,
in which the court upheld the substantive fairness of a dismissal of
strikers who had not been issued with an ultimatum as such
but who
had been told that they were participating in an unprotected
industrial action and they would be disciplined. That authority
is
not on all fours with the facts of this case where the strike action
arising from the disgruntlement over the wage exemption
had been
resolved and workers had returned to work and then went out on strike
action when certain workers were suspended pending
disciplinary
action. In this instance, the conduct of the workers had to be
evaluated against the fact that they had ended their
strike over the
wage exemption and were clearly returning to work.
[6]
Secondly, the two factors isolated by Visagie as the basis for the
court’s finding of a substantively unfair dismissal
were not
the only factors taken into account in arriving at that conclusion.
Inter-alia, other factors were that:
6.1
No indication was given by management that workers who would be
disciplined for other misconduct
during the strike would be prevented
from returning to work: all that had been conveyed was that
disciplinary action would be taken
against such employees.
6.2
There was no attempt to communicate with the union or shop stewards
before proceeding with dismissal
enquiries as a result of the new
strike. The ultimatum issued which brought the first strike to an end
had been heeded and complied
with.
6.3
In so far as Visagie saw the strike as a mere continuation of the
initial strike, it bore considerable
responsibility for the initial
strike occurring.
6.4
Visagie failed to establish that its selective re-employment process
after the dismissals was
fair or objective.
[7]
Taking account of all of the above, I am not persuaded that there is
a reasonable possibility that another court would come
to a different
conclusion.
Order
[8]
The application for leave to appeal is dismissed with costs.
_________________________
Lagrange
J
Judge
of the Labour Court of South Africa
[1]
(2016) 37
ILJ
2610 (LAC)