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[2018] ZALCJHB 174
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Duncanmec (Pty) Ltd v Williams NO and Others (JR815/15) [2018] ZALCJHB 174 (10 May 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
JR 815/15
DUNCANMEC (PTY)
LTD
Applicant
and
WILLIAMS, ITUMELENG
N.O
First Respondent
THE METAL AND ENGINEERING INDUSTRY
BARGAININING
COUNCIL
Second Respondent
NATIONAL UNION OF METAL WORKERS OF
SOUTH
AFRICA
Third Respondent
MATITI,
SIYAKUDUMISA
Fourth Respondent
Decided: In Chambers
Delivered: 10 May 2018
JUDGMENT-LEAVE TO APPEAL
MAHOSI. J
[1] This is an application for leave
to appeal against the whole of the judgment of this Honourable Court
handed down on 08 February
2018 in terms of which the Court dismissed
the review application lodged by the applicant against an arbitration
award issued by
the first respondent (the arbitrator) dated 9 March
2015 under the auspices of the first respondent (Bargaining Council)
under
case number MEGA 43423.
[2] The parties are cited as they were
in the review application. The fourth respondent did not oppose this
application.
Grounds
for appeal
[3] The applicant raised a number of
grounds of appeal, which could be summarised as follows:
3.1
This Court erred in its finding that the commissioner did not commit
a gross irregularity
in respect to the conduct of cross-examination
by the parties;
3.2
This Court erred in its finding that the commissioner’s
conclusions were reasonable
with regards to whether certain versions
were put to the relevant witnesses and the consequences of not doing
same;
3.3
This Court erred in its finding that the commissioner committed an
irregularity in finding
that the fourth respondent’s version
was more probable than the applicant’s.
3.4
This Court erred in its finding that the commissioner was reasonable
to accept the version
put by the Fourth Respondent that he was not
under the influence of alcohol;
3.5
This Court erred in its finding that the commissioner was reasonable
to conclude that re-instatement
was appropriate under the
circumstances.
3.6
Essentially, the applicant contends that this court erred in finding
that the first respondent
decision was a decision a reasonable
commissioner could have arrived at.
Test for leave to appeal
[4]
In terms of section 166(1) of the Labour Relations Act (LRA),
[1]
a party to proceedings before the Labour Court may apply to the
Labour Court for leave to appeal to the Labour Appeal Court (LAC)
against any final judgment or final order of the Labour Court. The
test in determining whether to grant an application for leave
to
appeal, is whether there is a reasonable prospect that another court,
presented with the same facts as this Court, may come
to a different
conclusion.
[2]
Section 17 of the Superior Court Act,
[3]
which applies to the Labour Court, regulates instances in which the
appeal may be granted. Section 17(1) provides:
‘
(1)
Leave to appeal may only be given where the judge or judges 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 decisions 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 issue between the parties.’
[5]
It is now trite that leave to appeal is not simply for the taking. In
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others,
[4]
the LAC made it clear that the Labour Court must be cautious in
granting leave to appeal and assessing the requirement of the
prospect of success. in this case, the court stated as follows:
‘
Before
I conclude there is a further comment I wish to make. I
indicated that the events in this case took place in 2010. The
Labour
Relations Act was
designed
to ensure an expeditious resolution of industrial disputes. This
means that courts, particularly courts in the position
of the court
a
quo,
need to be cautious when leave to appeal is granted, as should this
Court when petitions are granted.
There
are two sets of interests to consider. There are the interests
of the parties such as appellant, namely who are entitled
to have
their rights vindicated, if there is a reasonable prospect that
another court might come to a different conclusion. There
are
also the rights of employees who land up in a legal “no-man’s-land”
and have to wait years for an appeal
(or two) to be prosecuted.
This
was
a case which should have ended in the labour court. This matter
should not have come to this court. It stood to be
resolved on
its own facts. There is no novel point of law to be determined
nor did the Court
a
quo
misinterpret existing law. There was no incorrect application of the
facts; in particular the assessment of the factual justification
for
the dismissals/alternative sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.’
[5]
Evaluation
[6] I have had regard to my judgment
and the submissions of the Applicant in which a number of grounds of
appeal were raised. I
find that they merely repeat the arguments
presented before me at the hearing of this matter. Essentially the
grounds attack the
correctness of the Commissioner’s decision,
however, this Court when sitting as a review Court, does not decide
whether the
decision of the Commissioner was right or wrong, but
whether the decision arrived at falls within the band of
reasonableness.
[7]
On consideration of all the submissions, I find that there is no
merit in them. I am not persuaded that there are reasonable
prospects
the Labour Appeal Court could come to a different conclusion.
[8] Accordingly, I make the following
order:
Order
1.
The
application for leave to appeal is dismissed.
2.
There
is no order as to costs.
__________________
D. Mahosi
Acting Judge of the Labour Court
[1]
Act
66 of 1995.
[2]
See
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Krieland and Others
(1999)
20 ILJ 2889 (LC) at 2890B;
Ngcobo
v Tente Casters (Pty) Ltd
(2002)
23 ILJ 1442 (LC) at 1443 para 2 and
Tsotetsi
v Stallion Security (Pty)
Ltd
(2009) 30 ILJ 2802 (LC) at 2804 para 14.
[3]
Act
10 of 2013.
[4]
(2014)
35 ILJ 2399 (LAC).
[5]
At
2405-2406.