Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal decided by the Labour Court in chambers. The application was brought by Telkom South Africa (described by the court as the respondent in the main matter, but the applicant for leave to appeal) against the whole of a prior Labour Court judgment and order delivered on 11 January 2018. Ezekiel Mashaba (the applicant in the main matter) opposed the application for leave to appeal.

The procedural history recorded by the court was that the leave to appeal was served and filed on 1 February 2018, and the opposing papers (notice of intention to oppose and the response) were served and filed during 15 and 19 March 2018 respectively. The court further noted non-compliance with the time periods for the filing of submissions contemplated by Rule 30(3A) read with Clause 15.2 of the Labour Court Practice Manual, and that the leave to appeal was determined without the benefit of the applicant-for-leave’s submissions.

The general subject-matter arises from an employment dismissal dispute. In the underlying judgment of 11 January 2018, the court held that Mr Mashaba’s dismissal was substantively unfair, ordered his reinstatement, directed the employer to pay compensation equivalent to 10 months’ salary, and made an order for costs. In the leave to appeal proceedings, the central focus was the employer’s challenge to the court’s conclusions, particularly relating to the characterisation of the dismissal as automatically unfair under the Labour Relations Act.

2. Material Facts

The court treated several facts as common cause for purposes of assessing the prospects of success on appeal. Mr Mashaba was a shop steward of the Communication Workers Union (CWU) at the relevant time. He disseminated a dossier containing allegations of corruption made against various individuals within Telkom, including senior managers.

The court accepted as undisputed that, by the time Mr Mashaba disseminated the dossier, the CWU had taken ownership of the dossier and endorsed its contents. The dossier was disseminated by Mr Mashaba only to CWU and COSATU officials, and it was treated as a CWU document, whether he had been instructed to distribute it or not. The court expressly recorded that this evidence was never challenged.

On the procedural conduct of the leave proceedings, the court recorded that, although the Practice Manual provisions were explicit, Telkom’s attorneys did not file the required submissions timeously (or at all by the time the court decided the matter), despite requesting a directive and being directed to the relevant provisions. The court proceeded to determine the application in light of the statutory objective of the expeditious resolution of labour disputes.

3. Legal Issues

The central legal question was whether the applicant for leave to appeal had shown that there was a reasonable prospect that another court would come to a different conclusion from that reached in the judgment of 11 January 2018.

Although the judgment was concerned with leave to appeal (a procedural threshold), the dispute turned on the application of legal principles to essentially common-cause facts, namely whether the dismissal was automatically unfair in terms of section 187(1)(d) of the Labour Relations Act 66 of 1995, as the court had effectively reasoned in the main judgment. The court’s assessment also engaged a discretionary or evaluative component regarding whether to grant leave, mindful of the LRA’s purpose of expeditious dispute resolution, and whether to award costs given the conduct in the leave to appeal process.

4. Court’s Reasoning

The court applied the established test for leave to appeal, namely whether there is a reasonable prospect that another court may come to a different conclusion. It emphasised that this test must be applied with caution in labour matters because of the LRA’s design to achieve the expeditious resolution of industrial disputes, drawing support from the Labour Appeal Court’s guidance in Martin and East (Pty) Limited v National Union Mineworkers and Others. The court treated that authority as a caution against routinely permitting labour disputes to proceed through multiple appeal stages where the matter is fact-bound and raises no novel legal point.

Applying those principles to the factual matrix, the court reasoned that it was common cause that Mr Mashaba’s dissemination of the dossier occurred in his capacity as a union shop steward, and that the dossier had been adopted by the CWU and shared only with union and federation officials. On this factual platform, the court concluded that, “but for” his exercise of union activities and the distribution of the dossier, Mr Mashaba would not have been dismissed. The court accordingly reaffirmed its conclusion that the dismissal fell within section 187(1)(d) and was therefore automatically unfair.

In evaluating the multiple grounds of appeal (which the court did not repeat), the court was not persuaded that they disclosed a basis on which another court might reasonably reach a different conclusion. This led to refusal of leave.

On costs, the court took into account the applicant-for-leave’s failure to adhere to the Rules and the Practice Manual time frames, and characterised the leave application, in context, as a device delaying finalisation. Although recognising the general practice that costs do not automatically follow the result in labour matters, the court considered the circumstances sufficient to justify an adverse costs order.

5. Outcome and Relief

The Labour Court dismissed Telkom’s application for leave to appeal against the judgment delivered on 11 January 2018.

The court ordered that Telkom (described in the order as the respondent, consistent with the citation in the main matter) must pay the costs of the leave to appeal application.

Cases Cited

Martin and East (Pty) Limited v National Union Mineworkers and Others [2013] ZALAC 35; (2014) 35 ILJ 2399 (LAC).

Philppus Johannes Lodewyk Olivier v The Gemeenskaplike Kerk and Others (Case no: JS 487/15 Unreported).

National Union of Metalworkers of South Africa and Others v Columbus Stainless [2016] ZALCJHB 344.

Legislation Cited

Labour Relations Act 66 of 1995 (as amended), including section 187(1)(d).

Rules of Court Cited

Labour Court Rule 30(3A).

Labour Court Practice Manual, Clause 15.2.

Held

The court held that the applicant for leave to appeal failed to establish a reasonable prospect that another court would reach a different conclusion from that reached in the judgment of 11 January 2018. It proceeded on the basis that it was common cause that Mr Mashaba acted as a union shop steward when disseminating a CWU-endorsed dossier to union and COSATU officials, and that “but for” that union-related activity he would not have been dismissed, supporting the conclusion that the dismissal was automatically unfair under section 187(1)(d) of the Labour Relations Act.

Leave to appeal was refused, and a costs order was made against the party seeking leave due to, among other things, non-compliance with the applicable time periods and the objective of expeditious dispute resolution.

LEGAL PRINCIPLES

The test for leave to appeal in the Labour Court requires an applicant to show a reasonable prospect that another court may arrive at a different conclusion from the decision sought to be appealed.

In applying that test, Labour Courts must remain mindful of the statutory imperative of expeditious dispute resolution under the Labour Relations Act, and should be cautious in granting leave to appeal in matters that are capable of resolution on their facts and do not raise novel legal issues.

Where the facts demonstrate that an employee’s dismissal would not have occurred but for the employee’s exercise of union activities, the dismissal may fall within section 187(1)(d) of the Labour Relations Act as an automatically unfair dismissal, depending on the established factual causation and context reflected in the record.

In respect of costs, while labour matters do not invariably follow the result, a costs order may be justified where a party’s conduct undermines the expeditious resolution of the dispute, including flagrant non-compliance with applicable procedural directives and time limits.