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[2018] ZALCJHB 196
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Rand Refinery Ltd v Commission for Mediation, Conciliation and Arbitration and Others (JR2800/16) [2018] ZALCJHB 196 (18 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JR
2800/16
In the matter between:
RAND
REFINERY LTD
Applicant
and
THE COMMISSION FOR
MEDIATION,
CONCILIATION AND
ARBITRATION
First
Respondent
DUMISANI JOHANNES
NGWENYA
N.O
Second Respondent
ABDULLAH KHAN
Third
Respondent
Decided:
In chambers
Delivered:
18 May 2018
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
NKUTHA-NKONTWANA. J
Introduction
[1]
This
is an application for leave to appeal brought by the applicant (Rand
Refinery), against the whole judgment and order handed
down by this
Court on 20 March 2018. Rand Refinery, a third respondent in the
judgment, unsuccessfully opposed the review application
by the third
respondent (Mr Khan), the applicant in the judgment. I found that the
second respondent misdirected himself by ignoring
the material facts
before him and as such rendered an unreasonable award. I,
accordingly, reviewed and set aside the award
dated
28 November 2016 under case number 4469-16 and substituted it with
and order that Mr Khan’s dismissal was unfair and
awarded
compensation equivalent to seven months’ salary.
Grounds of appeal and
analysis
[2]
The
application is pegged on several grounds of appeal as articulated in
the amended notice of the application for leave to appeal
and I do
not intend repeating them in this judgment. Mainly, Rand Refinery’s
impugn is essentially that I erred in substituting
the award with the
order that Mr Khan’s dismissal was unfair instead of remitting
the matter back to the first respondent.
[3]
It is trite
that the applicable test in an application for leave to appeal
requires the Court to determine whether there is a reasonable
prospect that another Court may come to a different conclusion to
that reached in the judgment that is sought to be taken on appeal.
However, the Labour
Appeal Court (LAC) has cautioned this Court that the test ought not
be applied unconscientiously in light of
the statutory imperative of
expeditious resolution of labour disputes. In
Martin
and East (Pty) Limited v National Union Mineworkers and Others,
[1]
per Davis JA, LAC commented as follows:
‘…
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
.’
(Emphasis added)
[4]
Turing
to the facts in the present matter, having read the record, the award
and the pleadings, it became clear that, to the large
extent, the
facts are common cause. I was also convinced that
the
matter could be decided on the basis of undisputed and objective
facts, notwithstanding
the
limping state of the record. As such, the credibility of the
witnesses was irrelevant.
[5]
It
is not clear what would have been the benefit of remitting the matter
back to the first respondent when
Rand
Refinery witnesses, particularly, Mr Moeng, corroborated Mr Khan’s
evidence that the atmosphere during the grievance
meeting was not
conducive for a meaningful discussion hence the respite. Even the
attempt to reconvening the grievance meeting
subsequent to Mr Khan’s
disciplinary hearing which had already found him guilty and
recommended his dismissal was fatal to
Rand Refinery’s case of
intimidation.
[6]
Clearly,
my approach accords with the practice in this Court and the
LRA’s
imperative for expeditious resolution of labour disputes. In this
present case, unlike the authorities referred to by
the Rand
Refinery, the record does exist and, in any event, the facts are
mainly common cause.
[7]
Having
considered all the grounds of leave to appeal
,
I am not convinced that
Rand Refinery made out a case that another Court might reasonably
arrive at a decision different to the
one reached by this Court. The
application for leave to appeal should, therefore, be refused.
I make no order as to
costs.
[8]
The
following order is made:
Order
1.
The
application for leave to appeal against the judgment handed down on
20 March 2018 is dismissed.
2.
There
is not order as to costs.
_____________________
P.
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
[1]
[2013] ZALAC 35
; (2014) 35 ILJ 2399 (LAC) page 16 lines 12 - 25 and
page 17 lines 1 – 18; See also
National Union of
Metalworkers of South Africa and Others v Columbus
Stainless [2016]
ZALCJHB 344 at paras 2-3.