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[2019] ZALCJHB 16
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David Brown Gear Industries v Metal and Engineering Industries Bargaining Council and Others (JR 1886/16) [2019] ZALCJHB 16 (30 January 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No: Jr 1886 /16
In
the matter between:
DAVID
BROWN GEAR INDUSTRIES
Applicant
And
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
DAVID SMITH
Second Respondent
NUMSA
obo MABETHA, GODFREY
Third
Respondent
Considered:
In Chambers
Delivered
: 30 January 2019
Summary:
Leave to appeal – no proper grounds made out –
application for leave to appeal dismissed
with costs
JUDGMENT:LEAVE
TO APPEAL
SNYMAN,
AJ
Introduction:
[1]
The
applicant applied to review and set aside an arbitration award of the
second respondent, an arbitrator of the first respondent,
in terms of
section 145 as read with 158(1)(g) of the Labour Relations Act
(‘LRA’)
[1]
. In terms
of this award, the second respondent held that the dismissal of the
individual third respondent by the applicant was
substantively
unfair, and awarded reinstatement with retrospective effect to date
of dismissal, with back pay in the sum of R367 876.80.
The
applicant sought to review and set aside this award.
[2]
In an
ex
tempore
judgment handed down on 24
October 2018, I dismissed the applicant’s review application.
[3]
On 14 November 2018, the applicant filed an
application for leave to appeal, followed by written submissions as
contemplated by
Rule 30(3A) of the Labour Court Rules and clause 15.2
of the Practice Manual, on 11 December 2018. The third
respondent opposed
the application, filing its written submissions on
13 December 2018.
[4]
Clause 15.2 of the Practice Manual further
provides that an application for leave to appeal will be determined
by a Judge in chambers,
unless the Judge directs otherwise. I see no
reason to direct otherwise and will therefore determine the
applicant’s leave
to appeal application in chambers.
The
merits of the application
[5]
When
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether there is a reasonable
prospect that another Court would come to a different conclusion to
that of the Court
a
quo
, or
in other words the appeal would have a reasonable prospect of
success.
[2]
As said in
South
African Clothing and Textile Workers Union and Others v Stephead
Military Headwear CC
[3]
:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the Labour Appeal Court, would come to a different
conclusion
to that reached in the judgment that is sought to be taken
on appeal. …’
[6]
In
Member of the
Executive
Council for Health, Eastern Cape v Mkhitha and Another
[4]
the Court applied the concept of ‘reasonable prospects of
success’ as follows:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success. Section
17(1)(a) of the Superior Cou
rts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have a reasonable prospect of
success; or there is some other compelling reason why it should be
heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal”.
[7]
Overall considered, in the context of the
above principles, the applicant’s application for leave to
appeal is completely
lacking in substance. It is virtually an
identical case to that argued before me when the matter was heard.
For the
reasons already given in my judgment, this case never had any
merit. The fact that the applicant’s disagrees with my
conclusions does not now give the case merit. Especially on the
factual conclusions I have made, I am entirely unconvinced
that the
record supports any other factual conclusions other than those I have
come to. In my view, the application for leave
to appeal is
devoid of any prospects of success.
[8]
The applicant complains that I did not
specifically refer, in my judgments, to the arguments advanced by the
applicant’s counsel
in Court. The purpose of a judgment is not
to record the submissions of counsel and then answer them, as the
applicant appears
to suggest. In deciding whether an arbitration
award is reviewable, this Court is guided by the submissions from
counsel, but ultimately
the determination whether an award of a CCMA
arbitration passes muster on the basis of being reasonable is to be
decided by this
Court considering the grounds of review as raised by
the applicant in its founding affidavit and Rule 7A (8) notice, the
record
of the proceedings, and the arbitration award. This I did. The
fact that I did not specifically refer to counsel’s
submissions’
which in my view in any event did not have merit,
is neither here nor there. None of these complaints of the applicant
have any
substance and do not establish reasonable prospects of
success as required by the test for the granting of leave to appeal.
[9]
This
is a case where the facts speak for themselves. The applicant has
desperately tried to justify a dismissal for misconduct which
was
never on the cards, as it was always a work performance issue.
The misconduct case has no prospect of success on appeal.
There was
simply no insubordination on the part of the individual third
respondent, and the singular instance of insolence, which
was
accepted to exist, did not justify dismissal as a fair sanction. This
is the kind of case that should not be permitted to continue,
and I
refer to the following
dictum
of Davis JA in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[5]
which I consider apposite:
‘…
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.'
[10]
I thus conclude that the applicant has
shown
no reasonable prospect that another Court would come to a different
conclusion, and has no prospects of success on appeal.
The
application for leave to appeal falls to be dismissed.
[11]
There was simply no basis for the applicant
to have sought leave to appeal. It did so, in my view, simply because
it disagreed with
my judgment. It should have been clear that this
matter was devoid of prospects of success where it comes to seeking
leave to appeal.
Exercising the wide discretion I have in terms of
section 162 of the LRA, I believe that this is a case where a costs
order against
the applicant tis justified.
Order
[12]
In the premises, I make the following
order:
1.
The applicant’s application for leave
to appeal is dismissed.
2.
The applicant is ordered to pay the third
respondent’s costs relating to the application for leave to
appeal.
_____________________
S Snyman
Acting
Judge of the Labour Court of South Africa
[1]
Act 66 of 1995 (as amended).
[2]
See
Section
17(1)(a)
of the
Superior Courts Act 10 of 2013
;
Molefe
v MMARAWU and Others
[2017] ZALCJHB 337 (13 September 2017);
Mbawuli
v Commission for Conciliation, Meditation and Arbitration and Others
[2017] ZALCJHB 275 (1 August 2017);
Glencore
Operations South Africa (Pty) Ltd v NUM obo Maripane and Others
[2017] ZALCJHB 147 (11 May 2017).
[3]
[2017] JOL 37932
(LC) at para 7. See also
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
(2016)
37 ILJ 1485 (LC)
at
para 3.
[4]
[2016]
JOL 36940
(SCA) at paras 16 – 17.
[5]
(2014)
35
ILJ
2399 (LAC)
at 2405J-2406A