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[2019] ZALCJHB 78
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IMATU obo Briedenhann v Ekurhuleni Metropolitan Municipality and Others (JR2255/16) [2019] ZALCJHB 78 (18 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JR2255/16
In
the matter between:
IMATU
OBO SANMARI
BRIEDENHANN
Applicant
And
EKURHULENI
METROPOLITAN MUNICIPALITY
First Respondent
TDK
MATEE
N.O.
Second
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL Third Respondent
Decided:
In chambers
Delivered:
18 April 2019
JUDGEMENT:
LEAVE TO APPEAL
NKUTHA-NKONTWANA.
J
Introduction
[1]
In this application,
the first respondent seeks leave to appeal against the whole judgment
and order handed down by this Court on
10 May 2018 wherein I ordered
as follows:
‘
1. The
arbitration award dated 21 September 2016 issued under case number
GPD051603 is reviewed, set aside and
substituted with the following
order:
1.1
The conduct of Ekurhuleni Metropolitan Municipality in
refusing to uplift Ms Briendenhann’s precautionary
suspension
constitutes an unfair labour practice in terms of section 186(2)(b)
of the LRA.
1.2 Ekurhuleni
Metropolitan Municipality to permit Ms Briendenhann to resume her
duties as Divisional Head:
Projects in the Disaster and Emergency
Management Services Department within 5 days from the date of this
order.
1.3 Ekurhuleni
Metropolitan Municipality to pay Ms Briendenhann compensation
equivalent to nine months’
remuneration within 30 days from the
date of this order.
2. There is no order
as costs.’
[2]
The applicant is
vigorously opposing the application. For expediency, the parties are
referred to as cited in the main judgment.
Grounds
of leave to appeal
[3]
The first respondent’s application
is hinged on several grounds for leave to appeal and I do not deem it
necessary to repeat
them herein. Nonetheless, the gist of the first
respondent’s impugn is that since the unfair labour practice
dispute was
founded on suspension that had already automatically
expired in terms of the applicant’s contract of employment,
there was
no suspension at all. Alternatively, that the suspension
complained of was a subject of review before this Court.
[4]
The third respondent persist with its
irrational
contention that
Ms Briendenhann
was
no longer on suspension despite its concession that she was never
allowed to resume with her duties.
Nothing
turns on the review application challenging the Dawson award as the
applicant was challenging the legality of
Ms
Briendenhann’s
suspension.
In any event, the suspension was still within the 90-days’
period when that dispute was referred. However, the
outcome of the
review application challenging the Dawson award is patently moot as
the suspension has since expired.
[5]
The third respondent’s
stance in obstinately refusing to allow
Ms
Briendenhann
to resume her duties
can only mean that her suspension persists and nothing else.
Legal principles
[6]
I
t
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 judgement 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, 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)
[7]
Having considered all the submissions from
both parties, I am not persuaded that there is a reasonable prospect
that the factual
matrix in this case might receive a different
treatment at the appeal. Put differently, the third respondent has
failed to make
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.
[8]
Turning to the issue of costs, is trite
that in this Court costs do not follow the result, especially if the
parties are in a persisting
relationship as typified in the present
case. However, this unmeritorious application clearly offends the
right of Ms Briendenhann
to enjoy the fruits of her victory.
[9]
In the circumstances, I make the following
order:
Order
1.
The application for leave to appeal is dismissed
with costs.
__________________
P. Nkutha-Nkontwana
Judge of the Labour Court
of South Africa