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[2019] ZALCJHB 112
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Transport and Allied Workers Union of South Africa obo Maphosa v South African Road Passenger Bargaining Council and Others (JR2738/13) [2019] ZALCJHB 112 (17 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: JR 2738/13
In
the matter between:
transport
and allied workers’
union
of south africa obo
sydwell
edmund maphosa
Applicant
And
SOUTH
AFRICAN ROAD
PASSENGER
BARGAINING
COUNCIL
First
Respondent
KHUTSO
MPAI N.O.
Second
Respondent
GREAT
NORTH TRANSPORT (PTY) LTD
Third Respondent
Considered:
In chambers
Delivered
:
17 May 2019
LEAVE TO APPEAL - judgment
THOMPSON,
AJ
Introduction.
[1]
This is an application for leave to appeal in terms of section 166(1)
of the Labour Relations Act. The application for leave to appeal is
against the whole judgement of the court dated 21 November 2017,
in
terms of which the Applicant’s application for condonation was
refused and the Applicant’s review application was
dismissed.
[2]
The application for leave to appeal is unopposed.
[3]
Grounds for Appeal
The
grounds for appeal relied upon by the Respondent are as follows:
1.
The learned Judge erred by having failed to have found that the
application
for condonation was brought within a reasonable time.
2.
The learned Judge erred by having found that the explanation for the
delay
in having the condonation application was unconvincing given
the fact that the trade union ought to have understood the time
limits
and acted sooner.
3.
The learned Judge erred by having failed to have applied the
following
principles: [35] … The explanation based on lack of
funds has to be evaluated within the context of the facts and the
circumstances
of a given case. See: Goashubelwe & others v Pie
Man’s Pantry (Pty) Ltd (2009) 30 ILJ 347 (LC) at paragraph 35
on page
355.
4.
The learned Judge erred by failing to find that in the absence of a
causal
link between the Applicant and the disappearance of the
diesel, reinstatement of the Applicant is not warranted.
5.
The learned Judge erred by failing to find that the arbitrator’s
decision not to reinstate the Applicant was not obviously wrong when
the arbitrator could not find any causal link between the Applicant
and the disappearance of the diesel.
6.
The learned Judge erred by stating that practical considerations are
to
be applied by the arbitrator when the arbitration award do not
state what practical considerations were considered or if practical
considerations were indeed considered.
7.
The learned Judge erred by failing to hold that in determining
whether
or not an unfairly dismissed should be reinstated, as in the
case of the Applicant, the overriding consideration in the enquiry
should be a notion of fairness between the parties.
8.
The learned Judge erred by finding that the employment relationship
between
the Applicant and the third Respondent has irretrievably
broken down when there is no causal link between the Applicant and
the
disappearance of the diesel.
9.
The learned Judge erred by having refused the application of
condonation.
10.
The learned Judge erred by refusing to order the reinstatement
of the Applicant.
[4]
The test for leave to appeal
4.1
The provisions of Section 17 of the Superior Courts Act
is
always a useful starting point when
considering applications of this nature. Central to the determination
of an application for leave to appeal is whether there are reasonable
prospects of success on appeal. The test that is outlined
in Section
17(1) of the Superior Courts Act differs to the traditional test as
previously stated by our courts. Section 17(1) raises
the threshold
of the test for leave to appeal.
4.2
The Labour Appeal Court has in the past stressed that leave
to appeal
should not be lightly granted because meritless appeals delay the
final resolution of disputes.
4.3
The Applicant relies on the ground that the court erred by
having
failed to have found that the application for condonation was brought
within a reasonable time. I cannot accept that a purported
omission
by the court to make a finding that the application for condonation
was brought within a reasonable time should be significant.
It is
common cause that the condonation was brought at the time of filing a
replying affidavit.
4.4
The second ground of appeal relates to the finding that the
explanation for the delay was unconvincing. The degree of lateness
was 6 months. The delay is substantial and requires a reasonable
explanation. The Applicant avers that the delay was caused by his
representatives. I considered the degree of lateness together
with the explanation of lateness and the prospects of success. In
considering those factors, I drew the conclusion that the Applicant
had failed to satisfy the court that condonation should be granted.
4.5
The further ground for leave to appeal is the averment that
the
absence of a causal link between the Applicant and the disappearance
of the diesel, reinstatement of the Applicant was not
warranted. In
reaching the conclusion not to interfere with the arbitrator’s
decision to order compensation instead of reinstatement,
is not based
on the absence of a causal link. The absence of the causal link
provided the basis for the finding that the dismissal
was unfair.
4.6
The Applicant avers that the failure to find that the arbitrator’s
decision not to reinstate the Applicant was not wrong when the
arbitrator could not find any causal link between the Applicant
and
the disappearance of the diesel. The decision by the arbitrator to
award compensation instead of reinstatement was based on
his
conclusion that the employment relationship had irreparably broken
down and that it would not be practical to reinstate the
Applicant.
4.7
The Applicant’s further ground that the practical
considerations
applied by the arbitrator were not stated. The
arbitrator accepts the Respondent’s argument that the trust
relationship was
irretrievably broken down. The arbitrator correctly
considers section 193(2)(b). Reinstatement would not be applied in
circumstances
surrounding the dismissals where a continued employment
relationship would be intolerable. I chose not to interfere with the
arbitrator’s
conclusion.
4.8
In as much as the Applicant outlined its grounds for leave
to appeal
in its submissions, it at best amounts to regurgitation of its case
at the review application. I am satisfied that all
of these issues
were adequately canvassed and considered in the main judgement and no
purpose will be served in revisiting same.
I am also of the view that
there are no reasonable prospects of success on appeal.
4.9
In the light of the above, and having had regard to the submissions
made and further on reflection of the main judgement, I am of the
view that the Applicant has failed to demonstrate that there
are
reasonable prospects that the Labour Appeal Court will come to a
different decision to that reached in the main judgement.
4.10
In respect of the issue of costs, it is trite that such an order be
made upon
consideration of the requirements of law and fairness. I am
of the view that the facts and circumstances of this case do not call
for a cost order to be made.
[5]
In the circumstances, the following order is made:
1. The application for
leave to appeal against the whole judgement and the
order of this
court delivered on 7 December 2017 is dismissed,
2. There is no order to
costs.
________________
Thompson
AJ
Acting
Judge of the Labour Court of South Africa