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[2019] ZALCJHB 129
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Association of Mineworkers and Construction Union and Another v Metal and Engineering Bargaining Council and Others (JR729/16) [2019] ZALCJHB 129 (7 June 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not Reportable
Case no: JR729/16
In the matter between:
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION
UNION
First
Applicant
B C
MASHOLOGO
Second Applicant
and
THE METAL AND
ENGINEERING BARGAINING
COUNCIL
First Respondent
D MASENYE N.
O
Second
Respondent
MURRAY AND ROBERTS
POWER AND ENERGY
Third
Respondent
Considered: In
chambers
Delivered:
7 June 2019
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
NKUTHA-NKONTWANA. J
[1]
In this application, the applicants seek
leave to appeal against the whole judgment delivered by the Court on
13 December 2018 wherein
it was found that the arbitration award by
the second respondent was reasonable and unassailable; and
consequently dismissed the
review application with costs. The
application is vehemently opposed by third respondent.
[2]
Both parties have filed written submissions and I
have considered both submissions in determining the application for
leave to appeal.
[3]
There are several grounds of leave to appeal upon which the
application
is hinged and I do not intend repeating them in this
judgment. Seemingly, the applicants’ main impugn is that I
erred in
finding that the award was reasonable and therefore
unassailable. Instead, I ought to have found that, on an overall
conspectus
of the evidence, the second respondent was not guilty of
participating in an unprotected strike and that the he demonstrated
an
intention to return to work but there were no bus services
provided for by the third respondent to employees from 10 to 17 April
2015, so the submission went.
[4]
In this regard I deem it appropriate to refer to the relevant
paragraphs
in the impugned judgment which adequately dealt with the
above submissions:
‘
[24]
To my mind, if indeed Mr Mashologo was not involved in the
unprotected strike and did not report for
duty simply because there
was no transport, he ought to have been the first one to avail
himself to the resumed bus services and
attended the induction.
[25]
It will be an arduous burden to expect employers faced with an
unprotected strike to deal with
minute details of each employee who
did not report for duty. It is incumbent upon an individual employee
to dissociate him/herself
from the striking employees and communicate
that decision to the employer in no uncertain terms. In the present
case, the arbitrator
correctly found that Mr Mashologo failed to
demonstrate an intention to return to work.’
[5]
The
impugned judgment is detailed and extensive and so is the arbitration
award. In essence, the applicants sought an appeal on
the facts
clothed in the garb of review based on the unreasonableness of the
arbitration award. Tritely, the irregularities or
errors in relation
to the facts or issues do not necessarily produce an unreasonable
outcome or provide a compelling indication
that the arbitrator
misconceived the inquiry.
[1]
The
applicants are clearly seeking a third bite of the cherry in the
Labour Appeal Court (LAC).
[6]
It is
accepted 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 would come to a different conclusion to
that reached in the judgment that is sought to be
taken on appeal. In
Martin
and East (Pty) Limited v National Union Mineworkers and Others
[2]
(per
Davis JA), the LAC has, however, cautioned this Court that the test
should not be applied unconscientiously in light of the
statutory
imperative of expeditious resolution of labour disputes. It was
stated:
‘…
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
.
…
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, which 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 grounds of leave to appeal, I am not
persuaded
that there is a reasonable prospect that the factual matrix
in this case might receive a different treatment on appeal. Put
differently,
the applicants have failed to make out a case that
another court would reasonably arrive at a decision different to the
one reached
by this Court. As such, the leave to appeal should be
refused.
[8]
On the issue of costs, even though costs do not follow the result in
this
Court, this application is patently unmeritorious. The first
applicant is pursuing a claim of the second applicant, an individual
employee, that arose within a context of a strike related
disciplinary action and sanction of a final written warning
concerning
a number of its members and members of the other trade
unions in the employ of the third respondent. The collective
bargaining
relationship between the parties cannot, therefore, assist
the first applicant.
[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
[1]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC)
;
Herholdt v Nedbank Ltd (Congress of South African Trade Unions as
amicus curia)
[2013] 11 BLLR 1074
(SCA); Gold Fields Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation
Mediation and Arbitration and
Others
[2013]
ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at paras
14 to 16 and
Department
of Education v Mofokeng Head of the Department of Education v
Mofokeng
[2015] 1 BLLR 50 (LAC).
[2]
(2014) 35 ILJ 2399 (LAC).