PPC Dwaalboom (Pty) Ltd v Commission for Conciliation, Mediation And Arbitration and Others (JR 2572/10) [2014] ZALCJHB 3 (14 January 2014)
The application for leave to appeal was dismissed because it was lodged approximately six weeks out of time and no condonation was sought. Furthermore, the court found no reasonable prospect that another court would reach a different conclusion regarding the fairness of the dismissal. The court had a full record of...
Source-derived case information.
- Citation
- [2014] ZALCJHB 3
- Parties
- Applicant: PPC Dwaalboom (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Sam Alidzulwi Muvhango N.O.; Respondent: NUM obo Percy Malebye
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR 2572/10
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Review Judgment
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- Mothibi
- Legal Topics
- Unfair Dismissal, Condonation, Arbitration Review, Substitution of Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
PPC Dwaalboom (Pty) Ltd
Applicant
Commission for Conciliation, Mediation and Arbitration
Respondent
Commissioner Sam Alidzulwi Muvhango N.O.
Respondent
NUM obo Percy Malebye
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Review Judgment
Legal Issues
- 1 Whether the application for leave to appeal should be granted despite being lodged out of time without condonation.
- 2 Whether there is a reasonable prospect that another court would reach a different conclusion regarding the fairness of the dismissal.
- 3 Whether the argument of inconsistency in sanction warrants leave to appeal.
Ratio Decidendi
The application for leave to appeal was dismissed because it was lodged approximately six weeks out of time and no condonation was sought. Furthermore, the court found no reasonable prospect that another court would reach a different conclusion regarding the fairness of the dismissal. The court had a full record of the arbitration proceedings and was satisfied that dismissal was the appropriate sanction. The applicant did not deny the misconduct, and the argument of inconsistency in sanction was found to be without merit.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO. JR 2572/10
Not Reportable
DATE: 14 JANUARY 2014
In the matter between:
PPC DWAALBOOM (PTY) LTD.....................................................................................................................................Applicant
And
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION................................................First Respondent
COMMISSIONER SAM ALIDZULWI MUVHANGO N.O........................................................................Second Respondent
NUM OBO PERCY MALEBYE......................................................................................................................Third Respondent
Date of Judgement: 14 January 2014
JUDGMENT FOR LEAVE TO APPEAL
MOTHIBI AJ
[1] The Third Respondent seeks leave to appeal against the decision of this court on 19 July 2013 in which an award of the Second Respondent was reviewed and set aside and the award was substituted with a ruling that his dismissal by the Applicant was fair (the judgment).
[2] The application for leave to appeal was lodged with the Registrar on or about 23 September 2013. The application is approximately six weeks out of the time period provided for in terms of rule 30 of this court.
[3] There has been no application for condonation.
[4] The Applicant’s appeal is limited only to the finding that his dismissal was substantively unfair. The Applicant does not challenge the Court’s ruling that the arbitration award issued by the Commission for Conciliation, Mediation and Arbitration (CCMA) be set aside. The order sought is leave to appeal only in respect of the order substituting the award with an order that the dismissal of Malebye was substantively unfair. In this regard the Applicant contends that it ought to have been found by this Court that the dismissal of the Applicant as a sanction was too harsh under the circumstances and was inappropriate considering “the fact that the employer retained one of the employees that was involved in the fight”. In effect based on alleged inconsistency.
[5] Leave to appeal is refused. It is refused for the following two reasons:
5.1The application for leave to appeal is late. There has been no application for condonation.
5.2 The Court is satisfied that there is not a reasonable prospect that another Court would come to a different conclusion. This Court having set aside the CCMA’s ruling exercised its discretion to substitute the arbitration award. The court was furnished with a full record of the arbitration proceedings under review. The Court is satisfied that having regard to the record that dismissal was the appropriate sanction in the circumstances. It will be remembered that the Applicant did not deny having committed the misconduct for which he was dismissed. Furthermore, the Court is satisfied that the inconsistency argument raised by the Application has no merit whatsoever in the circumstances that would justify a finding that the Applicant’s dismissal was too harsh a penalty.
Order
[6] Based on the aforegoing two reasons the application for leave to appeal is dismissed with costs.
Acting Judge of the Labour Court of South Africa