SACWU obo Kagisho and Others v NBCRFLI and Others (JR136/15) [2016] ZALCJHB 464 (18 May 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 136/15

In the matter between:

SACWU obo KAGISHO & 15 OTHERS

APPLICANT

and

NBCRFLI

1st RESPONDENT

PIETER GREYLING N.O.

2ND RESPONDENT

GRAINOVATION

3RD RESPONDENT

Date of ruling: 18 May 2016 (in Chambers)

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] The applicant applies for leave to appeal against the whole of the judgment delivered by this court on 22 February 2016. In its judgment, the court dismissed, with costs, an application to review and set aside an arbitration award issued by the second respondent (the arbitrator).

[2] The relief sought by the applicants in the submissions filed on their behalf is misconceived, at least to the extent that the applicants pray for their appeal to be upheld and consequential remedial relief. The test to be applied is that referred to in s 17 of the Superior Courts Act, 10 of 2013. Section 17(1) provides:

Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[3] The traditional formulation of the test that is applicable in an application such as the present 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 judgment that is sought to be taken on appeal. The use of the word ‘would’ in s17 (1) (a) (i) is indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate

was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, the review against the commissioner’s refusal to grant the as should the Labour Appeal Court when petitions are granted. The statutory imperative of the expeditious resolution

of labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the

factual matrix could receive a different treatment or where there is some legitimate dispute on the law (See the judgment by Davis JA in Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning & another (C 536/15, 6 November 2015).

[4] The grounds for appeal are difficult to discern. Most concern what would ordinarily be considered grounds that serve to treat the review application that served before the court as an appeal. Central to the submissions filed on behalf of the applicants (and the applicants’ case on review) is the contention that there was no written agreement in terms of which the individual applicants were required to work overtime and on weekends. It was not disputed that historically, the applicants had worked overtime on weekends and that during June 2014, consequent on negotiations conducted in the bargaining council, agreement was reached on a method to calculate remuneration for overtime and weekend work. The main agreement was amended accordingly. The applicants appear to have taken the view that any prior obligation to work overtime on weekends was consequently null and void. The events of 5 and 6 and 12 and 13 July 2014 are recorded in the award and the court’s judgment; it is sufficient to note for present purposes that the individual applicants refused to work and left their trucks unattended.

[5] In essence, the arbitrator concluded that the obligation to work overtime remained intact and that the individual applicants were obliged to work overtime on weekends. On this basis, he concluded that the applicants’ dismissals were substantively fair. He also concluded that the applicants had been afforded ample opportunity to state their case at a disciplinary hearing and that the dismissals were consequently procedurally fair.

[6] None of the grounds for appeal raised by the applicant’s concern any further matters that were not raised in the review

application. The applicants have lost sight of the limited scope of the remedy of review available to them and, as I have indicated, in effect seek a rehearing on the basis of an appeal against the arbitrator’s award. Nothing in the submissions filed by the applicants persuades me that another court might reasonably come to a different conclusion and leave to appeal stands to be refused.

[7] In relation to costs, the applicants were ordered to pay the costs of the review application inter alia on the basis that the papers were littered with spurious and derogatory remarks made particularly against the arbitrator. The applicants appear to have ignored this admonition, since elements of the submissions filed in support of the present application contain intemperate and ill-advised language, this time directed at both the arbitrator and the court.

I make the following order:

1. The application for leave to appeal is dismissed, with costs.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT