Shoprite Checkers (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR 1482/12) [2014] ZALCJHB 243 (9 June 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR1482/12

In the matter between

SHOPRITE CHECKERS (PTY) LTD.....................................................................................Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION.....................................................................................................First Respondent

CHRISTOPHER AZWINDINI MANNDE, N.O.....................................................Second Respondent

CALVIN NDADZA.......................................................................................................Third Respondent

(LEAVE TO APPEAL)

BALOYI AJ

Introduction

[1] The Applicant is seeking an order granting leave to appeal the Judgment handed by this Court on 10 January 2014 wherein an order dismissing the Applicant’s review application was made. Parties were after following necessary processes of securing a transcribed record of ex tempore Judgment invited to file written submissions for determination of this application in chambers in accordance with practice directive for conduct of proceedings in this Court. The Applicant is according to records the only party who filed the written submission.

Grounds of appeal

[2] The Applicant relied on the following grounds as set out in its notice of appeal.

‘1 .The Court erred in holding that the Commissioner, in coming to his conclusion, properly applied his mind to the totality of the material before him;

2. The Court erred in holding that, in reaching his conclusion on the fairness of Ndadza’s dismissal, the Commissioner did not rely on the medical certificate as constituting justification Ndadza’s absence;

3. Further to paragraph 2 above, the Court erred in holding that the Commissioner’s finding that the Applicant’s challenge of the medical certificate was futile as none of the parties was a qualified medical practitioner who could properly evaluate the medical certificate;

4. The Court erred in accepting that a telephone discussion took place between Ndadza and Masenya due to the clear mistake appearing at paragraph 12 of the Applicant’s founding affidavit despite the record of the arbitration proceedings making it abundantly clear that was persistently disputed by the Applicant before Commissioner;

5. The Court erred in holding that the Commissioner had properly assessed the probabilities of each party’s version in this matter (relating to both substantive and procedural fairness) and had not committed any reviewable irregularities in this regard;

6. Finally, the Court erred in dismissing the Applicant’s application with costs’.

[3] In the Applicant’s written submissions issues relating to the interpretation of the award and the Judgment came to the fore. The reasons and findings made in the Judgment do not deserve repetition herein, so is the nature of arguments made in the written submissions.

Evaluation

Test for leave to appeal

[4] The underlying principle for determination in applications for leave to appeal is well settled in our law. The central issue being whether a different Court will under the circumstances reach a different conclusion. Reasonable prospects of success also playing a substantial role towards determination thereof. In Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[1] the Court held that:

‘(3) Where the matter turns mainly on factual issues and lacks the qualities referred to in (1) and (2) above, but the prospects of success are so strong that the refusal of leave to appeal would probably result in a manifest denial of justice. In this regard it must be appreciated that the concept “reasonable prospects of success” covers a fairly …reasonable prospect to virtual certainty of success. This is particularly so in factual matters involving the evaluation of (often conflicting) evidence…’.

On Substance

[5] The essence of the Applicant’s case is still centered on whether the Third Respondent was truthful about his illness for days on which he did not report for duty which the Applicant viewed as uncommunicated absence. On whether the Third Respondent was telling the truth or not the medical certificate was nucleus to the issues for determination as far as the Applicant’s case was concerned. The salient points herein being the Third Respondent’s failure to submit the medical certificate in dispute and to explain its contents.

[6] The Third Respondent’s failure to submit the medical certificate in the same manner as he did with the previous one goes

parallel with the argument whether the Applicant was aware of reasons for his absence. From what was placed before the Court, it latently became undisputable that a telephonic communication between the Third Respondent and Mr Masenya took place wherein the reason for the Third Respondent’s absence was established coupled with extension of his time off work. In this regard chances of another Court reaching a different conclusion are not in this respect in existence.

On Procedure

[7] Based on the findings already made, it still remains unproven that the notice to attend disciplinary hearing served by sms did reach the Third Respondent, let alone concessions made by the Applicant’s witness that the method used was not in accordance with the Applicant’s disciplinary procedures. The Second Respondent’s conclusion that the Applicant failed to notify the Third Respondent about the hearing is not unreasonable as well as his finding on the Applicant’s failure to afford the Third Respondent an appeal hearing.

[8] Consequently, the Applicant has not shown that a different Court will be in a position to reach a different conclusion. The cumulative effect of what has been placed before this Court is that no prospect of the appeal succeeding has been shown. The Application for leave to appeal stands to fail. No papers were filed in opposition of this application. It will therefore not be appropriate to make a cost order under the circumstances.

Order

[9] In the premises the following order is made:

9.1 The application for leave to appeal is dismissed.

9.2 No order as to costs is made.

___________________

Baloyi AJ

Acting Judge of the Labour Court of South Africa

[1] 1986(2) SA 555 (A) at page 565 B-C