Solidarity obo Parkinson v Damelin (Pty) Ltd and Others (JR2792/12) [2015] ZALCJHB 112 (31 March 2015)
The court found that, upon reconsideration, its earlier judgment did not fully account for the limitations imposed by the Herholdt v Nedbank Ltd decision on the process-related ground for review. Furthermore, the court acknowledged that another court may reasonably reach a different conclusion regarding the First...
Source-derived case information.
- Citation
- [2015] ZALCJHB 112
- Parties
- Applicant: Solidarity obo S W Parkinson; Respondent: Damelin (Pty) Ltd; Respondent: Commissioner Sibongiseni Sithole; Respondent: Commission for Conciliation Mediation and Arbitration
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR2792/12
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal to the Labour Appeal Court
- Outcome
- Leave to appeal to the Labour Appeal Court is granted.
- Judges
- Bleazard
- Legal Topics
- Review of Arbitration Award, Disciplinary Code Interpretation, Process Related Irregularity, Reasonableness of Arbitrator Decision
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solidarity obo S W Parkinson
Applicant
Damelin (Pty) Ltd
Respondent
Commissioner Sibongiseni Sithole
Respondent
Commission for Conciliation Mediation and Arbitration
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Labour Appeal Court
Legal Issues
- 1 Whether the process-related ground for review is constrained by the Herholdt v Nedbank Ltd judgment.
- 2 Whether the First Respondent was obliged to act in accordance with its disciplinary code.
- 3 Whether the Second Respondent's interpretation of the disciplinary code and related correspondence was reasonable.
Ratio Decidendi
The court found that, upon reconsideration, its earlier judgment did not fully account for the limitations imposed by the Herholdt v Nedbank Ltd decision on the process-related ground for review. Furthermore, the court acknowledged that another court may reasonably reach a different conclusion regarding the First Respondent's obligation to adhere to its disciplinary code, the interpretation of the relevant correspondence, and the reasonableness of the arbitrator's findings. In light of these considerations, the court granted leave to appeal to the Labour Appeal Court.
Court Disposition
Leave to appeal to the Labour Appeal Court is granted.
Orders
- Application for leave to appeal to the Labour Appeal Court is granted.
- Costs of the application for leave to appeal shall be costs in the appeal.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no. JR2792/12
DATE: 31 MARCH 2015
Not Reportable
In the matter between:
SOLIDARITY obo S W PARKINSON....................................................................................Applicant
And
DAMELIN (PTY) LTD................................................................................................First Respondent
COMMISSIONER SIBONGISENI SITHOLE.....................................................Second Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION.................................................................................................Third Respondent
Date: 31 March 2015
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
BLEAZARD, AJ
[1] I have considered the Applicant’s Leave to Appeal, the Applicant’s written submissions in support of the Applicant’s Application for Leave to Appeal and the First Respondent’s submissions opposing the Application for Leave to Appeal.
[2] At the outset I must state that I referred in my Judgment to the fact that there were two grounds upon which an Award of the Commissioner could be set aside
(See: Paragraph 3 of the Judgment).
[3] On re-reading my Judgment for the purpose of this Application, I am aware that it fails to take account of the constraint placed on the ‘process related’ (or ‘latent irregularity’) ground by the Judgment of Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at paragraphs 20 – 21.
[4] I have also considered that another Court may come to a different conclusion to the one which I came, inter alia, in respect of the status of the disciplinary code of the First Respondent, its obligation to act in accordance therewith and the Second Respondent’s finding in relation thereto, including the interpretation to be placed on the letter of 25 January 2012, and the consequences that flow therefrom, and whether or not the Second Respondent’s finding in regard thereto was reasonable.
[5] In the circumstances, I make the following Order:
5.1. Application for Leave to Appeal to the Labour Appeal Court is granted;
5.2. Costs of the Application for Leave to Appeal shall be costs in the Appeal.
Bleazard, AJ
Acting Judge of the Labour Court
APPEARANCES:
For the Applicant:
Instructed by: Solidarity
For the First Respondent: Advocate Nel
Instructed by: