South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JS 529/14

In the matter between:

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA                                                                                    FIRST APPLICANT

COLLEN MAHLANGU & OTHERS                               SECOND to FURTHER APPLICANTS

And

COLUMBUS STAINLESS (PTY) LTD                                                                RESPONDENT

Date of ruling: 16 May 2016 (in Chambers)

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] The applicants apply for leave to appeal against the whole of the judgment delivered by this court on 30 March 2016. In its judgment, the court dismissed the referral of an unfair dismissal dispute, having found that the dismissal of the second to further applicants was fair.

[2] 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] I deal first with the applicant’s submissions in regard to procedural fairness. It was common cause that the respondent initiated a consultation process in terms of a notice that complied with s 189 (3) of the LRA. Consultation meetings were held between December 2013 and February 2014 under the auspices of a CCMA facilitator. At a point in these consultations, the first applicant left the consultation meeting. The respondent reached agreement with the representatives of the remaining unions and non-union representatives, who together represented the majority of employees. The agreement identified the selection criteria for the retrenchment. This in itself points to the fairness of the selection criteria – it would have been unfair and logistically impossible if members of the first applicant had been selected for retrenchment using one set of criteria, (that of LIFO, the only criterion acceptable to the first applicant) and another set of criteria used in respect of Solidarity, UASA and non-unionised employees. To the extent that the applicants in these proceedings seek to assert that the selection criteria adopted were unfair simply because the first applicant did not agree with them, this was not an issue put to the respondent’s witness, nor does the submission have any merit.

[5] In so far substantive fairness is concerned, it should be recalled that the dispute between the parties, as defined by them, concerned only the fairness of the selection criteria that the respondent adopted. The application of those criteria was not an issue. In this regard, the fact that the criteria that made up the matrix ultimately applied was agreed with parties representing the majority of employees is highly significant, as is the fact that the criteria directly addressed the operational challenges that the respondent faced at the relevant time. The nature and extent of these challenges was not disputed by the applicants. Insofar as the applicants contend that the application of the selection criteria was unfair because the criteria included an element of work performance and past work record in circumstances where affected employees were not given the opportunity to challenge the assessment, this is a matter that relates to the application of the criteria (which as I have noted, was not placed in dispute) and which in any event formed so minuscule a part of the matrix so as not to render the criteria unfair in themselves.

[6] I am not satisfied that the applicants have established that another court would come to a different conclusion, and the application for leave to appeal stands to be dismissed.

I make the following order:

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

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT