South Africa: Johannesburg Labour Court, Johannesburg Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: Johannesburg Labour Court, Johannesburg >> 2023 >> [2023] ZALCJHB 151

| Noteup | LawCite

South African National Blood Service v National Education, Health and Allied Workers Union obo Mathobisa and Others (JR 654/2021) [2023] ZALCJHB 151 (26 May 2023)

Download original files

PDF format

RTF format

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG


Not Reportable

Case No: JR 654/2021


In the matter between:

 

SOUTH AFRICAN NATIONAL BLOOD SERVICE

Applicant

And


NATIONAL EDUCATION, HEALTH AND ALLIED WORKERS’ UNION

obo REITUMETSE MATHOBISA


First Respondent

THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

Second Respondent

SAMSON PHOMODI N.O.

Third Respondent


Delivered: 26 May 2023


(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 26 May 2023.)


RULING: APPLICATION FOR LEAVE TO APPEAL


VAN NIEKERK, J

[1] The applicant (the first respondent in the main application) seeks leave to appeal against a judgment delivered by this court on 16 March 2023. In its judgment, the court upheld an application to review and set aside an arbitration award issued by the third respondent.

[2] The application was filed late, and the applicant has filed an application for condonation. The application for leave to appeal ought to have been filed by 11 April 2023. The application was filed in this court on 9 May 2023, 28 calendar days late. This is not an insignificant delay. The explanation for the delay is entirely centred on intra-union matters, including consultations with the union’s legal department and a regional congress. This is not a satisfactory explanation. The union was clearly aware of the applicable time limit and chose to give preference to its own internal exigencies. In the absence of a satisfactory explanation for the delay, condonation stands to be refused without reference to the applicant’s prospects of success. Even were I to take those into account, the prospects of success do not tilt the balance in the applicant’s favour. The award was set aside primarily because the third respondent found the employer to have acted inconsistently in circumstances where the comparators were differently circumstanced and where, in any event, the parity principle is but a single factor to be taken into account to determine the fairness of a dismissal. There is nothing in the application for leave to appeal that is not addressed in the judgment and which may have the result that a different court might reasonably come to a different conclusion.

I make the following order:

1. Condonation for the late filing of the application for leave to appeal is refused.

2. The application for leave to appeal is dismissed.

 

André van Niekerk

Judge of the Labour Court of South Africa