Real Time Investments 158 v Commission for Conciliation, Mediation & Arbitration and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: P Coppin JA and Tokota AJA and Phatudi AJA
• Judgment Date: 17 March 2022
• Docket Number: JA77/19
• Hearing Date: 01 March 2022
• Court: Labour Appeal Court
• Citation: 2022 JDR 1959 (LAC)

Coppin JA:

[1]

This is an appeal against the entire order of the Labour Court (Moshoana J) in terms of which it reviewed and set aside an award of the second respondent ("the arbitrator) to the effect that the dismissal of third respondent ("Mr Rantsieng") by the appellant was procedurally and substantively fair, and

2022 JDR 1959 p2

Coppin JA

substituting it with an order that the dismissal was substantively unfair and directing the appellant to reinstate Mr Rantsieng retrospectively to the date of his dismissal. Leave to appeal to this court was granted on petition.

[2]

The issue that arises for decision in this appeal is essentially whether a court can grant an order of reinstatement in the absence of and without having notified the employer in circumstances where it was not sought by the employee in its application for review or initially.

[3]

None of the respondents, including Mr Rantsieng, filed any papers or heads of argument in opposition to this appeal. It was thus assumed by the appellant's counsel and the court that the appeal was not opposed, until the morning of the hearing of this appeal when Mr Rantsieng appeared in person.

[4]

Mr Rantsieng indicated that even though he did not file any documents, including any opposition or answering affidavit to the appellant's application for condonation/reinstatement of the appeal or any heads of argument, he was there to speak for himself and that he was well capable of doing so. He refused any offer of assistance from the court with legal representation and indicated that he did not seek any postponement or any further opportunity to file any such documents. He alleged that the appellant was not being truthful to the court, but was not prepared to commit anything to paper. Needless to say that in those untenable circumstances, Mr Rantsieng was not allowed to address the court further in respect of the appeal.

[5]

At the outset, counsel for the appellant moved for an order condoning the appellant's late filing of a notice of appeal and of the record and to reinstate the matter on the roll in the event of it being found that the appeal had lapsed. In its written application, the appellant gives a full explanation why the said documents had not been filed within the time period stipulated in the rules. The appellant only became aware of the order granted on petition to this court on 29 April 2021. The delay, which is not extensive, was largely beyond the control of the appellant and essentially due to the failures of the previous attorneys of the appellant. The appellant though did not remain supine or lax and acted with diligence to mitigate any lateness. In light of the prospects of

2022 JDR 1959 p3

Coppin JA

success of the appeal itself, there is no reason to refuse the orders sought in this regard.

Salient Facts:

[6]

It is not in issue that Mr Rantsieng was employed by the appellant as a general worker until he was dismissed by it in connection with an incident that occurred just outside the gate of its workplace, shortly after closing time, where Mr Rantsieng was involved in a physical altercation with a co-employee about money. Mr Rantsieng had been charged with and found guilty of gross misconduct in that regard in a disciplinary hearing.

[7]

Mr Rantsieng, assisted by his trade union at the time, had referred an unfair dismissal dispute to the first respondent ("the CCMA") in terms of the Labour Relations Act 66 of 1995 ("the LRA"). Following an unsuccessful conciliation, the matter proceeded to arbitration before the arbitrator who rendered an award on 14 July 2016 in terms of which he found that the dismissal of Mr Rantsieng was procedurally and substantively fair.

[8]

On 16 August 2016, Mr Rantsieng launched an application in the Labour Court in terms of section 145 of the LRA in which he sought an order: (a) reviewing and setting aside the award; (b) referring the matter back to the CCMA for a hearing de novo before another arbitrator/commissioner; (c) directing the appellant to pay the costs; as well as (d)...