Honesty, the polygraph and unfair dismissal

Volume 23 No. 10 May 2014 Honesty, the polygraph and unfair dismissal The Labour Appeal Court s approach to the problem of lingering doubt Inside... Defining a Protected lockout - p84 The Labour Appeal Court : No longer business as usual - p86 Managing Editor: P.A.K. le Roux Hon. Consulting Editor: A.A. Landman Published by Box 31380 Tokai 7966 Tel: +27 21 788 5560 ISSN-1995-218X e-mail: cll@workplace.co.za www.workplace.co.za by P.A.K. Le Roux T he decision of the Labour Appeal Court (LAC) in DHL Supply Chain (Pty) Ltd v De Beer NO & Others (Unreported DA 4/2013 13 May 2014) is of interest because of the approach taken with regard to the use of polygraphs as well as the views expressed by the Court as to the appropriateness of reinstating an employee who has been found to have been unfairly dismissed for dishonesty but where there may be lingering doubts as to the conduct of the employee. The facts In this case the two employees concerned were employed as members of a crew handling cigarettes stored in the employer s warehouse. Unexplained stock losses took place during a period when they were on duty. The whole crew were then asked to undergo polygraph tests. They all agreed to undergo these tests. The two employees in this case were the only two employees to fail their tests and, on this basis, they were dismissed. They challenged the fairness of their dismissals. The arbitrator found that the dismissals were unfair. This was on the basis that the mere fact that the employees had failed a polygraph test could not form the basis for a fair dismissal. Some other form of circumstantial evidence had to support the result of the polygraph test. The evidence (including the outcome of the polygraph test) must indicate that the most probable inference that could be drawn was that the employees were guilty of the dishonest conduct of which they had been charged. In this case, the arbitrator pointed out, the evidence supporting the polygraph test was that the two employees had worked on the days that the cigarette stock went missing; the employees, together with 6 other employees, had access to the cigarettes; the value of the cigarettes was high; and the stock loss had dropped significantly after the two employees had been suspended. Page 90 Page 90

The arbitrator came to the conclusion that this did not justify the conclusion that the most probable inference that could be drawn was that the two employees were guilty of the disciplinary offence. He did so in the following terms - The fact that the applicants were on duty and had access to the stock does not allow me to draw any inference that they were involved in the removal of stock. The same can be said for the value of the stock. At best for the [employer] the final factor suggests some sort of causal link between the applicants and the stock losses but [the evidence was] that the theft had not stopped completely since their dismissal. Indeed, [it was testified to] that it abated for some time but where one group left off another one picked up. It must also be noted that an equally probable inference that can be drawn from this fact is that the real culprits were scared off by the dismissals and decided to lie low for a while. In addition, [it was the evidence] that additional security measures had been put in place since June 2008 which might also account for the reduced stock losses. I certainly do not believe that the evidence cited by the respondent [employer] as circumstantial is indeed circumstantial evidence, as defined, and I also do not accept that any of those 4 factors either individually or cumulatively, is sufficient evidence for me to draw as the most probable conclusion that the applicants were guilty of misconduct. The inescapable conclusion is that the [employer s] case leans heavily on the fact that the applicants failed the polygraph test. Indeed, it is the very reason only two of them were charged, even though the other 6 employees who were on shift met at least 3 of the four factors cited by the [employer] as circumstantial evidence. It seems fairly clear to me that if the applicants had passed the polygraph they would not have been charged or dismissed and that the adverse result was the de facto reason for their dismissal. The LAC decision The employer lodged an application to review and set aside this award. This application was unsuccessful and an appeal to the LAC followed. The employer s argument was that the award was reviewable because the arbitrator had failed to appreciate that the totality of the evidence indicated that the employees were guilty. In particular, the arbitrator failed to give appropriate weight to the evidence of the outcome of the polygraph test. The LAC considered the various criticisms made of the way in which the arbitrator dealt with the evidence and rejected them. The award was found to be reasonable. Polygraph tests The LAC pointed out that the arbitrator had adopted a benign view regarding the weight to be attached to polygraph evidence, i.e that it is admissible and can be used to establish, together with other evidence, that an employee is guilty of a disciplinary offence and that, even on this basis the award was reasonable. Interestingly, however, the LAC deemed it appropriate to record some general observations regarding the evidential value of the results of polygraph tests. After a discussion of the Labour Court and LAC decisions where evidence derived from polygraph tests was considered (see FAWU obo Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River (2010) 31 ILJ 1654 (LC); NUM & Others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ 137 (LC), SATAWU & Others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 130 (LAC), Sedibeng District Municipality v SA Local Government Bargaining Council & Others (2013) 34 ILJ 166 (LC) and Truworths Ltd v CCMA (2009) 30 ILJ 677 (LC) it went on to state that [30] These considerations beg the question about what a failed polygraph test really produces by way of usable information. Only the inference to be drawn from the failure of the test is useful as material to determine probabilities. In the absence of expert evidence to explain what that inference is, either generically, or within the bounds of the specific instance itself, and also to justify the explanation of what that is, there is nothing usable at all that might contribute to the probabilities. In this appeal, DHL s consent form, signed by the two respondents, states that the test would indicate that the worker was either involved or not involved in the stock loss. That premise is questionable, and to belabour the point, required the kind of expert evidence mentioned above to render it worthy of consideration. [31] In summary, the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case. This approach is hardly an endorsement of the use of Page 91

polygraph tests and the evidence that may flow from the results of such tests. The LAC seems to cast doubt on whether the results have any evidential value and that, even if this is the case, a party seeking to make use of such evidence must first lead expert evidence to show that the test was properly applied and that it will have some evidential value. In addition, [26] the say-so of the operator of the device is unlikely to be of such a nature to properly qualify as expert evidence of the validity of the underlying concept or to be convincing if it is tendered because of an obvious lack of independence and a lack the appropriate credentials. Reinstatement as a remedy During the course of its judgment the LAC dealt with the question whether the remedy of reinstatement granted by the arbitrator had been reasonable. The employer argued that this was not the case because uncompromised integrity was an essential requirement for every employee working in the warehouse so that the employer could have confidence in the honesty of each employee. Even if the case of theft had not been proven there was still the Defining a protected lockout When the purpose is decisive taint of suspicion surrounding the employee which undermined this confidence. In the eyes of management it was not possible to rehabilitate such an employee and that it would be inappropriate to place on the employer the burden of monitoring the activities of these employees closely. The LAC pointed out that s 193 requires that, in the case of a finding of substantive unfairness, reinstatement be granted unless this would be intolerable or unless this would be impracticable. A decision whether or not to reinstate an employee involves both a value judgment and a factual finding as to whether reinstatement should be ordered. Because core equitable values require that an employee should not forfeit a valuable and scarce employment opportunity the requirements of intolerability and impracticability set high thresholds. The Court went on to point out that the employer did have a potential remedy at its disposal, namely that of a dismissal based on operational requirements. However, in this case the requirements for a fair dismissal on this ground had not been met. P.A.K. le Roux By P.A.K. Le Roux I t is relatively rare for the Labour Court to deal with the question whether a lock-out is protected and, indeed, what form of employer action constitutes a lock-out. This makes the decision of the Labour Court in SA Transport & Allied Workers Union v Bidair Services (Pty) Ltd (2013) 34 ILJ 2637 (LC) of some interest. The decision also highlights the importance of considering for what purpose this action is carried out. The employer in this case provides baggage handling services to airlines at OR Tambo International Airport. In February 2013 the employer decided to implement a change to the working rosters of certain of its employees at the airport. Prior to doing so it consulted with the applicant union in this regard. The unions agreed in principle to the introduction of the new roster but objected to the way in which it had been implemented. It sought to embark on protected a strike in opposition to the change. In the normal course of events the union would have referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council, waited 30 days or waited for the conciliator to have issued a certificate of non-resolution of the dispute, and then given 48 hours notice of a proposed strike. It elected not to do so and tried to make use of the provisions of s 64(4) of the Labour Relations Act, 66 of 1995 (LRA). This provides that if an employer introduces a unilateral change to the terms and conditions of employment of employees, or indicates that it is about to do so, the employees concerned can refer a dispute to the CCMA or relevant bargaining council. In the form in terms of which the dispute is so referred (and which will be served on the employer) the employees will allege that the dispute is one con- Page 92

be served on the employer) the employees will allege that the dispute is one concerning a unilateral change to terms and conditions of employment and will require the employer not to implement the change or, if it has already been introduced, to require it to revert back to the old terms and conditions of employment. If this employer does not do so, a protected strike can commence without the need to wait 30 days or to await the issuing of a certificate of non-resolution, provided that the strike is not prohibited in terms of s 65. When the employees in this matter indicated that they would rely on s 64(4) to embark on a protected strike the employer approached the Labour Court for an interdict to prevent the strike. It argued that the introduction of the new roster did not constitute a change to terms and conditions of employment. It was simply a work practice that was being changed. The Labour Court accepted this argument and interdicted the strike. The employees then reported for duty but, instead of reporting for work in accordance with the new roster, they reported for work at the starting times laid down in the old roster. The employer refused to permit them to work on this basis. The union then alleged that this refusal constituted an unprotected lock-out. It approached the Labour Court for an interdict to prevent this action. The Court rejected the application. Its reasoning was based on the definition of a lock-out. This reads as follows lock-out means the exclusion by an employer of employees from the employer's workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees' contract of employment in the course of or for the purpose of that exclusion. It is evident that this definition has two elements. The first is the action of excluding employees from the employer s premises. The second is that the exclusion must be for the purposes set out in the definition itself. i.e to compel employees to accept a demand in respect of a matter of mutual interest between employer and employee. In this case the first element was complied with. The question was whether the employer s actions were for a purpose set out in the definition of a lock-out. The Court came to the conclusion that this was not the case. The employer was not seeking to compel the employees to work the new shift system but was simply refusing their tender to work in accordance with the old system. This it was entitled to do because it had the contractual right to change the roster system. (This was the effect of the first decision where the employer had successfully interdicted the strike.) No demand was being made. This was expressed in the following terms [18] The purpose of the exclusion of employees from the workplace must be to compel them to accept the employer's demand. In circumstances where the employees refused to tender their services in terms of the amended roster system and it is a necessary corollary of the previous finding of this court by Van Niekerk J that Bidair was entitled to implement the new system the refusal of the employer to accept that tender cannot amount to a lock -out. What precise demand is being made is, of course, a question of fact. Also of interest is the finding by the Court that, even if the employer s action did constitute a lockout, the lock-out was in response to an unprotected strike which then rendered it protected in terms of s 64(3)(d) of the LRA. In other words the employees insistence in reporting for work in accordance with the old system was in support of a demand that the employer do something. Presumably the Court accepted that the demand was still based on the assumption that the employer s action did constitute a change to terms and conditions of employment. But what if the employees action was based on an acceptance of the view that the employer was contractually entitled to require employees to work in accordance with the new roster but that they were now demanding that the employer change its terms and conditions of employment to work in accordance with the old roster? This different demand could potentially have been the subject of a protected strike provided that all the procedural requirements of s 64 had been met and that the strike was not prohibited in terms of s 65 of the LRA. P.A.K. le Roux Page 93

Appeals to the LAC: not business as usual A review of new legislation governing appeals to the Labour Appeal Court by A.A. Landman. T wo recent Acts of Parliament have a bearing on the Labour Court and appeals to the Labour Appeal Court. The one is the Constitution Seventeenth Amendment Act of 2012 and the other is the Superior Courts Act, 10 of 2013 ( the SC Act ) which, with the exception of sections 29, 37 and 45 and Items No. 11 of Schedule 1 and No. 1.1 of Schedule 2, came into operation on 23 August 2013). Two aspects are explored in this issue. The one concerns applications for leave to appeal and ancillary applications in the Labour Court. The other relates to appeals to the Labour Appeal Court ( the LAC ). The provisions of the SC Act relating to a superior court, such as the Labour Appeal Court, are complementary to the Labour Relations Act, 66 of 1995 (LRA). In the event of a conflict between these two Acts the LRA prevails. See s 2(3) of the SC Act and s 210 of the LRA. THE LABOUR COURT: LEAVE TO APPEAL, SUSPENSION OF OPERATION OF ORDER An appeal against final judgments and final orders of the Labour Court lies to the Labour Appeal Court which has jurisdiction to hear and determine all these appeals with a further appeal to the Constitutional Court with special leave of that court. See s173 (a) of the LRA and s 168(3)(a) of the Constitution as amended which provides that the Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa, except in respect of labour or competition matters to such extent as may be determined by an Act of Parliament. This is provided for in the LRA. The right of appeal is subject to the granting of leave by the Labour Court or, on it being refused, the Labour Appeal Court. A judgment or order Leave can only be granted in respect of a judgment or order. An order is the operative part of the judgment. It is what a losing party appeals against. See SA Eagle Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A) at 792C-D. It follows from this that an appeal does not lie against the reasons for judgment; only against the substantive order of the court a quo. See Western Johannesburg Rent Board v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 354. The judgment or order must be final In deciding whether a judgment or order is appealable a court of appeal will enquire whether - the decision is final in effect and not susceptible of alteration by the court of first instance; the decision is definitive of the rights of the parties; and it has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. See Zweni v Minister of Law and Order 1993(1) SA 523 (A) at 532J to 533A and Health Professions Council of South Africa & Another v Emergency Medical Supplies and Training CC t/a EMS 2010 (6) SA 469 (SCA) para 15. The emphasis on the need for the judgment or order to be final before an appellate court may hear an appeal has evolved over a period of time and the question of when is a judgment or order is appealable has recently been codified by s 16 of the SC Act. Peremption of judgment or order A right of appeal is premised upon the fact that a party is aggrieved by a decision of the court of first instance so that the party is reluctant to accept it. Therefore if, after judgment, a party unequivocally conveys an intention to be bound by the judgment, any right of appeal is abandoned. Innes CJ said in Dabner v South African Railways & Harbours 1920 AD 583 that: If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held Page 94

non-proven. A party who acquiesces in a judgment will be taken to have waived his or her right to appeal. As with all cases of the abandonment of rights, acquiescence will not lightly be inferred. What is required to be shown is unequivocal conduct on the part of the litigant that is inconsistent with any intention to appeal, such as to point indubitably and necessarily to the conclusion that he or she intended to abandon the right. See Minister of Defence & Others v South African National Defence Force Union & Another (161/11) [2012] ZASCA 110 (30 August 2012) at para 22. But there may be exceptions. The rule of peremption rests upon the need for finality in litigation in the interests both of the parties and of the proper administration of justice. Bearing in mind the policy underlying the rule it must necessarily be open to a court to overlook the acquiescence where the broader interests of justice would otherwise not be served. See the Minister of Defence decision at para 23. Considerations regarding leave to appeal Procedural rules Leave to appeal is sought in the usual way. Where leave to appeal is sought against several judgments in the same matter an application for leave to appeal must be made as regards each judgment or order. A composite application for leave to appeal is irregular. See Vermaak & Others v Minister of Water & Environmental Affairs of the Republic of South Africa and Others (224/2013) [2013] ZAECPEHC 45 (17 September 2013) at para 3. Adjudication of application for leave A dissatisfied litigant does not enjoy, save in one new instance, an automatic right of appeal. The litigant requires the leave of the Labour Court to appeal against its judgment or order. This requires an application to be made to the judge against whose decision an appeal is to be made. If that judge is not readily available, the application may be heard by any other judge or judges of the Labour Court. If leave is refused the litigant may petition (apply to) the Labour Appeal Court for its leave. One of the innovations of the SC Act is the reformulation (which is in the nature of a codification) of the requirements for granting leave to appeal for all superior courts which includes the Labour Court. The court hearing the application for leave to appeal may only grant leave if the judge forms the opinion that the circumstances meet the requirements of paragraphs (a), (b) and (c) of section 17(1) of the SC Act. These paragraphs read as follows : (1) 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) of the SC Act; 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. Each one of the requirements require some elucidation. Reasonable prospect of success or other compelling reason The two sub-paragraphs of paragraph (a) are to be read disjunctively. The effect of this is that, even where there are no reasonable prospects of success on appeal, leave may be granted in circumstances where there is another compelling reason (such as conflicting judgments) on the point in issue. See Capendale & Another v Municipality of Saldanha Bay & Others, In Re; Capendale & Another v 12 Main St, Langebaan (Pty) Ltd and Others (6580/2012, 840/2012) at para 8. Save for this, s 17(1) is to be interpreted conjunctively and in an incremental fashion with the relevant factors to be considered one after the other. Accordingly, reasonable prospects of success alone are not sufficient to warrant the referral of the matter to an appellate court. See Capendale at para 10. Decision does not fall within the ambit of s16(2)(a) Paragraph (b) requires the judge to form the opinion that the decision sought on appeal does not fall within the ambit of s 16(2)(a) of the SC Act. This section also consists of two subparagraphs. Subparagraph (i) provides that: When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone. Page 95

The Labour Appeal Court may dismiss an appeal if the issue is moot ie the decision sought on appeal will have no practical effect or result. A case falling within the ambit of s 16(2)(a) will have the result that, even though there may be reasonable prospects of success an appeal will not be granted. It is for this reason that the Labour Court is required to form an opinion about whether the decision sought will have no practical effect or result. If this is the case leave to appeal must be refused. In forming its opinion the Labour Court, as is the LAC, enjoined to have regard to the question of costs only in exceptional circumstances in evaluating the question of mootness. This is because s 16 (2)(a)(ii) provides that: Save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs. If the court is of the opinion that the case does not fall within the ambit of this section, the Labour Court must then turn to the last consideration set out in s 17(1)(c). Decision does not dispose of all the issues but the appeal would resolve the issues justly and promptly This paragraph presupposes, of course, that the outcome of the order for which leave to appeal is sought is still a live issue. The Labour Court needs to ask two questions. The first is whether the proposed appeal will dispose of all the issues in the case. If it will have this effect the next question does not arise. However, if it is found that a proposed appeal will not dispose of all the issues, the court may nevertheless grant leave if a positive decision on appeal would otherwise result in a just and prompt resolution of the real issues. This formulation follows from a series of judgments of the Supreme Court of Appeal. In National Director of Public Prosecutions v King [2010] 7 BCLR 656 (SCA) at para 46 Harms DP said: It is, however, necessary to emphasize that the fact that an interlocutory order is appealable does not mean that leave to appeal ought to be granted because if the judgment or order sought to be appealed against does not dispose of all the issues between the parties the balance of convenience must, in addition to the prospects of success, favour a piecemeal consideration of the case before leave is granted. The test is then whether the appeal, if leave were given, would lead to a just and reasonably prompt resolution of the real issue between the parties. Once leave has been granted in relation to a judgment or order the issue of convenience cannot be visited or revisited because it is not a requirement for leave, only a practical consideration that a court should take into account. The reason for the reformulation of the requirements for leave to appeal A purposive approach to the interpretation of this section is indicated. The Legislature intended that the function of courts of appeal is to be resultsdriven and that the trial court is required to carefully consider whether a hearing on appeal would ultimately lead to a disposal of the real issues between the parties. The function of an appellate court is to be limited to cases genuinely warranting the attention of that court, and then only in circumstances in which the decision sought to be appealed against involves a question of law of importance, either because it involves a question of law of general importance, or because there are differences of opinion which require to be resolved, or the administration of justice requires a decision by the appellate court. The judge considering an application for leave to appeal is required to act as a filter by carefully evaluating whether the matter should enjoy the attention of an appellate court. If the filter is ineffective the appellate court may intervene mero motu in circumstances where leave has been granted but where the appellate court considers that the matter is effectively moot and that the appeal should be dismissed on that account. The strict criteria laid are designed to limit unnecessarily protracted litigation, a state of affairs which would tend to bring the administration of justice into disrepute in the eyes of the general public. See Capendale at paras 13 to 16 where these considerations were expressed. Power to grant leave limitations The power to grant leave to appeal is not limited by reason only of the fact that the matter in dispute is incapable of being valued in money. This power is also subject to the provisions of any other law Page 96

which specifically limits the right of appeal or specifically grants or limits any right of appeal. See s 17 (4) of the SC Act. Conditional leave The Labour Court considering an application for leave to appeal may grant leave to appeal unconditionally or subject to such conditions as the court may determine, including a condition that limits the issues on appeal or a condition that the appellant pay the costs of the appeal. See s 17(5) of the SC Act. Suspension of a decision pending an appeal The SC Act distinguishes between interlocutory orders that do not have the effect of a final judgment and final judgments. The common law rule is retained so that the operation and execution of a final judgment or order, that is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. See s 18(1) of the SC Act. The operation and execution of the decision is suspended as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules of the court. See s18 (5) of the SC Act. However, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application unless the court under exceptional circumstances orders otherwise. In both instances a court may only order that the judgment or order be or not be suspended (depending whether it is final or interlocutory) if the party who applied to the court for this special order, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders. A second important innovation is contained in subsection (4). If a court grants a special order: the court must immediately record its reasons for doing so; the aggrieved party has an automatic right of appeal to the next highest court; the appellate court hearing such an appeal must deal with it as a matter of extreme urgency; and the special order will be automatically suspended, pending the outcome of the urgent appeal. THE LABOUR APPEAL COURT Petitions, urgent appeals, preappeal hearings Three aspects relating to appeals in the Labour Appeal Court require discussion. The first relates to petitions (applications) for leave to appeal. The second covers the new urgent appeals and the last concerns a pre-hearing where there is an indication that the issues are moot. Petition to Labour Appeal Court A petition for leave to appeal must be addressed to the Judge President, and must include a notice of motion and supporting affidavits. Every petition must be accompanied by a copy of the judgment of the Labour Court against which leave to appeal is sought and a copy of the judgment refusing leave to appeal. The petition must set out succinctly The grounds on which leave to appeal is sought. A petition must not include the record of the proceedings in the Labour Court, unless the judges considering the petition direct otherwise. A petition must be delivered within 14 days of the date on which leave to appeal is refused. The original petition plus two copies must be filed with the registrar. The respondent may deliver an answering affidavit within 14 days of delivery of a copy of the petition. The original plus two copies of the answering affidavit must be filed with the registrar. A petition must be considered by three judges of the court designated by the Judge President. The decision of the majority of the judges to grant or refuse the petition is final. If the court grants leave to appeal it must, at the same time, make an order fixing the date by which the record must be delivered. The refusal of leave to appeal by designated judges of the Labour Appeal Court constitutes a final order of that court. See Republican Press v CEPPWAWU [2007] SCA 121 (RSA). The refusal of leave to appeal leaves a further avenue open; i.e. to apply to the Constitutional Court for leave to appeal to it. If the application is successful the Constitutional Court may Page 97

either consider the appeal itself or refer the appeal for decision by the Labour Appeal Court. Urgent appeal concerning execution of order of the Labour Court The Labour Appeal Court has in the past heard appeals on an urgent basis. But these have concerned substantive matters. Section 16 read with s 18(4) (iii) of the SC Act introduces a new type of urgent appeal; one which must be heard it as a matter of extreme urgency. Rule 5(22) of the LAC Rules provides that a party may apply orally or in writing to the Judge President for an appeal to be heard urgently. If the application is successful, the Judge President must give directions as to the future conduct of the appeal. This rule was not intended to cater for this type of urgent appeal. But it seems that as soon as the registrar of the Labour Appeal Court is advised that an appellant is entitled to an automatic appeal, i.e, an appeal against an order that the operation of an order be suspended (or not suspended) pending an appeal (section 184) of the S C Act) the Judge President will give directions as to the future conduct of the appeal on an extremely urgent basis. Pre-appeal hearing If, at any time prior to the hearing of an appeal, the Judge President or the judge presiding, as the case may be, is prima facie of the view that it would be appropriate to dismiss the appeal on the ground that the decision sought will have no practical effect or result, he or she must call for written representations from the respective parties as to why the appeal should not be dismissed for this reason. See s16(2)(b) of the SC Act. Upon receipt of the representations or, failing which, at the expiry of the time determined for their lodging, the Judge President is obliged to refer the matter to three judges for their consideration. See s 16(2)(c) of the SC Act. The judges considering the matter may order that the question whether the appeal should be dismissed on the grounds mentioned above be argued before them at a place and time appointed. Save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs. See s 16(2)(a)(ii) of the SC Act. The judges may - order that the appeal be dismissed, with or without an order as to the costs incurred in any of the courts below or in respect of the costs of appeal, including the costs in respect of the preparation and lodging of the written representations; or order that the appeal proceed in the ordinary course. See s 16(2)(d) of the SC Act. Should the Labour Appeal Court fail to hold a preappeal hearing he court is, it is considered, is entitled to decide the appeal on the same basis during an appeal hearing. The next level of appeal A further appeal lies to the Constitutional Court against any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court. The Constitutional Court makes the final decision whether a matter is within its jurisdiction. See s 167(3)(c) of the Constitution. As such an appeal will only lie with the special leave of the Constitutional Court it is therefore unnecessary to seek leave from the Labour Appeal Court to appeal to the Constitutional Court. It must also be noted that a dissatisfied litigant may seek leave from the Constitutional Court to appeal directly to it. Such applications are rarely successful. Conclusion The amendments which have been flagged and discussed are unlikely, given their clear formulation, to cause litigants in the Labour Court and the Labour Appeal Court any difficulty. The Constitutional Court has always been able to supervise the judgments of the Labour Appeal Court. But it will nevertheless be interesting to observe the extent of the Constitutional Court s supervision as regards labour matters in its new capacity as the apex court for all matters. AA Landman Page 98