Johannesburg - The Constitutional Court has reserved judgment in an application for leave to appeal by a Metrobus driver, Sizwe Myathaza, who was suspended in 2007 for alleged ticket irregularities.
The matter was heard before Acting Deputy Chief Justice Bess Nkabinde, Justices Sisi Khampempe, Chris Jafta, Boissie Henry Mbha, Johan Froneman, Nonkosi Mhlantla, Mbuyiseli Madlanga and Raymond Zondo on Thursday.
Myathaza was fired following his refusal to plead guilty, in terms of an agreement that the employer had reached with South African Municipal Workers Union (Samwu) and Independent Municipal Allied Trade Union (Imatu).
The agreement was that all employees who had been suspended for alleged ticket irregularities before 20 August 2008 could return to work.
Myathaza insisted on a disciplinary hearing, but the employer refused his request, and instead charged him for absenteeism without leave or permission and dismissed him on July 9, 2008.
Myathaza referred an unfair dismissal dispute to the South African Local Government Bargaining Council. However, on 17 September 2009, it was found that his dismissal was “procedurally and substantively unfair”.
The Commissioner ordered that Mnyathaza be reinstated with retrospective effect to the date of his dismissal as well as a backpay of R90 747.86 comprising a 14 months salary.
Metrobus refused to reinstate Myathaza and the arbitration award was taken on review on 2 October 2009, but has no been set down for hearing.
On 27 August 2013, Myathaza applied to the labour court to have an arbitration award implemented, but the Metrobus opposed it on the grounds that it had launched an application to review and set it aside. In addition, Metrobus raised in its defence that the arbitration award had lapsed on 16 September 2012.
The Labour Court rejected Myathaza’s application, saying he had applied late. He was supposed to launch the application within three years, the court said.
However, Myathaza submitted that the Labour Appeal Court ought to have found that the Prescription Act did not apply to the arbitration awards under LRA. He further argued that the LRA was wrong in its decision to find in favour of the employer that he had failed to make his argument within the prescribed period of three years.
The Star