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[2024] ZALCJHB 164
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Moloi v Chemical, Energy, Print, Paper and Wood Workers Union and Another (J306/2024) [2024] ZALCJHB 164 (4 April 2024)
THE LABOUR COURT OF
SOUTH AFRICA
JOHANNESBURG
Of interest to other
Judges
Case
no:
J
306/24
In
the matter between:
LUCKY
MOLOI
First
Applicant
and
CHEMICAL,
ENERGY, PRINT, PAPER AND WOOD WORKERS UNION (CEPPWAWU)
First
Respondent
SIPHO
SONO
N.O.
Second
Respondent
Heard
:
4 April 2024
Delivered
:
(This judgment was handed down electronically by emailing a
copy to the parties. The 16
th
of April 2024 is deemed to
be the date of delivery of this judgment).
Summary:
(Urgent application – Stay of s 188A enquiry pending
outcome of review proceedings – Reimbursement of deduction from
salary – Urgency – Applicant not able to justify timing
of application nor why the application time frames were so
compressed
– Application struck off the roll for lack of urgency)
JUDGMENT
LAGRANGE, J
The
nature of the application
[1]
This is an opposed urgent application. The applicant, Mr L Moni, is
an employee of the first respondent, CEPPWAWU, a union
under
administration (‘the union’). The second respondent, Mr S
Sono (‘Sono’) is the appointed administrator
of the
union.
[2]
The applicant launched this application on 2 April 2024 and enrolled
it for hearing on 4 April 2024. He gave the respondents
until 11h00
on 3 April to file any answering affidavit. They managed to file an
answering affidavit by around 08h00 the following
morning, but Moni
only filed his replying affidavit close to 11h00 the next day, by
which stage the court was already in session.
[3]
The original founding papers before the court lacked all the
annexures, numbering over thirty-eight in all and consisting
of more
than a hundred pages. During the hearing, Moni, who was representing
himself, explained that he had experienced difficulties
scanning the
annexures and transmitting them to court. Strictly speaking, the
matter should have been removed from the roll because
the founding
papers were incomplete. Nevertheless, the court agreed to proceed as
the respondents were willing to do so and Moni
was directed to remedy
the missing annexures during the following day, most of which he did.
However, there were only 36 numbered
annexures filed whereas there
should have been 43. Some of the annexures were also incomplete
documents.
[4]
In summary, apart from wanting the matter heard on an urgent basis,
Moni seeks the following relief:
4.1
to interdict a S 188A inquiry by an arbitrator due to
resume/commence on 18 April 2024 for a variety of reasons, or
alternatively
4.2
to suspend the s 188A inquiry pending the finalisation of a
review application in case JR 168/2024, and
4.3
an order compelling the union to pay him the remains of his
salary for March 2024 and that of his colleague and employee
representative, Mr T Boikanyo, for the month ending March 2024 to
enable him to cover penalties incurred as a result of him defaulting
on certain debit orders on account of a deduction made by the union
from his salary.
[5]
It is apparent that the relief relating to the suspension of the s
188A inquiry is interim in nature, whereas the relief
sought relating
to his remuneration is for final relief. The review application
mentioned is a review of an arbitrator’s
ruling dated 17
January 2024, in which the arbitrator refused to halt the s 188A
enquiry because the arbitrator did not consider
herself bound by the
finding of the arbitrator in a previous award to the effect that the
administrator could not institute disciplinary
action without first
consulting the National Executive Committee of the union (‘the
NEC’).
[6]
The union has raised a special plea of
res judicata.
It
submits that the court has already dealt with the primary issue of
the power of the administrator to take disciplinary action
against
Moni, under case number J 134/2024. Although certain averments are
made about the judgment in support of the claim that
it has
previously decided the issue, I was not furnished with a copy of the
judgment and I am not prepared to make a decision on
this objection
in the absence of it.
[7]
It should also be mentioned that Moni cites a whole host of other
complaints such as: accusing the union of unfairly discriminating
against him by replacing him with a coloured person during his
suspension; the alleged harassment of other staff, and bias on the
part of the CCMA in allowing a certain individual to represent the
union and in requiring the timeous submission of medical
certificates.
Brief Chronology
[8]
For the purposes of sketching the tortuous conduct of the disputes
referred to the
CCMA by Moni a brief chronology is necessary.
However, I should mention that because Moni’s founding
affidavit does not follow
a strict chronological order and his bundle
of annexures was incomplete, the sequence of events and which matter
he is referring
to are sometimes difficult to discern. His claim
relating to the deduction from his salary is set out separately,
because is easier
to unravel from the procedural morass of his unfair
labour practice claims and the s 188A enquiry.
[9]
The union was placed under administration on 4 June 2020. The current
administrator is Mr S Sono (‘Sono’).
The court’s
order set out the various powers the administrator can exercise. Moni
and other employees litigating against
the union have subsequently
argued that clause 3.9 of the first administration court order handed
down by the Honourable Judge
Rabkin-Naicker on 4 June should be
interpreted to mean that the administrator lacked authority to
institute any disciplinary steps
against employees or members without
first consulting the national executive committee of the union. It
has been a constant refrain
raised by Moni in the course of the
various disputes outlined below. The particular empowering clause in
question read:
“
3.9
That she is authorised, acting on her own and to the exclusion of the
General Secretary and/or Deputy General Secretary and/or
the
President and/or any other official of the respondent to convene, by
notice given in the manner and within the time periods
contemplated
in clause 44(3) of the Constitution of the respondent, on meeting or
meetings of the National Executive Committee,
for the purpose inter
alia of – 3.9.1. Placing the audited financial statements for
the years ending 2014, 2015, 2016 and
2017 before that Committee;
3.9.2. Consider any motions for the removal or reinstatement of a
National Office-Bearer; and 3.9.3.
Consider any other motions which
she has, in the manner contemplated in the Constitution of the
respondent, been requested to place
upon the agenda of such meeting.”
[10]
On 13 June 2022, Sono instructed Moni to report for work at the union
head office from 1 July and to submit various regular
work schedules
and programs relating to his work. Moni took exception to the tone of
this instruction, queried Sono’s mandate
as administrator,
objected to being micromanaged and claimed that his work entailed him
being ‘unfixed’ and ‘offsite’.
On the same
day, he referred a claim of unfair discrimination to the CCMA
claiming he was being bullied and harassed by the administrator
who
was acting outside his mandate (case no MPEM 4514-22, referred to
also as the ‘first CCMA dispute’)
[11]
On 21 July, Sono suspended Moni from duty on account of various
alleged acts of misconduct, which would be communicated
to him in the
course of instituting a disciplinary enquiry. The notice of a
disciplinary inquiry was issued to Moni on 26 July
2022. The charges
concerned alleged insolence, gross misconduct for concluding a
training agreement without authority and gross
negligence in the
performance of his duties.
[12]
In response, on 29 July, Moni applied to this court to interdict the
disciplinary enquiry, until his first CCMA dispute
had been
finalised, and also sought an order uplifting his suspension. On 2
August 2022, the application was settled and the settlement
agreement
was made an order of court. A critical part of the order was that the
parties agreed that the pending disciplinary hearing
should take the
form of a s 188A enquiry.
[13]
On 22 August 2022, Moni referred an unfair labour practice dispute to
the CCMA, arising from his suspension a month earlier.
He requested,
amongst other things, the upliftment of his suspension. He also
alleged he had been subjected to an occupational
detriment on
‘grounds of the Protected Disclosure Act’ (case no MPEM
6414-22, referred to also as the ‘second
CCMA dispute’ or
the ‘suspension dispute’).
[14]
A dispute arose as to whether Moni signed the form consenting to the
s188A procedure for the disciplinary enquiry. The
union then advised
they would abandon that process and resume with an internal
disciplinary hearing. Moni then sought to interdict
the inquiry.
However, on 9 October 2023, this court ordered the CCMA to schedule
the s 188A enquiry within 21 days.
[15]
On 1 February 2023, an arbitrator concluded in a default award that
Moni’s suspension had been unfair and ordered
its upliftment
with effect from 15 February 2023. The union applied to rescind this
award and this application was upheld on 2
March 2023.
[16]
On 11 April 2023, when the suspension dispute was re-enrolled, the
union contended that it had been agreed and made an
order of court
that the parties should be proceeding with the disciplinary process
in terms of s 188A. Moni argued that the CCMA
hearing should be
postponed pending the outcome of the Constitutional Court petition
for leave to appeal which would determine
if the administrator had
the power to discipline him. The petition for leave to appeal
concerned an appeal against a decision of
the Labour Court on12
December 2022, which had extended Sono’s term of office as
administrator.
[17]
On 25 April 2023, the arbitrator decided he did have jurisdiction to
hear the suspension dispute, notwithstanding Moni
having approached
the Constitutional Court to determine if the administrator was
empowered to take disciplinary action against
him.
[18]
On 27 July 2023 the suspension dispute was again re-enrolled at the
CCMA, but Moni did not attend owing to being ill.
He provided a
doctor’s note and his representative attended. The hearing was
postponed to 26 September 2023. On 26 September
2023 the union issued
Moni with notice of a fresh disciplinary hearing. The copy of this
notice, which was attached as Annexure
LM 18 to Moni’s founding
affidavit, is incomplete.
[19] On 23 October
2023, the long delayed section 188A enquiry was due to commence
before an arbitrator (Case no GAJB 22692-23).
Moni again challenged
the power of the administrator to take disciplinary action against
him, but the arbitrator declined to make
a ruling on the issue at
that stage, before she had heard evidence.
[20]
On 7 November 2023, the unfair suspension dispute was re-enrolled,
but could not proceed on that occasion because Moni’s
representative withdrew for lack of funding. It proceeded on 12
December and on 19 December 2023, the arbitrator handed down his
award. The arbitrator found that Moni’s suspension was
unprocedural because the administrator had not consulted with the
NEC
before suspending him. This accorded with Moni’s interpretation
of clause 3.9 of the administration order. Nevertheless,
the
arbitrator declined to decide if the administrator had acted fairly
in charging him with misconduct, noting that the s 188A
enquiry was
underway in compliance with a court order. Accordingly, he had no
jurisdiction to make any findings on the administrator’s
institution of disciplinary proceedings. The arbitrator ordered Moni
to return to work on 2 January 2024, but he claimed he was
unable to
as the union office was shut down until 22 January 2024. It appears
there is a dispute about when he should have returned
to work, which
led to further disciplinary charges being laid against him. Further
details on this are set out below.
[21]
On 17 January 2024 the s188A enquiry convened. Based on the
suspension award and the arbitrator’s finding in that
matter
that Moni could not be suspended without the NEC being consulted,
Moni brought that award to the attention of the arbitrator
in the
s188A enquiry. The arbitrator declined to stop the enquiry because
she held she could not be bound by the finding of another
arbitrator.
As the s 188A enquiry was a disciplinary hearing, and based on the
surrounding circumstances, I assume that Moni had
argued that the
basis for the unfair suspension ruling of 19 December 2023 meant that
the administrator did not have the power
to discipline him and so the
s188A enquiry could not proceed. Moni does not make this expressly
clear in his founding affidavit.
[22]
On 19 January 2024, Moni said the union accused him of being absent
without leave on 17 and 18 January when he had been
attending the s
188A enquiry. In fact, the union’s letter claimed he should
have returned to work on 8 January and his absence
from work until 19
January 2024 was considered absence without leave. It announced that
the union was going to initiate the ‘AWOL
process’ as it
considered he had absconded from work. Moni argues, amongst other
things, that he would have been in breach
of his suspension
conditions if he had returned to work before 17 January and could
have been charged for that. This argument he
bases on a curious and
unsubstantiated belief that, at that stage, the union could still
have ‘appealed’ against the
arbitration requiring him to
report for work on 2 January 2024 and, if successful, his return to
work would have been in breach
of his suspension.
[23]
In any event, on 24 January 2024 he received a notice of a fresh
disciplinary enquiry to begin on 12 February. He was
charged with not
complying with the CCMA award, which ordered him to return to work on
2 January 2024, whereas he only presented
himself for work on 22
January. Accordingly, he was charged with desertion as defined in the
union’s own disciplinary code,
namely being absent without
notice for more than five days.
[24]
The s 188A enquiry was due to reconvene on 5 to 7 February, but the
union asked the arbitrator to extend the hearing
to 9 February
without consulting Moni, according to him. Annexures LM 27 and LM 28
to the founding affidavit, which apparently
pertain to this issue,
were not filed with the court. He claims he advised the CCMA in
writing he would be unavailable as he was
meeting a legal
representative to assist him with the preparation of court papers.
The union apparently told Moni that his duty
to attend work
encompassed his attendance at the s 188A enquiry.
[25]
On 8 February, Moni sent a letter of demand to the union that he
intended to approach this court on an urgent basis to
interdict the
enquiry. By this stage the enquiry had already been set down on 6
days in January and February. Thereafter it was
set down on ten days
between 8 February and 23 March. Moni claimed he was not ‘given
any space’ to present evidence
in these hearings, and was
subject to premature objections, threats and insults. He claims his
representative was also prevented
from speaking by the arbitrator and
the union representative. He alleges the arbitrator forced him to say
things he did not want
to say, by threatening to close the hearing if
he did not. He seeks the courts protection against this alleged
”blatant harassment
filled with hatred”.
[26]
He complains further that the union representative tried to get the
arbitrator to schedule dates for enquiry in such
a way that he and
his representative, would be unable to represent each other in their
own respective enquiries.
[27]
On 8 March 2024, Moni launched an application to review the ruling of
the arbitrator in the s 188A on 17 January 2024
to the effect that
she was not bound by the finding of the arbitrator in the suspension
award that the administrator could not
institute disciplinary
proceedings without first consulting the NEC.
[28]
On 20 March when his enquiry was to proceed, Moni asked to be excused
because he needed to attend to a municipal electricity
billing
problem which needed to be resolved because it affected one of his
children who was at home. The union and the arbitrator
were only
willing to release him if he agreed to pay the CCMA fees for the day,
which he felt placed him in a predicament because
he could not
compromise his child’s situation. Consequently, he felt he had
no choice but to leave the hearing. Later, on
28 March, he received a
letter from the union advising that R 11,801.73 would be deducted
from his salary at the end of that month
to pay for the daily costs
of the s 188A arbitrator.
[29]
On the same day, in an urgent application brought at the instance of
the administrator and the union, this court varied
the terms of the
order made by Judge Rabkin-Naicker on 4 June 2020, in which she set
out the administrator’s powers. The
effect of the variation was
to remove clause 3.9 from the terms of the administrator’s
appointment, thereby removing the
basis on which Moni and others had
previously relied to challenge the authority of the administrator to
take disciplinary action.
The salary deduction
[30]
Moni claims the union stopped his salary on 28 February without
notice and without providing a reason for doing so. I
assume, though
it is not clear, that he means he was not paid his salary for
February. On 28 March he was advised that an amount
of R 11,803.73
will be deducted from his salary, leaving him with a net salary of R
7,723.02. He claims this is a breach of section
34 of the Basic
Conditions of Employment Act, 75 of 1997 (‘the BCEA’). He
argues that this is also an unfair labour
practice in terms of
section 186(2)(b) of the LRA because it amounts to unfair
disciplinary action. He also contends the deductions
were made in
contravention of the administrator’s mandate.
Evaluation
Urgency
[31]
In
Maqubela
v SA Graduates Development Association and Others
[1]
,
the Labour Court held:
“‘
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances where
urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent relief is
necessary. ”
[32]
The first question to be answered is whether Moni has provided an
adequate justification for bringing this application
on barely
two court days’ notice to be heard on 4 April. The next date of
the resumption of the s 188A hearing is 18 April
2024. That hearing
has already sat on around 15 days.
[33]
At the commencement of the hearing of the urgent application, I asked
Moni to explain why he launched the application
when he did. Instead
of answering my question, he began with a long elaboration of the
history of his disciplinary engagements
with the union.
[34]
It appears that the essence of the right he seeks to assert is the
same one he has raised on a number of occasions before,
namely that
the administrator lacks the power to implement disciplinary action
against him. He places great emphasis on the finding
in the award of
the arbitrator handed down on 19 December 2023 that his suspension
was unprocedural because the administrator was
obliged to consult
with the NEC before suspending him. He has already launched a review
application of ruling by the arbitrator
in the s 188A enquiry to
proceed because she did not consider herself bound by the previous
arbitrator’s finding on the administrator’s
power. That
application was launched on 8 March 2024. Moni provides no
explanation why he did not apply at the same time to stay
the s 188A
proceedings then. In short there is no explanation why it was
launched nearly a month later, nor why the time frame
for hearing the
application was compressed into a period of two days.
[35]
Insofar as he might argue that it was his claim that the union had
committed an unfair labour practice by deducting R
11,801.73 from his
salary at the end of March for the missed hearings the launching of
an urgent application for that relief on
2 April 2024 is slightly
more justifiable.
[36]
Moni also argues he cannot obtain adequate relief in due course for
his monetary claim. I note from his salary that he
earns above the
earnings threshold that would allow him to refer a claim under s
73A(1) of the BCEA to the CCMA. Accordingly, he
must approach this
court or an appropriate civil court. The union, possibly correctly,
argues that the salary deduction cannot
constitute an unfair labour
practice. It also claims it is not a contravention of s 34 of the
BCEA, but does provide any justification
for this claim.
[37]
On the face of the undisputed facts, given the provisions of s 34(2)
the union’s claim seems highly debatable.
In the notice of
motion, Moni simply asks for relief in the form of repayment of the
large deduction made from his remuneration
in March. He does not ask
the court to declare it an unfair labour practice, though he contends
it is in his founding affidavit.
Nonetheless, he plainly avers the
deduction was made in breach of s 34(2). He also explains how the
size of the deduction resulted
in him being unable to pay his regular
monthly debts to creditors.
[38]
Nonetheless,
even though this court does in exceptional circumstances allow an
employee to recover remuneration on an urgent basis
[2]
,
that does not excuse Moni bringing this application on the degree of
short notice he has in this instance. In bringing the application
on
barely two days’ notice, it appears his intention was to put
the union under as much time pressure as he felt he could.
The result
was, as often happens in such cases, that he made it practically
impossible to file his own replying affidavit in time.
It also meant
the court did not have sight of his replying affidavit before the
hearing.
Conclusion
[39]
In light of the above discussion, I find that Moni has not justified
that his application was sufficiently urgent to
launch it on two
days’ notice for a hearing on 4 April 2024. I am also inclined
to order costs against him for the manner
in which he has conducted
these proceedings, but on this occasion will not do so in the hope
that the striking off of his application
will prove salutary enough
to dissuade him from employing such an unjustifiable litigation
stratagem again.
Order
1.
The application is struck off the roll for lack of
urgency.
2.
No order is made as to costs.
R G Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
In person
For the Respondents:
A Mohlala instructed by KMNS Inc
[
1]
(2014) 35
ILJ
2479 (LC) at para 32.
[2]
See,
for example
Harley
v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) at para 8