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[2009] ZALCJHB 94
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Masihleho v University of Limpopo and Others (J1068/09) [2009] ZALCJHB 94 (26 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no. J1068/09
Not
Reportable
In
the matter between:
MASIHLEHO,
THABO
PETER
Applicant
and
UNIVERSITY
OF LIMPOPO
FirstRespondent
MOKGALONG,
N
M
Second Respondent
MAILULA,
M.L,
N.O
Third Respondent
JUDGMENT
Bhoola
AJ
Introduction
[1]
This is an urgent application in which the applicant seeks the
following relief:
“
1.Condoning the
non-compliance with the Rules of the above Honourable Court dealing
with time periods for serving and filing, and
hearing this matter on
an urgent basis;
2.Interdicting the
Respondents from proceeding with the retrenchment process against the
Applicant scheduled for 29 May at
15:00;
3.Ordering the Second
Respondent to pay the costs of this application in his personal
capacity on a punitive scale. Alternatively;
4.Ordering the First
and Second Respondents to jointly and severally, the one paying the
other absolved, pay the costs of this application
on a punitive
scale.
5.Ordering the Third
Respondent to pay the costs of this application on a punitive [sic]
only in opposition of the relief sought.
6.Further and/or
alternative relief.”
[2]
The application was brought on 26 May and set down for hearing on 27
May 2009. It was postponed by consent to 4 June 2009 to
enable the
parties to file answering and replying affidavits. On 8 June
2009 I issued an order dismissing the application
with costs, and
indicated that reasons would follow. These are the reasons for my
order.
Background
[3]
The applicant seeks a final interdict against the respondents from
proceeding with what he contends is an unlawful and unfair
process
which will lead to his retrenchment. He contends in essence that the
respondents are using the retrenchment exercise for
an ulterior
purpose in that they have conducted themselves in a manner which
reflects an abuse of authority; the first and second
respondents have
already made up their minds to retrench him and now seek to formalize
their unlawful conduct; and that the second
respondent does not have
the authority to proceed against him.
[4]
The applicant was employed in 1997 by the Medical University of South
Africa (“Medunsa”) as Vice-Principal for Finance
and
Administration. In 2005 Medunsa merged with the University of the
North to form the first respondent. The second respondent
was
appointed Interim Vice Chancellor and Principal of the newly formed
institution and has since been confirmed in this position.
During this period the Interim Council formed to oversee the merger
of the two institutions offered the applicant the position
of Vice
Principal (Human Capital), which he contends he accepted
conditionally, following which he was suspended pending an
investigation
into misconduct. The position was advertised during
this period of suspension, and the respondents also sought to appoint
incumbents
to the positions of Deputy Vice Chancellor: Finance and
Administration, to which the applicant contends he was entitled. The
applicant
was suspended for two years and a disciplinary enquiry
cleared him of misconduct. Following his reinstatement in 2008 he was
placed on special leave pending consideration of alternative
positions given the alleged redundancy of his position. Thereafter,
in May 2009, he was issued with a retrenchment notice in terms of
section 189 if the Labour Relations Act, 66 of 1995 (“the
LRA”), which gave rise to this application.
[5]
The matter has an acrimonious history detailed in the voluminous
pleadings, which consist to a large extent of irrelevant and
argumentative material, and which for the reasons set out below, I do
not intend to traverse. It is this history that the applicant
seeks
to rely on for the urgency of this matter. In essence the applicant
contends that the retrenchment consultation meeting he
seeks to set
aside is a subterfuge to get rid of him, which the respondents have
already made up their minds to do, and that it
reflects the “naked
hatred” towards him and the “naked abuse of power”
of the respondents, particularly
the second respondent.
[6]
At the hearing of this matter two points
in limine
were raised
by the attorney for the respondents, Mr Maserumule. These relate to
an application to strike out irrelevant material
contained in the
Founding Affidavit, and the issue of joinder of the third respondent.
These are dealt with below.
Striking
out
[7]
In this regard Mr Maserumule submitted that the applicant makes
various allegations against the second respondent (in paragraphs
28
and 29 of his Founding Affidavit), which are irrelevant, malicious
and defamatory and should be struck from the record. The
applicant
relies on the judgment of the Labour Appeal Court in
Moila v Shai
N.O and others
(unreported case number JA26/045) in which certain
factual findings were made about the conduct of the second
respondent, to submit
that he has a propensity to lie, and should
accordingly not be believed in the present matter. Mr Maserumule
further contended
that the report of the assessor annexed to the
Founding Affidavit is not relevant and should similarly be struck
out.
[8]
The applicant’s counsel, Mr Mathibedi, submitted that the
averments regarding the character of the second respondent are
necessary and relevant to the apparent abuse of power and disregard
for the rule of law that the respondents are perpetrating.
Mr
Mathibedi referred me to authorities to the effect that the test as
to whether material should be expunged from the record is
prejudice,
which the respondents have not proven, or that the averments are
scandalous:
Titty’s Bar & Bottle Store vs A.B.C. Garage
& others
(1974 (4) TPD at 368 E) and
Tshabalala-Msimang
and another v Makhanya and Others
[2007] ZAGPHC 161
;
(2008 (6) SA 102
at page 111
para [20]). In my view the allegations regarding the character of the
second respondent, irrespective of where they
emanate from, are
nothing short of scandalous and undoubtedly cause prejudice to him,
as was contended by Mr Maserumule, and stand
to be expunged. In
my view, insofar as the applicant contends that the character of the
second respondent is relevant to
the fairness of the pending
retrenchment process, which will be tainted by
mala fides
and
therefore unfair, he clearly has suitable alternative remedies at his
disposal should this materialize. I discuss these below.
Joinder
of the third respondent
[9]
The respondents object to the joinder of the third respondent in
these proceedings. The applicant seeks no relief against her
other
than costs in the event of opposition. It makes no averments that she
was involved in the interaction between the applicant
and the second
respondent either in her official or personal capacity, or that she
has been involved in the consultation process.
Mr Maserumule
submitted that it was sufficient to cite the first respondent, being
the applicant’s employer, and there was
no reason in law and in
fact for the third respondent to be cited. Insofar as the applicant
sought to contend that the third respondent
ought to have acted
against the second respondent for incompetence, this is clearly of no
import to the present matter. The third
respondent has filed an
affidavit confirming her non-involvement in the matter and opposes
the relief sought by the applicant on
these grounds.
[10]
In my view, the applicant’s reasons for joining the third
respondent, are, at the very least, spurious and untenable.
The
applicant’s counsel contended that the first respondent, as a
legal person, functioned through its Council and management
team and
that only the Council could make decisions and resolutions affecting
the day to day management of the first respondent.
Therefore, as the
Chairperson of Council it was necessary for the third respondent to
indicate to this court whether or not the
second respondent had been
authorised to initiate the process against the applicant as alleged.
The joinder was furthermore necessitated
by the finding of the Labour
Appeal Court in
Moila
(supra) in regard to the second
respondent’s conduct. In my view it is sufficient for the first
respondent to be cited, given
that it acts through various entities
including its Council, sub-committees and staff. There are no
averments against the third
respondent which would justify her
joinder, and this is another example of the papers being
unnecessarily encumbered by irrelevant
material and unjustified
aspersions.
[11]
I was not required to make a ruling on the
in limine
points,
and Mr Maserumule submitted that it would be appropriate to take them
into account in considering costs, and in particular
whether a
punitive costs order as sought against the applicant was justified.
Does
the second respondent have the authority to initiate retrenchment
consultations?
[12]
The applicant also raised a preliminary point that the Council has
not authorised and/or delegated the second respondent to
initiate the
retrenchment consultation. It submits that if such a decision or
resolution had been made by Council, the respondents
would have made
the necessary averments and annexed documentary proof to that effect.
This submission is incorrect, in that the
necessary documentation was
annexed and moreover, I permitted the respondents to hand up Exhibit
1 in further clarification of
the second respondent’s mandate.
I do not consider it necessary to deal with Mr Mathibedi’s
objections to documents
being tendered from the bar, given that it is
his client that created the urgency of this matter. The second
respondent alleges
that he has been mandated by the first respondent
to address the situation concerning the applicant and his continued
employment
with the first respondent (Answering Affidavit, page 327
paragraph 73). Reliance was further placed on annexure NMM2 (see
Answering
Affidavit, page 335 paragraph 120), although, as
applicant’s counsel correctly pointed out, this is a power of
attorney rather
than authority to engage in retrenchment
consultations.
[13]
Insofar as the respondents seek to reply on the Human Resources
(“HR”) Committee Report to Council (at page 338
to 340 of
their Answering Affidavit), the applicant submits that this is a
recommendation to Council and has not been approved.
Moreover, the
second respondent conceded (at page 375 of the Replying Affidavit)
that decisions of committees cannot be implemented
until authorised
by Council.
[14]
The applicant cited the following authorities in support of its
contention that the second respondent had failed to prove that
it had
authority in this regard:
Tzaneen Local
transitional Council v Lou Uxorn and another
(1996 (2) SA 860
(TPD) at 863) : “
[t]he manner in which the authority is
challenged is also relevant to the kind of evidence that will be
required to satisfy a Court
as to the existence of authority”.
Moll
(Cape) (Pty)(Ltd) v Maroni Ko-op Bpk (
1957 (2) 347 at 351 F-352
B):
“
Wheras in the
present case, the Respondent has offered no evidence at all to
suggest that the Applicant is not properly before the
Court, I
considered that a minimum of evidence will be required from the
Applicant”.
The
authority should relate to the matter before the Court :
Union
Government v Sacher
(1952 (2) SA 410
(C ) at 411-412).
I
fail to see the relevance of these
dicta.
[15]
Furthermore, the applicant contends that the second respondent has
conceded that he does not have the power to dismiss the
applicant,
and by analogy this means that he has no power to initiate the
consultation proceedings without authority and delegation
from
Council. The applicant submitted accordingly that given the lack of
authority the steps taken by the first and second respondents
to
initiate the proceedings against the applicant are unlawful and of no
force and effect.
[16] The respondents
dispute that the second respondent is not authorised to consult with
the applicant in regard to his possible
retrenchment. They submit
that management was mandated by the HR Committee, as confirmed in its
report to Council of 19 May 2009
as follows:
“
(i)to engage in
consultations with [the applicant] with a view to offering him an
alternative position, given that due to operational
requirements the
position he occupied previously does not exist any more; and
(ii) should the
University not find an alternative position for him or should Prof.
Masihleho not accept the alternative position
offered, a process of
terminating his employment be initiated forthwith”.
(Answering
Affidavit, pages 339-340).
[17]
Insofar as the applicant sought to challenge the authenticity of the
HR Committee’s report, Mr Maserumule contended that
it had no
basis to do so given the time constraints within which the
respondents were brought to court. Furthermore, Exhibit 1
confirmed
the scope of authority of the HR committee and the acceptance of its
report by the Executive Committee of Council on
1 June 2009. In my
view, this disposes of the issue.
Have the grounds for
urgent relief been established?
Clear
right
[18]
The applicant submits that it is common cause between the parties
that the contract of employment of the applicant was transferred
to
the first respondent. Thus the applicant is protected in that in
Johnson & Johnson (Pty) Ltd v CWIU
((1998) 12 BLLR (LAC)
at 1214) the court reaffirmed the right of every employee to fair
labour practices, and made the point that
section 189 regulates the
exercise of the competing fundamental rights of an employee not to be
unfairly dismissed and that of
an employer to dismiss for operational
reasons, and stated “[
i]t is a provision that is
inextricably linked to the fairness or otherwise of a dismissal based
on operational requirements”.
Thus the
applicant submits that the contention by the first and second
respondents that his position is redundant and
that there is no other
available position for him is contrived. Accordingly, he submits, a
clear right has been established to
remain in his post. A dispute of
fact exists in regard to whether the position the applicant contends
he is still in no longer
exists. I do not consider it necessary to
deal with this for present purposes, given my ruling herein. In any
event it is exactly
the nature of the consultation process that
alternatives can be proposed and, insofar as the applicant is correct
in contending
that there do not appear to be any current alternatives
at his rank and salary, it is up to him to propose alternatives in
this
regard. He cannot however seek to prevent the employer from
consulting with him in this regard on the basis that he has a right
to remain in employment.
Alternative
relief
[19]
The applicant submits that he has no suitable alternative relief. Mr
Maserumule submitted that it is trite that he has a clear
right not
to be unfairly dismissed, and that section 193 sets out the relief,
including reinstatement, he would be entitled to.
Fully retrospective
retrenchment would give him what courts have refused in interdicting
retrenchment proceedings on these grounds
: see
Afrox v SACWU
1997 (18) ILJ 406, where the court refused to grant an urgent
interdict, and
Fordham v OK
(1998 (19) ILJ 1156) where an
interdict was granted because the employer was not complying with a
fair procedure, although the
employee was refused reinstatement and
referred to the CCMA. Insofar as the first respondent seeks to engage
him in a lawful process,
he is entitled to propose alternatives to
his retrenchment and the respondent is entitled to reject
alternatives that are unreasonable
but must provide reasons for it.
The applicant is moreover obliged to participate in a consultation
process in respect of a redundancy
that arose from the
restructuring.
A fortiori
, Mr Maserumule submitted, he
must have a right which is being interfered with and he cannot
contend that it is the right to remain
in employment at the first
respondent in perpetuity.
Urgency
[20]
In terms of Rule 8 of the Rules of this court the applicant has to
provide reasons why it is entitled to urgent relief.
The
applicant received notice in terms of section 189 of the LRA on 20
May 2009, inviting him to a consultation meeting on 29 May
2009 at
which he could address issues of
inter alia
, the rationale for
the contemplated dismissal and alternatives to retrenchment. This
application was launched on 26 May 2009. The
retrenchment
consultation meeting was postponed.
[21]
The respondents have a legal obligation in terms of section 189 to
consult. Section 189(1) is peremptory in this regard. It
provides
that when an
employer contemplates dismissing one
or more employees for reasons based on the employer’s
operational requirements, it “
must
”
consult,
inter alia
with, “
the employees likely to be
affected by the proposed dismissals or their representatives
nominated for that purpose”.
The
employee has a concomitant obligation to engage and has options
available should it elect not to do so. It cannot however,
behove the
employee to prevent the consultation process from continuing in
perpetuity, which is what the applicant seeks to do.
Mr
Maserumule submitted that even in the case of a large scale
retrenchment the LRA does not empower a court to interdict an
employer
from retrenching in terms of a permanent interdict. The most
the court can do is intervene during the consultation process to
order
an employer to comply with a fair procedure.
[22]
The applicant has a legal obligation to participate in the
retrenchment process and can avail himself of a suitable remedy
should he be dissatisfied at the conclusion thereof that the
conspiracy against him has tainted the fairness of the process. I
do
not agree with Mr Mathibedi that the applicant is entitled to final
relief on the grounds that he is entitled to reject a junior
post.
This pre-empts the consultation process, which requires the parties
to engage meaningfully in an attempt to reach consensus
on the
various issues in section 189(3). The LRA moreover does not envisage
simply going through the motions or undertaking a mechanical
checklist exercise, but requires a substantive engagement to consider
reasonable alternatives to the retrenchment, amongst others.
Moreover, where insufficient progress is made the employer is
entitled to call off the process at some point and proceed with the
retrenchment: see
SACCAWU v Sun International
SA Ltd
((2003) 24 ILJ 594 (LC) para 46)
where the court expressed this as follows:
“
Section
189(2) of the LRA imposes a duty on an employer to attempt to reach
consensus but it does not impose a duty to reach consensus.
It
follows, in my view, that a time may be reached in a consultation
process when the employer is entitled to call off the consultation
process and to act unilaterally (albeit fairly, in terms of the
requirements of the LRA). Since this is so, depending on what has
gone before, it is in my view not necessarily unfair or contrary to
the requirements of the LRA, for an employer to decide that
it is
only prepared to attempt to reach consensus on one more occasion and
to decide that, if necessary, it will act unilaterally
thereafter”.
[23]
It is trite, Mr Maserumule submitted, that the court will only
intervene to grant interlocutory relief prior to a process being
exhausted in exceptional circumstances.
Mr
Maserumule referred me to recent authority of Van Niekerk J in an
unreported judgment in
The Trustees for the Time Being of the
National Bioinformatics Network Trust v Jacobson and others
(
Case number C249/09) in which the applicant sought to interdict an
arbitration pending a review in respect of preliminary findings
by
the commissioner. Van Niekerk J (at para [3]) reiterated the
principle that intervention by way of interdict in uncompleted
proceedings was exceptional in the following words : “
the
exercise of this power has been held to be confined to those rare
cases where a grave injustice might otherwise result or where
justice
might by other means not be attained”.
This
dictum
is nowhere more apt than in the present matter and the consultation
process should run its course, following which the applicant
has
effective remedies at his disposal, and would be entitled to
reinstatement should the employer be found to have acted unfairly,
which would restore the
status quo
.
[24]
Van Niekerk J has moreover commented on the recent “worrying
trend” to inundate the court with urgent interdicts
in respect
of disciplinary proceedings sought by applicants of means in
unexceptional circumstances: see
Nomgcobo Jiba v Minister of
Justice and Constitutional Development and 16 Others
(unreported,
case number J167/09, LC).
[25]
The applicant submits that the urgency of the matter arises from a
notice issued to him on 5 June 2009 that the respondents
intend
proceeding with the retrenchment consultation. He submits that the
urgency arises from the unlawful and unfair consultation
meeting
scheduled. Furthermore, he has a clear right to the position he is
currently in and given the correspondence from the respondents’
attorneys in regard to the pending retrenchment, no other inference
can be drawn but that they have already made up their minds
to
dismiss him. However, in oral submissions the applicant, Mr Mathibedi
submitted, does not contend that the first respondent
is not entitled
to retrench him, but that this must be effected in a lawful manner.
If this was indeed the case on the pleadings,
then, in my view the
applicant should have sought a declaratory order to this effect. In
his Answering Affidavit to the Explanatory
Affidavit he confirms that
the relief sought is to set aside the consultation meeting as being
“
an unlawful and unfair charade
”. Mr
Mathibedi contended further in his replying submissions that given
that the notice to the applicant states that
should his dismissal be
unavoidable he will be dismissed with effect from 30 June 2006, this
implies that the respondents have
already made up their minds to
dismiss him. He added that the applicant did not want to wait until
“
the horse has bolted
” before seeking relief. In
my view, this does not found urgency.
[26]
I was not addressed on any of the other grounds applicable to grant
of an urgent interdict and do not canvass those.
[27]
In the circumstances, I am not satisfied that grounds for urgency
have been made out and I am entitled to strike the matter
from the
roll or dismiss the application without dealing with the merits. I
have accordingly issued an order dismissing the application,
with
costs, as little purpose would be served by striking it from the roll
in that, in my view, it is ill-founded from the beginning.
Insofar
as attorney client costs were sought and my order was unclear in that
regard, it is hereby amended to read as follows:
The application is
dismissed, with costs payable on an attorney and client scale.
__________________
Date
of hearing and order: 4 and 8 June 2009
Date
of reasons: 26 June 2009
Appearance:
For
the applicant: Advocate T F Mathibedi instructed by Mabuza Attorneys
For
the respondents: Maserumule Inc