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[2010] ZALCCT 25
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Goci v Metropolitan Health Group (C1073/2010) [2010] ZALCCT 25 (7 December 2010)
Not
reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE
NUMBER: C1073/2010
DATE:
7 DECEMBER 2010
In
the matter between:
Z
GOCI
Applicant
and
METROPOLITAN
HEALTH GROUP
Respondent
J
U D G M E N T
VAN
NIEKERK, J
:
This is an urgent
application in which the applicant seeks the following relief:
1.
Dispensing with the forms and service provided by the rules and
seeking leave to have the matter heard
as one of urgency.
2.
A prayer to the effect that the respondent is directed to issue a
letter clearing the name of the applicant
from allegations of
fraudulent behaviour within three days from the date of judgment.
3.
That the respondent is directed to furnish the applicant with
employment, duties and responsibilities
that are the same of that of
the finance clerk. Alternatively to that prayer, the applicant
seeks an order to the effect
that he be reinstated as the finance
clerk.
The
origins of this application lie in a settlement agreement concluded
between the parties on 20 August 2010. The settlement
agreement
which was concluded under the auspices of the CCMA pursuant to three
separate disputes referred to that institution by
the applicant,
provides as follows: In paragraph 1, that the respondent agrees
to reinstate the applicant on the same terms
and conditions of
employment, which governed the employment relationship prior to his
dismissal. That provision is,
it would seem, qualified by
paragraph 6 of the same agreement, where the parties agreed as
follows:
“
Reinstatement
will be in accordance with a formal offer to be given to applicant on
23 August 2010. The offer will be for
a position as store
controller, and on the same terms and conditions as for his previous
position, also with all same benefits.”
The
agreement then continued to regulate the terms on which the offer was
to be made by the respondent and the date by which it
was to be
accepted by the applicant. There is no dispute that an offer
was duly made and accepted.
The
dispute that gives rise to the present application has its origins,
in essence, in an allegation by the applicant that the respondent
has
failed to comply with the terms of the settlement agreement in a
number of respects. Firstly, the applicant contends
that
the terms of the settlement agreement, properly read, entitled him to
be employed on the same terms and conditions as existed
prior to his
dismissal and that in effect, the provisions of clause 1 of the
agreement trump those of clause 6. This is the
basis on which I
understand the averment to be made that the applicant is entitled to
be reinstated into his old position as a
finance clerk rather than
the position referred to in paragraph 6, which is that of a store
controller. That appears to be
from the notice of motion, an
alternative prayer.
The
second complaint that can be identified from the papers, is to the
effect that even in the position of a store controller, the
applicant
has not been afforded the same terms and conditions that applied
prior to the settlement agreement and in particular
that the terms
and conditions that currently apply are demeaning to him and that he
has been the subject of negative remarks made
by certain members of
the respondent’s management.
In
relation to urgency, the first hurdle that the applicant is required
to overcome in these proceedings, the applicant’s
attorney
addressed a letter of demand to the respondent on 21 October 2010.
In terms of that letter, a demand was made that
the applicant be
reinstated to a position similar to that which he previously held,
alternatively is to his former position as
a finance clerk. The
respondent was further advised that if it failed to reinstate him on
those terms by 11 November 2010,
the applicant would have no other
option but to make an urgent application to this court for an order
reinstating him with immediate
effect.
This
application was filed on 2 December, almost a month after the expiry
of the ultimatum issued in terms of the letter dated 21
October.
In my view, the applicant has failed to establish that this matter is
of such a nature that it warrants promotion
above those cases
currently awaiting hearing in the normal course. The question
of urgency is very often linked to some of
the other elements of an
application of this nature. In this instance, I recall
particularly the requirement of an absence
of alternative remedy. I
fail to appreciate why the applicant has not sought to bring an
application in the normal course under
section 158(1)(c) of the
Labour Relations Act to have the settlement agreement made an order
of court and if necessary, to seek
the enforcement of that order.
That is the procedure that is normally available to persons who are
party to settlement agreements
and who contend that one or more
other parties to the agreement are in breach of their obligations.
There
is a dispute of fact on these papers. An answering affidavit
and replying affidavit have been filed, primarily addressing
the
issue of whether the respondent is indeed in breach of the settlement
of agreement. But that is not a matter that I need consider
today,
and I make no finding in regard.
The
specific grounds for urgency that have been proffered in these
proceedings are largely the following. First, the applicant
makes an appeal to dignity and the dignity of workers. Of
course the right to dignity is well established in our labour law
jurisprudence and it is a fundamental constitutional right, one that
recognises that work confers a certain dignity on persons
and workers
are entitled to have that dignity protected. But I fail to
appreciate why, in these circumstances, that factor
alone warrants
the promotion of this matter to the urgent roll.
To
the extent that the applicant claims that he is seeking alternative
employment and that prospective employers would regard him
as having
been employed in the more lowly position of a stock controller rather
than the more elevated position of a finance clerk,
there is no
factual basis made out for that contention on the papers. The
furthest that the applicant goes is to suggest
that he may well be
prejudiced in regard to future prospects should he not be reinstated
into the position of a finance clerk.
As I have already
indicated, whether he is entitled to be reinstated into that
position, is a matter for another court to decide
on another day and
I fail to appreciate, given the lack of any facts that appear from
the papers before me, why this matter is
urgent simply because the
applicant may elect to seek some form of alternative employment in
future.
Finally,
in regard to the applicant’s medical condition, which has been
alluded to, the applicant contends that he is under
treatment.
Annexure K to the founding affidavit records the nature of the
applicant’s condition and the medication
regime that is in
place to facilitate his recovery. The same letter indicates, as
I have said, that the applicant is on medication,
that he is being
monitored by his medical advisors with regular therapy. But there is
no indication either in terms of that letter
or elsewhere in the
papers, that the applicant’s medical condition is such that
should this matter not be treated on an urgent
basis, that he will
suffer irreparable harm should the relief he seeks not be granted.
For
all of those reasons, in my view, the urgent application brought
before this Court is misconceived. As I have indicated,
it is
open to the applicant, should he so wish, to initiate proceedings in
terms of section 158(1)(c), should he be of the opinion,
which he
clearly is, that the respondent is in breach of the settlement
agreement signed under the auspices of the CCMA.
Should
the respondent elect to oppose any such proceedings, this Court will
then be in a position to properly consider in the normal
course
whether indeed the settlement agreement should be made an order of
court and thereafter, if necessary, to decide whether
any continued
breach of an order made by this Court, constitutes contempt for which
a variety of penalties may be sought in order,
effectively, to
enforce the terms of the settlement agreement.
For
those reasons I make the following order:
1.
The application is removed from the roll for want of urgency.
2.
The applicant is to pay the costs of these proceedings.
_____________________
VAN
NIEKERK, J
Edited
26 January 2011