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[2011] ZALCJHB 200
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Mashiga v Vox Amvia and Another (J161/2011) [2011] ZALCJHB 200 (3 February 2011)
Not
reportable
Delivered
030211
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J161/2011
In
the matter between:
NANDIPHA
MASHIGA
.......................................................................................
Applicant
And
VOX
AMVIA
............................................................................................
First
respondent
COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION
....................................................
Second
respondent
JUDGMENT
___________________________________________________________________
VAN
NIEKERK J
[1] This is an urgent
application, heard yesterday afternoon, in which the applicant seeks
inter alia
the staying of the outcome of a disciplinary
enquiry pending the finalisation of an urgent referral made to the
CCMA concerning
an alleged unfair labour practice, and to declare as
an unfair labour practice the first respondent’s conduct in
instituting
a disciplinary enquiry while a dispute about a grievance
remains pending before the CCMA.
[2] The relevant facts
are briefly the following. The applicant was employed by the first
respondent in September 2009. The applicant
reported to the managing
director, one Craig Freer. During the course of June 2010, the
applicant was advised that she should report
to the production
manager, Clausen. From this point, some tension obviously arose
between the applicant and the management of the
first respondent,
culminating in a series of warnings given to the applicant to the
effect that she should improve her work performance.
On 13 December
2010, the applicant lodged a grievance. The grievance records that
the applicants had experienced a myriad of work-related
problems that
had affected her health and more specifically, that she had been
subjected to what she claimed to be an unfair demotion
and
harassment. A grievance hearing was convened on 15 December 2010. In
what appears on the face of it to be an agreed outcome,
the applicant
was to meet the tasks given to her by 11 January 2011, she would
continue to report to the production manager, a
performance review
process would remain in effect, and the first respondent would
arrange for training in respect of document processes
in ISO format.
The applicant was not satisfied with the outcome of the hearing and
escalated the grievance in the document dated
17 December 2010. A
further hearing into the grievance took place, at which the applicant
was represented by a union official.
At this meeting, the applicant
contends that Freer demanded that she withdraw certain statements
made about him. This was followed
up in a letter addressed to the
applicant on 21 December 2010 in which Freer made reference to what
he termed blatant misrepresentations
of what he had said and in
effect, accused the applicant of fabricating the content of a
conversation that had taken place between
them. The applicant was
afforded an opportunity to reject the statements. On 24 December 2010
the applicant respondent to Freer’s
e-mail. Matters rapidly
degenerated from that point and in mid-January 2011, the applicant
sent a message to one De Graaf, contending
that Freer and Clausen
were engaged in a systematic effort to make working conditions
unbearable and that due to her ill-health,
the applicant had decided
to work from home until such time as matters had been resolved. De
Graaf responded by recording that
the applicant's claim was nothing
less than a brazen attempt to lay a foundation to claim constructive
dismissal, warned her to
attend at work are 18 January 2011 and
advised her that disciplinary charges were in the offing. On 17
January 2011, the applicant
referred a dispute to the CCMA in the
form of what was described as an urgent application. The referral
form summarises the facts
on which the applicant relies as the filing
of a grievance against managers who are claimed ‘to have
unilaterally changed
the terms and conditions of the contract only to
be subjected to wanton victimisation – including threatening
her with an
enquiry’. The CCMA ultimately scheduled a meeting
for 3 February 2011. On 18 January 2011, the first respondent sent
the
applicant a letter calling upon her to attend a disciplinary
hearing scheduled for 1 February 2011. In terms of the letter, the
applicant was called upon to answer to charges relating to misconduct
(in the form of statements made about members of the first
respondent's management) and for a failure to meet the required
performance standards.
[3] This application was
filed some five hours prior to the time for which it was set down.
The first respondent filed a brief answering
affidavit. In essence,
the first respondent’s case is that on 1 February, after
seeking unsuccessfully to have the disciplinary
hearing postponed and
after unsuccessfully applying for the recusal of the chairperson, the
applicant and her representative left
the hearing. In the
circumstances, the chairperson, a member of the Johannesburg Bar,
continued with the hearing and recommended
ultimately to the first
respondent that the applicant be dismissed for misconduct and poor
work performance. A letter of dismissal
was annexed to the affidavit.
[4] In so far as the
applicant seeks relief in respect of the outcome of the disciplinary
hearing, it seems to me that the relief
sought has been overcome by
events. Even if I were to approach the application on the basis that
the relief effectively sought
is the setting aside of the finding
made about the chairperson of the disciplinary enquiry pending the
outcome of the unfair labour
practice proceedings initiated by the
applicant, I am not persuaded that this is an appropriate case for
intervention. The Labour
Appeal Court recently affirmed in
Booysen
v The Minister of Safety Security
[2011] 1 BLLR 83
(LAC) that
while the Labour Court has jurisdiction to intervene in uncompleted
disciplinary enquiries, this should occur only in
exceptional cases.
The court referred to the judgment by Gauntlett AJ in
Mortimer v
Municipality of Stellenbosch and another
(case number 18243\2008)
in which it was suggested that the Labour Court would intervene to
exercise its powers only in "truly
extraordinary circumstances…”
In
Booysen,
the Labour Appeal Court held that while it was not
possible exhaustively to define the circumstances in which
intervention would
be warranted, the factors to be considered would
include whether a failure to intervene would lead to a grave
injustice, or whether
justice might be obtained by other means (see
paragraph 54 of the judgment).
[5] The applicant seeks a
final order. Accepting for the moment that the application is urgent,
it is incumbent on the applicant
to establish a clear right, injury
actually committed or reasonably apprehended and the absence of
similar protection by any other
ordinary remedy. In my view, there is
a clear alternative remedy open to the applicant or, to use the words
of the Labour Appeal
Court in
Booysen
, justice might be
obtained by other means. The prejudice on which the applicant relies
on this application has obviously been eclipsed
by the applicant's
dismissal. The applicant is entitled, subject to any obligation to
file an appeal against the chairperson’s
finding, to refer a
dispute to the CCMA contesting the substantive and procedural
fairness of her dismissal. In the event that
the matter is not
successfully conciliated, the applicant is fully entitled to refer
the dispute to arbitration in circumstances
where the primary remedy
prescribed by the Act is reinstatement. In the circumstances, I fail
to appreciate on what basis this
court ought to intervene at this
point. The applicant has all of the rights established by chapter
VIII of the Act at her disposal,
and if she is ultimately vindicated,
she will suffer no prejudice on account of the first respondent's
actions, assuming that they
are found to be wanting. If the purpose
of the disciplinary enquiry, as the applicant suggests, was to
"ambush" her in
circumstances where she had laid a
grievance and referred a dispute about a failure to resolve that
grievance to the CCMA, that
is a factor that an arbitrator will no
doubt take into account in determining the fairness of the
applicant’s dismissal.
In short, the applicant has an
alternative remedy at disposal and for that reason, this application
must fail. In these circumstances,
I need not consider the
submissions advanced on behalf of the applicant in relation to the
existence or otherwise of a clear right.
In particular, and despite
the invitation to the contrary, it is not appropriate for this court
to venture into the merits of the
applicant’s grievance and the
dispute referred to the CCMA.
[6] I turn next to the
question of costs. On receipt of this application, the first
respondent's attorneys wrote to the applicant
recording the outcome
of the enquiry and the fact of the applicant’s dismissal. The
letter further invited the applicant
to withdraw the application,
failing which the first respondent stated that it would seek a
punitive costs order. Despite this,
the applicant has persisted with
the application, and the applicant’s representative was less
than candid when the question
of the existence of the dismissal was
pursued. In these circumstances I fail to appreciate why the first
respondent should be denied
its costs.
[7] Finally, in relation
to this morning’s conciliation meeting convened by the CCMA, I
did not understand the applicant to
seek any relief in respect of
that meeting. It remains for the CCMA, in the light of the
applicant’s dismissal and the basis
of this order, to decide
how it intends to proceed.
I accordingly make the
following order:
1. The application is
dismissed, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application 2 February 2011
Date
of judgment 3 February 2011
Appearances
For
the applicant: Union Official
For
the first respondent: Mr S Milo, Mahons Attorneys