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[2011] ZALCCT 46
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Visser v Department of Health, Western Cape Provincial Government (C994/11) [2011] ZALCCT 46 (14 December 2011)
Of interest to other
judges
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case: C994/11
In the matter between:
TIMOTHY VISSER
..........................................................................................
Applicant
and
DEPARTMENT OF HEALTH,
PROVINCIAL GOVERMENT
WESTERN CAPE
..........................................................
Respondent
First Respondent
Heard:
13 December 2011
Delivered:
14 December 2011
JUDGMENT
LAGRANGE, J:
The applicant is
pursuing interim relief in this application for an order lifting his
suspension by the employer so that he can
return to work. On the
return day he seeks an order giving effect to an arbitration award
in his favour reinstating him and awarding
him compensation. He is
currently on suspension without pay. It is not in dispute that in
August 2011, 60 days expired since
his precautionary suspension in
terms of section 7.2 of the Disciplinary Code and Procedure of the
Public Service (‘the
code’), without a disciplinary
enquiry being held. The enquiry is only scheduled for later this
month.
In the arbitration award
dated 21 November 2011, the arbitrator found that the suspension was
unfair and ordered the applicant’s
immediate reinstatement and
payment of R 50,000-00 in compensation. The respondent has refused
to give effect to the award pending
a decision whether to review it
or not. It contends it should be given the full six week period to
make up its mind on this issue
before the applicant can seek to
enforce the order which was the other relief the applicant
originally sought in this application.
The applicant now relies
on the code which is binding on the employer and forms part of the
applicant’s contract of employment.
He effectively claims his
continued suspension is unlawful in terms of clause 7.2 of the code.
He argued that he is bringing
this application now because even
though he has made a second referral of an unfair labour practice
dispute also arising from
the employer’s non-compliance with
the regulation, the bargaining council has no jurisdiction to deal
with the matter of
the unlawfulness of the suspension.
He did not act earlier
because if he succeeded in his original unfair labour practice claim
he fully expected to be reinstated,
as indeed he was. However, the
employer has declined to give effect to the award pending the
possible exercise of its right of
review. The employer does not
dispute it is currently acting in breach of the regulations.
Brief findings
I accept that the
failure of the employer to give effect to the award, has the effect
of prolonging his unlawful suspension. He
could reasonably have
expected the that if he was successful he would be reinstated
forthwith, and it is not reasonable to expect
him now to wait a
further six weeks until the employer decides whether or not to
review the award. Furthermore, the applicant’s
contractual
right to return to work envisaged in clause 7.2 is one that can only
effectively be fulfilled by specific performance.
An unfair labour
practice claim can only seek to retrospectively place a monetary
value on the past non-compliance, which is
not in truth an
alternative remedy to one of specific performance.
However, in as much as
the applicant says he cannot obtain immediate relief for the
unlawful suspension by waiting for the outcome
of his second unfair
labour practice referral, that was equally true at the time of his
referral of the first unfair labour practice
dispute on 14 August
2011. Any urgency relating to the exercise of his entitlement not to
be unlawfully suspended existing then.
In other words, the same
problem he now presents as the reason he must seek relief from the
court now, is one that already existed
at the time he made the
original referral in August. Consequently, I cannot find he has
acted with the requisite degree of urgency,
notwithstanding that he
has a clear right to exercise.
Although, I am striking
this matter off the roll for lack of urgency, I am directing that
the applicant may re-enrol the matter
for determination of the final
relief sought in prayer 1.2 of his notice of motion on a date to be
determined by the registrar
during the week of 23 January 2011.
As there is still
currently an ongoing relationship and the application has great
merit except for the question of urgency which
might have been
clouded in the applicant’s mind by the original unfair labour
practice referral, no order is made as to
costs.
Order
The application is
struck of the roll for lack of urgency.
No order is made as to
costs.
The applicant may
re-enrol the matter for determination of the final relief sought in
prayer 1.2 of his notice of motion during
the week of 23 January
2011, on a date to be determined by the registrar. If the applicant
intends to proceed with an application
for final relief, he must
file any supplementary affidavit by 11 January 2012 and the
respondent must file any supplementary
answering affidavit by 18
January 2012.
R LAGRANGE, J
JUDGE OF THE LABOUR
COURT
APPEARANCES:
FOR THE APPLICANT: W
Field of Bernadt Vukic Potash & Getz
FOR THE SECOND
RESPONDENT: B Joseph instructed by the State Attorney
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