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[2012] ZALCJHB 189
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IMATU v Johannesburg Metropolitan Municipality and Others (J1522/14) [2012] ZALCJHB 189 (30 June 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J1522/14
IMATU
obo MEMBERS IDENTIFIED IN
ANNEXURE
‘MLG
1’
...............................................................................
First to Further Applicants
and
THE
JOHANNESBURG METROPOLITAN
MUNICIPALITY
............................
First
Respondent
JOHANNESBURG
METROPOLITAN BUS SERVICE
....................................
Second Respondent
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
.........................................
Third
Respondent
Heard:
26 JUNE 2014
Delivered:
30 JUNE 2013
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This application was brought before the court on an urgent basis in
terms of which the Applicants seek a declaratory order to
interdict
and restrain the continuation of a lock-out, which they contend is
unprocedural and unlawful. Relief is only sought against
the Second
Respondent, who is the employer of the Further Applicants (The
Employees/Drivers). The Applicants further seek an order
that with
immediate effect, the Second Respondent should allow them to return
to their usual places of work and to render their
services (picked
shifts) in accordance with the picking that took place on or about 10
to 12 March 2014, and further that the Second
Respondent be ordered
to pay them within 30 days from the date of this order, any and all
remuneraion due to them backdated to
when the lock-out started. The
Third Respondent is merely cited as an interested party.
Background
to the application:
[2]
The Second Respondent is not a party to the SALGBC, and workplace
related issues are discussed between the employer and the
two trade
unions (IMATU and SAMWU) within an internal structure called ‘Union
Management Meeting or Committee’ (The
UMC). Amongst the issues
discussed at this level include the shift system or the so-called
shift picking system, which is applicable
to bus drivers. Within the
UMC is a task team that deliberates over matters surrounding the
shifts, and which in turn reports to
the UMC for decision making.
[3]
A dual shift system (Referred to as the First Shift System) has been
in place for drivers over time. This incorporated the so-called
‘disability shift’ system and the ‘ordinary shift’
system. In terms of this system, drivers used to elect
to work on a
particular shift, and once allocated to that shift, they had nothing
to do with the other system.
[4]
As a consequence of a shortage of drivers and disparities in
allocation in shifts, the UMC resolved that the disability shift
system which at the time only had two drivers allocated to it and who
were unable to manage it, would now form part of the ordinary
shift
system, resulting in all normal shifts being allocated to a common
pool of shifts. (The Second Shift System). In terms of
this shift
system, which the Applicants contend should be implemented, the
drivers were allowed to pick specific shifts which they
wanted to
work. Picking of shifts has been a practice over time, and in this
regard, the drivers picked a shift once a year in
accordance with
seniority. Thus the most senior driver is allowed to pick a shift
which he or she will be allocated to for a period
of one year. The
disability shift part of picking system comes with remuneration and
benefits attached to it and it is obviously
more lucrative than the
other shift. IMATU’s members have generally always been more
senior, and thus got preferences in
the choice of shifts. The last
picking process in terms of the old shift system took place between
10 and 12 March 2014, and was
to be implemented with effect from 1
April 2014. According to IMATU, the picking exercise was agreed to at
a UMC meeting held on
28 February 2014.
[5]
Due to disgruntlement raised by SAMWU or its members about the Second
Shift System as it was biased towards senior bus drivers,
a Third
Shift System was discussed for introduction with the parties on 14
and 31 March 2014. IMATU’s contention is that
there was no
agreement reached on the implementation of the Third Shift System in
these meetings. It further held the view that
if there were any other
meetings concerning the shift system after March 2014, it had been
excluded from such meetings. Since there
was no other meeting it was
aware of, there could not have been any agreement outside of the UMC
regarding the change in the shift
system, and to that end, it
contended that its members were entitled to report for duty as per
their choices.
[6]
The Second Respondent’s contention is that it has implemented
this system despite disagreements over the Second Shift
System, and
IMATU had stated on 1 April 2014 that its members would work in
accordance with the shifts that they picked (Second
Shift System).
According to the Second Respondent, the shift system is not part of
the driver’s terms and conditions of employment,
and it
contended that it did not require the consent of the Unions or bus
drivers to implement the change in the shift system.
The Second
Respondent denied that it had held bilateral discussions with SAMWU,
and was of the view that it was entitled to implement
the changes
following from the meeting of 31 March 2014. It denied that the
Second Shift System was at any stage implemented.
[7]
The Third Shift System was implemented with effect from 12 May 2014.
This had caused members of IMATU to be unilaterally taken
off their
picked shifts and placed on other shifts or other workstations. Only
some of the IMATU members (mainly the Applicants
in this case) had in
response continued to report for duty in terms of the First Shift
System, i.e, the shifts that they had elected
in March 2014. The
Second Respondent had not allowed IMATU members to report for shifts
as they had chosen, and had insisted that
they should report for duty
in terms of the new system.
[8]
On 22 May 2014, the Second Respondent had issued a notice locking out
a number of employees from the premises with effect from
24 May 2014
in response to what it termed unprotected strike. With a view of
resolving the impasse, a meeting was held on 2 June
2014 at which
IMATU was informed that its members had embarked on an unlawful
industrial action, that a lock-out had been instituted
in response to
the industrial action, and that as a consequence, those not reporting
in terms of the third shift system were to
be disciplined for
misconduct. The Second Respondent according to IMATU was adamant at
that meeting that the Third Shift System
would be implemented and
remain operational.
[9]
On 2 June 2014, the bus drivers who were not reporting for duty in
terms of the third shift system were informed that they would
be
required to appear before a disciplinary enquiry scheduled for 12
June 2014 to answer to allegations that between 16 and 19
May 2014
they had refused to render their services; insubordination and
embarking on unlawful industrial action. It was common
cause that the
disciplinary enquiries were postponed to 27 June 2014 by agreement.
Urgency:
[10]
Central to the Second Respondent’s argument was that this
application was not urgent for a number of reasons. Urgent
applications are dealt with in terms of Rule 8 of the Rules for the
Conduct of proceedings in the Labour Court which provide that;
“
(1)
A party that applies for urgent relief must file an application that
complies with the requirements of rules 7(1), 7(2), 7(3)
and, if
applicable, 7(7).
(2) The affidavit
in support of the application must also contain-
(a) the reasons for
urgency and why urgent relief is necessary;
(b) the reasons why
the requirements of the rules were not complied with, if that is the
case; and
(c) if a party
brings an application in a shorter period than that provided for in
terms of section 68(2) of the Act, the party
must provide reasons why
a shorter period of notice should be permitted”.
[11]
The Labour Appeal Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[1]
(as also referred to by the Second Respondent) explained the
requirements of this Rule as follows:
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is
not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”.
[12]
From the above authorities, it follows that an applicant seeking
urgent relief must adequately set out in the founding affidavit,
the
reasons for the urgency and must give cogent reasons in some detail
and explain why urgent relief is necessary. Failure to
do so
inevitably will result in the application being struck off the roll
for want of urgency. The basis for allowing parties to
dispense with
the Rules of Court relating to time periods is to prevent the
occasioning of an injustice and involves the balancing
of this
consideration with that of the rights of parties to a considered
opportunity to place their cases before the court
[2]
.
[13]
The Applicant’s contention was that up to 2 June 2014, they
were still hoping for a resolution of the dispute through
dialogue. A
number of requests for the transcript of the UMC meetings held on 14
and 31 March 2014 were made and these were only
received on 13 June
2014. Even then, only one set of the transcript was made available.
Furthermore, it was submitted that the
continued unlawful lock-out
will perpetuate the Applicants’ suffering under an unlawful
employment practice by an employer
within the broader public
administration; that the lock-out had dire consequences for IMATU
members and their dependants, and that
the urgency lay in the
violation of fundamental rights and in the abuse of power. As the
application was brought on short notice,
it was further submitted
that it was not possible for the Applicants to comply with the rules
of the court regarding procedures
and forms.
[14]
The issues pointed out on behalf of the Applicant in contending that
the matter is urgent mainly pertain to the consequences
and effect of
the lock-out. Other than these factors, which may or may not
necessarily persuade the Court to treat the matter as
urgent, it is
still required of the Applicants to show the Court that they had
indeed acted with due haste when the act leading
to the consequences
or effects took place or arose. This requires an examination of the
timeline of events leading to the launching
of this application.
[15]
On the Applicants’ own description of the chronology of events,
the last picking in terms of the ‘First shift system’
took place in March 2014. Thereafter, meetings were held in March and
April 2014 to discuss the shift system. According to IMATU,
the
Second Respondent had started to implement the ‘Third shift
system’ with effect from 12 May 2014. The Second Respondent’s
contention was that it had implemented the new system with effect
from 1 April 2014. Whichever date the new system was implemented,
the
bus drivers had nevertheless presented themselves for service in
terms of the old picking system until 24 May 2014 when they
were
locked out. They had received notices of the lock-out in terms of
section 64 (3) (d) of the LRA on 22 May 2014. There is no
explanation
as to the reason this application was not launched then, or
immediately thereafter, as the consequences of that lock-out,
more
particularly the non-payment of the drivers were felt then.
[16]
After the lock-out had taken effect, all IMATU did was to dispute the
Second Respondent’s contention that its members
had embarked on
a strike. At the last meeting held on 2 June 2014, the Second
Respondent had made its intentions clear that it
would not go back to
the old shift system. It had further made its intentions clearer by
issuing notices of disciplinary enquiry
to the drivers on 2 June
2014. Surely if IMATU was still of the view that the lock-out was
unlawful for the reasons it had advanced,
and in the light of the
notices of the disciplinary enquiry, the matter could not have been
more urgent then. Even more curious,
after the the Second Respondent
had made its position clear in the meeting of 2 June 2014, I fail to
appreciate the reason that
IMATU would still have any hope that any
further engagement with the Second Respondent would yield any
results. Inasmuch as parties
are encouraged to afford dialogue an
opportunity, a line has to be drawn where the one party unequivocally
makes its intentions
clear that it would not move from its position,
and it is at that point that the other party must then look at its
options. To
this end, IMATU’s contention that it had hoped that
further dialogue after 2 June 2014 would yield any results is feeble.
[17]
Instead of approaching the Court immediately after 2 June 2014, and
especially after the Second Respondent had made its stance
clear,
IMATU had instead instructed its attorneys to write a letter to the
Second Respondent on 6 June 2014, which letter merely
reiterated its
position on the shift system, the discussions that took place prior
to the lock-out and its stance on the issue
of the shift system.
Nothing new arose from this correspondence. The letter to the
Second Respondent had also demanded that
the drivers be allowed to
report for duty in terms of the old system failing which if no
undertaking was given in that regard by
10 June 2014, IMATU would
approach the Court on an urgent basis. Again, if the matter was
urgent, I fail to appreciate the reason
IMATU would give the Second
Respondent such an extended time within which to respond, when
especially the latter had made its position
clear on the matter on 2
June 2014.
[17]
The Second Respondent’s attorneys of record responded on 10
June 2014 after having received the letter on 9 June 2014.
In a
detailed response, the Second Respondent had
inter alia
reiterated its position on the issue of shifts, and had indicated
further that any changes to the shift system did not require
the
consent of the Unions, and that it was entitled to implement those
changes. The Second Respondent had refused to provide any
undertakings. Even then, and after this emphatic response, IMATU
failed to act.
[18]
The Applicants’ main contention however in regards to urgency
was that they could not approach the Court sooner as requests
for a
transcribed record of the minutes of 14 and 31 March 2014 was made
several times, and the transcript was only provided on
13 June 2014,
and even then only the transcript of the meeting of 14 March
2014. I again fail to appreciate the necessity
or importance of a
transcript of the minutes of 14 and 31 March 2014 when even
thereafter, the Second Respondent’s adamant
position has always
been that it had the prerogative to implement the new shift system,
and would not go back to the old system.
[19]
Having received a transcript, IMATU still challenged the correctness
of the minutes. Even if these minutes were to dispel the
notion that
indeed there was no agreement reached on the new system, they had
absolutely nothing to do with the launching of this
application in
the light of the events subsequent to 12 May 2014 after the
Second Respondent had implemented the third shift
system. These
minutes would not have taken the matter any further in that whether
they reflected an ageement or not would have
been moot in the light
of the subsequent events and actions taken by the Second Respondent.
[20]
Even if it were to be believed that a transcript of the minutes of
the meeting was relevant, having received that transcript
on 13 June
2014, the Appliants only filed this application on 20 June 2014, some
seven days later. No explanation was proffered
as to the reason this
was the case other than the argument made from the bar that there was
a holiday on 16
th
June 2014. This argument or excuse
is not sustainable in that a holiday or weekend cannot prevent
parties from drafting court papers,
especially if it is alleged that
a matter is urgent. Urgency also implies that a party should itself
have acted in like manner.
To this end, taking into account the
chronology of events, more specifically the fact that the new shift
system was implemented
from 12 May 2014; that the drivers were locked
out with effect from 24 May 2014, and the fact that notices of
disciplinary enquiry
were issued on 2 June 2014, it is my view that
the Applicants were dilatory in approaching the Court. To this end,
the Applicants
have not satisified the requirements of urgency, and
in effect, and in the light of the conclusions reached above, the
urgency
alleged is clearly self-created.
Conclusions
and the issue of costs:
[21]
In the light of the conclusions on the question of urgency, it
follows that the application should be struck off the roll.
The only
issue for determination pertains to costs.
[22]
It is my view that this application was ill-conceived for a number of
reasons. Other than the dilatory manner with which it
was launched,
it was doomed from the start in view of the issues that are allegedly
in dispute, which this Court have pronounce
upon in the past
[3]
.
The refusal of the Applicants to work in terms of the new system
clearly constitutes industrial action, moreso since they do not
have
any contractual right to chose how and where to work. This is a
matter that falls within the prerogative of the employer,
and
Steenkamp J in
Johannesburg
Metropolitan Bus Services (Pty) Ltd
[4]
made this point clearer by stating that as employees do not have a
vested right to specific shift system in collective agreement
or
contract of employment, changes to the system is merely a change in
work practice, and did not comprise a unilateral change
to terms and
conditions of employment. Thus employees have no vested right to
preserve working conditions completely from the moment
they are
employed. Furthermore, it is unheard of that employees can chose
where and how to work unless the employer agrees to the
employee’s
preferences.
[23]
It follows that the Applicants cannot allege that they are not on
strike by merely presenting themselves for service but on
their own
terms. In these circumstances, as the employees do not want to, or
refuse to work in accordance with the specific instructions
of the
employer, i.e the third shift system, their conduct constitutes
‘strike’ as contemplated in section 213 of the
LRA, which
remains unprotected. In bringing this application, it was not for the
purposes of ensuring clarity on the matter or
asserting their rights.
The application was brought merely to assert their own preferences as
to how they want to work. The
fact that some of IMATU members
have complied with the changes whilst only the Applicants remain
defiant speaks volumes about the
folly of bringing this application.
This court must in the circumstances, show its displeasure at such
conduct, which as correctly
pointed out by Mr. Patel on behalf of the
Second Respondent, constitutes an abuse of the court process. In
these circumstances,
considerations of law and fairness dictate that
the Applicants should be ordered to pay the costs of this
application.
Order:
(i)
The application is struck off the roll on account of lack of urgency.
(ii) The Applicants
are ordered to pay the costs of this application.
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicants: Adv. F Van der Merwe
Instruced
by: Francois Du Plessis Attorneys
For
the Respondent: Mr. A Patel of Cliffe Dekker Hofmeyer Attorneys
[1]
(2010)
31 ILJ 112 at para 18
[2]
National
Police Services Union and Others v National Negotiating Forum and
Others (1999) 20 ILJ
1081
(LC)
[3]
See
Johannesburg
Metropolitan Bus Services (Pty) Ltd v SAMWU &
O
thers
(2011) 32 ILJ 1107 (LC) and also
City
of Johannesburg Metropolitan Municipality & others v SAMWU &
Others
(2011) 32 ILJ 1909 LC
[4]
supra