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[2012] ZALCJHB 159
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Independent Municipal and Allied Trade Union obo Erasmus and Another v City of Johannesburg and Another (J 2606/08) [2012] ZALCJHB 159; (2013) 34 ILJ 1741 (LC) (13 December 2012)
Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case
no: J 2606/08
In the matter between:
INDEPENDENT MUNICIPAL AND ALLIED TRADE UNION OBO J ERASMUS AND
ABJ CRAUKAMP
Applicant
and
THE CITY OF JOHANNESBURG
First Respondent
THE MUNICIPAL MANAGER OF THE CITY OF JOHANNESBURG
Second Respondent
Heard
: 12 October 2012
Delivered
: 13 December 2012
Summary:
Application to compel compliance with order and
counter-application to rescind - application to compel dismissed with
costs.
JUDGMENT
BHOOLA J
Introduction
There are four applications before this court.
In the first application (“the contempt application”),
the applicant seeks an order compelling the first respondent
to
comply with an arbitration award dated 6 September 2005 and made an
order of this court in terms of section 158(1) (c) of
the Labour
Relations Act, 66 of 1995 (“the Act”) on 12 March 2007,
in which the arbitrator ordered the reinstatement
of the individual
applicants J Erasmus and ABJ Craukamp retrospectively to 6 September
2005.
The second application is a counter-application instituted by the
first respondent to rescind and set aside the order made by
Pillay
J, on the ground that it was null and void, alternatively had been
vitiated by fraudulent non-disclosure on the part of
the applicants
in their section 158(1) (c) application of the fact that they had
been removed from the register of the Health
Professions Council of
South Africa (“HPCSA”), and further that the HPCSA had
not been joined as a party.
The third application is an application instituted by the applicants
to strike out the answering affidavit in its entirety, or
alternatively certain paragraphs thereof as constituting hearsay
evidence.
The fourth application is an application for condonation of the late
delivery by the first respondent of its answering affidavit
and
counter-application. The grounds relied upon are that the extensions
to time period were agreed expressly or tacitly by the
parties
during settlement negotiations.
Background facts
Erasmus and Craukamp were employed by the first respondent as fire
fighters by subsequently qualified as basic ambulance attendants
(also referred to as medical technicians), and in this capacity were
required from time to time to attend to persons in need
of medical
treatment as
inter alia
part of a municipal emergency team.
They were registered with the HPCSA as basic ambulance attendants
and as such fell under
the jurisdiction of the Professional Board
for Emergency Care personnel (“the Board”), a body which
functions under
the statutory umbrella of the HPCSA.
An incident occurred on 21 September 2004 during which it was
alleged that they had refused to treat or arrange hospitalisation
for an indigent individual who became ill on the street and who had
died the following day. The incident caused a public media
outcry.
They were dismissed on 17 February 2005 following a finding by a
Johannesburg Emergency Management Services (“JEMS”)
Tribunal that they were guilty of misconduct.
On 2 February 2006 Erasmus and Craukamp were also found guilty by
the HPCSA on a charge relating to unprofessional conduct related
to
the incident for which they were dismissed by the first respondent.
As a result their names were removed from the register
of the Board.
They lodged an appeal with the Appeals Committee of the HPCSA and in
September 2005 also referred a dispute concerning
their unfair
dismissals to the South African Local Government Bargaining Council
(“SALGBC”). Following an arbitration
held under the
auspices of SALGBC they were reinstated with retrospective effect in
an award issued on 6 September 2005. The
first respondent was
ordered to pay them compensation equal to twelve months’
salary respectively and was further directed
to reinstate them
within 14 days of receipt of the award. The first respondent’s
representative had elected not to participate
in the arbitration on
account of being refused a postponement, and the arbitration
proceeded in its absence.
In the enquiry held on 2 February 2006 by a committee of the HPCSA,
Erasmus and Craukamp admitted that they had not acted in
line with
ethical rules and protocols. They also admitted to not having taken
primary response equipment to the patient, as a
result of which they
failed to ensure that he was admitted to a hospital.
On 6 September 2005 the applicant forwarded a copy of the
arbitration award to the first respondent, demanding compliance with
the award. No response was forthcoming and the applicant proceeded
with an application in terms of section 158(1) (c) of the
Act to
make the award an order of court, which was granted on 12 March
2007. The first respondent had by then complied with the
compensation awarded and only their reinstatement remained in issue.
In March 2007 the applicant demanded the reinstatement of Erasmus
and Craukamp in compliance with the court order. The first
respondent addressed a letter to the applicant on 22 March 2007
requesting proof, to be provided on or before 26 March 2007,
of
their registration with the HPCSA, and stated that it would not be
able to comply with the court order unless “your
members
illustrate satisfactorily that they meet the minimum requirements to
practice in their respective jobs.”
There was no response to this letter.
The employees appealed the penalty imposed by the HPCSA, following
which the sanction of removal from the register was set aside
and
substituted with the following ruling :
“
That
the sanction of erasure be substituted by a suspension from practice
for a period of two years and eight months, effective
from 2 February
2006 which sanction is suspended on condition that the applicants
undergo a BAA course within four months of the
date of the decision”.
On 12 September 2008 the applicant attached the outcome of the
appeal in correspondence to the first respondent (in reply to
the
letter of 22 March 2007 from the first respondent) and indicated
that Erasmus and Craukamp had been reinstated on the register
with
effect from 1 September 2008 and since they had now met the minimum
legal requirements they were entitled to reinstatement.
The first respondent replied on 17 September 2008 as follows :
“
We
acknowledge receipt of your letter of 12 September 2008.
In response thereto, we wish to
draw your attention to our letter to your good selves dated 22 March
2007, which is self-explanatory.
Kindly be reminded that we
requested you to provide us with the proof of registration of your
members with the Health Professions
Council (as prescribed by the
relevant legislation) on or before 26 March 2007, which you failed to
provide or at least explain
as to why it could not be provided to the
City at the time. We further warned you that in the event that you
did not provide us
with these documents on or before the then set
date, we will not be able to comply with the Labour Court order, and
in view of
this, we proceeded to fill the positions previously held
by your members.
It is worth mentioning that you
chose to ignore our letter despite a clear warning to the effect that
we will not comply with the
order in the absence of the required
documents. It is over a year now since we requested you to provide us
with proof of registration
and yet, you still approach us without
providing a plausible explanation for the undue delay in providing us
with the information.
Our view is that your members
repudiated their contract of employment with the City by their
conduct and failure to comply with
a reasonable request by the City
to provide it with the requested documents done on the 26 March 2007,
as such the City is of the
view that it is no longer obliged to
comply with the order of the Labour Court.
We advise that your members are
at liberty to apply should any vacancies arise in future.”
The contempt application
The first respondent submits that it had no option but to fill the
posts left vacant by Erasmus and Craukamp by virtue of impossibility
of performance. The applicants were lawfully unable to tender their
services for a period of 18 months, hence the union’s
failure
to respond to the first respondent’s letter of 22 March 2007.
The first respondent could not reasonably have been
expected to keep
their positions vacant for the period that they had been struck off
the register. In any event, Mr Boda submitted,
the clear import of
the letter of 17 September 2008 was that the first respondent had
terminated their contracts of employment
as a result of their
inability to perform, and this raises a fresh dispute.
Mr Glendinning, appearing for the applicant, submitted that the
first respondent was clearly in contempt of the award and the
court
order in setting unnecessary preconditions for the reinstatement of
the individual applicants. Its contention that there
were no
vacancies or suitable alternative posts available was preposterous
and it was deliberately seeking to avoid reinstatement.
Such an
approach, he submitted, warranted punitive costs. He relied on the
dictum
in
Sparks v Sparks
1998 (4) SA 714
(W) at 726 E
to the effect that :
“
In
general all orders of court, whether correctly or incorrectly granted
have to be obeyed until they are properly set aside. If
it were
otherwise respondents would be able to defy court orders with
impunity, contending that they believed such orders to be
wrong.”
He relied further on the warning issued by Goldstein J in
Culverwell
v Beira
1992 (4) SA 490
(W) cited in
Clipsal Australia (Pty)
Ltd and others v Gap Distributors and others
20120 (2) SA 289
(SCA) at [22] to the effect that “
orders of court have to
be obeyed until set aside and ..chaos may result if people were
allowed to defy court orders with impunity”
. In the same
matter “
.. in Bezuidenhout v Patensie Sitrus Beherend Bpk
2001 (2) SA 224
E at 228F-230A where, relying on Culverwell and
Kotze, Froneman J said that an order of a court of law stands and
must be obeyed
until set aside by a court of competent
jurisdiction”.
As such, Mr Glendinning submitted, the first respondent was in
contempt as it had simply refused to reinstate the employees in
compliance with the court order. In regard to the capacity in which
Erasmus and Craukamp had tendered their services, he confirmed
that
they had tendered their services as fire-fighters, and were not
obliged to tender services as medical technicians. For the
latter
submission he relied on the outcome of an arbitration held by the
first respondent in relation to a grievance lodged by
Craukamp in
2005, which concluded on 13 March 2006 that he had been appointed to
the position of fire fighter and not Emergency
Medical Technician
(“EMT”) or fire fighter /EMT and that the first
respondent had unilaterally varied his terms and
conditions of
employment by forcing him to assume duties that are not part of his
substantive post. The award concluded as follows:
“
I order
the respondent to restore the status quo ante in that the applicant
cannot be forced to carry out the duties of an ambulance
assistant
or EMT and any such refusal will not constitute misconduct by them.
The applicant is to be required to perform only
his duties in his
substantive post of fire fighter.”
Accordingly, Mr Glendinning submitted that the first respondent
could not lawfully require Craukamp to work as a medical technician
and the HPCSA registration ceased to be of relevance. The suspensive
condition requiring compliance with a BAA course was also
therefore
not applicable. In conclusion he submitted that the first respondent
had for over four years evaded compliance with
a court order and the
applicant was entitled to an order compelling compliance.
In regard to the impossibility of performance allegation made by the
first respondent and insofar as it seeks to suggest that
the court
order is vitiated by the allegedly fraudulent non-disclosure, Mr
Glendinning submitted that this defence was tantamount
to endorsing
the anarchy and chaos warned of in the abovementioned decisions.
In regard to the substantial period of time that has expired since
the court order, he submitted that this was not relevant as
the
employees retained an absolute right to seek compliance until such
time as the order prescribed. The respondents have in
essence
deferred to the court of public opinion in holding them guilty in a
trial by media that was conducted against Erasmus
and Craukamp at
the time, when numerous press articles were published suggesting
that they had acted callously in leaving an
individual to die in the
streets. This appeared to be the predominant reason for their
failure to comply.
There are in essence only two issues to be determined. Firstly,
whether the applicants are entitled to an order compelling the
respondent to comply with the court order. If this application is
dismissed it would dispose of the entire matter and there would
be
no need to determine the other three applications. However if the
applicants are granted relief in the first application,
then the
counter application becomes relevant and I would be required to
consider whether the court order should be rescinded
on the grounds
of fraudulent non-disclosure.
In regard to the first application Mr Boda submitted that when a
party seeks specific performance in the form of reinstatement,
a
partial tender of services is not sufficient.
See BK Tooling
(Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1) SA
391
(A) at 419H,
3M SA (Pty) Ltd v SACCAWU & Others
[2001] 5 BLLR 483
(LAC) at para [9].
In casu
the employees would have been entitled to
reinstatement if they were able to tender services in full i.e. as
both fire fighters
and medical technicians. They were unable to do
so for a period of approximately 18 months and the first respondent
was left
with no option but to fill their vacant posts. With
reference to the pleadings he submitted that in settlement proposals
made
on 24 July 2009 it was unequivocally communicated to the
applicant that the first respondent would be willing to reinstate
them
provided proof was forthcoming that they had completed the BAA
course. This, Mr Boda submitted, would have given them full redress.
The offer was repeated a number of times thereafter and was finally
rejected on 17 June 2011. It appears from their papers that
the
justification for this rejection was that they would be entitled to
tender partial services as ambulance drivers but not
as healthcare
professionals.
During this two year period it appears that the applicant changed
attorneys on a number of occasions and the employees tendered
their
services but were turned away and requested to provide proof of
their registration with the HPCSA and compliance with BAA
training.
On 25 July 2011 when it appeared that settlement negotiations had
broken down and the first respondent was requested
by the current
attorneys of record to file its answering affidavit, the first
respondent’s attorneys again requested the
applicant to
provide proof that the employees had attended a BAA course within
four months of the appeal outcome. None was forthcoming.
As was
submitted by Mr Boda, the first respondent had made a
bona fide
settlement proposal to reinstate Erasmus and Craukamp provided they
submitted proof of their compliance with the appeal ruling.
In other
words, provided that they could tender their services in full. This
proposal appeared to have been made from about 24
July 2009 until it
was rejected two years later.
I understood Mr Glendinning to rely on the grievance arbitration in
support of the submission that it was unlawful to impose
the
requirements of registration with the HPCSA and the BAA course since
the award issued in Craukamp’s favour had confirmed
that the
first respondent could not lawfully require him to perform duties as
a medical technician. Mr Boda submitted that this
was an attempt to
make out a case in reply that did not feature in the founding
affidavit but I am not required to determine
this as the lack of
relevance of this award, somewhat obfuscated in Mr Glendinning's
submissions, was clarified in reply to bear
no relation to the
Craukamp who is an applicant herein and of no relevance to this
matter whatsoever.
The employees are still left with the hurdle that they were employed
as both fire fighters and medical technicians and were reinstated
in
the same capacity and therefore the respondent was entitled to
insist that they meet the requirements of both components of
their
jobs. The court order makes no mention of the duties having been
changed and only varied the back pay which they had been
awarded.
This is an issue that should have been raised at the section
158(1)(c) application but was not. The court order compels
the first
respondent to comply with an award which effectively reinstated them
to both duties and unless they are able to comply
with both duties
the respondent is not obliged to reinstate them. They have made no
attempt to date to meet the requirements
for reinstatement as
medical technicians by undergoing the BAA course. They have not done
so and despite having repeatedly been
asked over a 2- 3 year period
to produce proof that they have met this requirement, they are to
date still not able to do so.
Indeed, as Mr Boda submitted, the first respondent is justified in
rejecting what amounts to a tender of partial performance,
and the
application falls to be dismissed on that ground alone. He submitted
that as of the date of termination in the final
letter, no
employment relationship existed between the parties and the second
termination gave rise to a new dispute which the
applicant has not
sought to challenge. However I am in agreement with the submission
in reply by Mr Glendinning that a second
dismissal could not have in
law been effected unless the two employees had first been
reinstated. In fact, if the second dismissal
was lawful and fair,
they would then have been dismissed on account of their failure to
provide the requested proof that they
met the minimum requirements
for reinstatement. In any event in so doing the first respondent was
not in contempt as it was not
refusing to comply with a court order,
but was instead relying on new facts that arose after the
termination of the employment
relationship.
Clearly the contempt application is without merit as first
respondent cannot be said to have disobeyed a court order or acted
in bad faith and cannot be held in contempt. In any event even if I
am wrong on this point, the applicants were reinstated on
the
register subject to a suspensive condition with which they have to
date not complied. They have not provided satisfactory
proof of
their re-enrolment on the register, which was made subject to
completion of the BAA course. On the basis of these two
points it is
competent to dismiss the application. I am accordingly not required
to determine whether the court order was vitiated
by fraud and
having determined the contempt application the remaining
applications are
a fortiori
disposed of.
Order
In the circumstances, I make the following order :
The contempt application is dismissed with costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
A J GLENDINNING
Instructed by Otto
Krause Inc. Attorneys, Roodepoort.
RESPONDENTS:
F A Boda
Instructed by Norton
Rose South Africa, Johannesburg.