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[2013] ZALCJHB 342
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IMATU obo Members v Johannesburg Metropolitan Municipality and Others (J1522/14) [2013] ZALCJHB 342 (30 June 2013)
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