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[2013] ZALCPE 17
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Pyke v Bensure Management Services (Pty) Ltd and Another (P 356/11) [2013] ZALCPE 17 (16 July 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable
case No: P 356/11
In the matter between:
DEBORAH GLEN PYKE
..........................................................................
APPLICANT
And
BENSURE MANAGEMENT SERVICES (PTY) LTD
................
FIRST
RESPONDENT
FINANCIAL SERVICES BOARD
........................................
SECOND
RESPONDENT
Date Heard: 01 November 2012
Date Delivered: 16 July 2013
Summary:
An applicant may not seek a final interdict
restraining a respondent from committing an unfair labour practice.
The appropriate
approach is to seek an interim interdict pending the
finalisation of the unfair labour practice dispute at the CCMA.
JUDGMENT
LALLIE, J
The first respondent operates in the business of under writing
funeral schemes. Part of its business is to administer the under
writing of funeral schemes of funeral parlours. It employed the
applicant as its Port Elizabeth branch manager in May 2004. Before
taking up employment with the first respondent, the applicant was
employed by Safricam which conducts business in the same industry
as
the first respondent. When the applicant moved from Safricam to the
first respondent more than half of her clients followed
her.
During 1 to 4 April 2011 seven funeral parlours which were clients
of the first respondent with whom the applicant worked terminated
their relationship with the first respondent and moved their
business to an entity called KGA. These parlours constituted about
85% of the premiums the applicant received. They were also part of
the group of parlours which had followed her from Safricam.
On 11
April 2011 the applicant informed Chis Cunningham-Moorat, the
executive chairman of the first respondent (the chairman)
via e-mail
of their cancellations. The chairman expressed his suspicion that
the applicant had a hand in the cancellations. In
addition
Nick-Cunningham-Moorat, Director: Commercial and Operations (the
Director) of the first respondent required control
over the bank
accounts the applicant was administering as well as the internet
access details to the accounts. He also sought
the applicant to
return the claims’ float which was in her possession. The
first respondent further required the applicant
to provide it with
all the membership data.
The first respondent’s conduct stripped the applicant of her
main duties and the cancellations of the parlours reduced
her
earnings considerably making it impossible for her to continue
working for the respondent. The applicant informed the first
respondent that she construed the first respondent’s conduct
as a repudiation of her contract of employment which she accepted
thereby terminating the contract. The first respondent denied having
repudiated the contract and accused the applicant of having
breached
the contract and conniving actively with the first respondent’s
clients who had cancelled their business to take
it to another
business in which she would be involved. On 4 May 2011 the applicant
received a letter from Amanda Blackbeard ,
the first respondent’s
operations Director (the Operations Director) informing her to
continue working. The applicant tendered
her resignation and gave a
month’s notice which ran from 9 May to 9 June 2011.
On 23 May 2011 the applicant was suspended from work with immediate
effect on full pay pending a disciplinary enquiry to be held
in Port
Elizabeth on a date and time to be advised. On 25 May 2011 the
parties agreed that the applicant would deliver on the
same day, the
first respondent’s assets in her possession at its Old Mutual
Building office in Port Elizabeth. The disciplinary
enquiry was not
held and the applicant did not receive her salary for May 2011.
The applicant was registered as a representative in terms of the
Financial Advisory and Intermediary Services Act 37 of 2002
(the
FAISA) by Bonrisk. On 26 May 2011 the first respondent debarred the
applicant in terms of section 14 of the FAISA. The debarment
was
supported by a statement of the first respondent’s head of the
legal department Ryna Van Niekerk (Van Niekerk). The
reason provided
for the applicant’s debarrament was that she did not comply
with the fit and proper requirement of the
FAISA, particularly
honesty and integrity and that she had contravened the provisions of
the FAISA. The debarment is published
in the second respondent’s
website. The debarment has a detrimental effect on the future
registration of the applicant
as a representative of a financial
service provider. It prevented the applicant from earning an income
and damaged her reputation.
The applicant submitted that the debarment constituted an unfair
labour practice. In this application she seeks an order in the
following terms:
‘
Setting aside the debarment of the
applicant in terms of
section 14(1)
of the
Financial Advisory and
Intermediary Services Act 37 of 2002
.
Interdicting and prohibiting the first respondent from
publishing to the second respondent or any third party that the
Applicant
is not a fit and proper person as intended in the
Financial Advisory and Intermediary Services Act 37 of 2002
.
Ordering the second respondent to remove all record of the
debarment of the applicant from its web site and its record’.
This application is opposed by the first respondent, firstly the
respondent alleged that this Court lacks the necessary jurisdiction
to determine this application on the grounds that the second
respondents’ head office is in Pretoria. The situation of
the
second respondents head office does not determine this Court’s
jurisdiction over this application. The respondent’s
submission is therefore ill founded and without merit.
Another ground the first respondent sought to rely on in its
argument that this Court lacks jurisdiction over this dispute is
that the debarment arises out of its obligation in terms of the
FAISA and that the alleged defamation of the applicant’s
character does not arise out of her employment with the respondent.
In the notice of motion, the applicant has clearly stated that she
seeks an interdict. In her founding affidavit she has submitted
that
her debarrement constitutes an unfair labour practice. It is not for
the first respondent to define the dispute the applicant
should have
referred.
Section 158
(1) (ii) of the LRA grants this court
jurisdiction to determine an application for an interdict against
the respondent. It is
for the court to decide whether the applicant
has made out a case for the grant of the interdict.
The first respondent submitted that the document used to debar the
applicant reflected that the party debarring her is Bonrisk
(Pty)
Ltd, an associate of the first respondent. It has an interest in the
relief sought by the applicant and her failure to
join it
constitutes reason for the dismissal of this application. The first
respondent’s submission is not supported by
the document it
sought to rely on. The document reflects the debarring party as
Bonrisk. It has the same address, telephone and
fax number as the
first respondent and the contact person at the debarring FSP is Van
Niekerk, the head of the first respondent’s
legal department.
There is no indication in the document that Bonrisk is legal person
which can be sued. The applicant’s
omission to join Bonrisk as
a party is therefore not fatal to her case.
The first respondent further submitted that this application stands
to be dismissed owing to the dispute of fact which was foreseen
by
the applicant. I disagree, any dispute of fact in this matter can be
dealt with in terms of the decision in
Plascon-Evans-Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
1
.
The applicant submitted that she was referring an unfair labour
practice dispute to the CCMA where she will be seeking, inter
alia,
compensation for the debarment. In
MEC for Education v Gradwell
2
it was held that a dispute concerning unfair labour practice must be
referred to the CCMA or a bargaining council for conciliation
and
arbitration in terms of
section 191
(1) LRA. When the unfair labour
practice involves a reasonable apprehension of irreparable harm the
appropriate remedy will be
to seek an order granting urgent relief
pending the outcome of the unfair labour practice proceedings.
As the applicant has identified the debarment as an unfair labour
practice, it is the CCMA that can set the debarment aside after
making a determination whether it constitutes an unfair labour
practice. This court may not usurp the function of the CCMA and
set
aside the debarment. The applicant pleaded that the first respondent
committed an unfair labour practice, and that she has
referred the
unfair labour practice dispute of being debarred to the CCMA. In
addition, she should have sought an order interdicting
the unfair
labour practice pending the finalization of unfair labour dispute
and make all the averments for the grant of the
interdict. She did
not do so.
The prayers the applicant seeks constitute final relief which may
not be granted in the light of her unfair labour practice dispute.
The first prayer can be granted by the CCMA after determining the
unfair labour practice dispute and prayers 2 and 3 regarding
interdicting the first respondent from publishing to the second
respondent and any third party that the applicant is not fit
and
proper in terms of the FAISA and an order for the removal of all the
records of the debarment of the applicant from its website
record
are ancillary to the relief for the unfair labour practice.
Section
194
(4) of the LRA grants arbitrators determining unfair labour
practice disputes very wide powers regarding relief they may grant.
The applicant has failed to make out a case for the grant of an
interdict pending the finalisation of the unfair labour practice
dispute at the CCMA. I could find no reason for costs not to follow
the result.
In the premises the following order is made.
15.1 The application is dismissed with costs.
_______________________
LALLIE, J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: Advocate Nieker
Instructed by :Vlok Attorneys
For the first Respondent: Mr Hood
Of MJ Hood and Associates
1
[1984] ZASCA 51
;
[1984]
(3) SA 623
A.
2
[2012]
8 BLLR 747
(LAC).