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[2014] ZALCJHB 157
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Banking Insurance Finance and Assurance Workers Union obo Members v South African Football Association (J983/14) [2014] ZALCJHB 157 (8 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO J 983/14
In
the matter between:
BANKING
INSURANCE FINANCE AND
ASSURANCE
WORKERS UNION OBO MEMEBERS
APPLICANT
and
SOUTH
AFRICAN FOOTBALL ASSOCIATION
RESPONDENT
Date
heard: 6 May 2014
Judgment
delivered: 8 May 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an urgent application in which the applicant seeks an order
suspending notices of retrenchment issued to its members
on 24 April
2014 pending the finalisation of an application filed under case
number J 2986/12. The nature and significance of that
application
appears below in the summary of the material facts.
Factual
background
[2]
In the financial year ending June 2012, the respondent recorded a
loss of R56 million, largely on account of a loss of revenue
due to
decreased sponsorship and non-sustainable operating costs. On 20 July
2012, the respondent issued a notice in terms of s
189 (3) of the
LRA, inviting the applicant to participate in a consultation process
to be facilitated by a person appointed by
the CCMA. (It is not
disputed that since the respondent was contemplating dismissing more
than 10 of its approximately 109 employees,
the provisions of s 189A
applied.) The applicant took the view that in terms of the collective
agreement between the parties, the
respondent was obliged to
negotiate the terms of what amounted to the implementation of a new
organisational structure. The respondent
took the view that it was
obliged to consult in terms of s 189/ 189A of the LRA. A dispute
concerning the application and interpretation
of the collective
agreement was referred to the CCMA for conciliation, and ultimately
to arbitration.
[3]
On 9 November 2012, the applicant filed an urgent application in this
court seeking a stay of the consultation process pending
the outcome
of a ruling by the CCMA in the dispute about the interpretation and
application of the collective agreement. On 13
November 2012, the
court ruled that the application was not urgent and struck it from
the roll, with costs. On 27 November 2012
the applicant filed an
application for leave to appeal that ruling.
[4]
On 14 December 2012, the CCMA ruled in favour of the respondent,
effectively finding that the collective agreement, properly
interpreted, meant that s189 of the LRA applied to the proposed
retrenchment and that the respondent was not under any obligation
to
negotiate with the applicant. The commissioner’s ruling is the
subject of a pending application for review, filed under
case number
JR 306/13. The review application was filed on 12 February 2013, more
than two weeks outside of the six-week period
established by s 145 of
the LRA. The application for review does not contain any application
for condonation. In its answering
affidavit, the applicant contends
(wholly incorrectly) that the period of 15 December 2012 to 15
January 2013 were
dies non
and that the application was
therefore filed timeously. Despite the filing of a replying affidavit
on 31 May 2013, the applicant
does not appear to have taken any steps
to further prosecute the review application.
[5]
Be that as it may, written reasons for the order striking the urgent
application from the roll were furnished on 21 August 2013.
On 9
September 2013, the applicant filed a notice requesting the registrar
to re-enroll that application for hearing in the ordinary
course. On
7 October 2013 the registrar issued a directive in terms of which the
applicant was to file heads of argument within
15 days. The applicant
has yet to file its heads of argument in accordance with that
directive. Instead, on 11 April 2014, more
than six months later, the
applicant filed a replying affidavit, together with an application
for the late filing of that affidavit.
[6]
In the interim, the respondent continued with the restructuring
process, engaging directly with its staff. That process continued
in
a context in which on 16 May 2013, a notice had been sent to all
members of staff announcing the commencement of the second
phase of
the restructuring process. A new organogram had been introduced, and
members of staff were encouraged to apply for vacancies
reflected in
the new structure. On 29 January 2014, a circular was distributed to
members of staff introducing a Mr. Lerefolo,
appointed temporarily
amongst other things, to accelerate the final leg of the
organisational restructuring. On 18 March 2014,
a memorandum was
distributed to staff introducing a Mr. O’Connor who had been
engaged to implement the final phase the restructuring
process and in
particular, to engage with staff members who had not applied for
available posts, to set up interviews for those
posts and to inform
those members of staff who were not successful in the interview
process of their status. The memorandum specifically
states that the
respondent intended to conclude the final phase of the restructuring
process by no later than the end of March
2014. On 25 March 2014, the
respondent addressed a letter to the applicant in which it recorded
that it had been informed that
the applicant had instructed its
members not to apply for any of the advertised posts on the basis of
a pending process in this
court. That notwithstanding, the letter
records that as mentioned to the union in a meeting on 14 March 2014,
the respondent intended
to conclude the consultation process
speedily, and that the union was welcome to meet with the respondent
on 27 March 2014 for
an update on the matter. The applicant responded
on 28 of March 2014 stating that in its view, the respondent was
obliged to issue
a fresh s 189 (3) notice, that an application was
pending before this court and that its members should not be forced
to participate
in an unlawful and flawed process. On 23 April 2014,
letters were addressed to those employees who had not been
accommodated in
the new structure advising them that the final day at
work would be 25 April 2014 and that they would not be required to
work notice
periods, on the basis that they would receive one month
salary in lieu thereof.
Urgency
[7]
It is trite that this court will not entertain an application where a
departure from the rules ordinarily applicable is sought
when the
urgency relied upon is self-created. In the present instance, urgency
stands to be assessed at two levels. First, there
is the historical
context of the dispute between the parties. In short, what this
reveals is that on its own version, the applicant,
as far back as 19
September 2013, made a conscious decision to pursue the application
that had been struck off, in the ordinary
course. The directive
issued by this court in October 2013 to file heads of argument was
simply ignored. Nothing of any consequence
occurred until 11 April
2014 when a replying affidavit was filed, months out of time. Given
the chronology of events recorded above,
the irresistible conclusion
is that having done nothing to pursue the application pending before
the court since early September
2013 and after having been informed
in mid- March 2014 that the respondent intended to implement the
final phase of the restructuring
process, the applicant woke up to
the fact that it had best pursue the litigation that it had
initiated. In other words, having
been content to litigate at its
leisure, the realisation that its strategy of obstruction was about
to be compromised and that
the restructuring initiated by the
respondent would become a reality by the end of March 2014,
galvanised the applicant into action.
In my view, in these
circumstances, the applicant ought not to be entitled to rely on its
own ineptitude and in particular, its
failure to prosecute the
application with due diligence to seek what amounts to the
preservation of the status quo pending the
outcome of that
application. Secondly, when more recent events are scrutinised, it is
clear from the above chronology that the
applicant’s members
were aware at least from 18 March 2014 that the respondent intended
to complete the restructuring process
by the end of that month. It is
also clear that the union was advised of this fact on 14 March 2014
and again during the last week
of March. Yet, the present proceedings
were initiated only on 25 April 2014, without any satisfactory
explanation for the delay.
Given this conspectus of all of the
relevant facts, in my view, any urgency in the present application is
self-created and the
application stands to be struck from the roll on
that basis.
[8]
In any event, I am not satisfied that the applicant has established a
prima facie
right that entitles it to what amounts to an
interim order pending the outcome of the substantive application
before the court.
The relief that the applicant seeks in that
application, it should be recalled, was primarily to stay the
consultation process
pending the outcome of the dispute about the
interpretation of the recognition agreement respondent and in
particular, the determination
of whether the respondent was under any
obligation to negotiate the terms of any restructuring with the
applicant. That notice
of motion seeks a stay ‘
pending the
outcome or ruling by the CCMA in the matter relating to labour
dispute
…’. It is common cause that the CCMA made
such a ruling on 14 December 2012. To the extent that the present
application
seeks a stay of the implementation of the restructuring
process pending the outcome of the proceedings initiated initially by
way
of the urgent application filed in November 2012, that
application sought no more than a stay pending the outcome of the
ruling
which was made almost a year and five months ago. Further (and
I did not understand the applicant’s representative to dispute
this) where s 189A applies, as it does in the present instance, any
dispute about fair procedure must be referred to this court
by way of
an application in terms of s 189A (13). The present application is
not such an application, and is to that extent misguided.
[9]
In relation to costs, this court has a broad discretion in terms of s
162 to make orders for costs according to the requirements
of law and
fairness. Although this court is reluctant to make orders for costs
against unions in circumstances where they are embroiled
in a dispute
with a collective bargaining partner, in my view, this case stands to
be treated differently. The applicant has failed
to prosecute the
litigation that it has initiated before this court with due diligence
and ultimately, it is that failure that
it now seeks to rely on to
justify intervention by the court at this late stage. At every level,
the applicant has failed to advance
the interests of its members with
any reasonable degree of diligence and the present application, as I
have indicated, is nothing
more than yet another attempt, too little,
too late, to discharge its obligations to its members. The respondent
has incurred costs
in opposing the applicant’s misguided
attempts to frustrate the implementation of the restructuring, and
there is no reason
to deprive the respondent of those costs.
For
the above reasons, I make the following order:
1. The
application struck from the roll for lack of urgency, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. Xolani Mazibuko instructed by Pule Pule Attorneys
For
the Respondent: Mr. P M Mosebo, Maserumule Inc.