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[2014] ZALCCT 44
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De Klerk v Project Freight Group CC (C647/2014) [2014] ZALCCT 44; (2015) 36 ILJ 716 (LC) (14 August 2014)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE
NUMBER:
C647/2014
DATE:
14 AUGUST 2014
REPORTABLE
In
the matter between
WARREN
DONALD DE
KLERK
Applicant
and
PROJECT
FREIGHT GROUP
CC
Respondent
JUDGMENT
STEENKAMP,
J
:
This
is a somewhat u
nusual application
for an order restraining the employer, Project Freight CC, from
implementing its decision to dismiss the applicant,
Mr Warren de
Klerk, for operational requirements pending the resolution of a
dispute that he has referred to the CCMA for the disclosure
of
information in terms of section 16 read with section 189(4)(a) of the
Labour Relations Act (Act 66 of 1995).
The
background facts are largely common cause. The parties have embarked
on a consultation process in terms of section 189 of the
LRA.
In the course of that consultation process the employee, who was
legally represented, made a written request for information.
The employer, represented by an employers’ organisation
(“ESOSA”) refused to provide the information.
On
21 July 2014 the applicant’s attorneys wrote to ESOSA and
stated the following:
“
As
the employer has cited financial factors for the proposed
retrenchment, our client requests in terms of section 189(4) of the
(Labour Relations) Act the following information:
1.
audited financial statements of the employer;
2.
the findings of the independent consultants that preceded the
business rescue practitioners;
3.
the findings of the business rescue practitioners.”
Neither
the employer nor the employers’ association responded.
On
29 July the applicant’s attorneys again wrote to them and again
asked for the information. They also alerted the
employer to
the fact that they had applied for a case number at this court in
order to bring an urgent application, if necessary.
The
employer eventually responded on the 31
st
July, saying:
“
With
regard to the request for the company to hand over financial
statements, the company is not prepared to do so, as these are
not
pertinent to the case at hand.”
The
employee then sought legal advice and was advised by his present
counsel, Ms
Harvey
,
that in fact this Court would not be the proper forum to bring an
urgent application to ask for the information, but that he should
refer a dispute to the CCMA in terms of section 16, read with section
189(4), of the Act.
He
did so on the 6
th
August 2014 and at the same time again wrote to the employer and to
the employers’ association, asking for an undertaking
that,
pending the resolution of the referral to the CCMA, the employer
should not take any further steps.
No
such undertaking was forthcoming. Instead, on Friday the 8
th
August at 15:21 the employers’ organisation sent the employee’s
attorney an email refusing to give the undertaking.
The
applicant then launched this application on Tuesday, the 12
th
August. It was heard this morning, Thursday 14 August.
The
first question that arises against that background is the question of
urgency. It is so that the applicant knew on the
31
st
July already that the employer was not willing to provide the
requested information.
However,
having followed the prescribed route under section 16 and section
189(4) of the Act, the applicant then attempted, once
again, to avoid
litigation by asking the employer to stay the retrenchment exercise,
pending the resolution of the dispute at the
CCMA.
The
employer, assisted by its employers’ organisation, refused;
that only became apparent on the afternoon of Friday the 8
th
August. The applicant then acted with the necessary expedition
and launched this application one working day after that refusal.
In
this regard the background is very similar to that outlined by Mlambo
AJ, as he then was, in
NUMSA v Comark
Holdings (Pty) Ltd
(1997) 18
ILJ
516 (LC), where he noted at 526a-c:
“
I
agree with the submissions made by Mr
Hardie
that the matter became urgent once Comark refused to provide the
undertaking not to enforce its decisions to retrench the individual
applicants on 31 March 1997 before the resolution of the s 16(6)
dispute that had been referred to the CCMA. What further
rendered the matter more urgent was Comark’s refusal to
disclose the information requested. I find it also relevant
to
consider the fact whether there was an alternative remedy available
to NUMSA and the individual applicants if Comark had gone
ahead and
retrenched its members. Mr
Hardie
is correct that as the old Act made provision for
status
quo
relief proceedings, the new Act
does not and this renders the situation regarding any other available
alternative remedies non-existent,
other than approaching this court
to interdict the whole process.”
Similarly,
I am satisfied that this application is indeed urgent.
That
brings me to the nature of the relief sought. What must be
stressed at the outset is that this is not one of those matters
that
so often unfortunately clog the urgent roll of this court where an
employee seeks to interdict a disciplinary hearing. Those
applications are often dismissed and for good reason.
The
Labour Appeal Court has stated clearly in
Booysen
v Minister of Safety and Security
(2011) 32
ILJ
112 (LC) at paragraph [54] that applications of that nature will only
be granted in the most exceptional circumstances.
The
prescribed dispute resolution procedure in the Act is that an
employee faced with a disciplinary hearing should make use of
the
dispute procedures prescribed by the Act. That is to continue
with the hearing and, should he or she be dismissed, to
refer an
unfair dismissal dispute to the CCMA or to the relevant bargaining
council. That is the prescribed route.
However,
as I have noted, the case before me is an unusual one. The
applicant seeks to suspend the consultation process in
terms of
section 189 of the Labour Relations Act, only pending the resolution
of the dispute that he has properly referred to the
CCMA. He
has in other words followed the procedure prescribed by the Act.
I
will return to the question whether the process envisaged by section
16 is available to an individual employee or whether it is
only
available to trade unions.
By
the time the matter was heard this morning the respondent, Project
Freight, had delivered answering papers and the applicant
had
replied. The applicant therefore no longer asked for a rule
nisi
but
for a final order, albeit pending the resolution of the dispute at
the CCMA.
I
therefore intend to test the question whether the applicant is
entitled to the relief sought against the requirements for a final
interdict, set out in
Setlogelo v
Setlogelo
1914 (AD) 221 at 227,
although the relief sought is interim in nature in the sense that it
is pending the resolution of the dispute
at the CCMA.
The
first question then is whether the applicant has established a clear
right. Firstly, of course, the applicant does have
a clear
right not to be unfairly dismissed, but that is true for any employee
that faces possible dismissal, for example, in a
disciplinary
hearing.
The
further issue at stake here is that the employee also has a right in
terms of section 189(3) of the LRA to be provided with
relevant
information. In this regard the sentiments expressed by Mlambo
AJ, as he then was, in
Comark Holdings
at 524b-g are especially relevant.
He says in his discussion
of an application very similar to this one:
“…
[B]ecause
the employer is always privy to all necessary and relevant
information it should not only disclose information which it
deems
relevant. It should disclose all information requested by the
consulted party subject to the limitations already enunciated.
To enable employee representatives to fulfil their duty to seek
alternatives through meaningful and effective consultation it is
necessary to give them an opportunity to consider not only the
information which, in the employer’s view, supports the view
that no alternatives to retrenchment exist, but also other
information which the employer has not considered to be relevant but
which might be.”
Those
sentiments are especially pertinent to this matter where the employer
has expressed the view that the financial information
requested is
not relevant, however, given the reasons it has given for the
retrenchment, it might well be. I am satisfied
that the
employee does have a clear right to the relief he seeks pending the
determination of the s 16 dispute by the CCMA.
Furthermore,
there is an injury actually committed. The employer has already
given the employee notice of his dismissal that
will be effective at
the end of this month, that is the 31
st
August 2014. It has also refused to either supply the
information requested or to give an undertaking not to implement its
decision to dismiss, pending the resolution of the section 16
disclosure.
In
this regard the facts of the matter before me can be distinguished
from those in
Dlamini and Others v
Sakato and Others
[1998] 4 BLLR 378
(LC). In that case Mlambo J, as he then was, refused to confirm
a rule
nisi
ordering the employer to comply with the provisions of section 189 of
the LRA. That was in the context where the employer
had given
the requisite undertaking and had in fact tendered that no employment
contract would be terminated until it had complied
with the
consultation requirements of the Act. In the case before me the
employer refused to grant such undertaking, even
after numerous
requests by the employee and his attorneys.
I
then turn to the question of a suitable alternative remedy. It
is so that the employee has another remedy, the same as any
other
employee, to challenge his dismissal were he to be dismissed.
But
that is not what the employee is challenging in this case. He
is simply asking for the consultation process -- and therefore
his
dismissal -- to be suspended, pending the referral to the CCMA.
In that regard he has followed the remedy prescribed
by the Act.
That is the referral to the CCMA for disclosure of information.
That
brings me then to the argument advanced by Mr
De
Kock,
for the employer, that the
employee is not entitled to and the CCMA does not have jurisdiction
to entertain that referral.
He argues that that is so on the
basis of the wording of s 16 of the Act.
Section
16(1) refers to a representative trade union. Section 16(2)
reads:
“
Subject
to subsection (5), an employer must disclose to a trade union
representative all relevant information that will allow the
trade
union representative to perform effectively the functions referred to
in section 14(4).”
Mr
De Kock
argues that only a trade union is entitled to the disclosure of
information and that is the only party that can refer a dispute
to
the CCMA in terms of section 16(6). That is indeed the wording
of section 16 which deals with the disclosure of information
in the
context of collective bargaining. However, that is not the
context in which this application is being heard.
This
application is heard in the context of an operational requirements
dismissal and a consultation process in terms of section
189.
One has to have regard then to the wording of section 189(4) which
reads:
“
The
provisions of section 16 apply, read with the changes required by the
context, to the disclosure of information in terms of
subsection
(3).”
The
context is a consultation process in terms of section 189. That
process is being conducted between the employer and, in
this case, an
individual employee. When one has regard to section 189(1) it
compels the employer to consult with:
“
If
there is no such trade union, the employees likely to be affected by
the proposed dismissals or their representatives nominated
for that
purpose.”
[1]
That
is the context in which this consultation is taking place. The
employer is consulting with the employee, Mr De Klerk.
Mr De
Klerk has asked for information. The employer and its
employers’ organisation have refused to give him the
information.
In that context he has referred the dispute to the
CCMA in terms of section 16.
One
therefore has to read section 16 with the changes required by that
context, and those changes then require that the words “trade
union” should be replaced with the word “employee”
in the context of the operational requirements consultation.
I
am therefore satisfied that the employee has followed the prescribed
route in referring the dispute to the CCMA. Should
the relief
he seeks pending the resolution of that dispute not be granted, the
whole consultation process will be rendered meaningless.
It
cannot be said that the parties are engaged in a meaningful joint
problem-solving exercise when the employer simply refuses
to provide
information that may be relevant.
I
stress that the Court is not in a position to decide at this stage
whether the information is relevant. That is for the
proper
forum, i.e. the CCMA, to decide. However, should the Court not
grant the interim relief sought at this stage, the
harm to the
employee will be irreparable.
There
is one further issue and that is a point of criticism to be levelled
at the employee. There is no indication that the
employee or
his legal representatives have sought to expedite the hearing at the
CCMA. Given the context -- that the employer
has indicated that
the employee will be dismissed effectively on the 31
st
August 2014 -- that process should obviously be expedited.
Ms
Harvey
suggested that this Court could order the CCMA to do so, but I am not
satisfied that the Court has the power to issue such an order
in
circumstances where the CCMA is not cited as a respondent.
However, I do intend to direct the parties to approach the
CCMA
jointly in order to expedite that process.
With
regard to costs, both parties asked for costs to follow the result.
I see no reason in law and fairness to order otherwise.
In
conclusion, I grant the following order:
(1)
Leave is granted for this application to be
heard as a matter of urgency in terms of rule 8.
(2)
The respondent is interdicted and
restrained from implementing its decision, communicated on 31 July
2014, to retrench the applicant
effective 31 August 2014, pending:
(a) the
outcome of the dispute referred to the CCMA under case number WECT
11705-14; and
(b)
meaningful consultation in accordance of
the provisions of section 189 of the LRA.
(3)
The respondent must pay the costs of this
application.
(4)
The parties must jointly request the CCMA
to expedite the hearing of the dispute under case number WECT
11705/14.
________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
Suzanna Harvey
Instructed
by:
Aarninkhof attorneys.
RESPONDENT:
Coen de Kock
Instructed
by:
Carelse Khan attorneys.
[1]
Section 189(1)(d)