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[2015] ZALCJHB 13
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Ngwenya and Others v Edcon Ltd (J46/15) [2015] ZALCJHB 13 (27 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: J46/15
DATE:
27 JANUARY 2015
Not
Reportable
In
the matter between:
SIBUSISO
NGWENTA
and
TWELVE OTHERS
....................................
First
and further Applicants
And
EDCON
Ltd
...........................................................................
First
Respondent
Heard:
27 January 2015
Delivered:
27 January 2015
Summary:
(Urgent application – 189A(13)).
EX
Tempore Judgment
LAGRANGE,
J
Urgency
[1]
Having heard extensive representations from
the parties’ representatives, I am satisfied that, irrespective
of the substantive
merits of the applicants’ complaint, and the
fact that the applicants gave 11 days notice of the application, they
ought
at least to have put the respondent on terms to correct the
perceived deficiencies in the consultation process before launching
the application.
[2]
Accordingly I believe the application was
brought prematurely and must fail for lack of urgency.
Costs
[3]
On the issue of costs, I am satisfied that
the powers of attorney signed by the applicants were sufficiently
broad to encompass
this application. Further, I believe that the
notice to consult in terms of section 189A of the Labour Relations
Act, 66 of 1995
(‘the LRA’), issued by the respondent to
the applicants on 15 January 2015 created a reasonable impression
that the
applicants’ retrenchment was a
fait
accompli
, subject to a mere possibility
of successfully applying for other positions with the respondent,
without offering any guarantee
of preferential treatment or
identifying the existence of earmarked posts to accommodate them.
[4]
The fact that the respondent claims that an
oral commitment was made that “numerous positions were
available to them”
when they were issued with the consultation
notice, I do not believe sufficed to assuage their concerns,
particularly if the employer
did not feel such an important
commitment was not important enough to record in writing. I also note
that in the respondent’s
answering affidavit that the
respondent goes even further to say that it “intends to place
all employees affected by the
closure in similar positions in stores
in the greater Johannesburg area”, but this too was not
conveyed in the notice issued
to the applicants.
[5]
In the circumstances I am not prepared to
make an adverse cost award against the applicants and the parties
should pay their own
costs.
Order
[6]
The application is dismissed for lack of
urgency with no order as to costs.
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicants: P H Kirstein
Instructed
by: Keith Whittaker Attorneys
For the First
Respondent: H Nieuwoudt
Instructed
by: Norton Rose Fulbright.