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[2015] ZALCJHB 88
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Ndunyana v South African Municipal Workers Union (SAMWU) (J 482/15) [2015] ZALCJHB 88 (12 March 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA,
IN JOHANNESBURG
CASE NO: J 482/15
DATE: 12 MARCH 2015
Of interest to other
judges
In the matter between:
SIPHIWO
NDUNYANA
….......................................................................................................
Applicant
And
THE SOUTH AFRICAN MUNICIPAL WORKERS
UNION (“SAMWU”)
...................
Respondent
Heard: 12 March 2015
Delivered: 12 March 2015
Summary: (Urgent interdict –
notice to amend)
JUDGMENT
LAGRANGE, J
Introduction
[1] On 5 March 2015, the applicant
applied on an urgent basis for the upliftment of his suspension which
commenced on 19 December
2014, pending the final determination of a
dispute about the unfair nature of his suspension in terms of section
186 (2) (b) of
the Labour Relations Act, 66 of 1995 (‘ the
LRA’) by the CCMA. The relief sought in the application was
essentially
orders permitting him to resume his duties as the
Provincial Secretary of the respondent in the Eastern Cape and to
restrain the
respondent from undertaking any disciplinary proceedings
against them pending the outcome of the suspension dispute.
[2] In his founding affidavit, the
applicant also mentions that he did not receive his salary as normal
for February 2015. He also
states that he had learnt by 15 February
2015 of the dismissal of four of his colleagues who had also been
suspended in similar
circumstances and anticipated that his own
dismissal was imminent.
[3] In the respondent’s answering
affidavit filed on 11 March 2015, the respondent claims that in fact
the applicant was already
dismissed by it on 11 February 2015 and
attaches a letter of the same date advising the applicant of his
summary dismissal. The
respondent does not make any averment how the
applicant was advised of his dismissal in the answering affidavit. In
reply, the
applicant says that he never received that termination
letter and suggests that it was concocted to persuade the Court that
the
dispute about his suspension had been superseded by his dismissal
and that consequently any relief the Court might order relating
to
his suspension would be pointless.
[4] In response to the allegation that
he had been dismissed, the applicant filed an amended notice of
motion the day before the
hearing of the application in which he
seeks further interim relief in the form of a declaratory order that
his dismissal be declared
invalid and of no force and effect and
compelling the respondent to reinstate him. The basis on which he
argues that his dismissal
is invalid is that the respondent’s
code of employment requires one month’s notice to be given to
him of the termination
of his contract. Accordingly, he seeks to
insist that he is entitled to repudiate the termination in breach of
that obligation
and to insist on specific performance of the
respondent’s contractual duty not to dismiss him without
notice. The provision
he refers to is clause 2.5 of the respondent’
s Disciplinary Procedure, which reads:
“Dismissal is the ultimate
sanction and is with one month’s pay in lieu of notice.”
[5] The respondent argues that the
additional relief sought in the amended notice of motion in response
to its claim that it had
dismissed the applicant essentially
introduces an additional cause of action on one day’s notice.
Consequently, respondent’s
counsel, Mr Venter, submitted that
the amendment could not be entertained on such short notice, in the
same proceedings that were
initiated on 5 March 2013. The applicant’s
counsel, Mr Alli, argued that the amendment was necessitated by the
revelation
in the respondent’s answering affidavit that it
claimed to have dismissed the applicant: unless the additional relief
was
included, the other relief pertaining to the applicant’s
suspension would be meaningless. He also contended in effect that
even if the applicant was now aware of the respondent’s
decision to dismiss him, that fact should not stand in the way of
him
proceeding with his original application if that dismissal itself was
unlawful for want of payment of one month’s salary
in view of
the notice.
[6] It is common cause that the
applicant’s alleged unfair suspension dispute will be
considered by the CCMA a week from today
on 19 March 2015.
[7] I will assume for the moment that
the Court should entertain the amended application declaring the
applicant’s dismissal
invalid pending the outcome of the CCMA
proceedings, on the basis that he had been dismissed without being
paid one month’s
remuneration in view of notice and that the
payment of such remuneration is indeed a condition precedent for the
valid termination
of his employment by the respondent. Even if that
is the case, the Court could, at the very best for the applicant,
order the respondent
to reinstate him until such time as that
condition had been complied with. That would not ensure a situation
in which his return
to work on the simultaneous upliftment of his
suspension is realised. The most material possible consequence of his
dismissal being
declared invalid would be that, it might result in
him being entitled to remuneration from the time he was purportedly
dismissed
until he is dismissed on paid notice. That is a claim that
could be determined in the ordinary course after the respondent had
been put on terms to restore his employment until such time as it is
validly terminated.
[8] What this illustrates is that an
order invalidating the applicant’s dismissal, even if it was
appropriate as a matter
of urgency for the Court to determine, would
not necessarily form the basis for any meaningful guarantee that a
simultaneous order
lifting his suspension would have any lasting
effect.
[9] In any event, the new relief the
applicant seeks essentially is based on a fresh cause of action that
should be fully ventilated.
Even though the applicant contends that
the respondent failed to prove that the applicant received the notice
of his dismissal
on 11 February 2015, the respondent has not been
given an opportunity to address the applicant’s contention that
he never
received it, nor has it been given the opportunity to
respond to the claim that the applicant’s purported dismissal
in the
absence of payment of one month’s remuneration in view
of notice renders the dismissal invalid and unlawful. Likewise, the
respondent has not had an opportunity to address what relief would be
appropriate in the event that the dismissal was invalid.
[10] The applicant ought not to have
sought to ‘piggyback’ his application for interim relief
invalidating his dismissal
on the original application to uplift his
suspension, even if the success of the original application is now
contingent on the
outcome of an application to invalidate his
dismissal. He ought rather to have asked the Court to postpone the
hearing of the original
application pending the determination of a
fresh application, on reasonable notice to the respondent, to
invalidate the dismissal.
[11] In the circumstances, the amended
application for additional relief relating to the validity of the
applicant’s dismissal
must be struck off the roll on grounds of
urgency as it is brought on insufficient notice. The original
application must fail on
the basis that an order uplifting the
applicant’s suspension is meaningless given the fact that he
has been dismissed, whether
the dismissal is lawful or not and
whether or not he received a notice of that dismissal in February
2015 or only when the answering
affidavit of the respondent was
served on 11 March 20115.
[12] In view of the genuine uncertainty
about whether or not the applicant knew or ought to have known that
he was dismissed before
11 March 2015, I believe it would be
inappropriate to make any cost order.
Order
[13] The application to amend the
applicant’s notice of motion to include additional relief
declaring his dismissal invalid
and reinstating his employment is
struck off on grounds of lack of urgency.
[14] The original application filed on
5 March 2015 is dismissed.
[15] No order is made as to costs
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
For the Applicant: N Alli instructed
by Baqwana Burns
For the First Respondent: R Venter
instructed by Maenetja Attorneys