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[2015] ZALCD 21
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Sanson and Others v Mobile Telephone Networks (Pty) Ltd and Others (D 242/15) [2015] ZALCD 21 (31 March 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, DURBAN
Judgment
Case
No: D 242/15
31
MARCH 2015
Not
reportable
Of
interest to other judges
In
the matter between:
Francois
Jacques SANSON & 19
others
...............................................................................
Applicants
And
Mobile
Telephone Networks (Pty)
Ltd
.........................................................................
First
Respondent
CCMA
........................................................................................................................
Second
Respondent
Humphrey
Ndaba
N.O
................................................................................................
Third
Respondent
Heard:
31 March 2015
Delivered:
31 March 2015
Summary:
Urgent application – pending CCMA award in terms of LRA s
186(2)(a).
Judgment
STEENKAMP
J
Introduction
[1]
The applicants, all employees of MTN (the
first respondent), seek urgent interim relief in the following terms:
“
That
[MTN] be and is hereby interdicted from implementing its decision to
remove the applicants’ company cars with effect
1 April 2015
pending the outcome of the arbitration dispute lodged with [the CCMA]
under case number KNDB1004/15, alternatively
agreed compensation.”
Background
facts
[2]
The applicants all work for MTN as radio
engineers. In the course of their work they have to use company cars.
MTN supplied each
of them with a company car and a petrol card. They
could also use that for personal use up to a certain limit.
[3]
In December 2014 the company decided to
scrap the use of company vehicles. It communicated this decision to
its employees on 9 December
2014 effective 1 April 2015.
[4]
The applicants referred an unfair labour
practice dispute relating to the provision of benefits to the CCMA in
terms of section
186 (2)(a) of the LRA on 26 January 2015.
[5]
The dispute was unsuccessfully conciliated
on 26 February 2015. It was set down for arbitration on 23 March
2015. The parties agreed
to further talks and arbitration resumed on
26 March 2015. On that day, for the first time, MTN raised various
points in limine.
The parties argued those points. The arbitrator
indicated that he would make a ruling on the points in limine within
seven days.
[6]
The result was that the applicants stand to
lose their company cars today, 31 March 2015, without the CCMA having
resolved the underlying
dispute.
[7]
It is against that background that the
application has to be considered.
Evaluation
/ Analysis
[8]
I
will deal first with the question of urgency and then the
requirements for interim relief. In doing so, I also take into
account
the principles set out by the Labour Appeal Court in
Gradwell
.
[1]
urgency
[9]
Mr
Mthembu,
for MTN, objects that the matter is not
urgent; alternatively, that the urgency is self-created.
[10]
At first blush, one would have sympathy
with that argument, as the applicants were informed in December 2014
already that they would
lose their company cars on 1 April 2015.
However, as they point out in the founding affidavit, they followed
the correct procedure
in referring a dispute to the CCMA rather than
approaching this court initially. It is only when the company
belatedly raised the
point in limine, that remain unresolved, that
the matter became urgent. The urgency was created by the first
respondent and not
by the applicants.
prima
facie right
[11]
This court must decide whether the
applicants have established a prima facie right whilst still being
open to some doubt.
[12]
The applicant have established at least
such a right, pending the decision on the merits by the CCMA. The
benefit of a company car
form part of the terms and conditions of
employment. The employer changed it unilaterally.
apprehension
of harm
[13]
There is a well-founded apprehension of
harm, albeit not irreparable. Should the applicant be unsuccessful,
they cars will be taken
away today, on the eve of the Easter
holidays. It is so, as Mr
Mthembu
submitted, that they will be returned
if the applicants are ultimately successful. But in the interim the
applicants are suffering
substantial harm.
adequate
alternative remedy
[14]
The applicants have, quite properly,
pursued the alternative remedy prescribed by the Labour Relations
Act, by referring an unfair
labour practice dispute to the CCMA. That
is the remedy in due course; but they need interim relief pending the
resolution of that
dispute.
[15]
As
Murphy AJA said in
Gradwell
:
[2]
“
A
final declaration of unlawfulness on the grounds of unfairness will
rarely be easy or prudent in motion proceedings. The determination
of
the unfairness of a suspension will usually be better accomplished in
arbitration proceedings, except perhaps in extraordinary
or
compellingly urgent circumstances. When the suspension carries with
it a reasonable apprehension of irreparable harm, then,
more often
than not, the appropriate remedy for an applicant will be to seek an
order granting urgent interim relief pending the
outcome of the
unfair labour practice proceedings.”
[16]
That is exactly what the applicants have
done in these unfair labour practice proceedings.
balance
of convenience
[17]
The balance of convenience clearly favours
the applicants. They are merely asserting the continuation of a right
that has traditionally
accrue to them as employees pending the final
determination of the underlying dispute. On the other hand, the first
respondent,
a multi-million Rand company, will suffer very little
harm by extending the benefit until the underlying dispute is
finalised.
Conclusion
[18]
The applicants have satisfied the
requirements for interim relief pending the determination of the
dispute at the CCMA. With regard
to costs, I have to take into
account the requirements of both law and fairness in terms of section
162 of the LRA. There is an
ongoing employment relationship between
the parties. The underlying dispute is yet to be resolved. In those
circumstances I do
not deem a cost order at this stage to be
appropriate.
Order
The
first respondent [MTN] is interdicted from implementing its decision
to remove the applicants’ company cars with effect
1 April 2015
pending the outcome of the arbitration dispute lodged with the
CCMA]under case number KNDB1004/15.
Steenkamp
J
APPEARANCES
APPLICANT:
Dean Caro (attorney).
FIRST
RESPONDENT: Adv Mthembu
Instructed
by Mashiane, Moodley & Monama Inc, Durban.
[1]
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012) 33
ILJ
2033 (LAC).
[2]
Supra
para
46
.