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[2017] ZALCJHB 36
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Ntambo v Transnet Freight Rail (J124/2017) [2017] ZALCJHB 36 (7 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO:
J124/2017
In
the matter between:
MZWANDILE NTAMBO
Applicant
And
TRANSNET FREIGHT
RAIL
Respondent
Heard:
02
February 2017
Delivered:
02 February 2017
Dated:
07 February 2017
REASONS
FOR ORDER
TLHOTLHALEMAJE,
J
[1]
The Applicant’s urgent application was dismissed with no order
as to costs on 02 February 2017. What follows hereunder
are reasons
in that regard.
[2]
In his Notice of Motion before the Court, the Applicant sought an
order interdicting and restraining the Respondent from initiating
and/or proceeding with the disciplinary hearing against him in line
with the notices to attend a disciplinary hearing served upon
him on
23, 23 and 25 January 2017. The disciplinary hearing in accordance
with the last notice was scheduled for 02 February 2017.
[3]
In view of three different sets of notices served on the Applicant,
and further it being his contention that it was only on
24 January
2017 that it dawned upon him that the charges preferred against him
pertained to issues and a dispute that he had already
referred to the
Transnet Bargaining Council, I was prepared to accept that the
application should be accorded urgency.
[4]
The application before the Court is against the following background;
4.1
The Applicant has nine years’ service with the Respondent. He
currently holds the
position of Specialist Train Driver. He was
initially dismissed by the Respondent on 31 August 2013. Having
referred an alleged
unfair dismissal dispute to the CCMA, his
dismissal was found to be fair. He had successfully launched an
application to review
and set aside that, and was accordingly
reinstated in terms of an order issued by this Court on 17 December
2015.
4.2
There are factual disputes in regards to what had transpired upon his
return to work on
18 January 2016. His contention was that it took
the Respondent until 22 February 2016 to fully reinstate him. Be that
as it may,
he was then required to attend a validation course for the
period between 3 – 18 March 2016 at the Respondent’s
training
facilities in Kimberly. Despite questioning the need for
such re-training, the Applicant had duly complied and had passed the
said
courses.
4.3
The course also had a practical training component which was to be
conducted at the Respondent’s
facilities in Johannesburg. The
Applicant’s contention was that despite presenting himself for
that part of the training,
it never took place. On 1 November 2016,
and having performed no duties since his reinstatement, it came to
his attention upon
seeing the duty roster that his position had been
‘downgraded’ to ‘Learner Train Driver’, and
this had
been done without any discussions with him.
4.4
Aggrieved at the state of affairs, and further having formed the view
that an unfair labour
practice pertaining to demotion, reduced pay,
and instructions to undergo further training had been perpetrated
against him, the
Applicant had then filed a dispute with the CCMA on
or about 30 November 2016. That dispute has since been referred to
the Transnet
Bargaining Council as it has the requisite jurisdiction.
The dispute has been set-down for a hearing on 22 February 2017.
4.5
Despite being served with the referral, the Respondent had on 10
December 2016, requested
the Applicant to vail himself for
theoretical training. The Applicant, on the advice of his attorneys
of record, had refused to
follow the specific instruction as he
deemed it to be unfair. Flowing from these events, the Respondent
then issued the three sets
of notices of disciplinary enquiry as
indicated elsewhere in this judgment.
[5]
The Respondent’s case is that as a consequence of his initial
dismissal, the Applicant having been out of service for
over two
years, was required to undergo re-training. As a result of an
administrative error on its part, the Applicant was placed
on a
training course which he was not required to undertake in March 2016.
The re-training that the Applicant was required to undergo
was in
terms of its Integrated Management System Training Delivery Procedure
(The training policy), and was more extensive than
the one he had
attended in March 2016.
[6]
The Respondent viewed this re-training as crucial in that all train
drivers had to undergo it on a regular basis. It was not
a once-off
training, and was meant to equip drivers with the necessary skills
and qualifications in order to enable them to comply
with the
Respondent’s safety standards. The consequences of failing to
adhere with the requirements of the policy were dire,
as there were
safety risks to the Respondent, to the other drivers, and to
surrounding communities where the Respondent conducted
its business.
[7]
It was in the light of these considerations that the Applicant was
not allowed to operate or drive trains. He was nevertheless
paid his
full salary even though he could not be allowed to perform his
functions. The Respondent had made the necessary arrangements
for the
Applicant to undergo training, and on 1 December 2016, he was
informed through a letter that he was required to attend
theoretical
and practical training courses available to all the drivers.
[7]
Notwithstanding receipt of the letter on 2 December 2016, the
Applicant failed to attend the training as scheduled on 9 January
2017. A meeting was held with the Applicant on 10 January 2017. His
line manager, and other officials from Employee Relations and
Human
Capital had attended the meeting. At that meeting, the Applicant
reiterated that he would not attend the training as instructed
by his
line manager. The Applicant was then afforded an opportunity to
reconsider his position and advised to attend a training
scheduled
for 12 January 2017.
[8]
The above meeting was also followed up with a letter from his line
manager, again instructing him to attend the training as
scheduled.
It was only when he had refused to obey the instructions to attend
the training that the notices to attend the disciplinary
enquiry were
issued. The Applicant was charged with gross insubordination,
absenteeism on 13 January 2017, and gross misconduct.
It was common
cause that the disciplinary enquiry was postponed to 9 February 2017.
Evaluation:
[7]
It is trite that for an applicant to be successful in an application
for an interim interdict he/she must establish (i) a prima
facie
right, even though open to some doubt; (ii) a well-grounded
apprehension of irreparable harm if the interim relief is not
granted; iii) absence of an alternative remedy; (iv) a balance of
convenience in favour of granting the interim relief. Other than
these requirements, the key question in instances where an employee
seeks to interdict disciplinary proceedings is whether there
are
exceptional circumstances that permit this court to intervene
[1]
.
The Labour Appeal Court in
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[2]
further added that courts can only intervene where extraordinary or
compellingly urgent circumstances permit.
[8]
The Applicant contended that the matter involved his right to fair
labour practices, and that the actions of the Respondent
as outlined
above, and in particular, the notice to attend the disciplinary
enquiry constituted a serious violation of that right.
The
Applicant’s contentions need to be considered within the
context of the rights he alleged were being violated, and the
Respondent’s concomitant right to discipline its employees
where the need arose. The dispute
[3]
referred to the Transnet Bargaining Council pertains to an alleged
unfair labour practice. In his referral, the Applicant alleged
that
the Respondent did not want him to work; that he had been demoted;
and that he was treated differently. That dispute, as I
had raised
with the Applicant’s Counsel during argument, has got nothing
to do with the charges preferred against him, as
those specifically
pertain to allegations of misconduct, arising mainly out of his
refusal, as conceded, to undergo further training
in the light of his
absence from work for a period over two years.
[9]
In circumstances where the Applicant had been out of service
for a period of over two years, and where his position as
a train
driver required of him to undergo training which was crucial at both
the level of his competency and for safety purposes,
the Respondent
cannot be faulted where the Applicant, on no less than two occasions
blatantly refused to follow an instruction
to undergo that training.
The allegations that his rights to fair labour practices were
violated by the institution of the disciplinary
proceedings are
without substance and clearly amount to red herring. Being instructed
to undergo the training in circumstances
as alluded to in this
judgment even after he had lodged a dispute cannot by all accounts
amount to a violation of the Applicant’s
rights to fair labour
practices.
[10]
The mere fact that disciplinary proceedings have been instituted
against the Applicant does not imply that his right to have
his
dispute at the Bargaining Council determined has diminished or
violated. I am accordingly satisfied that the Applicant has
failed to
establish a
prima facie
right to the relief that he seeks.
[11]
To the extent that the Applicant has failed to establish the
existence of a
prima facie
right, there is no need to consider
the remaining issues pertaining to any apprehension of irreparable
harm, the balance of convenience
and the absence of any other
satisfactory remedy. The Applicant in the light of the allegations of
misconduct against him is going
to have an opportunity to state his
case in the disciplinary enquiry. Those disciplinary proceedings fall
within the prerogative
of the Respondent to institute, and there is
no basis for any conclusion to be reached that they had been
instituted for some unfair
reasons or for ulterior motives.
Conversely, the Applicant’s dispute before the Bargaining
Council is scheduled to be heard
on 22 February 2017 irrespective of
the outcome of the disciplinary enquiry scheduled for 9 February
2017. Thus, no compelling
or extraordinary circumstances prevail in
this case to justify the court’s intervention. There is further
no basis for any
conclusion to be reached that the failure to
intervene would lead to grave injustice.
[12]
The Applicant, given the litigation history between the parties might
have seen the need to approach the court on an urgent
basis. Be that
as it may, the application was ill-conceived, especially since it
appears that he had been assisted by his attorneys
of record since 10
January 2017 after a meeting was held with him. Notwithstanding my
views on the logic of approaching the court
in the manner the
Applicant had, considerations of law and fairness militated against
any cost order being made. It was in the
light of these
considerations that the order of 01 February 2017 was issued.
___________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court, South Africa
APPEARANCES:
For the
Applicant:
Adv. Z. Ndlokovane
Instructed
by:
Machingura Attorneys
For
the Respondent:
Ms. Z. Ngwenya of Cliffe Dekker Attorneys
[1]
See
Booysen v Minister of Safety and Security and Others (2011) 32
ILJ 112 (LAC) at para 54, where it was held that;
‘…
.
the Labour Court has jurisdiction to interdict any unfair conduct
including disciplinary action. However, such an intervention
should
be exercised in exceptional cases. It is not appropriate to set out
the test. It should be left to the discretion
of the Labour Court
exercise such powers having regard to the facts of each case. Among
the to be considered would in my view
be whether failure intervene
would lead to grave or whether justice might be attained by other
means. The list is not exhaustive.’
[2]
(2012)
33 ILJ 2033 (LAC)
[3]
Annexure ‘MN5” to the Founding Affidavit