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[2017] ZALCJHB 304
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National Union of Mineworkers v Petra Diamonds t/a Cullinan Diamond Mine (Pty) Ltd (J1607/17) [2017] ZALCJHB 304 (25 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 1607/17
NATIONAL
UNION OF MINEWORKERS
Applicant
and
PETRA
DIAMONDS t/a CULLINAN DIAMOND MINE (PTY) LTD
Respondent
Heard:
2 August
2017
Delivered:
25 August 2017
Summary:
Application to stay disciplinary hearing and to allow an employee to
be represented by a union official. Applicant has
no clear right to
relief sought and has alternative remedies available.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicant (also referred to as NUM) approached this Court on an
urgent basis to stay the disciplinary proceedings of Ms Maria
Mhlanga
(Mhlanga) scheduled for 17 July 2017. The Applicant further seeks a
number of other orders which I will fully deal with
infra.
[2]
The matter
was initially enrolled for hearing on 18 July 2017 and was postponed
for hearing on 2 August 2017. The application is
opposed and the
parties have filed their founding, opposing and replying affidavits.
Background
[3]
Mhlanga
is employed by the Respondent as a training instructor and since 2015
she is an elected union representative.
[4]
On
24 January 2017 the Respondent suspended Mhlanga pending an
investigation into allegations of serious misconduct. A disciplinary
hearing was scheduled for Mhlanga on 5 July 2017 on which date the
Applicant’s Mr Bongi Zwane (Zwane) represented Mhlanga.
The
Respondent objected to Zwane as representative and after hearing
submissions on the issue, Mr Clark (Clark) the presiding officer,
ruled that external representation is not allowed as per the
Respondent’s disciplinary code and procedure and Mr Zwane was
not allowed to represent Mhlanga. Mhlanga has the right to be
represented by either a fellow employee or a union representative
from within the company and Zwane is not employed by the Respondent.
[5]
The
disciplinary hearing was rescheduled to 17 July 2017, which triggered
this urgent application.
The
relief sought
[6]
Apart
from seeking an order to stay Mhlanga’s disciplinary
proceedings scheduled for 17 July 2017, the Applicant seeks an
order
directing that the Respondent be interdicted and restrained from:
1.
Barring
representation at the disciplinary hearing of Maria Mhlanga by the
Applicant’s official or office bearer as the Applicant
may
assign;
2.
Interdicting
Mr Clark from presiding on Maria Mhlanga disciplinary hearing;
3.
Interdicting
Respondent’s personnel from interfering and influencing whoever
presiding person that Respondent may appoint
thereafter.
[7]
The
Applicant further seeks an order for the Respondent not to control
and issue instructions to Mhlanga whilst she is suspended
and for the
Respondent to comply with the rules of natural justice and fairness
and the applicable provisions of the law and the
Constitution.
The
Applicant’s case
[8]
The
Applicant’s case is that Mhlanga is an elected union
representative and after she was charged with misconduct a
disciplinary
hearing was scheduled for 5 July 2017. Zwane was
assigned to represent Mhlanga and at the commencement of the
disciplinary hearing
the Respondent’s employee relations
officer, Ms Molate (Molate) objected to Zwane representing Mhlanga on
the basis that
the Respondent’s disciplinary policy (the
policy) does not permit representation by a third party. The
Applicant’s
case is that it is not a third party.
[9]
Zwane
submitted that Mhlanga was entitled to representation by an official
or office bearer, whilst Molate maintained that in terms
of the
Respondent’s policy, officials of the NUM were not allowed as
representatives in internal disciplinary hearings.
The
Respondent’s case
[10]
The
Respondent’s case is that Mhlanga was invited to a suspension
discussion on 24 January 2017, after which she was suspended.
During
the period 24 January to June 2017 Mhlanga’s disciplinary
hearing did not commence for a number of reasons
inter
alia
the
fact that Mhlanga was booked off sick or hospitalised and the
Respondent’s main witness or chairperson was unavailable
on
specific occasions. During the said period Mhlanga was represented by
a full time shop steward.
[11]
On 5 July
2017 and at the commencement of the disciplinary hearing Clark was
required to determine whether Mhlanga should be allowed
to have
external representation. Zwane, an official of NUM sought to
represent Mhlanga.
[12]
The
Respondent’s policy provides that an employee representative
“
shall
be fellow employee, union member or shop steward employed by the
company in the workplace or operation where the accused employee
works
.”
[13]
After
submissions were made by both parties, Clark ruled that external
representation would not be allowed, as per the Respondent’s
disciplinary policy. Clark further ruled that Mhlanga must be given
an opportunity to consult with any fellow employee or union
representative to assist her in her disciplinary hearing and to
prepare her case and that a new notification to attend a disciplinary
hearing should be issued to her.
[14]
On 10 July
2017 the Respondent addressed a letter to the Applicant stating that
Zwane would not be allowed to represent Mhlanga
and reiterated that
she has the right to be represented by either a fellow employee or
union representative from within the company.
Mhlanga’s hearing
was rescheduled to 17 July 2017.
[15]
The
Respondent’s case is that its policy is clear in that it makes
provision for representation by a co-employee or a shop
steward and
as Zwane is not employed by the Respondent, he cannot be allowed to
represent Mhlanga as the policy does not make provision
for external
representation. The only occasions where the Respondent has allowed
external union representation were when members
of the Applicant’s
branch committee were affected. Mhlanga was not a member of the
Applicant’s branch committee.
[16]
The
Respondent denied Zwane’s allegations that Kenny Motau, Jacob
Madiba, Thompson Msimanga and Kabelo Kuwane were ordinary
members who
were represented in disciplinary enquiries by union officials and
explained how they were represented and in what type
of proceedings.
In its replying affidavit, the Applicant did not respond to the
Respondent’s specific denial but merely stated
that the
Applicant received no notice from the Respondent to notify it that
the Respondent was withdrawing from the standing practice
allowing
representation to NUM’s representatives.
[17]
The
Respondent submitted that on 5 July 2017 the Applicant lodged an
unfair labour practice dispute at the Commission for Conciliation,
Mediation and Arbitration (CCMA) for reasons related to the
Respondent’s refusal to allow Mhlanga representation.
[18]
This urgent
application was served on the Respondent on 14 July 2017.
The
urgent application
[19]
It is
evident from the notice of motion that the Applicant effectively
seeks final relief from this Court and as the parties have
filed all
their affidavits and as the matter was heard on its merits, there is
no need to issue an interim interdict or rule
nisi
with a return date.
[20]
I will
assume in the Applicant’s favour that the application is
urgent. It is incumbent on the Applicant to establish a clear
right
to the relief it seeks, an injury actually committed or reasonably
apprehended and the absence of any other satisfactory
remedy.
Clear
right
[21]
The
Applicant stated in its founding affidavit, in support of its
prima
facie
right,
which should be considered as a clear right, that the Applicant as a
representative trade union is entitled to the rights
conferred by
section 12 – 16 of the Labour Relations Act
[1]
(the Act). The Applicant complains that it is
inter
alia
unable
to hold meetings with members, to hold shop steward councils, access
the workplace for purposes of servicing members, recruiting
etcetera.
[22]
The
Applicant further stated that the interests of justice supports the
stay of execution. This averment does not make any sense
in view of
the nature of this application.
[23]
The
Respondent on the other hand stated that the policy is clear on who
can represent an employee at an internal disciplinary enquiry
and
that it is either a co-employee or a shop steward. At no point was
Mhlanga denied representation as provided for in the policy.
[24]
The
Applicant has to demonstrate that it has a clear right to the relief
it seeks.
In
casu
the
Applicant failed to show that it even has a
prima
facie
right
to the relief sought, let alone a clear right. The averments made by
the Applicant in support of its right to the relief is
disconnected
from the relief sought and no averments are made to support the
relief sought.
[25]
I
have no intention to deal with each and every prayer of the relief
sought in the notice of motion, as no averments were made to
support
any of the relief claimed. I will however illustrate this as follows:
the Applicant seeks an order
inter
alia
to interdict and restrain the Respondent from “barring
representation at the disciplinary hearing of Maria Mhlanga by the
Applicant’s official or office bearer as the applicant may
assign.”
[26]
In
order to show that the Applicant is entitled to the relief it seeks,
it has to show that NUM’s official or office bearer
has a clear
right to represent Mhlanga at an internal disciplinary enquiry. No
averments are made to show that such a clear right
indeed exists.
Instead allegations are made relating to the rights NUM enjoys in
terms of section 12 – 16 of the Act and
no more than vague
allegations and unsubstantiated averments are made about the
Constitution and a standing practice.
[27]
The
Applicant has placed reliance on Item 4(2) of Schedule 8 of the Act
for its argument that a representative of a trade union
is permitted
to be represented at a disciplinary hearing by a union official or
office bearer. This is indicative of a lack of
understanding of Item
4(2) as the wording of the said provision does not support the
Applicant’s argument.
[28]
The
Respondent on the other hand made averments to show that no such
right exists as the policy’s provisions on representation
are
clear and Mhlanga is allowed union representation as per the
provisions of the policy and allegations about a standing practice
were disputed and rebutted.
[29]
In
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and
others (Ngobeni)
[2]
this
Court has held that:
“
In any
event, this court does not ordinarily intervene in incomplete
disciplinary proceedings. In
Booysen
v Minister of Safety
and
Security
and
others
(2011)
32
ILJ
112 (LAC)
,
the
LAC made it clear that the Labour Court may only interdict unfair
conduct in the course of disciplinary proceedings 'in exceptional
circumstances', such as where a grave injustice would result”.
[30]
In casu
the
Applicant was unable to
show that it has a clear right to the relief it seeks or that there
are exceptional circumstances to justify this Court’s
intervention in Mhlanga’s incomplete disciplinary proceedings.
Irreparable
harm
[31]
The
Applicant’s case is that it would suffer serious prejudice in
the volatile labour market should it not be able to enter
the
premises to serve Mhlanga’s interest. There are other rival
unions and once dissatisfied by the Applicant’s poor
service,
members resign and join other unions.
[32]
Mhlanga
feels harassed and humiliated by her suspension and she is severely
prejudiced taking into consideration that she is no
ordinary
employee, but a NUM representative and the chairperson of women in
mining at the Respondent.
[33]
The
Respondent submitted that by refusing Zwane personally to represent
Mhlanga, it has not denied the NUM its rights in terms of
the
recognition agreement to represent members in the workplace. Mhlanga
still has the right to be represented by a NUM shop steward.
The
Respondent further denied that there is irreparable harm in that
other unions are trying to recruit members at the Respondent’s
workplace where the Applicant represents at least 75% of the
Respondent’s workforce.
[34]
The
Applicant has to show that it would suffer irreparable harm should
the relief it seeks not be granted. Once again, the Applicant
dismally failed to do so as the averments made in support of the harm
to be suffered are disconnected from the relief sought, alternatively
they do not support the relief sought.
[35]
The
facts placed before this Court shows that the Applicant is entitled
to enter the Respondent’s premises and to serve Mhlanga’s
interest by representing her in an internal disciplinary enquiry. The
fact that Zwane personally is not permitted to represent
Mhlanga does
not take away her right to be represented by a NUM shop steward, nor
does it indicate irreparable harm. If such harm
is to be suffered,
this Court is not told what it is and how or why Mhlanga would suffer
harm if she is represented by a NUM shop
steward.
[36]
The
allegations made in respect of Mhlanga’s feelings of being
harassed and humiliated, is unsubstantiated hearsay evidence
and no
weight could be attached to it. Mhlanga failed to depose to any
affidavit before this Court to confirm or verify these statements.
In
any event, should the Applicant or Mhlanga feel aggrieved by her
suspension, they have an alternative remedy in respect of the
said
suspension.
[37]
Mhlanga
remains suspended on full pay and there is no irreparable harm to her
consequent on an incomplete hearing and there remains
the prospect
that she might be acquitted of the charges levelled against her.
[38]
I
am not convinced that the Applicant would suffer irreparable harm
should the relief sought not be granted.
No
alternative remedy
[39]
The
Applicant’s case is that it has no alternative remedy taking
into consideration that the matter has since been referred
to the
CCMA in respect of an unfair labour practice.
[40]
The
absence of an alternative remedy is disputed by the Respondent. The
Respondent submitted that the Applicant has remedies in
terms of the
provisions of section 191 of the Act should Mhlanga be dismissed or
be treated unfairly. There is no basis for this
Court to stay the
disciplinary hearing or interdict Clark from chairing Mhlanga’s
disciplinary enquiry as it is premature
to suggest that Clark or the
Respondent will act unfairly against Mhlanga and even if they do so,
the Applicant has a remedy to
challenge the unfairness of her
dismissal.
[41]
Furthermore,
on the Applicant’s own version it has already referred a
dispute to the CCMA, which is in itself indicative of
the existence
of an alternative remedy. Whether the Applicant will be successful
with the unfair labour practice dispute it referred
to the CCMA is an
entirely different question and not one for this Court to decide or
to express an opinion on its merits.
[42]
The
Applicant has alternative remedies and it
is
entitled, should Mhlanga be dismissed and should they contest the
fairness of her dismissal, to refer a dispute to that effect
to the
relevant dispute-resolution body.
[43]
In
Jiba
v Minister: Department of Justice and Constitutional Development and
others
[3]
this
court held that:
“
Although the
court has jurisdiction to entertain an application to intervene in
uncompleted disciplinary proceedings, it ought not
to do so unless
the circumstances are truly exceptional. Urgent applications to
review and set aside preliminary rulings made during
the course of a
disciplinary enquiry or to challenge the validity of the institution
of the proceedings ought to be discouraged.
These are matters best
dealt with in arbitration proceedings consequent on any allegation of
unfair dismissal, and if necessary,
by this court in review
proceedings under s 145.
”
[44]
The
urgent roll in this Court has become increasingly and regrettably
populated by applications in which intervention is sought,
in one way
or another, in workplace disciplinary hearings. The present
application is a prime example. It is indicative of an attempt
to use
this Court and its processes to frustrate the workplace proceedings
already underway. The abuse goes further — what
the Applicant
effectively seeks to do is to bypass the statutory dispute-resolution
structures in the form of the CCMA and bargaining
councils. One of
the primary functions of these structures is to determine the
substantive and procedural fairness of unfair dismissal
disputes.
Applicants who move applications on an urgent basis in this Court for
orders that effectively constitute findings of
procedural unfairness,
bypass and undermine the statutory dispute-resolution system. The
Court's proper role is one of supervision
over the statutory
dispute-resolution bodies; it is not a Court of first instance in
respect of the conduct of a disciplinary hearing,
nor is its function
to micromanage discipline in workplaces
[4]
.
[45]
The
Applicant failed to satisfy the requirements for an interdict and the
final relief it seeks and it follows that the Applicant
is not
entitled to relief.
Costs
[46]
The
last issue to be decided is the issue of costs.
[47]
Mr Zwane on
behalf of the Applicant submitted that the Applicant would not seek a
cost order, although costs were prayed for in
the Applicant’s
notice of motion. Mr Zwane argued that there is no reason to seek
costs against the Respondent, should the
Applicant be successful as
there is an ongoing relationship between the Applicant and the
Respondent.
[48]
Mr
Woodhouse for the Respondent agreed that there is an ongoing
relationship between the parties but he submitted that this is a
meritless and frivolous application and that costs should be awarded
on a punitive scale. The issue of costs on a punitive scale
was
raised in the Respondent’s opposing affidavit, to which the
Applicant has filed a reply and I therefore accept that the
Applicant
is aware of the fact that the Respondent would be seeking a punitive
costs order. The Respondent persisted to seek punitive
costs in its
heads of argument and in argument before this Court. Mr Woodhouse
argued that the application has no merit and no
case has been made
out as to why another shop steward would not be able to represent
Mhlanga.
[49]
Insofar
as costs are concerned, this Court has a broad discretion in terms of
section 162 of the Act to make orders for costs according
to the
requirements of the law and fairness.
[50]
The general
accepted purpose of awarding costs is to indemnify the successful
litigant for the expense he or she has been put through
by having
been unjustly compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[5]
it was emphasized that:
“……
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.”
[51]
In
Ngobeni
this
Court has granted an order for costs on a punitive scale because the
Court considered the application to be wholly misguided
and one that
served to frustrate one of the fundamental purposes of the Act, which
is the expeditious resolution of workplace disputes
within a defined
structure. In the Court’s view the applicant's conduct
warranted an order for costs on a punitive scale.
[52]
The
Court in
Ngobeni
also
issued a warning to the effect that litigants should be warned that
it is not often that this Court will intervene in incomplete
workplace disciplinary hearings and that similar abuses of the right
to urgent relief that this Court affords in appropriate circumstances
will be met with punitive orders for costs.
[53]
In
casu
the
application was wholly misguided and meritless and the Applicant
dismally failed to satisfy the requirements for the interdict
it was
seeking and to place facts before this Court to support its case. The
application was poorly drafted, the averments made
disconnected from
the relief sought and it had no consideration of the fact that the
Applicant has alternative remedies available.
[54]
The
Applicant did not heed the stern warning from this Court as set out
in
Ngobeni
and the
fact that there is an ongoing relationship between the parties cannot
save the Applicant from a cost order.
[55]
In my view,
the
existence of a continued
collective bargaining relationship and the potential prejudice a cost
order might cause to that relationship,
is irrelevant in this
instance. T
he
fact that the Respondent pursued an order for costs on a punitive
scale against NUM is an indication that, at least as far as
the
employer was concerned, a future relationship with NUM would not be
prejudiced by any order for costs. In my view there is
no merit in
the submission that the existence of a collective bargaining
relationship militates against an order for costs.
[56]
The
Respondent had to defend a meritless urgent application
and
fairness dictates that it cannot be expected to endure enormous costs
defending litigation that ought not to have been brought
in the first
place.
Ultimately,
the Applicant is the author of its own misfortune. NUM is a
well-established trade union quite capable of considering
the
consequences of instituting meritless litigation and it had to put in
some earnest thought and consideration into the merits
of this case
and the warning issued in
Ngobeni
before filing this urgent application. It is not open to trade unions
to file meritless urgent applications and for them to escape
costs
simply because there is an ongoing relationship. When the collective
bargaining relationship is not threatened by a cost
order, there is
no reason why a cost order cannot and should not be imposed.
[57]
In
my view this is a case where it is appropriate to award costs on a
punitive scale.
[58]
In the
premises I make the following order:
Order:
1.
The
application is dismissed;
2.
The
Applicant is to pay the Respondent’s costs on the scale as
between attorney and client.
___________________
Connie
Prinsloo
Judge
of the Labour Court
Appearances:
Applicant:
Mr B Zwane of the
National Union of Mineworkers
Respondent:
Mr D Woodhouse of Mervyn Taback Inc Attorneys
[1]
Act 66 of 1995.
[2]
(2016)
37 ILJ 1704 (LC).
[3]
(2010)
31
ILJ
112 (LC)
at
para
17
.
[4]
Ngobeni
paragraph
14.
[5]
2012 33 ILJ 2117 (LC).