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[2017] ZALCCT 9
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Mogotlane v Drs Dietrich, Voight, Mia and Partners (C81/2017) [2017] ZALCCT 9 (6 March 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of
interest to other judges
C
ase
no: C 81/2017
In the
matter between:
Dr Lesiba MOGOTLANE
Applicant
and
Drs DIETRICH, VOIGT, MIA
and partners
Respondent
Heard
:
28 February 2017
Delivered:
6 March 2017
SUMMARY:
Urgent application to uplift suspension
pending determination of unfair labour practice dispute by CCMA;
disciplinary hearing; and
independent adjudicator process.
Application dismissed with costs on urgency and merits.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
urgent application has its genesis in South African race politics.
The respondent, a pathology practice, resolved not to open
the door
to partnership for any white associates. A majority of its board
resolved to reserve that decision. The applicant was
the only board
member to oppose the resolution. He disclosed information that was
seen to be in breach of his fiduciary duties.
He was also found to
have abused his leave. After mediation, the parties reached an
agreement. The respondent alleges that the
applicant repudiated that
agreement. It
[1]
placed the applicant on ‘special leave’ or suspended him.
He seeks, in an urgent application, to have that suspension
set aside
pending the determination of an unfair labour practice dispute by the
CCMA or a number of other processes.
Background
facts
[2]
The
applicant, Dr Lesiba Mogotlane, is a medical practitioner and a
pathologist. The respondent is a well-known pathology practice
[2]
,
practising as a partnership comprising 49 partners, most of them
medical practitioners qualified to practice as pathologists.
[3]
The applicant started working for the
respondent as an assistant in 2010. He quickly rose through the
ranks. In March 2011 he became
an associate and in March 2013 he
became a partner, working in the East London office. His wife and
children moved to Cape Town
in 2016. He requested a transfer to Cape
Town but was told that it was not possible.
[4]
At some stage in 2004 the respondent’s
board of governors had decided that no white associates would be
allowed to become
partners. They decided by a majority of eight to
one, on 17 June 2016, to propose to the partnership that the
moratorium be revoked.
The applicant was the only board member to
vote against the decision.
[5]
The applicant disclosed the decision to
other black partners before the CEO had had the opportunity to
communicate it. That was
deemed by the Board to be a serious breach
of trust.
[6]
A dispute arose between the applicant and
the respondent. It focused on two issues: allegations that he abused
his leave, including
allegations of a lack of diligence, honesty and
integrity; and a breach of his fiduciary duties.
[7]
From September to December 2016 the
applicant was granted unpaid leave at his request.
[8]
On 28 November 2016 a mediation process
started to deal with the allegations against the applicant.
[9]
On 9 December 2016, after a mediation
chaired by André
Oosthuizen SC, the
parties signed an agreement. The material terms are that:
9.1
Dr Mogotlane apologises unreservedly “for
the misunderstanding of his role versus that of the CEO in
communicating or discussing”
the proposal concerning the
progression of associates to partnership;
9.2
Dr Mogotlane would stand down from the
board of governors;
9.3
“
After discussion of the details of
the incident” [and after it had initially been recorded that he
did breach is fiduciary
duty] “the parties agree that there was
no breach of fiduciary duty”;
9.4
No further steps would be taken against Dr
Mogotlane;
9.5
PathCare would implement a programme aimed
at providing associates and partners with the necessary knowledge and
skills regarding
corporate governance.
[10]
The part of the agreement that led to the
current litigation reads as follows:
“
5.
Dr Mogotlane agrees to relocate to the Vermaak / Pathcare practice
operating in Centurion, Gauteng, for a minimum of 3 years
(barring
any operational needs requiring a change to this time period). Such
relocation date is to be determined and agreed by
not later than 16
January 2017 and it shall be governed by the following conditions:
5.1
Dr Mogotlane acknowledges a partnership advancement was accorded him
by the partnership in return for his relocation to East
London.
Recognising that Dr Mogotlane spent three years in East London and in
recognition of his relocation to Gauteng where he
undertakes to
commit himself to the growth of this practice, Dr Mogotlane will
retain his partnership progression;
5.2
Mutually agreed arrangements between Vermaak and partners
[3]
and Dr Vuyo Keti
[4]
;
5.3
Arrangements regarding the office at which Dr Mogotlane used to be
based, and the duties he used to perform, until the time
of
relocation.”
[11]
The applicant forfeited 11 working days of
leave in 2017.
[12]
The agreement further contains the
following dispute resolution clauses:
“
7.
The parties acknowledge that they have entered into this agreement as
a result of a mediation process in which they participated,
and that
it is advisable to endeavour to resolve disputes which may arise from
the implementation hereof by a similar process of
mediation. The
parties accordingly agree that should any dispute or difference of
opinion arise between any of the parties hereto
arising from the
provisions of this agreement, which cannot be resolved after
discussion between the parties to such dispute, then
any such party
may request that the dispute be referred to mediation under the
auspices of a mediator agreed upon by such parties.
…
8.
Should such mediation not resolve any dispute regarding the
implementation of this agreement, such dispute shall be dealt with
in
terms of the applicable provisions of the October 2014 Partnership
Agreement.”
[13]
Regrettably, the mediation agreement does
not say what the “applicable provisions” of the
partnership agreement are.
That would lead to yet a further dispute.
[14]
The applicant has not moved to Centurion in
terms of the agreement. The respondent says he refuses to do so; he
says he was still
“in discussion” with the CEO, Dr
Douglass, when the respondent fired the next salvo.
[15]
After the mediation, and since 19 December
2016, the applicant has been working in Cape Town at his request and
as a temporary measure.
He was given a microscope and was temporarily
accommodated in an empty administrative office. In terms of the
mediation agreement
it was envisaged that he would move to Centurion
by 16 January 2017. That has not happened. Instead, he asked and was
granted an
extension until 31 January 2017. Still he did not move.
[16]
On 31 January 2017 the CEO (Dr Douglass)
and another board member, Dr Izak Loftus, wrote to the applicant on
behalf of the respondent.
They recorded that he had been given until
31 January 2017 to make his decision and that he had not done so.
They stated:
“
Please
note that after discussion with yourself [
sic
]
on Monday 16 January when you requested that we give you more time to
make your decision by when you should be in Gauteng, Izak
and I
agreed that we could extend this but would need you to make your
decision by Tuesday, 31
st
January
.
If you are not able to comply you would be in breach of the agreement
with us.
[5]
As
you are aware this mediated agreement was in an effort to accommodate
your personal circumstances which we understand prohibit
you from
working in East London, the place where you are contracted to work as
histopathologist.
This
offer was kindly made possible through discussion with the Vermaak
practice.
If
you are unable to take this position up in Gauteng, and in view of
the fact that we do not have any operational need for your
services
in the Western Cape at present, we will unfortunately have to
institute the process to terminate your appointment as it
is not in
line with PathCare’s operational requirements, which we have
stated very clearly throughout the mediation process
and thereafter.”
[17]
The applicant did not respond to that
letter, other than to address an email to Dr Douglass in these terms
a week later, on 6 February:
“
I
have spoken to my legal representatives and unfortunately they cannot
meet today as they are still in discussion with me regarding
my case.
I have stressed and they do realize the importance of dealing with
this issue amicably and expediently. In order for them
to get a
clearer picture of the situation and to advise me accordingly, the
following documents were requested:
1.
Please can you send me a copy of the
employment contract and that partnership progression letter for East
London.
2.
A copy of the discrepancy between leave and
Meditech sign on.”
[18]
On the same day, 6 February 2017, the
respondent provided the requested documents and informed the
applicant that he would be put
on paid ‘special leave’
pending a disciplinary hearing and an investigation by an independent
adjudicator in terms
of the partnership agreement, as he had
repudiated the mediation agreement by refusing to move to Gauteng as
agreed. He was told
not to contact patients, supporters or partners.
[19]
The applicant’s attorney, Barnabas
Xulu, responded on his behalf two days later, on 8 February. The
pertinent parts of the
letter read:
“
4.
According to our instructions, there is no ‘existing dispute’
as referred to in your letter. The only dispute that
exists relates
to our client’s relocation to Gauteng. Our client has a right
to refer this dispute to mediation in terms
of clause 7 of the
mediation agreement. Accordingly, this letter serves as formal notice
of our client’s referral of the
dispute in relation to his
relocation to mediation in terms of clause 7 of the mediation
agreement. Your attempt to deny our client’s
right to do so by
prematurely appointing an independent adjudicator is untenable. Our
client’s right in this regard are reserved.
5.
As you know, all other disputes between our client and yourselves
[
sic
] who settled in terms of the mediation agreement. This is
specifically recorded in clause 1 thereof. What is more, clause 3
records
that those steps of any nature will be taken against our
client in relation to the disputes that were settled in terms of the
mediation
agreement. Your attempt to resuscitate disputes that were
settled by prematurely appointing an independent adjudicator and
initiating
disciplinary proceedings is unsustainable, unlawful and
patently unfair.
6.
With regard to our client’s suspension from his employment, it
is abundantly clear that such suspension is unlawful and
unfair for
at least the following reasons:
6.1
you failed to observe the
audi alteram partem
principle by not
allowing our client a hearing and/or at the very least an opportunity
to make written submissions before being
suspended;
6.2
secondly, the alleged misconduct is not serious. The allegation to
this effect in your letter does not make it serious. You
have also
not demonstrated in your letter hard the disciplinary process will
impact on Pathcare’s patients. You seem to appreciate
this
because he only referred to the ‘potential impact’ which
in any event is not elaborated upon but remain [
sic
] a
subjective perception;
6.3
thirdly, there is no objectively justifiable reason to deny our
client access to the workplace based on the integrity of the
pending
investigation into the alleged misconduct; and
6.4
you have also not demonstrated any other factor that would place the
investigation or interest of affected parties in jeopardy.”
[20]
The applicant’s attorneys demanded
that his suspension be uplifted with immediate effect; and said that,
should the respondent
not do so by 10:00 the next day (9 February
2017) they would urgently launch court proceedings.
[21]
The respondent replied the next day, 9
February. Dr Douglass said:
“
We
submit that this matter is not urgent as discussions on these matters
have been ongoing with Dr Mogotlane since at least 28 November
2016
and since furthermore Dr Mogotlane requested an extension of time in
this matter to consider his options from 16 January to
31 January
2017 which was granted to him.”
[22]
On the same day, the applicant’s
attorneys referred an unfair labour practice dispute to the CCMA.
[23]
On 14 February 2017 Dr Douglass wrote to
the applicant’s attorneys on behalf of the respondent. He said:
“
At
the meeting with Dumisani Ndebele and myself [
sic
]
on 1 February 2017, Dr Mogotlane made it clear that he was unable to
move to Gauteng, and would therefore not be complying with
its
obligations under clause 5 of the mediation agreement. That is a
repudiation of his obligations under the agreement.
PathCare
accepts that repudiation and accordingly regards the mediation
agreement is hereby cancelled.
If
Dr Mogotlane disputes PathCare’s right to cancel the mediation
agreement, or dispute any other aspect relating thereto,
kindly, by
return, indicate:
1.
The nature of the dispute; and
2.
whether you contend that such dispute
should be referred to mediation in terms of clause 7 of the mediation
agreement.”
[24]
The applicant’s attorneys replied on
the same day. Their version of events was the following:
“
In
in any event, it is our instruction that our client never ‘…
made it clear that he was unable to move to Gauteng‘.
Instead,
in the said meeting [of 1 February 2017] our client queried the tone
of your letter dated 31 January 2017 (and the threats
of the
termination of our client’s employment contained therein). Our
client stated he would have to take legal advice on
this matter. You
then stated that the issue of the relocation must be dealt with
expeditiously and you then offered to meet our
client’s legal
advisers on certain dates to discuss the issue. You also offered to
provide our client with the names of certain
attorneys usually
engaged by PathCare. Our client declined this offer. It was agreed
that our client and his legal adviser would
meet with you, by the
latest, on 6 February 2017.
In
summary, our client was still in discussion with you regarding the
issue of his relocation when he met with you and Dumisani
Ndebele on
1 February 2017.”
[25]
What the letter does not say, is that the
applicant is still prepared to move to Gauteng. Instead, his
attorneys confirmed that
“the only dispute that exists between
the parties relate [
sic
]
to our client’s relocation.” They nevertheless agreed to
the mediation with André Oosthuizen SC as mediator.
They
reiterated, though, that they would launch an urgent application to
set aside the suspension.
[26]
The applicant launched this application on
an urgent basis on 16 February 2017. The respondent filed an
answering affidavit on 20
February 2017. On 21 February 2017 the
second mediation – arising from the alleged breach of the first
mediation agreement
-- proceeded before Tanya Golden SC [it appears
that Oosthuizen SC was no longer available]. This application was
initially said
down for hearing in this Court before Rabkin-Naicker J
on 23 February 2017. She was reluctant to hear the application while
the
mediation was ongoing and postponed it to the date of this
hearing, 28 February 2017. Mediation broke down on 23 February 2017.
[27]
On 24 February 2017 John Newdigate SC was
appointed as independent adjudicator to deal with the disciplinary
issues.
The
relief sought
[28]
The
applicant seeks the following relief:
[6]
“
1.
Dispensing with the forms, time periods and manner of service
provided for in the rules of court and directing that this
application
be heard on an urgent basis.
2.
That, pending the completion of the disciplinary hearing and/or
independent adjudicator processes, as contemplated in the
respondent’s letter dated 6 February 2017 and/or the final
determination of the applicant’s unfair labour practice
dispute
that is set down for con/arb on 7 March 2017, whichever is completed
and/or determined the latest, the respondent is directed
to
immediately lift the suspension imposed on the applicant in terms of
the said letter.
3.
That, in the event that it opposes this application, the respondent
be ordered to pay the costs of this application.”
Urgency
[29]
The first issue to be considered in terms
of the notice of motion is whether the application should be heard on
an urgent basis.
[30]
As Mr
Stelzner
pointed out, this Court recently restated the principles to determine
if an application should be heard on an urgent basis in
AMCU
v Northam Platinum Ltd
[7]
:
“
What
would an applicant who seeks to make out a case of urgency then have
to show? In
Mojaki
v Ngaka Modiri Molema District Municipality and Others
[8]
the Court referred with approval to the following
dictum
from the judgment in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
[9]
:
‘…
.
An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant
must
state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence
of
substantial redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because
if the
latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.’
‘
Similarly,
Maqubela
v SA Graduates Development Association and Others
[10]
dealt with the consideration of urgency as follows:
‘
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances where
urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent relief is
necessary. As Moshoana AJ aptly put it in
Vermaak
v Taung Local Municipality
:
'The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a court to be placed
in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely to
happen. By way
of an example if the court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date.'’
[31]
Mr
Stelzner
also referred to
Golding
v HCI Managerial Services (Pty) Ltd
[11]
in the context of a suspension where the employee was not given an
opportunity to be heard before he was suspended:
“
[41]
Murphy AJA
[12]
has held that, when dealing with holding operation suspension (as in
this case) as opposed to a suspension as a disciplinary sanction,
the
right to a hearing may legitimately be attenuated. That is so
because, as in this case, precautionary suspensions tend to be
on
full pay with the consequence that the prejudice flowing from the
action is significantly contained and minimised. Secondly,
the period
of suspension often will be for a limited duration. In this case,
Golding will only be suspended until the finalisation
of the
disciplinary hearing, envisaged to be in a week’s time.
Provided the safeguards of no loss of remuneration and a limited
period of operation are in place, Murphy AJA held that the balance of
convenience in most cases will favour the employer.
[42]
But in this case, Golding was not given the opportunity to make any
representations at all before he was suspended. That may
well be
unfair in itself, despite the fact that he has been suspended on full
pay and that it will be of a limited duration.
[43]
However, he faces a further hurdle. That is that he has an
alternative remedy. As Murphy AJA also pointed out in
Gradwell
:
‘
Section
186(2) of the LRA defines an unfair labour practice to mean inter
alia any unfair act or omission that arises between an
employer and
an employee involving the unfair suspension of an employee.
…
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA. The
respondent in this case instead sought a declaratory order
from the
Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect
that the suspension was unfair, unlawful and unconstitutional.
A
declaratory order will normally be regarded as inappropriate when the
applicant has access to alternative remedies, such as those
available
under the unfair labour practice jurisdiction. 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
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.”
[44]
In this case, the applicant does seek an order granting urgent
interim relief pending the outcome of the unfair labour practice
dispute that he referred to the CCMA. But he referred that dispute
belatedly, one day before launching this urgent application.
He has
not taken any steps to have the arbitration before the CCMA
expedited. And he has not shown any irreparable harm. The harm
to his
reputation that he is undoubtedly suffering will be vindicated if he
attends the disciplinary hearing and it is found that
it did not
commit the misconduct complained of. He is not suffering any
financial harm. The hearing is set to take place this week.
Should he
cooperate with the hearing, the suspension – and thus his
reputational harm if he did not commit the misconduct
– will be
short-lived. He has not shown any exceptional circumstances why this
Court should intervene, as required by
Booysen
.
[13]
”
[32]
In
this case, the Dr Mogotlane has referred an unfair labour practice
dispute to the CCMA. It is to be heard next week (on 7 March
2017) in
the form of a con/arb. That is his alternative remedy envisioned by
the Labour Relations Act.
[14]
And it is an adequate remedy by way of which he can obtain redress on
an expedited basis. In the short interim period – unlikely
to
be more than a week – he is receiving full pay. That is
different from the situation in late 2016 when he took unpaid
leave
of his own accord – apparently without concern to his dignity
and reputation on which he now relies for urgent relief.
[33]
Insofar
as the applicant relies on the alleged damage to his reputation in
the interim, he has not set out any factual basis for
it. And as the
Court remarked in
Zwakala
v Port St John’s Municipality
:
[15]
“
The
difficulty I have is that almost every suspension by reason of the
investigation of allegations of misconduct would cause this
type of
prejudice. This does not make the matter urgent in the sense
described above. Furthermore, urgency can surely not be created
by
"rumour mongering" and "unfounded allegations of
embezzlement". Right thinking inhabitants of Port St. Johns
must
know, or ought to know, that a suspension pending further
investigations is nothing more than that. Such further investigations
may establish impropriety on the applicant's part. On the other hand
they may not.
Bearing
in mind particularly that the applicant's suspension is on full pay,
he has in my view a perfectly adequate alternative
remedy before the
CCMA. Even if the suspension had been without pay, this fact would
not have taken the matter much further - see
University of the
Western Cape Academic Staff Union & Others v University of the
Western Cape
(1999) 20
ILJ
1300 (LC) at 1304 E-F.”
[34]
The
application is not urgent. But the applicant has in any event not
satisfied the requirements for interim relief as set out in
Setlogelo
v Setlogelo
[16]
:
“
The
argument as to irreparable injury being a condition precedent to the
grant of an interdict is derived probably from a loose
reading in the
well-known passage in Van der Linden’s
Institutes
where he enumerates the essentials for
such an application. The first, he says, is a clear right; the second
is injury. But he does
not say that where the right is clear the
injury feared must be irreparable. That element is only introduced by
him in cases where
the right asserted by the applicant, though
prima
facie
established, is open to some
doubt. In such cases he says the test must be applied whether the
continuance of the thing against
which an interdict is sought would
cause irreparable injury to the applicant. If so, the better course
is to grant the relief if
the discontinuance of the act complained of
would not involve irreparable injury to the other party.”
[35]
I now turn to those requirements, as
developed in subsequent cases.
Prima
facie
right?
[36]
The applicant alleges that his suspension
is both unlawful and unfair: unlawful because the underlying
disciplinary issues had been
settled and compromised; and unfair
because he was not afforded an opportunity to be heard and the
reasons for his suspension are
without substance.
Unlawful
suspension?
[37]
Mr
Coetzee
argued
that, in terms of the mediation agreement of 9 December 2016, all the
disciplinary issues between the parties had been settled;
the
question whether he was refusing to relocate to Gauteng, as he had
agreed to do in the mediation agreement, was a discrete
and severable
dispute that should be determined in a separate process. He argued
that all other disputes had been settled in a
compromise which had
the effect of
res
judicata
.
He relied on the following passages from Christie’s
Law
of Contract in South Africa
:
[17]
“
Compromise,
or
transactio
,
is the settlement by agreement of disputed obligations, whether
contractual or otherwise. If an offer to settle in particular
terms
is not accepted, the offeree cannot treat an inseparable part of the
offer as an acknowledgement of debt and sue on it.
…
To
return to compromise generally, the effect of a compromise is the
same as
res iudicata
or a judgment given by consent. It is an
absolute bar to action on the cause of action compromised, but not,
of course, on any claim
not included in the compromise.
…
The
effect of repudiation or breach of the compromise agreement will
depend on the nature of the agreement. In the case of what
McNally J
, in
Nagar
v Nagar,
[18]
describes as a compromise pure and simple (that is, not subject to a
suspensive or restorative condition) there can be no question
of
returning to the original contract. Action must be brought on the
compromise. If the compromise of an action is not fully complied
with, the remedy is not to continue with the previous action but
institute a new action on the compromise, unless the defendant
raises
no objection to the former course. But a party who challenges the
validity of the compromise is not obliged first to bring
an action to
set it aside before suing on the original cause of action. It may sue
on the original cause of action and leave it
for the defendant to
plead the compromise as a defence, unless in the circumstances the
claim is frivolous or vexatious.
The
parties may of course agree, expressly or tacitly, that the
effectiveness of the compromise shall be conditional on its being
carried out, or that the original cause of action shall revive if the
compromise is not carried out. Depending on the nature of
such
agreement the compromise may fall away altogether when the original
cause of action revives or the plaintiff might have the
choice of
proceeding on the original cause of action or the compromise.”
[38]
In this case, the parties reached an
overall mediation agreement in the form of a compromise. As part of
that compromise, the respondent
agreed not to take any disciplinary
steps against the applicant. The applicant, in turn, agreed to move
to Gauteng and to forfeit
eleven leave days. The relocation date was
to be agreed by not later than 16 January 2017. He has not kept to
the terms of the
agreement. It does not appear to me that the
different clauses in the agreement are severable. It is indeed a
compromise in the
sense of “give and take”. If one party
repudiates his part of the bargain, it is up to the other party to
accept that
repudiation and to cancel the agreement. That is what
happened here.
[39]
Mr
Coetzee
has
also submitted that the appointment of an independent adjudicator in
terms of clause 11 of the partnership agreement is inappropriate.
That clause deals with the process to be followed in disciplinary
matters. Instead, he says, the dispute should be dealt with in
terms
of clause 33, dealing with settlement of disagreements over the
partnership agreement itself by way of arbitration. The latter
clause
seems to me to be inappropriate, as the underlying dispute is indeed
of a disciplinary nature – that is what led to
the mediation
agreement in the first place. But such are the dangers of referring
to “applicable provisions” without
specifying them.
[40]
In my
view, the respondent’s actions in accepting the applicant’s
repudiation of the agreement, and therefore to reinstate
the process
of appointing an independent adjudicator
[19]
to deal with the allegations against him, are not unlawful. It
follows that his suspension (or putting him on ‘special leave’)
is not unlawful either. It may still be unfair. I deal with that
question next.
Unfair
suspension?
[41]
The
applicant also claims that his suspension is unfair. He may be
successful on that argument insofar as he was not given an
opportunity
to make submissions
[20]
before he was put on ‘special leave’; but even then, he
has an alternative remedy. He has already exercised his right
to
refer an unfair labour practice dispute to the CCMA. That dispute is
due to be heard in less than a week. And he may also raise
any
objections to the process that has been followed – and indeed,
his claim that the disputes other than his relocation
have been
settled by way of compromise – before the independent
adjudicator, Newdigate SC.
[42]
The
leading case with regard to applications to interdict suspensions is
that of
Gradwell.
[21]
To
repeat:
“‘
Section
186(2) of the LRA defines an unfair labour practice to mean inter
alia any unfair act or omission that arises between an
employer and
an employee involving the unfair suspension of an employee.
…
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA. ....
A declaratory order will normally be regarded as inappropriate
when
the applicant has access to alternative remedies, such as those
available under the unfair labour practice jurisdiction. 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 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.”
[43]
The
applicant in this case has asked for interim relief pending the CCMA
hearing; but that hearing is less than a week away, and
he has not
shown any extraordinary or compelling circumstances why the
suspension should be lifted in the interim.
[22]
He stands to suffer no irreparable harm. He is being paid handsomely.
And his claims on damage to his reputation and his “right
to
work” sound thin when he had no difficulty in staying away from
work at his own request for three months in 2016.
[44]
The applicant has not shown any
prima
facie
right not to be suspended.
Irreparable
harm?
[45]
Any harm that the applicant may suffer is
not irreparable. He is being paid. His claim of an unfair suspension
will be dealt with
in the appropriate forum (the CCMA) in less than a
week’s time. And, as I have stated above, his claim that he
“cannot
be deprived any further from participating in his
chosen vocation” is flimsy when one considers that he chose not
to participate
in that vocation for a period of three months from
September to December 2016. And in any event, the situation is easily
remedied:
he should simply and unequivocally give effect to his
agreement of 6 December 2016 to move to Gauteng.
Alternative
remedy
[46]
The applicant has an alternative remedy. It
is the remedy prescribed by the LRA, i.e. con/arb at the CCMA
regarding an alleged unfair
labour practice in terms of s 186(1)(a)
of the LRA. The con/arb is set down for next week. That is the
appropriate alternative
remedy.
Balance
of convenience
[47]
Whatever prejudice the applicant may suffer
is of short duration and is limited. He is being paid handsomely. The
only prejudice
he relies on is that he is unable to work –
something that he had no problem with when he chose not to work for
three months.
The respondent, on the other hand, suffers
inconvenience and costly litigation because the applicant has not
given effect to the
agreement that was reached after a lengthy
mediation process.
Conclusion
[48]
The Court has a discretion whether to grant
or refuse urgent interim relief. Apart from the application not being
urgent, it is
dismissed for the reasons set out above.
[49]
Given my conclusion on the merits I need
not deal with the respondent’s application to strike out
portions of the founding
affidavit.
Costs
[50]
Both parties asked for costs to follow the
result. The respondent went further and asked for a punitive costs
order. I do not think
a punitive order is warranted, but I agree that
the applicant should bear the costs of two counsel where so employed,
given the
urgent basis on which the application was brought and the
applicant’s apparent unwillingness to abide by the terms of the
settlement agreement.
[51]
This application first served before
Rabkin-Naicker J on 23 February. She postponed for two reasons: the
applicant had only filed
a replying affidavit and heads of argument
that morning; and the mediation process before Golden AJ was
underway. She reserved
costs. There is no reason in law or fairness
why the applicant should not bear those costs.
Order
The
application is dismissed with costs, including the costs of two
counsel where so employed, and including the costs of 23 February
2017.
_______________________
Anton
Steenkamp
Judge of
the Labour Court of South Africa
APPEARANCES
APPLICANT:
André
Coetzee
Instructed
by
B Xulu & partners Inc.
RESPONDENT:
Robert Stelzner SC (with him Rob Engela)
Instructed
by
De Klerk & Van Gend Inc.
[1]
I refer to the respondent, a partnership, as “it” rather
than “they”, even though it comprises a number
of
doctors.
[2]
Commonly known as “PathCare”.
[3]
i.e. the Gauteng practice.
[4]
The applicant’s wife.
[5]
My underlining.
[6]
The applicant filed an amended notice of application on the morning
of this hearing on 28 February 2017.
[7]
(2016) 37
ILJ
2840
(LC);
[2016] 11 BLLR 1151
(LC) paras [21] – [22].
[8]
(2015) 36
ILJ
1331
(LC).
[9]
[2011] ZAGPJHC 196 at para [6].
[10]
(2014) 35
ILJ
2479
(LC) para [32].
[11]
(2015) 36
ILJ
1098 (LC);
[2015] 1 BLLR 91
(LC) paras {41] – [44].
[12]
in
MEC for Education, North
West Provincial Government v Gradwell
(2012)
33
ILJ
2033 (LAC);
[2012] 8 BLLR 747
(LAC) paras [44] – [46].
[13]
Booysen v Minister of
Safety & Security
(2011)
32
ILJ
112
(LAC) para [54].
[14]
Act 66 of 1995.
[15]
(2000) 21
ILJ
1881
(LC) paras [5] – [6].
[16]
1927 TPD 178
at 227 [Innes JA].
[17]
GB Bradfield, Christie’s
Law
of Contract in South Africa
(7
ed) pp 528 and 534.
[18]
1982 (2) SA 263 (Z) 268 E-H.
[19]
As noted above, an independent adjudicator, Adv John Newdigate SC,
has already been appointed.
[20]
Cf
SA Post Office Ltd v
Jansen van Vuuren
[2008] 1
BLLR 798
(LC) par [39];
Mogothle
v Premier, North West Province
[2009]
4 BLLR 331 (LC).
[21]
MEC for
Education, North West Provincial Government v Gradwell
(2012) 33
ILJ
2033 (LAC);
[2012] 8 BLLR 747
(LAC) paras [44] – [46].
[22]
See also
Booysen v Minister
of Safety & Security
(2011)
32
ILJ
112
(LAC) para [54].