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[2018] ZALCJHB 71
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Sun International Limited and Another v SACCAWU and Others (J3455/17) [2018] ZALCJHB 71; (2018) 39 ILJ 1837 (LC) (2 March 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J
3455/17
In
the matter between:
SUN
INTERNATIONAL LIMITED
First Applicant
AFRISUN
GAUTENG (PTY) LTD t/a
CARNIVAL
CITY
Second Applicant
and
SACCAWU
First Respondent
THE
INDIVIDUAL RESPONDENTS
LISTED
IN ANNEXURE ’A’ TO THE
NOTICE OF MOTION
Second
to Further
Respondents
Heard
:
01 March 2018
Delivered
:
02 March 2018
Summary:
(unprotected strike interdict-unilateral change-return day-urgency
not for determination on return day
-mootness)
JUDGMENT
LAGRANGE
J
Background
[1]
In this matter an interim order was handed down on 31 December 2017
inter alia
declaring a strike over a grievance relating to the
introduction of a biometric time and attendance system to be
unprotected.
Evaluation
[2]
On the return day, it is apparent that, it was common cause that the
introduction of the new clocking system constituted a work
practice
and not a variation of part of employees’ terms and conditions
of employment. Consequently, the introduction of
the system did not
entitle the individual respondents to embark on what might be called
an ‘interdictory strike’ under
section 64 (4) of the
Labour relations act, 66 of 1995 (‘the LRA’).
[3]
For the sake of completeness, though the merits on the protected
nature of the strike are no longer in issue and even though
it may be
obiter
, I am satisfied that the strike would still not have
been protected in any event, because the real reason for the strike
concerned
alleged short payments arising from the introduction of the
new biometric system. Although the union denied that the dispute
concerned
short payments, the union never disputed the veracity of
the exchanges between the Group Human Resources officer and the
Deputy
President of the union which confirmed that rectification of
alleged short payments arising from the Kronos system was the reason
for the strike. This complaint is also echoed in the answering
affidavit.
[4]
On the return day, the confirmation of the rule was opposed
essentially only on the basis that the application had not been
urgent and that the issue was now moot.
[5]
On the issue of mootness, the respondents did not set out any basis
in their answering affidavit or supplementary affidavit
explaining
the basis of this contention. However, it was submitted from the bar
that all the individual respondents except for
the shop stewards had
accepted the biometric system. The court was informed that shop
stewards were simply awaiting the final outcome
of the application. I
have a difficulty with SACCAWU’s contention that the subject
matter of the application is moot when
the workplace leadership of
the individual respondents appears on the union’s own
submissions implicitly not to have conceded
that the applicant was
entitled to introduce the new system because it did not vary
contracts of employment. If the matter was
genuinely moot they would
have no interest in withholding their use of the biometric clocking
system pending the outcome of this
case. Consequently, this argument
falls to be rejected.
[6]
The second argument advanced
was that the decision in
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union & others
[1]
,
which concerned the return day of an interim strike interdict
requires the court on the return day to revisit whether or not the
application was urgent when making a final order. Having perused the
judgement, I do not find any suggestion there that a court
on a
return day is again seized with the question of urgency. What the
judgment does say is that the case for urgency must be set
out in the
supporting affidavit.
[2]
It is implicit in the fact that the court issued an interim interdict
that the judge must have decided the application was urgent,
otherwise the application would not have been considered at all but
would have struck it off the roll for lack of urgency. Moreover,
the
finding that the application is urgent is not part of the rule which
the court is asked to discharge or confirm. What the court
is
required to determine on the return day is the substantive merits of
the applicant’s claim to be granted a final order.
Accordingly
this point is something of a red herring and must be dismissed.
[7]
Even if this court were to consider whether the short notice of the
application was warranted, I would accept that the application
was
urgent, that the applicant gave sufficient notice to the respondents
that it intended to launch the application and the respondents
had an
opportunity to oppose it and given the timing of the strike notice
and the time of the year when the strike was planned,
notice of less
than 48 hours was justified. Accordingly, the requirements of section
68 (2) were met.
[8]
On the issue of costs it was submitted the parties have an ongoing
relationship. That may be so, but the respondents sought
to create
maximum disruption by initiate a strike at the height of the festive
season on short notice and the applicant was compelled
to incur the
unnecessary costs of launching the application. It also persisted in
opposing final relief even though it conceded
the strike was
unprotected and its workplace leadership had not acceded to complying
with the new clocking system. In the circumstances,
it is fair in my
view that costs should follow the result.
Order
[1]
The rule issued on 31 December 2017 is confirmed.
[2]
The respondents must pay the applicant’s costs, the one paying
the others to be absolved.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
B
Van Zyl of Van Zyl Rudd Inc.
RESPONDENT:
H
Molotsi instructed by MS
Molebaloa
Attorneys
[1]
(1999) 20 ILJ 392 (LC)
[2]
At 395E-G