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[2018] ZALCJHB 145
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Public Servants Association of South Africa and Others v Statistics South Africa and Others (J2074/17) [2018] ZALCJHB 145 (16 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
Reportable/Not Reportable
Case
NO: J2074/17
In
the matter between
PUBLIC
SERVANTS ASSOCIATION
OF
SOUTH AFRICA
First
Applicant
PORTIA
CHUENE AND 55 OTHERS
Second
Applicant
and
STATISTICS
SOUTH
AFRICA
First Respondent
STATICIAN-GENERAL:
STATISTICS
SOUTH AFRICA
Second
Respondent
MINISTER
OF PUBLIC SERVICE AND
ADMINISTRATION
Third
Respondent
THE
MINISTER OF FINANCE
Fourth
Respondent
Heard:
20 September 2017
Ex-tempore
judgment: 20 September 2017
Date
Edited: 16 April 2018
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
:
[1]
This is an application brought on an urgent
basis in which the applicants seek a declaratory order that the first
applicant’s
members listed in annexure ‘’A’’
be declared to be permanent employees, In the alternative, that the
first
respondent, Stats SA, be interdicted and restrained from
dismissing those persons, pending the outcome of the dispute referred
to the General Public Service Sectoral Bargaining Council. The facts
that give rise to the application are recorded in the founding
affidavit and I do not intend to burden this judgment with their
repetition. It is sufficient for present purposes to note that
the
individual applicants, i.e. the second to further applicants, were
employed by Stats SA on a series of fixed-term contracts.
The persons
concerned were first engaged as survey officers and/or administrative
assistants. Some were employed as administrative
clerks and others,
as I have indicated, survey officers.
[2]
The founding affidavit indicates that most
or all of the employees have been employed since mid-2015 on a series
of fixed-term contracts
varying in duration from two months to, it
would seem, six months. The contracts have been extended on each
occasion on account
of the Stats SA’s operational needs.
[3]
During the course of the period in which
the individual applicants were engaged, there was a dispute
concerning their remuneration
that was resolved by way of a
settlement agreement, which is not relevant to these proceedings.
What is relevant is the notice
given to them that during the course
of July, in fact on 31 July 2017 that the contracts concerned would
not be renewed and would
terminate on 30 September 2017, as per the
provisions of the contracts signed during the course of March and
April of this year.
[4]
The applicants in essence contend that,
given all of the circumstances, they have a legitimate expectation
that their contracts
will be renewed and that an unfair dismissal
dispute has been referred to the bargaining council. The court
was advised during
argument that the conciliation meeting pursuant to
the referral has been arranged for a date later this month.
[5]
During the course of the hearing counsel
for the applicants abandoned the prayer for a declaratory order that
the individual applicants
are employed by Stats SA for an indefinite
duration and are as such permanent employees entitled to all
benefits that accrue
to permanent employment. That concession was
based on an acknowledgement that, despite what is averred in the
founding papers,
the presumption contained in section 198B of the
Labour Relations Act does not apply to the individual applicants
since their earnings
are above the threshold established by that
section. In other words, the contention that in terms of section 198B
of the Act, that
employees are in effect or became permanent
employees of Stats SA ,is no longer pursued. From the papers it seems
to me that
the concession is well made, given the rate of the
individual applicants’ remuneration.
[6]
That leaves the alternative relief sought
which,in effect is interim order in terms of which the applicants
seek to restrain the
Stats SA from terminating the contracts at the
end of September, the end of this month, pending the outcome of the
dispute referred
to the bargaining council.
[7]
The requirements for interim relief are
well-known. It is incumbent on an applicant to establish a
prima
facie
right to establish the absence of
an adequate alternative remedy to establish that the balance of
convenience lies in their favour
and also to establish that some
prospects of success exist in the main application. Now, insofar as
the jurisdiction of this court
to issue an interim order of the
nature sought is concerned, this court clearly does not have the
jurisdiction in respect of any
unfair dismissal dispute that has been
referred by the applicants to the bargaining council, but this court
has long held that
it has the power to grant interim relief in
appropriate circumstances where a dispute has been referred to the
proper forum in
terms of the statutory dispute resolution mechanisms
and the dispute remains pending.
[8]
The
prima
facie
right on which the applicants
rely is obviously their assertion that they have a reasonable
expectation to a renewal of the contract
on the same or similar
terms. Well, that is a matter for the bargaining council ultimately
to decide. And even if I were to take
the view that the applicants
had established a
prima facie
right on the papers before me; that is not
sufficient.
[9]
It seems to me that this case turns on the
question of the availability of an adequate alternative remedy. The
applicants have available
to them a claim of unfair dismissal should
they be able to establish first the existence of a dismissal by
establishing a legitimate
or a reasonable expectation of the further
renewal of the contract and then to establish that any dismissal
found to exist; i.e.
substantively and/or procedurally unfair.
[10]
The statutory dispute resolution process,
as I have indicated, has already been invoked and a conciliation
meeting is pending. If
that meeting is unable to resolve the dispute
to the satisfaction of the applicants, they have the right to refer
the matter to
arbitration. If they succeed at arbitration, then the
Act provides that the primary remedy is one of reinstatement, and
that reinstatement
is capable of being granted with retrospective
effect. In other words, if the applicants succeed in the bargaining
council, in
all likelihood they will be reinstated with retrospective
effect and therefore suffer no prejudice.
[11]
The prejudice, as their counsel has pointed
out, is short term. It is prejudice that will be caused by a period
of unemployment
between the date of termination of the contract and
the date of any arbitration award. But in my view, given the fact
that the
statutory process is already underway, that is not prejudice
that cannot be cured by a retrospective award of reinstatement.
Against
that I must balance the prejudice to Stats SA. It is not
disputed that Stats SA is in a position where it is simply unable to
fund
these posts beyond 30 September. It would seem to me in those
circumstances that the alternative remedy available to the applicants
is one that is sufficiently adequate. It seems to me, for the same
reasons, that the balance of convenience in the present instance
must
favour Stats SA.
[12]
The applicants will have the opportunity to
state and argue their case and, as I have indicated, the primacy of
the remedy of reinstatement
would operate in their favour. Now, it
seems to me, therefore, that the applicants have failed to make out a
case for urgent interim
relief and that the application ought
therefore to be dismissed.
[13]
That leaves the question of costs.This
court has a broad discretion in terms of section 162 of the Labour
Relations Act to make
orders for costs according to the requirements
of the law and fairness. This court ordinarily takes into account a
number of factors;
one of those being the existence of a collective
bargaining relationship which indirectly exists between the first
applicant and
Stats SA in this matter. However, that consideration
applies where it appears to the court that the effect of a cost order
would
be to prejudice that relationship. A case to that effect has
not been made out in the present instance.
[14]
What I must necessarily bear in mind is
that the primary relief sought, i.e. the declaratory order based on
the provisions of section
198B, was in the present instance entirely
misguided, since it is clear that that section was never of any
application to the individual
applicants.
[15]
The court then is left with the
consideration that in the ordinary course costs ought to follow the
result. For those brief
reasons, it seems to me that the first
applicant representing the second to further applicants ought to pay
the costs of the present
proceedings.
I
make the following order:
1.
The application is dismissed with costs; such costs to be paid by the
first applicant.
__________________________
Van Niekerk J
Judge
of the Labour cour t
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TRANSCRIBER’S
CERTIFICATE
This
is to certify that,
insofar as it is audible
, the aforegoing
is a true and correct transcript of the proceedings recorded by means
of a mechanical recorder in the matter of:
PSA
OBO MEMBERS
v
STATISTICS
SA
CASE
NUMBER:
J2074/17
RECORDED
AT:
Labour Court
DATE
HELD:
2017-09-20
ORDER
TO TRANSCRIBE:
Ex tempore
judgment
TRANSCRIBER:
Ms M Brits
DATE
COMPLETED:
2018-04-04
NUMBER
OF CD/AUDIO FILES: 1
NUMBER
OF PAGES:
7
REPORT ON
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DIGITAL
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RECORDING TRANSCRIPTIONS
No:
86 Cnr Juta & Melle Street, Arbour Square, 6th Floor
Braamfontein, JHB
TEL
/ FAX 011 339 4362 FAX: 086 726 6628