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[2019] ZALCJHB 4
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SAOU obo Steenkamp and Others v Silverton High School and Another (J4379/2018) [2019] ZALCJHB 4 (11 January 2019)
THE
LABOUR COURT OF SOUTH AFRICA
,
JOHANNESBURG
Not Reportable
Case No: J4379/2018
In the matter between:
SAOU obo STEENKAMP & 3
OTHERS Applicants
and
SILVERTON HIGH
SCHOOL First
Respondent
SCHOOL GOVERNING BODY,
SILVERTON HIGH
SCHOOL Second
Respondent
Heard: 18 & 19 December 2018
Delivered: 11 January 2019
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
applicants approached this Court on urgent basis to seek an order
reinstating them in the employ of the second respondent (the
SGB).
Their contention is that the termination of their contracts of
employment was unlawful and wrongful by virtue of the provisions
of
section 77(3) of the Basic Conditions of Employment Act (BCEA)
[1]
.
[2]
The first respondent (School)
is a public school under the South African Schools Act
[2]
.
The individual applicants,
viz
,
Salome Steenkamp, Mauritz M Lourens, Bonita Stander and Tamlynn K
Thompson are educators and this application was brought on their
behalf by their union, SAOU. They were informed on 26 September 2018
by the School’s then Principal, TJ Schoeman,
that their
contracts of employment would be terminated effective from
31 December 2018.
[3]
Upon receipt of the notices, correspondence was then addressed to the
SGB on 8 October 2018 by the applicants’
representatives, wherein it was advised that there was no rational
basis for the renewal or non-renewal of their contracts as they
were
employed on a permanent basis as stipulated in clause 1.2 of their
contracts of employment, and that there was no reference
to any fixed
term period or duration specified in their contracts.
[4]
The SGB’s response on 12 October 2018 was that the
matter has since been referred to the Department of Education
(Department) for investigation and determination, since it was
decided that all contracts of employees not employed by the
Department
should be terminated.
[5]
The applicants’ contention however was that the Department was
not a party to their contracts of employment and had no
right to
interfere with those contracts, nor was it entitled to investigate
and/or determine any dispute pertaining to those contracts.
In this
regard, reference was made to section 20 (10) of the Schools Act,
which provides that the State, including the Department
was not
responsible for the personnel employed by the second respondent.
[6]
The SGB’s contention is that the Department funds the School,
and that the majority of its educators are paid by the Department.
The current SGB commenced its three year term on 1 April 2018
and had identified irregularities and/or possible fraud
with regard
to the educators’ contracts of employment. In this regard, it
was pointed out that there were fixed-term contracts
of employment
concluded with educators, whilst the same educators also concluded
contracts on a permanent basis. The matter having
been referred by
the SGB to the Department, the latter appointed a firm of forensic
investigators to look into these contracts.
Flowing from the
initiation of these investigations, the School’s Principal,
Schoeman, was then placed on precautionary transfer
to the district
office of the Department.
[7]
In regards to the appointments of educators, it was the SGB’s
contention that only the chairperson or his/her deputy
had the
authority to enter into and sign contracts of employment between the
educators and the SGB, and that in terms of the School’s
Act,
the Principal’s role did not extent to the conclusion of
contracts of employment with educators on behalf of the SGB.
Since in
this case, the Principal had directly entered into and signed the
individual applicants’ contracts of employment,
he had usurped
the powers of the SGB’s Chairperson or his deputy, as he did
not at any stage have the authority to enter
into and sign such
contracts on behalf of the SGB, and to bind the latter to these
contracts.
[8]
It was further common cause that when the applicants’ demands
to have the termination of their contracts of employment
nullified,
they had then approached the Commission for Conciliation Mediation
and Arbitration (CCMA) with a referral of a dispute
on
31 October 2018. The dispute was set down for conciliation
on 15 November 2018 resulting in a certificate
of
non-resolution being issued on the same date. The applicants
subsequently referred the dispute for arbitration on
23 November 2018,
and as at the hearing of this
application, the CCMA still had to set the matter down for
arbitration.
Preliminary
points:
[9]
In opposing this application,
the respondents further raised various preliminary points which it
contended were dispositive of the
matter. Central to the preliminary
points raised is whether this application should be treated as
urgent. The provisions of Rule
8 of the Rules of this Court
[3]
pertaining to urgent applications were explained in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[4]
as follows;
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self-created
when seeking a deviation from the rules.’
[10]
Whether a matter is urgent
involves considerations of whether the reasons that make the matter
urgent have been set out succinctly
in the founding affidavit, 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.
[5]
[11]
It is further trite that where
the applicants, such as in this case, seeks final relief, they bear
an even greater burden to establish
their right to urgent relief, as
opposed to applicants seeking i
nterim
relief
[6]
.
Equally important is that the applicant seeking urgent relief must
not rely on self-created urgency, and must demonstrate that
the Court
was approached with the necessary haste to obtain the relief sought.
[12]
In seeking urgent relief in this case, it was
inter alia
averred on behalf of the applicants that;
12.1 The termination of their
contracts of employment was wrongful and unlawful, causing them to
suffer severe prejudice as they
had financial obligations.
12.2 The decision to terminate the
contracts was due to no fault of their own, and further that they had
exhausted their immediate
available remedies.
12.3 The exercise of the remedial
relief would only be realised in March 2019, at which point the
2019 academic year would
already have commenced, and further since
the arbitration proceedings launched would only proceed in
March 2019.
12.4 The decision to terminate their
contracts of employment was not in the best interests of the School,
nor of the performance
of the professional functions to be rendered
to the School.
12.5 The decision to terminate the
contracts was not supported by the School’s Principal, and was
unlawful, unfounded, and
without merit.
[13]
The respondent however contend that the matter is not urgent given
the timeline of the events. I am in agreement with the respondents’
contentions that indeed the urgency claimed in this case was clearly
self-created, and that the applicants took longer than necessary
to
approach the court with a view of obtaining relief. The above
conclusions in this regard are based on the following;
13.1 The notice of termination of the
contracts of employment was issued on 26 September 2018,
and t
his application was only launched on
3 December 2018, some two months (68 days) after the
notices of termination were
issued.
13.2 Prior to approaching this Court,
the applicants had referred a dispute pertaining to an alleged
‘
unilateral changes to their terms and conditions of
employment
’, and a certificate of outcome related to
‘
Mutual Interest’
dispute was issued on
15 November 2018.
13.3 Flowing from the issuing of the
certificate of outcome, the applicants had then referred a dispute
for arbitration, related
to ‘
Unilateral changes to
conditions of employment which will result in unfair dismissal’
.
13.4 In the light of the above
referral, it is not clear from the applicants’ averments as to
when the termination of their
services had morphed from ‘
unilateral
changes to terms and conditions of employment/unfair dismissal’
,
into ‘
wrongful/unlawful termination’
for the
purposes of jurisdiction of this Court. In my view, there is merit in
the respondents’ contentions that the applicants
are clearly
forum shopping, and it should thus be concluded that the Court lacks
jurisdiction to determine this application, particularly
in the light
of the nature of disputes referred to the CCMA.
13.5 As at the hearing of this
application, the referral before the CCMA had not been withdrawn, and
to the extent that the CCMA
still had to set the matter down for
arbitration, it cannot, for the purposes of urgency, be concluded
that the applicants do not
have an alternative remedy. That remedy
remains available to them at the CCMA, and as it was correctly
pointed out on behalf of
the respondents, there was nothing that
prevented the applicants from requesting an expedited arbitration
date from the CCMA.
13.6 The submissions made on behalf of
the applicants therefore that the dispute was erroneously referred to
the CCMA is clearly
without merit. The mere fact that the dispute had
not as at the date of these proceedings not been withdrawn casts
doubts on any
contention that the referral was made in error.
13.7 The other grounds upon which
urgency was relied upon are equally without merit. It is trite that
urgency cannot be grounded
on mere financial inconvenience or
hardship to the applicants. Any such allegation must equally
demonstrate exceptional circumstances
necessitating the urgent
intervention of the Court.
[14]
Other than the manifest self-created urgency, which on its own ought
to be dispositive of the matter, the respondents further
pointed out
to various difficulties faced by the applicants with this
application. These
inter alia
included that;
14.1 There were disputed facts arising
from the pleadings, which they contend the applicants ought to have
foreseen prior to persisting
with this application. These related to
whether the individual applicants were permanently employed as they
had alleged; and whether
their contracts were valid in the light of
the School Principal’s lack of authority to enter into such
contracts.
14.2 The matter was removed from the
urgent court roll by agreement on 11 December 2018 to
enable the applicants to file
a replying affidavit. However, the
replying affidavit was filed outside of the time frames agreed upon,
and no attempt was made
to seek condonation in that regard.
14.3 The non-joinder of the National
and Gauteng Departments of Education, and the Principal of the School
at the time, as these
parties had an interest in the matter. To this
end, it was contended that the failure to join these parties was
fatal and that
the application ought to be accordingly dismissed on
that ground alone.
14.4 The failure by the individual
applicants to attach confirmatory affidavits to the founding
affidavit deposed to by a union
official on their behalf.
Conclusions:
[15]
The applicants have failed to establish facts which requires the
Court to give this application its urgent attention. Ordinarily,
the application ought to be struck off the roll. However, in the
light of the clear alternative remedies which the applicants have
invoked, and other inherent difficulties as pointed out elsewhere in
this judgment, it is my view that no purpose would be served
by
merely striking the matter from the roll, and the appropriate order
to be made is to dismiss the the application.
[16]
The respondent sought an order of costs based on a variety of
grounds, including the manner with which this application was
prosecuted, the failure to adhere to time frames agreed to in regards
to the filing of a replying affidavit when the matter was
initially
removed from the roll, and further costs associated with the
adjournment of the matter on 18 December 2018
in the light
of an indexed bundle not being properly placed before the Court.
[17]
It has however since transpired that the indexed bundle was filed
with the Court on 13 December 2018 and for some
reason, the
bundle had not found its way into the Court’s file.
Accordingly, no blame can be apportioned to the applicants
in regards
to any wasted costs occasioned by the adjournment of proceedings on
18 December 2018. I am further of the
view that no costs
order should be made in regards to the removal of the matter from the
Court’s urgent roll on 11 December 2018.
[18]
In the light of the conclusions reached however in regards to the
application itself, it is my view that a consideration of
the
requirements of law and fairness dictates that the applicants, and in
particular, SAUO, should be burdened with its costs.
[19]
Accordingly, the following order is made;
Order:
1. The applicants’ urgent
application is dismissed.
2. SAOU is ordered to pay the costs of
this application.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: M. Meyer
Instructed
by: Erasmus INC Attorneys
For
the Respondent: A. Makka
Instructed
by: Cliffe Dekker Hofmeyr INC
[1]
Act 75 of 1997, as amended
[2]
Act 84 of
1996
[3]
8 Urgent
relief
(1) A party that applies for urgent
relief must file an application that complies with the requirements
of rules 7(1), 7(2), 7(3)
and, if applicable, 7(7).
(2) The affidavit in support of the
application must also contain-
(a)
the reasons for
urgency and why urgent relief is necessary
(b)
the reasons why the
requirements of the rules were not complied with, if that is the
case; and
(c)
if a party brings
an application in a shorter period than that provided for in terms
of section 68(2) of the Act, the party must
provide reasons why a
shorter period of notice should be permitted.
[4]
(2010) 31 ILJ 112 (LC) at para 18.
[5]
Maqubela
v SA Graduates Development Association and Others
(2014) 35 ILJ 2479 (LC) at para 32.
[6]
Tshwaedi v Greater Louis
Trichardt Transitional Council
[2000]
4 BLLR 469
(LC) at para 11.