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[2019] ZALCJHB 154
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Bogoshi v Servest Security (J1387/19) [2019] ZALCJHB 154 (19 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1387/19
In the matter between:
MASHALA ALETTAH
BOGOSHI
Applicant
and
SERVEST
SECURITY
Respondent
Heard: 4
June 2019
Delivered:
19 June 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
In approaching this Court on an urgent basis, the applicant seeks an
order
directing the respondent to immediately reinstate her full pay
in the sum of R10 000.00 with effect from April 2019 to
the
position of reliever in Waterfall, and a further declaratory order
that she shall remain in the position of a reliever with
a full
salary until such time that the respondent has appointed her to a
position of permanent controller in compliance with the
terms of the
settlement agreement
entered into between the
parties at the Commission for Conciliation Mediation and Arbitration
(CCMA) under case number GAEK 10828-17.
She further seeks that the
respondent be ordered to effect payment of her outstanding salary for
the month of April 2019 in
the sum of R5 400.00.
[2]
The background to this application is fairly common cause and can be
summarised
as follows;
2.1
The applicant is in the employ of the respondent as a security guard.
Between
March 2017 and July 2017, she took maternity leave.
Upon her return, the respondent allegedly reduced her monthly salary
and she had referred a dispute to the CCMA. The dispute resulted in a
settlement agreement reached on 1 June 2018, which
agreement was made an arbitration award in accordance with the
provisions of section 142A(A) of the Labour Relations Act.
2.2
The terms of the settlement agreement are that;
1.
‘
The company will place the employee in a permanent post
at Redefined Denver as a security officer on signing this settlement
agreement
(Chilvers Street Denver) until 26 June 2018.
2.
The employer undertakes to appoint the employee to a permanent
controller position as soon as a vacancy becomes available at NCC
in
Wayerfall Park (Tugela Lane Servest Building Cnr R101 and Bridal Veil
Road ext 78 Jukskeiview Midrand), reporting to the Control
Room
manager Alex Behr.
3.
The employee will act as reliever at the NCC in Waterfall from
27
th
June 2018 until such time all
the Controllers (between 3 – 6 staff) have been on annual leave
for the current leave
period or cycle. During this period as a
reliever the employee will earn a basic wage of R10 000.00 per
month.
4.
Should she return to the Gauteng South Branch due to a post at
the NCC not being available immediately, her rate of pay will revert
to a basic of R4668.00 a month, with an allowance of R500.00 a month,
until such time a permanent capacity controller or an alternative
position is secured. She will report to Branch manager Mr. T
Hlabangani during this time.
5.
Should the employee wish to apply for alternative positions
whilst working as a reliever mentioned in points 2,3 and 4 above, she
will be free to do so and the company will assist in setting up
interviews. Should she secure an alternative post she will serve
two
weeks’ notice before taking up her new role.
6.
The company will cancel the disciplinary hearing currently
pending against the employee for dishonesty and gross negligence. The
employee will receive a Final Written Warning instead.’
2.3
On 19 April 2019, the applicant was informed in writing
that the reliever
post she had occupied in accordance with the
settlement agreement had lapsed, resulting in
her
rate of pay reverting to a basic salary of R4668.00 a month, with an
allowance of R500.00 a month in accordance with paragraph
5 of the
settlement agreement.
[3]
The applicant’s case is that the respondent failed and/or
neglected
to comply with clause 2 of the agreement as it had failed
to appoint her to a permanent post in accordance with the terms of
that
agreement. She averred that the respondent acted unlawfully by
unilaterally terminating the reliever position, which had led to
her
monthly salary being reduced to almost half in April 2019. She
further contends that the termination of the reliever position
constitutes a breach of contract of employment and the terms of the
settlement agreement.
[4]
The respondent in opposing the application pointed out that the
applicant’s
claim is based on specific performance in view of
the settlement agreement being incorporated into her contract of
employment.
The respondent however contends that the applicant either
misunderstood or wrongly interpreted the terms and conditions of the
settlement agreement, and submitted that;
4.1
In accordance with paragraph 1 of the settlement agreement, it
had appointed
the applicant as a security officer at Redefined Denver
between 1 and 26 June 2018.
4.2
From 27 June 2018, the applicant was appointed in an acting
position
as reliever controller at NCC Waterfall until all the
controllers returned from their annual leave in the 2018/2019 leave
cycle.
She was paid R10 000.00 per month whilst she occupied
that position.
4.3
The applicant failed to apply for any alternative position whilst she
acted
as reliever controller.
4.4
The position of reliever controller lapsed at the end of the
2018/2019 leave
cycle.
4.5
No vacancies existed for a controller at NCC Waterfall Park.
4.6
The applicant was advised in writing that the arrangements as
reliever acting
duties came to an end, and she was to revert to her
original rate of pay. Consultations in this regard were held with the
applicant
on 22 March 2019
4.7
The applicant had to return to the Gauteng South Branch at a salary
of R4668.00
plus an allowance of R500.00.
The
legal framework:
[5]
The
requirements for urgent relief as contemplated in Rule 8 of the rules
of this Court are trite. A party seeking urgent relief
must make out
a cogent case in the founding affidavit as to the reason the Court
should indulge his or her application and grant
relief on an urgent
basis. Furthermore, any urgency claimed must not be self-created in
the sense
inter
alia
that the applicant acted with the necessary haste in approaching the
Court
[1]
. Other than the
requirement that the reasons that render the matter urgent ought to
be set out, the Court needs to be satisfied
that the applicant
would
not be afforded substantial redress in due course.
[2]
[6]
To the
extent that the applicant seeks final relief, three essential
requirements must be satisfied,
viz
:
(a) the existence of a clear right; (b) an injury actually committed
or reasonably apprehended; and (c) the absence of any other
satisfactory remedy
[3]
.
Evaluation:
[7]
In contending that this matter deserves the urgent attention of this
Court,
the applicant simply relied on the financial hardship she and
her dependants suffered or continue to suffer as a consequence of
the
alleged breach of her contract of employment and the terms of the
settlement agreement.
[8]
The respondent’s contention is that the matter is not urgent,
as
the applicant knew as far back as 22 March 2019 of the
changes and the end of her reliever duties, and yet had only
approached
this Court on 31 May 2019. It was submitted that
there was no explanation of what the applicant did between
22 March 2019
and 7 May 2019 when her attorneys
of record sent correspondence to the respondent.
[9]
To the
extent that the applicant had relied on financial hardship as a basis
for urgency, it has been held that as a general principle,
financial
hardship does not establish a basis for urgency.
[4]
As it was held in
Ledimo
and Others v Minister of Safety and Security and Another,
[5]
the
mere fact that irreparable financial losses have been suffered or
would be suffered by the applicant was not, by itself, sufficient
to
ground the requisite urgency necessary to justify a departure from
the ordinary court rules.
[10]
Inasmuch as it is appreciated that a reduction in salary as a
consequence of the applicant
being reverted to her old position had
devastating effect, that in itself however is not on its own, the
basis upon which this
matter can be accorded urgency.
[11]
Aligned to the above is the question whether the applicant acted with
the necessary haste
to mitigate against the hardship or prejudice she
complained of. In this case, it was the respondent’s contention
that the
applicant knew as early as 22 March 2019 that she
would be reverted to her old position. The applicant in her replying
affidavit did not address these contentions, other than to indicate
that the respondent failed to appoint her to a position of
controller
that was advertised before 25 March 2019 despite having
applied for the position.
[12]
Two central issues emerge from the answering and replying affidavits,
which put paid to
any allegation that the matter should be treated as
urgent. The first is that in the light of inaction on the part of the
applicant
between 22 March 2019 when she was advised of the
changes and 31 May 2019 when this application was launched,
or from 16 April 2019 when the changes were to take effect,
the urgency claimed herein is clearly self-created. An applicant
cannot claim urgency in circumstances where he or she did nothing
when the cause of the complaint first surfaced.
[13]
The second issue is that on the applicant’s own version, she
was not, after having
applied, appointed on or after 25 March 2019
to the position of controller, which issue was covered by the same
settlement
agreement relied upon. There is however no indication that
the applicant did anything to assert any rights either in terms of
the
provisions of that settlement agreement or whether by way any
other means when her application for the post was unsuccessful. In
the end, I am satisfied that the applicant has not placed any cogent
facts that dictate that the matter be treated as urgent.
[14]
It was submitted on behalf of the applicant that she had demonstrated
a clear right as
the respondent was or had acted unlawfully by
unilaterally terminating the reliever position which led to her
salary being reduced.
It was submitted that the termination of the
reliever position constituted a breach of contract of employment and
the terms of
the settlement agreement.
[15]
A determination of whether any clear right has been demonstrated
requires an examination
of the full text of the settlement agreement
rather than the nick-picking or piecemeal approach adopted by the
applicant. To the
extent that the applicant alleged the respondent
had breached paragraph 2 of the agreement, which required her to be
appointed
to a position of permanent controller as soon as a vacancy
arose, the issue is whether in fact any such vacancy arose.
[16]
The respondent’s case was that no such vacancy arose, and thus
the suspensive condition
was not fulfilled . As it was correctly
pointed out on behalf of the respondent, not a single averment was
made in the founding
affidavit by the applicant as to whether any
such vacancy was available. Only in the replying affidavit did the
applicant make
mention of a position that was advertised on or about
25 March 2019, which she had applied for without success.
Other
than the fact that a case cannot be made out in the replying
affidavit, the conclusion that the urgency claimed in this case is
fortified by the fact that since the available post was advertised in
March 2019, the applicant did nothing when her application
was
unsuccessful.
[17]
It is inevitable that any clause in a settlement agreement that
provides that employment
into a ‘
position as soon as a
vacancy becomes available’
is doomed to create
uncertainties and disputes. In this case however, it is apparent that
any appointment to a permanent post of
controller envisaged in the
settlement agreement depended on whether such a position became
available. If not, then the provisions
of paragraph of the settlement
agreement were to take effect, meaning that the applicant was to
revert to her basic salary with
an allowance.
[18]
In the end, the applicant has not in my view made out a case that
indeed a post of permanent
controller was available, nor can it be
read from the agreement that she was entitled to any post in the
light of the provisions
of paragraph 5 of the agreement. Ultimately,
there is no basis for any conclusion to be reached that the
respondent had breached
the terms of the settlement agreement.
[19]
Aligned to
the issue of urgency is a further consideration in such applications,
which is that an application brought on an urgent
basis should not
succeed if the applicant fails to show that there is no satisfactory
remedy available that addresses his or her
dispute
[6]
.
For reasons that are not clear, the applicant in both the founding
and replying affidavit failed to deal with this important issue,
which is tied to the question whether the requirements for final
relief have been met.
[20]
The issue
of alternative remedies available to the applicant is in my view
dispositive of this matter. First, the applicant’s
case is
predicated on specific performance in relation to a contract of
employment. She claimed breach of that contract and clearly
there is
no reason why this matter should be indulged by this Court on an
urgent basis, when the provisions of section 77 of the
Basic
Conditions of Employment Act
[7]
are available, and for the matter to be dealt with on the ordinary
roll like hundreds of other similar matters that come before
this
Court.
[21]
A second consideration is that the basis of this dispute is the
settlement agreement, with
the principal complaint being that the
respondent has failed to comply with its paragraph 2. That settlement
agreement was made
an arbitration award, and it is still not clear
why the applicant rushed to this Court on an urgent basis, when all
other similar
cases are dealt with via the provisions of section
158(1)(c) of the LRA, and when all else fails, through contempt
proceedings.
[22]
In the end, there is nothing exceptional about the facts of this case
that entitles it
to jump the proverbial litigation queue, and no need
arises for this Court to even consider issues surrounding the balance
of convenience.
This Court is overburdened with section158(1)(c) of
the LRA applications, where litigants, who find themselves in even
more indigent
and desperate positions than the applicant in this
case, wait for their turn on the ordinary motion roll. I therefore
see no reason
why the applicant’s case ought to be dealt with
any differently.
Costs:
[23]
An award of costs is made in this Court upon a consideration of the
requirements of law
and fairness. The parties in the settlement
agreement had agreed that the defaulting party would be liable if
legal costs had to
be incurred to enforce the terms of the settlement
agreement. In this case however, there is no basis upon which it can
be concluded
that the respondent had acted in breach of the terms of
the settlement agreement.
[24]
Further in the light of the conclusions reached in regards to the
lack of urgency, the
alternative remedies available to the applicant,
and the overall failure on the part of the applicant to satisfy the
requirements
of the relief sought, this application was clearly
ill-conceived, and there is no reason in law or fairness why
the respondent
should be burdened with its costs.
Order:
[25]
In the premises, the following order is made;
1. The
applicant’s urgent application is dismissed with costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: M
Marweshe of Marweshe Attorneys
For
the Respondent: JP
Prinsloo, instructed by De Villiers & Du Plessis Attorneys
[1]
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010)
31 ILJ 112 (LC) at para 18;
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
(2016) 37 ILJ 2840 (LC) at para 26
[2]
Maqubela
v SA Graduates Development Association and Others
(2014)
35 ILJ 2479 (LC) at para 32
[3]
Setlogelo v Setlogelo
1914 AD 221
at 227;
[4]
Jonker
v Wireless Payment Systems CC
(2010) 31 ILJ 381 (LC) at para 16.
[5]
(2242/2003)
[2003] ZAFSHC 16
(28 August 2003) at para 32
[6]
See
Minister
of Law and Order v Committee of the Church Summit
(1994 (3) SA 89
(BGD) at 99F-G, where it was held that:
‘
Concerning
the alternative remedy, the Courts have determined that it must be
adequate in the circumstances, be ordinary and reasonable,
be a
legal remedy and also grant similar protection to a party...
Generally and applicant will not obtain an interdict if he
can be
awarded adequate compensation or amends by way of damages.’
[7]
Act
75 of 1997 (as amended)