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[2019] ZALCJHB 291
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Simpson v Sisonke Budpol Construction CC (J2042/19) [2019] ZALCJHB 291 (18 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J2042/19
In the matter between:
CLEM LOCKHART
SIMPSON
Applicant
and
SISONKE BUDPOL
CONSTRUCTION CC
Respondent
Heard: 16 October 2019
Delivered:
18 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
With this urgent application, the applicant seeks a variety of orders
including payment of statutory monies due to him and continued
payment of such amounts until the finalisation of this dispute, and
an order prohibiting the respondent from evicting him from his
housing. In the alternative, he seeks a declaratory order that his
dismissal was unfair or in the alternative, automatically unfair and
payment of compensation in that regard; and an order that
the limited
duration contract of employment entered into between the parties is
cancelled, and that he should be entitled to damages
in the amount
that he would have earned had that contract endured until June 2020.
[2]
The respondent opposed the application on two basic grounds,
viz
,
urgency and lack of jurisdiction. The above urgent relief is sought
against the following background;
2.1
The respondent is a closed corporation and based in Durban. The
applicant, who
is also from Kwazulu-Natal was employed by the
respondent with effect from 30 May 2019 as its Health and
Safety Officer
in terms of a limited duration contract. The applicant
was however to be based at one of the respondent’s sites in
Belfast,
Mpumalanga Province.
2.2
In
accordance with the provisions of the contract, the respondent was
required to provide the applicant with accommodation and basic
requirements related to such accommodation.
[1]
The applicant raises various disputes surrounding the nature of the
accommodation he was offered and a lack of basic necessities
to make
the accommodation habitable.
2.3
The applicant contends that he raised complaints with the respondent
about the
state of his accommodation and lack of basic
necessities that he was promised. He further deemed the respondent to
have made
misrepresentations in regard to his terms and conditions of
employment. He had on 21 July 2019, sent correspondence to
it indicating the cancellation of the contract of employment, and
sought damages.
2.4
The applicant further alleges that subsequent to his letter of
21 July 2019,
he nonetheless reported for duty on
22 July 2019 and was informed by the site manager that he
was dismissed because he
‘made trouble’. His written
response was that he would report the matter to the Commission for
Conciliation Mediation
and Arbitration (CCMA), and thereafter, the
respondent’s attorneys addressed a letter to him, and indicated
that attempts
should be made to settle the matter. He had rejected
attempts at any settlement, and advised the respondent’s
attorneys that
he would proceed with his dispute at the CCMA.
2.5
On 22 July 2019, the applicant referred an unfair labour
practice
dispute, unfair discrimination and alleged dismissal
disputes to the CCMA. Upon receipt of the referral, the respondent’s
attorneys advised the applicant that he should report for duty as he
was not dismissed, and that should he fail to do so, disciplinary
action against him might follow.
2.6
Following a meeting between the applicant and the respondent’s
representative
on 23 July 2019, certain undertakings were
according to the applicant, made in respect of complaints he had
raised regarding
his accommodation. There is a dispute as to whether
the complaints were attended to or not. Conciliation proceedings
before the
CCMA took place on 16 August 2019 and a
certificate of outcome was issued. The respondent did not attend
those proceedings
and the applicant has yet to refer the dispute for
arbitration.
2.7
On 26 August 2019, the applicant referred another dispute
related
to unfair labour practices. Conciliation was scheduled to
take place on 12 September 2019. Despite the presence of
the
respondent’s representatives, the dispute could not be
resolved and the applicant referred the dispute for arbitration on
18 September 2019. On 20 September 2019, the
applicant was served with a notice to attend a disciplinary enquiry
to answer to four allegations of misconduct, and was further
informed of his suspension. The enquiry was to take place in
Umhlanga
in Durban.
2.8
It is common cause that the applicant was dismissed in his absence as
per the
findings made on 1 October 2019. Arising from the
outcome, the applicant’s salary was stopped and he was advised
that he should vacate the accommodation provided on or before
6 October 2019
[3]
In summary, the applicant complains of alleged misrepresentations
made
by the respondent in regards to the terms and conditions of the
contract of employment. He has already referred two disputes to
the
CCMA and has also lodged complaints at the Department of Labour in
regards to deductions and non-payment of his salary. He
complains of
having been victimised and discriminated against for exercising his
rights, and contends that the charges of misconduct
were fabricated
against him.
[4]
At the commencement of these proceedings, the applicant had raised
preliminary
points essentially related to the manner of service of
the respondent’s answering affidavit. He contended that the
answering
affidavit was served on him
via
email which is
impermissible, and that he was not given sufficient time to file a
replying affidavit.
[5]
As it was correctly pointed out on behalf of the respondent, when a
party
approaches a Court on an urgent basis, it
inter alia
seeks that the rules of the Court be dispensed with, inclusive of the
manner of service and time frames. To the extent that urgent
relief
is sought, the Court can refuse to dispense with such requirements if
it is of the view that the manner of service and the
time frames set
for the respondent party to file pleadings is such that it is
prejudicial to that party, in the sense of depriving
it of having its
case heard.
[6]
In this case, the applicant delivered his founding affidavit on
7 October 2019
and enrolled the matter for 11 October 2019.
The matter was removed from the roll as Mahosi J was not satisfied
that
proper service of the founding papers was effected on the
respondent. An affidavit of service was submitted by the applicant on
11 October 2019 with the request to enrol the matter on
15 October 2019. The answering affidavit was filed
and
delivered in the late afternoon of 14 October 2015, and on
the hearing date, the matter had to be removed from the
roll as the
applicant required time to file a replying affidavit.
[7]
In the light of the above events, the applicant cannot complain of
any
prejudice in the light of being
dominis litis
in this
matter. The answering affidavit was properly served on him; he was
afforded an opportunity to file a replying affidavit,
and his case
was properly ventilated at these proceedings. To this end, there is
no merit to the preliminary points he had raised.
[8]
To the
extent that the applicant seeks urgent relief, the requirements to be
met for such relief under Rule 8
[2]
of the Rules of this Court are well-established. A determination of
whether a matter deserves the urgent attention of this Court
entails
a considerations of whether the reasons that make the matter urgent
have been set out succinctly in the founding papers
and secondly,
whether the applicant seeking relief will not obtain a substantial
relief at a later stage. These provisions were
interpreted in
Jiba
v Minister: Department of Justice and Constitutional Development and
others
as follows;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary 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
deviation from the rules”
[3]
.
[9]
The respondent contends that the application is not urgent. Central
to
the grounds of urgency as crystallised in the applicant’s
heads of argument is that the matter is urgent on the grounds that
he
had sought redress on two previous occasions at the CCMA and that on
both occasions, crucial members of the respondent failed
to arrive at
conciliation proceedings. The argument is further that the absence of
these individuals prevented him (applicant)
from seeking meaningful
resolution of the dispute at the CCMA, and that the respondent’s
conduct as a whole indicates that
it would not attend to any further
disputes referred to the CCMA.
[10]
A further ground upon which urgency is relied upon is that the
respondent has not paid
him statutory monies due to him to enable him
to sustain himself, and that by the time the dispute is determined by
the CCMA, his
rights would have been destroyed and any harm he had
suffered is irreparable. He further contends that his approach to the
Department
of Labour did not yield any results.
[11]
As it was
correctly pointed out on behalf of the respondent, the grounds relied
upon by the applicant for urgency do not come close
to satisfying the
requirements under Rule 8 of the Rules of this Court. The first issue
is that depending on which date the dismissal
or the cancellation of
the contract of employment took place, it can be accepted that the
dismissal by the respondent took place
on 1 October 2019.
To the extent that the Notice of Motion and the founding affidavit
were delivered on 7 October 2019,
the applicant fails to
proffer an explanation for the delay in respect of that period. Even
if it can be accepted that he had acted
with due haste, that in
itself does not give rise to urgency, as it is more the facts upon
which urgency is relied upon that are
paramount. This is even moreso
in circumstances where he seeks final relief. In this regard, it has
been held that an applicant
who comes to court on an urgent basis for
final relief bears an even greater burden to establish his right to
urgent relief than
an applicant who comes to court for interim
relief.
[4]
[12]
The facts relied upon by the applicant for urgency hardly establish a
right to urgent relief.
This is so in that the mere fact that a party
to a dispute fails to attend a conciliation meeting cannot be a
ground for urgency.
There is no obligation on the respondent party to
attend a conciliation meeting, as what ordinarily follows from those
meetings
is a certificate of outcome, which entitles the referring
party to take the dispute further.
[13]
Circumstances
would obviously be different where the matter is set down as a
con/arb under section 191(5A) of the Labour Relations
Act (LRA)
[5]
.
If there is no objection to those proceedings, once a certificate of
outcome is issued, the Commissioner can then proceed to arbitrate
the
dispute in the absence of the respondent party. In this case, it is
not clear as to whether the certificate of outcome issued
on
16 August 2019 in relation to the alleged unfair dismissal
dispute followed upon a con/arb process, and if so, the
reason why
the arbitration was not proceeded with. In a nutshell, the fact that
a dispute was referred to the CCMA and could not
be resolved due to
the absence of the other party to the dispute, or the fact that the
CCMA did not set down the dispute for arbitration
at a pace sought by
the applicant cannot give rise to urgency.
[14]
The applicant further seeks urgent relief on the grounds that he is
to be evicted. He seeks
an order interdicting the respondent from
evicting him from the dwellings secured for him whilst in its employ.
This issue relates
to the jurisdiction of this Court as shall be
further elaborated upon in this judgment. In a nutshell, it is trite
that any person
may not be evicted from premises he or she occupies
without a Court order. As at the hearing of this matter, no such
eviction order
was issued, or at least brought to the attention of
the Court.
[15]
Insofar as the contention that urgency arose as a result of the
applicant not having been
paid his salary, this relates to the debate
as to whether financial hardship can give rise to urgency. This Court
or any other
Court for that matter may be accused of having an
empathy deficit when considering such arguments. The reality however
is that
the circumstances that the applicant finds himself in (
i.e.
,
lack of funds to cater for the bare necessities of life) are no
different from those of other multitudes of employees, who on
a daily
basis suddenly find themselves without employment. Those employees in
similar if not worst positions refer their disputes
to appropriate
forums and ordinarily wait for their turn in the litigation queue. In
essence, the general scheme of the labour
dispute resolution as
contained in the LRA knows no preference, as all degrees of hardship
suffered by all employees are immeasurable
and incapable of
comparison. It therefore makes sense to have as a general principle,
that financial hardship on its own cannot
be a basis for granting
urgent relief, because to hold otherwise would imply that each and
every case of a dismissal or withholding
of a salary, that invariably
ends with financial hardship, will end up in the urgent roll of this
Court.
[16]
The Courts
have accepted that the general rule that financial hardship and loss
of income are not considered to be grounds for urgent
relief is not
immutable, and that this rule may be departed from where exceptional
circumstances are demonstrated.
[6]
As to what would constitute exceptional circumstances will depend
from case to case, with the primary consideration being whether
the
detrimental consequences complained of are not capable of redress in
due course. Clearly this is aligned to the question of
alternative
remedies, and the issue remains whether these are not open to the
applicant in this case.
[17]
The applicant is clearly aware of his alternative remedies and has to
a large extent exercised
his options in that regard by referring
various disputes to the CCMA and further seeking the assistance of
the Department of Labour
in regards to his alleged unpaid salary or
deductions made to his salary. This is a typical case of an applicant
who is impatient
with the slow moving litigation process and wants
favourable solutions at a pace dictated by him. This unfortunately is
untenable.
A matter cannot be deemed to be urgent simply because an
impatient applicant seeks that it be treated with urgency. That would
be a typical case of self-created urgency.
[18]
To the
extent that the respondent also raised the lack of jurisdiction of
this Court, it gets worse for the applicant insofar as
he relies on
different causes of action leading to various forms of relief he
seeks. The starting point is that to the extent that
the applicant
seeks declaratory orders in respect of the alleged unfair dismissal
or automatically unfair dismissal, the difficulty
is that it has long
been held that such orders would be inappropriate in circumstances
where he has alternative remedies.
[7]
[19]
It is trite
that a claim of automatically unfair dismissal cannot be brought by
way an application, let alone an urgent application.
Equally so, a
claim of unfair dismissal is not within the competence of this Court
to deal with. The provisions of section 191
of the LRA are clear in
regards to processes to be followed before such matter can be
determined by this Court. Equally so, it
is not within the
jurisdiction of this Court, notwithstanding its powers under the
provisions of sections 157 and 158 of the LRA
to consider and grant
relief in every given case that comes before it. As it was said in
Mohlomi
v Ventersdorp / Tlokwe Municipality and Another
[8]
the fact that the Labour Court has jurisdiction / power does not mean
that the Court should exercise this power. Thus, even though
the
Court may have jurisdiction to consider a dispute, it does not mean
that it is appropriate for it to exercise such power, especially
where there are other specifically prescribed alternative means by
way of which the issue can be resolved.
[20]
Effectively, the jurisdiction and powers of this Court is not without
boundaries. It would
be impermissible for it to grant urgent relief
in circumstances where the dispute to be determined, has its own
prescribed dispute
resolution procedures set out in the LRA. This
conclusion therefore makes it unnecessary for me to even consider
whether cases
have been made out for an automatically unfair
dismissal claim, the alleged unfair dismissal claim, and the
non-payment of salaries.
Those disputes at this stage, are at
appropriate forums where they should be, and it is only under the
provisions of section 191
(5) (b) and 191 (11) (a) of the LRA that
they can find their way to this Court. Effectively, those disputes
are
lis pendens
, thus barring the Court from their
consideration.
[21]
In summary, the applicant has not laid a basis for this matter to be
treated as urgent,
and any urgency claimed is clearly self-created.
Furthermore, the applicant has suitable alternative remedies which he
has already
utilised. To the extent that the causes of action upon
which urgent relief is sought are the same in regards to the
claims/referrals
before the CCMA, there is no basis for such relief
to be granted, particularly since the applicant seeks final relief.
In the end,
no point will be served by striking the matter of the
roll as it will find itself back to this Court’s roll, and in
circumstances
where the Court would in any event, not have
jurisdiction over those disputes in their current form. Consequently,
it follows that
the application ought to be dismissed.
[22]
I have had regard to the requirements of law and fairness in respect
of a costs order as
sought by the respondent. The applicant had
drafted his own pleadings and represented himself in these
proceedings. I am of the
view that notwithstanding the ill-fated
nature of this urgent application, a costs order given the
applicant’s personal circumstances
is not warranted.
Accordingly, the following order is made;
Order:
1. The Applicant’s
urgent application is dismissed.
2.There is no order as to
costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: In
Person
For
the Respondent: C
Vabaza of Garlicke & Bousefield INC
[1]
Clause
5.3 of the Limited Duration Contract (Page 41 of the applicant’s
founding affidavit)
[2]
Which provides;
(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”
[3]
(2010) 31 ILJ 112 (LC) at para 18
[4]
Tshwaedi
v Greater Louis Trichardt Transitional Council
[2000] 4 BLLR 469
(LC) at para 11
[5]
Act 66 of 1995 (as amended)
[6]
See
Harley
v Bacarac Trading 39 (Pty) Ltd
(2009)
30 ILJ 2085 (LC) at para 8, where it was held;
‘
If
an applicant is able to demonstrate detrimental consequences that
may not be capable of being addressed in due course and if
an
applicant is able to demonstrate that he or she will suffer undue
hardship if the court were to refuse to come to his or her
assistance on an urgent basis, I fail to appreciate why this court
should not be entitled to exercise a discretion and grant
urgent
relief in appropriate circumstances. Each case must of course be
assessed on its own merits.
[7]
See
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012)
33 ILJ 2033 (LAC)
at
para 46
[8]
[2018] 4 BLLR 355
(LC); (2018) 39 ILJ 1096 (LC) at para 34