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[2019] ZALCJHB 320
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SASBO obo Modibane v Nedbank Limited (J2075/19) [2019] ZALCJHB 320 (28 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J 2075/19
In the matter between:
SASBO THE FINANCE
UNION obo
RAPULA
MODIBANE
Applicant
And
NEDBANK
LIMITED
First Respondent
Heard:
25 October 2019
Judgment
delivered: 28 October 2019
JUDGMENT
VAN NIEKERK J
[1]
The applicant seeks an order interdicting and restraining the
respondent (the bank)
from dismissing the applicant prior to
complying with a fair procedure.
[2]
On 3 October 2019 the bank addressed a notice of termination of
employment to the
applicant. The next day, 4 October 2019, unaware of
the notice of termination of employment, Mabaso AJ delivered a
judgment in
respect of an application argued on 11 September 2019.
In those proceedings (which involved the same parties), the applicant
contended that the bank had acted unfairly in issuing a letter dated
26 July 2019 without first issuing a notice in terms of s
189 (3) of
the LRA. The letter referred to in the order advised the applicant
that he would be placed in what was termed an ‘operational
redeployment pool’ on the basis that if he was not placed in a
role within two months from 1 August 2019, he would be given
one
months’ notice of termination of employment, being the month of
October 2019.
[3]
Mabaso AJ issued the following order:
…
2. The respondent acted
in a procedurally unfair manner when it proceeded to issue Mr
Madibane with a letter dated 26 July 2019,
without issuing a written
notice in terms of s 189(3) of the LRA, inviting the applicant to
consult on the information recorded
therein;
3.
The respondent acted in a procedurally unfair manner when it
proceeded to issue
Mr Modibane with the letter dated 26 July 2019,
without issuing a written notice prescribed in the Nedbank
retrenchment policy;
4.
The respondent acted in a procedurally unfair manner by failing to
appoint a
facilitator as prescribed by the Nedbank retrenchment
policy;
5.
The respondent must comply with the prescribed 60 days period, as
recorded in
the Nedbank retrenchment policy; and more particularly,
that the 60 day period shall commence on the issue of a section 189
(3)
notice to the applicant/ Mr Modibane; alternatively that the
respondent comply with 60 day period as prescribed by section 189A
of
the LRA;
6.
The respondent is ordered to initiate and then continue with the
meaningful joint
consensus seeking process as envisaged by sections
189 and 189A of the LRA …
.
[4]
On 18 October 2019, the bank applied for leave to appeal against the
judgment of Mabaso
AJ. That application remains pending. The effect
of the application for leave to appeal is that the operation and
execution of
the order is suspended pending the outcome of the
application (s 3 of the Superior Courts Act). At the hearing of the
present application,
the court was advised that an application in
terms of s 18 (3) of the Superior Courts Act had been enrolled for
hearing in this
court on 29 October 2019, in which the applicant
seeks a ruling that the order not be suspended.
[5]
The applicant has filed the present application on account of what he
terms ‘new
facts’; in particular, the notice of
termination of employment issued to him on 3 October 2019.
[6]
The bank accepts that the effect of the order granted by Mabaso AJ is
that it will
not be able to terminate the applicant’s
employment, and that if any appeal against the order fails, the
applicant will be
reinstated and the consultation process will have
to take place as ordered. Mr Boda SC, on behalf of the bank,
submitted that the
applicant does not require a new order to achieve
this effect and further, that it will not be possible in these
proceedings for
the court to find in favour of the bank without
finding that Mabaso AJ had erred in making the ruling that he did.
This is a matter,
he submitted, more properly to be determined in any
appeal hearing.
[7]
I agree. It is clear from the papers that served before him that
Mabaso AJ did not
expressly grant an interdict preventing the bank
from issuing the notice of termination of employment. This was not
the specific
relief sought in the application that served before him.
However, the order requiring the bank to implement a consultation
process
after issuing a s189 (3) notice effectively amounts to an
interdict against a termination of employment with effect from 31
October
2019. The basis of the attack on the notice of termination in
these proceedings is thus the same as the attack that underpinned
the
first application – primarily, the bank’s failure to
issue a s 189 (3) notice.
[1]
The
fact that the order remains suspended (at least pending the outcome
of the s 18 application) does not mean that the applicant
is entitled
to ask this court for the same relief, relief which in effect, he has
already obtained. In
National
Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd
(2015) 36 ILJ 1261 (LAC), the Labour Appeal Court followed
Prinsloo
NO and others v Goldex 15 (Pty) Ltd and another
2014 (5) SA 297
(SCA), where the court applied the three requirements
for
res
judicata
- the same parties, the same cause of action, and the same relief.
The purpose of
res
judicata
is to prevent the repetition of lawsuits between the same parties and
the possibility of conflicting decisions by different courts
on the
same issue. In the present instance, all three requirements are
present, and the application stands to be dismissed on this
basis.
[8]
In so far as costs are concerned, my view, the interests of the law
and fairness referred
to in s 162 of the LRA are best met by an order
to the effect that costs follow the result. The union was forewarned
of the bank’s
intention to raise the point of
res judicata
,
yet it persisted with the present application. This borders on
an abuse of the process of this court.
I make the following
order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
APPEARANCES
For the applicant: Adv. C
Goosen, instructed by BJ Erasmus Pieterse Attorneys
For
the respondent: Adv. F Boda SC, instructed by Norton Rose Inc.
[1]
The
same issue was raised and decided in respect of another employee
retrenched in the same circumstances - see J 2011/19
SASBO
obo Fourie v Nedbank
,
judgment delivered 28 October 2019.