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[2019] ZALCJHB 368
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DEMAWUSA and Others v City of Johannesburg (J1849/2019) [2019] ZALCJHB 368; (2020) 41 ILJ 912 (LC); [2020] 6 BLLR 574 (LC) (7 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no
J 1849/2019
In
the matter between
DEMAWUSA
MEMBERS
OF DEMAWUSA
Applicant
Second
and further Applicants
And
CITY
OF JOHANNESBURG
Respondent
24
October 2019
Delivered:
7 November 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicants seek final
interdictory relief
against the respondent. They allege that the
respondent has suspended the second to further applicants (the
employees) unlawfully,
and that the respondent has unlawfully made
deductions from their salaries.
[2]
The employees are all employed by the respondent as basic ambulance
assistants, intermediate
life support and fire fighters. The
employees’ primary duties entail responding to emergency calls
from the public, attending
to emergency scenes and providing
immediate treatment to sustain patients while they are transported to
hospital. The first applicant,
the union, has been in dispute with
the respondent for some months. This dispute escalated to what the
respondent contends is an
unprotected strike that occurred during
July 2019. On 26 July 2019, the court granted an interim interdict
against the applicants,
interdicting them from participation in an
unprotected strike. On the return date, 24 October 2019, confirmation
of the rule
nisi
was opposed, and judgment was reserved. The
present application arises from what the respondent considers to be
open defiance of
the interim interdict. It commenced a process to
suspend the employees whom it considered to have participated in an
unprotected
strike, pending further investigation into their conduct.
The respondent issued notices of suspension to the employees, on
account
of a refusal to perform duties allocated to them. Further,
the respondent took the view that given the employees’ refusal
to perform their duties, it was not obliged to pay them certain
allowances contingent on their presence at work. The applicants
on
the other hand contend that this constitutes an unauthorised
deduction from remuneration.
[3]
The applicants aver that this court has jurisdiction to entertain
their claim since
it is a court of law and equity, and its powers in
terms of s158 of the LRA to grant interdicts and other orders. In
paragraph
19 of the founding affidavit the applicants state the
following:
19.
In relation to suspension, it should be noted that the Employees do
not seek to deal with
the fairness of their suspensions and
deductions of their salaries, all what the Employees require is that
the lawfulness of the
suspensions and deductions to their salaries be
determined.
[4]
The basis on which the applicants contend that the suspensions and
deductions respectively
are unlawful are apparent from the founding
affidavit. In respect of what are contended to be unlawful
suspensions, the applicants
aver that the respondent has failed to
comply with clause 16.1 of the disciplinary procedure collective
agreement (the collective
agreement) in a number of respects. The
collective agreement referred to is the subject of circular 01/2018,
and was concluded
under the auspices of the bargaining council. It is
not in dispute that the collective agreement binds the parties to
these proceedings.
Clause 16 of the collective agreement provides for
the precautionary suspension of employees pending a disciplinary
hearing, subject
to certain to conditions that relate in the main to
procedure. It is these conditions that the respondent is alleged to
have breached,
that being the basis for the allegation of
unlawfulness made by the applicants.
[5]
In so far as the deductions from wages is concerned, the employees
contend that the
respondent has breached s 34 of the Basic Conditions
of Employment Act (BCEA), in that deductions were made from their
remuneration
without their consent. In neither instance do the
employees contend for any breach of their employment contracts -
their claims
are predicated on an alleged breach by the respondent of
clause 16 of the collective agreement and s 34 of the BCEA
respectively.
[6]
In the answering affidavit, the respondent raised a jurisdictional
point, the only
issue canvassed at the hearing of the application.
The respondent contends that the court has no jurisdiction to
entertain the
application, since the LRA is not concerned with
unlawful suspensions from employment and unlawful deductions from
remuneration.
The respondent relies on the judgment of the
constitutional Court in
Steenkamp & others v Edcon Ltd
(National Union of Metalworkers of SA intervening)
(2016) 37
ILJ
564 (CC). That case concerned a claim by the appellants that their
dismissals by the respondent were unlawful and invalid, because
their
employer had not complied with time periods established by s189A of
the LRA prior to issuing notices of termination of employment,
with
the consequence that their termination of employment was premature.
The majority of the Constitutional Court rejected this
contention, on
the basis that this court has no jurisdiction to determine the
lawfulness of a dismissal. The court observed that
there was no
provision in the LRA in terms of which an order could be sought
declaring a dismissal unlawful or invalid. At paragraph
106 of the
judgment, the court said the following:
[106]
Section 189A falls within chapter VIII of the LRA. That is the
chapter that deals with unfair dismissals.
It’s heading is:
‘Unfair dismissal and unfair labour practice’. Under the
heading appears an indication of which
sections fall under the
chapter…
Conspicuous by its
absence here is a para (c) to the effect that every employee has a
right not to be dismissed unlawfully. If this
right had been provided
for in s 185 or anywhere else in the LRA, it would have enabled an
employee who showed that she had been
dismissed unlawfully to ask for
an order declaring her dismissal invalid. Since a finding that a
dismissal is unlawful would be
foundational to a declaratory order
that the dismissal is invalid, the absence of a provision in the LRA
for the right not to be
dismissed unlawfully is an indication that
the LRA does not contemplate an invalid dismissal is a consequence of
a dismissal effected
in breach of a provision of the LRA…
And
further at paragraph [107]:
This indication is
reinforced when one has regard to the definition of “dismissal”
in section 186 (1) … Once
again the absence of any reference
to an unlawful dismissal is telling. It suggests that, if the
dismissed employee wishes to raise
the unlawfulness of their
dismissal, they must categorise it as unfair if they are to obtain
relief under the LRA.
[7]
The effect of this judgment is that when an applicant alleges that a
dismissal is
unlawful (as opposed to unfair), that applicant has no
remedy under the LRA and this court has no jurisdiction to make any
determination
of unlawfulness. If a remedy is sought under the
LRA, the applicant must categorise the alleged unlawfulness as
unfairness.
[8]
By extension, the same principle applies to any precautionary
suspension from employment.
Section 185 of the LRA is concerned with
unfair dismissals and unfair labour practices. Section 186 (2)
defines an unfair labour
practice. In paragraph (b), the Act provides
that the unfair suspension of an employee or any other unfair
disciplinary action
short of dismissal, constitutes an unfair labour
practice. It follows that what was good for a termination of
employment in
Edcon
is good for an unfair labour practice in
the present instance. In other words, the lawfulness of any
suspension is not a matter
regulated by the LRA, and any remedy under
that Act must be sought on the basis of fairness.
[9]
It is well-established that jurisdiction is to be determined from the
pleadings. In
motion proceedings, the pleadings comprise the
affidavits filed by the parties. As I have recorded above, in the
founding affidavit,
the applicants specifically disavow any reliance
on fairness as the basis of their cause of action. They clearly frame
their claim
on the basis of what they allege to be an unlawful
suspension, and an unlawful deduction from remuneration, on the basis
respectively
of the breach of the collective agreement and s 34 of
the BCEA.
[10]
Counsel for the applicant sought to distinguish the
Edcon
judgment by submitting that in
Edcon
, the court was concerned
with an alleged breach of the LRA, and in particular, the time
periods relevant to the giving of notice
of termination of employment
established by s 189A. In the present instance, as I understood the
argument, the applicants rely
on unlawfulness outside of the LRA, in
the form of a breach of a collective agreement, and that they are
entitled in those circumstances
to seek a remedy in this court
consequent on that breach.
[11]
I fail to appreciate how the source of the alleged unlawfulness
affects the principle established
in
Edcon
. The fact that the
alleged breach is not one of any provision of the LRA but some other
statute, regulatory measure or collective
agreement, makes no
difference. The cause of action remains one of unlawfulness, whatever
the nature of the alleged breach or unlawful
conduct by the employer
might be. In any event, the argument is met by the
Edcon
judgment,
in so far as it holds that where the true nature of a dispute is one
that concerns the breach of an obligation established
by the LRA, a
remedy must be sought in terms of that Act and in accordance with the
dispute resolution mechanisms established by
the LRA. At paragraph
[137] of the judgment, the court said the following:
[137]
The second basis for my conclusion is that the applicant’s
appeal should be dismissed is a principle
that, for convenience, I
call ‘LRA remedy for an LRA breach’. The principle is
that, if a litigant’s cause of
action is a breach of an
obligation provided for in the LRA, the litigant as a general rule,
should seek a remedy in the LRA. It
cannot go outside of the LRA and
invoke the common law for a remedy. A cause of action based on a
breach of an LRA obligation obliges
the litigant to utilise the
dispute resolution mechanisms of the LRA to obtain a remedy provided
for in the LRA.
[12]
The basis of the applicants’ claim, as I have noted, is that
the respondent has breached
the terms of the collective agreement
that regulates disciplinary procedures in the workplace. Section 24
of the LRA regulates
disputes about collective agreements. Section 24
(1) provides that every collective agreement must establish a
procedure to resolve
any dispute about the interpretation or
application of the agreement. The procedure must first require the
parties to attempt to
resolve the dispute through conciliation, and
if the dispute remains unresolved, to resolve it through arbitration.
In so far as
the dispute between the parties concerning the
employees’ suspension is based on the respondent’s
alleged breach of
the collective agreement, the dispute is one that
is an “LRA dispute” which falls to be resolved under the
dispute
resolution provisions of the LRA. Indeed, the collective
agreement gives effect to s 24. Clause 20 reads as follows:
Disputes
about the interpretation and application of this collective agreement
shall be dealt with in terms of the dispute resolution
mechanisms
provided for in the Main Collective Agreement.
[13]
Consistent with s 24 of the LRA, the main agreement provides for the
resolution of such disputes
by arbitration. Given that the dispute
between the parties is one that must be arbitrated, this court has no
jurisdiction to entertain
it. Section 157 (5) provides:
(5) Except as provided
for in section 158 (2), the Labour Court does not have jurisdiction
to adjudicate an unresolved dispute if
this Act or any employment law
requires the dispute to be resolved through arbitration.
[14]
For these reasons, this court has no jurisdiction to entertain the
applicants’ claim of
an unlawful suspension. Counsel for the
applicants pointed out that this court had previously granted such
orders, and referred
to a number of judgments were this is indeed so.
However, the fact remains that the exclusion of this court’s
jurisdiction
in relation to dismissals and unfair labour practices
that are alleged to be unlawful has now been the subject of a
definitive
judgment by the highest court. Whatever uncertainty may
previously have existed; the law is now clear.
[15]
Turning next to the applicants’ claim of unlawful deductions,
that claim must suffer a
similar fate. The applicant’s base
their claim on a breach of s 34 of the BCEA. That Act establishes its
own mechanism for
enforcement, one that requires (in most instances)
that a complaint be lodged with a labour inspector. This court
exercises a supervisory
jurisdiction in respect of appeals form
decision made ultimately by the director-general, or arbitration
award issued by the CCMA.
Absent a claim in contract, this court
lacks jurisdiction to enforce the provisions of the BCEA as a court
of first instance. This
much was established by this court as long
ago as 2010, in
Mayo v
Bull Brand Food (Pty) Ltd
(2010)
31
ILJ
951 (LC) and
Indwe Risk Services (Pty) Ltd v Hester
Petronella van Zyl
(2010) 31
ILJ
956 (LC)
[16]
In summary: the applicants’ claim of an unlawful suspension is
not a claim contemplated
by the LRA, and neither that Act nor any
other statute confers jurisdiction on this court to make a
determination of the lawfulness
or validity of a suspension. In any
event, the true nature of the suspension dispute is one that concerns
the application of a
collective agreement, a dispute that must be
arbitrated. The claim of unlawful deductions from remuneration is one
that must be
pursued in terms of the enforcement mechanisms of the
BCEA. Given my conclusion that in respect of both legs of the
applicants’
claim this court lacks jurisdiction, it is not
necessary for me to consider whether the applicants have been the
requirements for
final interdictory relief.
[17]
In so far as costs are concerned, the court has a broad discretion to
make orders for costs according
to the requirements of the law and
fairness. In matters that involve collective bargaining partners, the
court is traditionally
reluctant to make orders for costs on account
the potential prejudice that a costs order might represent to that
relationship.
There is no evidence in the present instance of the
existence of any collective bargaining relationship, nor is there any
evidence
of any prejudice that an order for costs might present. I
must also necessarily take into account the absence of any cogent
reason
why costs should not follow the result, and that the
applicants were forewarned in the answering affidavit of the
jurisdictional
point. The applicants have unnecessarily burdened the
court with an application that extends unnecessarily to some 900
pages. The
blame for this lies with the applicants. There is no
conceivable reason why the papers in what is a relatively
straightforward
matter should be so voluminous. Perhaps the union’s
members will not object to their subscriptions being employed to this
end, but I fail to see why the ratepayers of Johannesburg should be
obliged to meet the cost of opposing an application that is
unnecessarily voluminous and was misguided from the outset. The
urgent court has a taxing roll, and a failure to plead a case with
precision does not assist. Finally, the respondent engaged two
counsel to prepare its heads of argument, but it seems fair to me
given that one counsel argued the case that the costs of one counsel
should be allowed.
I
make the following order:
1 The
application is dismissed, with costs.
André
van Niekerk
Judge
APPEARANCES
For
the applicants: Mr ST Mosomane, Mosomane Inc.
For
the respondent: Adv. Z Ngwenya, instructed by Bowmans Inc., heads
drafted by Adv. G Fourie SC and Adv. Z Ngwenya