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[2019] ZALCCT 12
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Viola v V and A Water Front Holdings (Pty) Ltd (C249/19) [2019] ZALCCT 12 (7 May 2019)
in
the labour court of South Africa, CAPE TOWN
Not Reportable
case
no: C249/19
In
the matter between
WENDY
JANE VIOLA
Applicant
and
V
AND A WATER FRONT HOLDINGS (PTY) LTD
Respondent
Heard:
3 May 2019
Delivered:
7 May 2019
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicant seeks urgent relief in an application launched on the
10 April 2019.
The prayers set out in her Notion of Motion read as
follows:
“
1.
The failure to comply with the time frames as provided for in the
rules and practice
directives of this Honourable Court be condoned
and the matter is treated as one of urgency.
2.
Declaring that the applicant’s resignation from the employment
of the respondent was valid and effective on 28 February 2019.
3.
Declaring that the disciplinary hearing instituted by the respondent
against
the applicant, including the findings made by the chairperson
or the disciplinary hearing, is null and void and accordingly set
aside.
4.
In lieu of the declaration of invalidity as contemplated in paragraph
3 above,
directing the respondent to amend its records to remove all
references to the disciplinary proceedings instituted against the
applicant
as well as the outcome from the respondent’s
employment records.
5.
The respondent be ordered to pay the cost of this application..”
Urgency
[2]
The factual basis for urgency (or ‘semi-urgency’ as
referred to by applicant)
was set out in the founding papers. The
applicant averred that the outcome of the “impugned
disciplinary proceedings will
remain on my employment record with the
respondent, who will feel justified to circulate the outcome (and in
fact has done so)
to third parties if an opportunity arises for a
request of information regarding my prior employment.”
[3]
The applicant further stated that the harm the “impugned
findings will have
or already has on me is apparent. The charges were
uncontested but contain allegations of a very serious nature. I will
be seriously
prejudiced in potential future business or employment
opportunities if the impugned findings are not set aside as soon as
possible.”
[4]
The charges of misconduct against the applicant were communicated to
her in writing
on the 15 February 2019. She was informed that her
disciplinary enquiry had been scheduled to take place on the 26
February 2019,
i.e. in 11 calendar days. She took no steps to launch
an urgent application to interdict the disciplinary hearing. Instead,
the
hearing was postponed to the 4 March 2019, as proposed by her
attorney and agreed to by the respondent’s attorney. The
applicant
did not attend the hearing on the 4 March 2019 on the basis
that she had already resigned from the respondent’s employment
on the 28 February 2019. Her intention not to attend the hearing was
conveyed in an email by her attorney dated 1 March 2019.
[5]
The applicant then awaited the findings of the disciplinary enquiry.
These findings
are dated the 6 March 2018. In her founding papers,
she avers that she did not receive these until 19 March 2019 when the
respondent
forwarded her a letter with the findings by the
disciplinary chairperson. She is silent as to any attempts on her
part to obtain
the findings before that date. However, applicant does
aver that she met with her former line manager on the 13 March 2019:
“where
we discussed the circumstances of my departure from the
respondent.”
[6]
The applicant thus waited for a period of more than seven weeks to
approach this court
after receiving notification of the charges
against her. Even should one accept that she only became aware of the
findings on the
19 March 2019, it was a further 22 calendar days
before this application was launched.
[7]
The notice of motion asks the Court to treat the application as
urgent. The founding
affidavit submits that the Court should resolve
the dispute expeditiously given the framework of the LRA and the
applicant’s
need for the finalisation of the dispute to enable
her to continue with her new venture or to explore other employment
opportunities.
[8]
The principle of expeditious resolution of disputes certainly guides
this Court. However
it is one that requires heeding by litigants,
most especially in matters in which the Court is asked to dispense
with the timeframes
contained in its Rules and Practice Manual. The
applicant has patently not dealt with her application expeditiously.
In
Jiba
v Minister: Department of Justice & Constitutional Development &
others
[1]
this
Court stated that: “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.”
[9]
Given the applicant seeks final relief in this matter it is necessary
for the Court
to be even more circumspect in treating a matter as
urgent.
[2]
The respondent has
opposed that the matter is treated as urgent, both in its papers and
in submission before me. Given the delay
in bringing the application
as dealt with above, I found that respondent’s stance is well
founded. Urgency in this application
was self-created. I am also of
the view that the applicant has not been completely candid with the
Court as to when she came to
know of the disciplinary findings. In
addition there is no explanation given by her as to efforts she made,
if any, to find out
the outcome of the hearing.
[10]
Both parties submitted that costs should follow the result in this
matter. Given that the dispute
may be heard in the normal course, I
do not deal with the respective merits set out in the papers. In the
premises, I make the
following order:
Order
1.
The application is struck off the roll with
costs.
__________________
H
RABKIN-NAICKER
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Adriaan Montzinger instructed by Wendy Viola
For
the Respondent: Alec Freund SC instructed by Cliffe Dekker Hofmeyer
Inc
[1]
(2010)
31 ILJ 112 (LC) at para 18
[2]
Tshwaedi
v Greater Louis Trichardt Transitional Council
[2000] 4 BLLR
469
(LC) at para 11