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[2019] ZALCD 9
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Khanyile v Department of Transport for the Province of Kwazulu-Natal and Others (D1277/2019) [2019] ZALCD 9 (8 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG\DURBAN
Not reportable
Case No: D1277/2019
In the matter between:
SITHEMBISO INNOCENT
COLLIN KHANYILE
Applicant
and
DEPARTMENT OF
TRANSPORT FOR THE
PROVINCE OF KWAZULU -
NATAL
First Respondent
C VAN NIEKERK
N.O
Second Respondent
APPEALS AUTHORITY:
DEPARTMENT OF
TRANSPORT FOR THE
PROVINCE OF KWAZULU-NATAL Third Respondent
GENERAL PUBLIC SERVICE
SECTOR
BARGAINING
COUNCIL
Fourth Respondent
Heard: 3
October 2019
Delivered: 8
October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The applicant approached this Court on an urgent basis to seek an
interim
order interdicting and restraining the first respondent from
implementing the sanction of suspension without pay for three months
issued against him following the outcome of an internal disciplinary
enquiry. The outcome was issued by the second respondent on
30 July 2019, and was confirmed by the third respondent on
13 September 2019. The order is sought pending the
finalisation and determination of an unfair labour practice dispute
referred to the fourth respondent (GPSSBC).
[2]
The first respondent opposed the application without filing an
answering
affidavit. The urgent application was launched against the
following background;
2.1
The applicant is currently in the employ of the first respondent at
its Road
Traffic Inspectorate (RTI) in Pinetown. He was employed
since 2005 and is also a shop steward of POPCRU.
2.2
The incidents leading to disciplinary action being taken against the
applicant
arose in October and December 2018. It was alleged
that on 26 October 2018, the applicant together with his
colleague,
Mr Ndlovu, had improperly released a truck from the RTI
premises in Pinetown, which was initially impounded for exceeding the
legal
weight limit. It was further alleged that the applicant had on
3 December 2018, parked an official vehicle in a public
place in a manner that brought the RTI into disrepute.
2.3
Flowing from the incidents, the applicant and Ndlovu, and another
employee (Ms
Dladla), were then advised that they were to be issued
with warnings. Dladla and Ndlovu accepted their sanction of written
warnings.
The applicant refused to accept the sanction of a final
written warning and insisted that he be subjected to a formal
disciplinary
enquiry.
2.4
The applicant was granted his wish and was placed on precautionary
suspension
in March 2019. He was served with a notice to appear
before a disciplinary enquiry in May 2019 to answer to four
allegations
of misconduct related to the release of the heavy motor
vehicle from the Pinetown premises; the parking of the official
vehicle
in the Durban CBD; his behaviour in a meeting; and breach of
the conditions of his precautionary suspension.
2.5
A disciplinary enquiry into the allegations was held from 29 May 2019
and concluded in July 2019. The applicant was found guilty on
some of the charges. (There is a dispute as to which charges
he was
found guilty on) After the parties had made submissions in mitigation
and aggravation, the second respondent, had issued
an outcome on
sanction on 30 July 2019, in terms of which the applicant
was issued with a final written warning valid
for six months;
counselling and three months unpaid suspension.
2.6
An appeal lodged with the third respondent on 6 August 2019
was dismissed
in an outcome issued on 13 September 2013.
The applicant avers that the outcome only came to his attention on
23 September 2019,
and that he was further advised that his
suspension would take effect from 1 October 2019.
2.7
Having consulted with his attorneys of record and counsel between
25 September 2019,
the applicant launched this application
on 1 October 2019.
[3]
The facts of this case are quite unusual, as the internal
disciplinary
proceedings have taken their course and produced an
outcome, which enforcement the applicant seeks to have stayed pending
the determination
of a dispute before the GPSSBC which was referred
on or about 27 September 2019.
[4]
Effectively the relief that he seeks, being interim in nature, is
premised
on the referral to the GPSSBC. The difficulty however as
raised by the Court with Mr. Mfeka for the applicant and as also
raised
by Ms Naidoo for the respondents, is that as can be gleaned
from a copy of that referral, the dispute referred relates to the
interpretation
and/or application of the PSCBC Resolution 1 of 2003.
In the referral, the applicant alleged that in issuing the outcome,
the second
respondent incorrectly applied the provisions of the
Resolution, as the sanction was effectively punitive in nature. In
the referral,
he sought an outcome in terms of which he was not to be
found guilty of all the charges against him.
[5]
Mr Mfeka
was of the view that the contents of the referral should not have a
bearing on the substance of the dispute referred, which
was a
challenge to the suspension without pay for three months. I accept
that a referral form does not constitute pleadings in
the ordinary
sense, and that ultimately, it is for an Arbitrator seized with a
matter to determine the nature of the dispute referred,
which
determination might necessarily require evidence.
[1]
Even if that may be the case, to the extent that interim relief is
sought in this Court on the grounds of a particular cause of
action
pending in another forum, at the very least, the referral should at
least support the basis upon which the relief in this
Court is
sought.
Prima
facie
,
the relief sought in this case in the light of the nature of dispute
referred to the GPSSBC is inappropriate.
[6]
Even if
there is
cause
to hold that the defective referral to the GPSSBC is not of a nature
as to deprive the applicant of the relief that he seeks in
this
Court, there are further inherent difficulties that this application
is faced with. At the heart of this application is whether
it is
competent for this Court to interdict and restrain an employer from
implementing the outcome of its own completed internal
disciplinary
enquiry, in which the applicant fully participated. Unlike in
incomplete or yet to commence internal disciplinary
proceedings, the
Court can, in instances where compelling and/or exceptional
circumstances have been demonstrated, intervene in
such
proceedings.
[2]
[7]
To the extent however that the applicant seeks to interdict the
implementation
of a sanction arising out of completed internal
disciplinary proceedings in which he fully participated, it is my
view that an
even more onerous burden rests on the applicant to
demonstrate extreme exceptional circumstances justifying such an
intervention
by the Court. This is so in that these types of cases
are not different from multitude of other cases, where employees on a
daily
basis are issued with suspensions without pay as a sanction, or
at worst, dismissed. Employees who find themselves in such positions
ordinarily refer their disputes to appropriate dispute resolution
bodies, because that is what the dispute resolution scheme of
the
Labour Relations Act dictates. For this Court to now interdict
employers from implementing the decisions and outcomes of their
own
internal disciplinary enquiries is indeed a big ask. It would not
only open the floodgates for all such disputes to brought
before it,
but would effectively render the dispute resolution scheme designed
in the LRA nugatory. In a nutshell, a lack of a
salary consequent
upon a suspension without pay for three months is not an exceptional,
let alone extreme exceptional circumstance,
as those are the
consequences that flow from such internal processes and their
outcomes.
[8]
In
dismissing this application, a further consideration is that the
requirements for urgent interim relief have clearly not been
satisfied. The applicant has not demonstrated a
prima
facie
right to the relief that he seeks. This is so in that his alleged
prima
facie
right is grounded on his right to the adjudication of disputes and
the enforcement of his constitutionally enshrined rights to
fair
labour practices. His case unfortunately collapses at this point, as
it is trite that it is impermissible for an employee
to approach this
Court for urgent relief on the basis of an alleged infringement of a
constitutional right to fair labour practices
as found in Section
23(1) of the Constitution.
[3]
This is so in that other than this right being constitutionally
guaranteed, it nonetheless finds expression in section 186(2) of
the
LRA, and to the extent that such rights are infringed, the provisions
of section 191 of the LRA are equally available for the
determination
of any such disputes.
[9]
Mr Mfeka had notwithstanding the contents of the founding affidavit,
disavowed
any reliance on the constitutional right to fair labour
practices, and submitted that the applicant instead relied on the
provisions
of section 158(1) (a) of the LRA. It nonetheless gets
worse for the applicant, as first, reliance on those provisions was
not pleaded,
and second, these provisions are not an open invitation
for any disputes to be considered by the Court, and for it to grant
any
order. This Court under those provisions
may
make
appropriate orders including those under (i) – (vii). The
Court’s powers however to grant any of these orders
cannot be
said to extent to instances where other provisions of the LRA
specifically cater for those instances. In this regard,
the Court’s
powers under the provisions of section 158(1)(a) of the LRA as
explained in
Gradwell
and
Booysen
s, cannot be
understood to imply that it can intervene in completed internal
disciplinary proceedings. The overall scheme of the
provisions of
section 191 of the LRA specifically and adequately covers for such
instances.
[10]
The bulk of assertions in regards to the alleged
prima facie
right as can be gleaned from the founding affidavit also related to
the charges that led to the disciplinary hearing, the conclusions
and
outcome of the second and third respondents. These are however issues
which are not even for this Court to venture into, as
there is a
proper forum to determine them.
[11]
To the extent that the applicant has not established a
prima facie
right to the relief that he seeks, that ought to be the end of the
matter. For the sake of completeness however, and in regards
to the
other requirements of the relief sought, the applicant further
contended that there is reasonable apprehension of irreparable
harm,
if he is not granted the relief he seeks. This is so he alleged, as
he is of the view that it is highly unlikely that his
referral to the
GPSSBC would be finalised before his suspension without pay ends on
13 December 2019. He contends that
he would suffer grave
injustice in being subjected to the sanction in circumstances where
the sanction was granted in irregular
circumstances.
[12]
Again, the above contentions do not demonstrate irreparable harm, and
at worst, the applicant
is simply saying he cannot like multitudes of
other employees wait for his turn in the litigation queue before the
GPSSBC. As already
indicated, it is not for this Court to determine
the merits or otherwise of the outcome of the disciplinary enquiry,
especially
since the main issue in that regards is that of fairness.
If the applicant succeeds in challenging the sanction at the GPSSBC,
his suspension will be set aside and he will be paid the salary that
was withheld in full. There cannot therefore be irreparable
harm in
circumstances where the applicant may be vindicated.
[13]
Equally so, the applicant cannot complain of a lack of alternative
satisfactory remedy
in circumstances where he has already referred a
dispute to the GPSSBC. Furthermore, the balance of convenience cannot
be in favour
of the applicant in circumstances where the first
respondent has gone through all phases of disciplinary processes in
arriving
at an outcome that the applicant seeks to have the
implementation thereof interdicted. As already indicated elsewhere in
this judgment,
whilst the applicant’s other colleagues had
accepted their sanctions rather than going through disciplinary
proceedings,
the applicant dared the first respondent and chose the
route that resulted in the very outcome that he seeks to not have
implemented.
If he is unsatisfied with that outcome, the GPSSBC will
determine his dispute in due course. It would clearly be prejudicial
to
the first respondent and its internal disciplinary processes if it
cannot be allowed to implement its disciplinary outcomes, especially
in circumstances where affected employees refuse to challenge
disciplinary decisions through the normal statutory channels.
[14]
The last
requirement which the applicant has equally failed to satisfy is that
of urgency. The fact that an application was brought
before the Court
with the necessary haste does not imply that the Court must accord it
urgency. In fact, as shall be demonstrated
below, the applicant
failed to do so. There is a further requirement that a party seeking
urgent relief must set out the reasons
for urgency, and why urgent
relief is necessary. Equally so, an applicant is not entitled to rely
on urgency that is self-created
when seeking a deviation from the
rules, nor can the matter be treated as urgent, when there are
alternative appropriate remedies.
[4]
[15]
The applicant in claiming that the matter was urgent relied on the
fact that the sanction
was to be implemented on 1 October 2019.
This fact on its own does not create urgency. Bearing in mind that he
was indeed
informed on 23 September 2019 that the
implementation would take effect on 01 October 2019, this
application
was launched on that date and the matter came before the
Court on 3 October 2019. Thus, at the time that the
application
was launched and heard, the proverbial horse had bolted.
To the extent that the application was brought belatedly, the
invariable
conclusion to be reached is that the urgency is also
self-created. Other than these considerations, and as already
indicated elsewhere
in this judgment, the applicant clearly has
alternative remedies available to him which he had utilised.
[16]
In summary,
the applicant has not satisfied the requirements of the relief that
he seeks. Furthermore, it is not for this Court
to interdict the
implementation of internal disciplinary outcomes where those
processes have taken their full course. As it was
stated in
Motaung
v Minister of the Department of Correctional Services
[5]
,
it is not the function of the urgent court to micromanage workplace
discipline, let alone interfere with any outcomes flowing
from
completed disciplinary proceedings, especially where employees seek
to rely solely on their constitutional rights to fair
labour
practices.
[17]
In regards to costs, it is trite that this court has a broad
discretion to make orders
for costs upon a consideration of the
requirements of the law and fairness. This Court has always
approached the issue of costs
against individuals with caution,
especially in instances where legitimate grievances against employers
are pursued. Employees
have every right to pursue these grievances.
It does not however imply the urgent Court is the first port of call
in every instance
when employees are aggrieved. The applicant was
adequately represented by attorneys and counsel. Surely given the
circumstances
and the facts of this case, a proper reflection was
required prior to persisting with this matter on the urgent roll,
especially
during recess. In my view, there was no basis for this
Court or the respondents to be burdened with this application as it
had
no merit from the beginning. In the circumstances, I see no
reason in law or fairness, why the first respondent should be
burdened
with its costs.
[18]
Accordingly, the following order is made;
Order:
1. The
Applicants’ application is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv.
NSV Mfeka, instructed by Linda
Mazibuko & Associates
For
the Respondent: Adv.
L Naidoo, instructed by GNG INC
[1]
See
September
and Others v CMI Business Enterprise CC
2018 (4) BCLR 483
(CC); (2018) 39 ILJ 987 (CC);
[2018] 5 BLLR 431
(CC), where it was stated;
“
[42]
The approach to be followed by a commissioner in arbitration
proceedings under
section 138(1) of the Labour Relations Act has
been explained in
CUSA
:
“
A
commissioner must, as the Labour Relations Act requires, ‘deal
with the substantial merits of the dispute’. This
can
only be done by ascertaining the real dispute between the parties.
In deciding what the real dispute between the parties
is, a
commissioner is not necessarily bound by what the legal
representatives say the dispute is. The labels that parties
attach to a dispute cannot change its underlying nature.”
(Footnote omitted.)
[43]
In my view, the commissioner is not bound by a party’s
categorisation
of the nature of the dispute. Rule 15 clearly
intended the commissioner to have the right and power to investigate
and
identify the true nature of the dispute. The majority
judgment in
Driveline
categorically held that the
parties are not bound by the commissioner’s description of the
dispute in the certificate
of outcome”
[2]
See
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012) 33 ILJ 2033 (LAC) at para 46; and also,
Booysen
v Minister of Safety and Security and Others
(2011)
32 ILJ 112 (LAC) at para 54 where it was held;
‘…
such an intervention
should be exercised in exceptional cases. It is not appropriate to
set out the test. It should be left to
the discretion of the Labour
Court to exercise such powers having regard to the facts of each
case. Among the factors to be considered
would in my view be whether
failure to intervene would lead to grave injustice or whether
justice might be attained by other
means. The list is not
exhaustive.’
[3]
See
SANDU
v Minister of Defence and Others
(2007) 28 ILJ 1909 at para 51, where it was held that;
‘
....
where legislation is enacted to give effect to a constitutional
right, a litigant may not bypass that legislation and rely
directly
on the Constitution without challenging that legislation as falling
short of the constitutional standard’
[4]
See
J
iba
v Minister: Department of Justice and Constitutional Development and
Others
(2010) 31 I
LJ
112
(LC);
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others
[2012]
JOL 28244
(GSJ)
at para 6, where it was held;
‘…
.
An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant must
state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence
of
substantial redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because
if the
latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.’
[5]
(J1693/19) [2019] ZALCJHB 220 (16 August 2019) at para 4