IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Johannesburg)
Case No : J 789/99
In the matter between :
SOUTH AFRICAN CHEMICAL WORKERS’ UNION First Applicant
S MCHUNU AND OTHERS Second to Further
Applicants
and
SENTRACHEM Respondent
REASONS FOR JUDGMENT
Revelas J
1] The second and further applicants (“the individual applicants”), all members of
the first applicant, brought an application on an urgent basis to this court on 4
March 1999, seeking an order that, pending the final resolution of the dispute
between the parties pertaining to the individual applicants’ retrenchment on 29
January
1999, the individual applicants be reinstated in the respondent’s employ, on the
same terms and conditions as existed prior to their termination of employment.
Further relief was sought to the effect that the aforesaid relief, operated as an interim
interdict.
2] The applicants contend that :
The retrenchment of the individual applicants was unfair because the
respondent committed a flagrant breach of section 189 of the Labour
Relations Act, No 66 of 1995 (“the Act”), in that it failed to consult in
the sense contemplated by the Act and good relationship practices, with
the applicants at the time when the dismissal of the individual applicants
was first contemplated and that the respondent failed to consult before
the decision to retrench was taken;
3] The respondent failed to attempt to reach consensus with either the first
applicant or the individual applicants on issues identified on section 189(2) of
the Act and the respondent also failed to disclose in writing all relevant
information, and that such consultation as did take place was a “sham”;
4] As of 18 September 1998 the respondent did engage in what it termed
consultation with the first applicant in regard to the retrenchment of the
individual applicants;
5] The “socalled consultations” which began on 18 September 1998 and
continued through to 25 January 1999 were neither “bona fide”, nor fair,
because by the time the consultation process began, the respondent had already
unilaterally and in the absence of consultation, taken all the decisions that led
to the dismissal of the employment of the second to further applicants.
6] The applicant also relied on the fact that the fleet of trucks owned by the
respondent intended for the purposes of carrying out the functions of the
transport division of the respondent, was allowed by the respondent to age and
that the respondent then unilaterally decided not to replace the fleet and not to
spend available capital on the upgrading of the fleet.
7] According to the applicants, the respondent also made a unilateral decision to
outsource the transport function of the respondent and also unilaterally took a
decision to invite tenders for the purchase of the transport function and to
appoint Imperial Tanker Services as an independent contractor.
8] The applicants believe they are entitled to status quo relief and contend that
they have made out a prima facie case in their founding papers. They argued
that status quo relief ipso facto urgent, because status quo relief not only
contemplates, but has the express purpose of restoring the status quo ante of
unfairly dismissed employees so that at conciliation proceedings, they may
negotiate with their employer on equal terms.
9] As a result of the termination of the individual applicants’
employment, they have lost their medical aid benefits, which they argue,
constitutes a cogent and accepted ground for urgency. In this regard I
was referred to two employees who were amongst the individual
applicants, who suffered from diabetes related disorders and who
required permanent medical attention.
10] The respondent argued that the relief sought by the applicant is not
competent, and that the matter was not urgent. The respondent relied, inter
alia, on the judgment in Fordham v O K Bazaars 1929 Ltd (1998)19 ILJ 1156
(LC). where I held that parties to a labour dispute were obliged to follow a
conciliation process, and if they were unable to resolve their differences
through that process their dispute should be adjudicated or arbitrated depending
on its nature. I declined to give a status quo order reinstating the applicant,
pending conciliation of the dispute.
11] The applicants relied on the judgment of Mlambo J in the University of
Western Cape Academic Staff Union and others v University of the Western
Cape case number C 645/98 (unreported).
12] In the Fordham case, I held that the legislature did not intend to create a
status quo procedure as was the position in terms of section 43 of the previous
Labour Relations Act, 28 of 1956, (“the 1956 Act”)since I am of the opinion
that the omission of such a procedure from the current Act was deliberate.
13] In the University of the Western Cape Academic Staff Union case, Mlambo J
held that because the Labour Court was established as a court of law, equal in
status to a provincial division of the High Court, it must mean that the power
given to the Labour Court to grant urgent interim relief, is not dissimilar to the
power of the High Court to grant urgent interim relief. The absence in the Act
of a provision similar to section 43 of the 1956 Act, according to Mlambo J,
does not mean that the Labour Court lacks the power to grant urgent interim
relief in dissimilar cases. Mlambo J went further in stating that his view was
that the Labour Court will be failing in its stated task if it were to deny status
quo relief in circumstances where the unfairness sought to be prevented, is very
glaring.
14] In the University of the Western Cape matter, Mlambo J emphasises that the
Labour Court should apply the same standards as the High Court when
granting interdicts and warns that because of the controversial nature of the
power under section 158(1)(a)(i) of the Act, the Labour Court should be very
cautious in the exercise of such a power, and more so in dismissal cases where
there are specific provisions aimed at dealing with dismissal disputes. These
provisions he says, should not be rendered ineffectual by the granting of relief
in terms of section 158(1)(a)(i) and made reference to the matter Vela &
Others v Savo and Others (1998)19 ILJ 916(LC) where the court cautioned
against applicants attempting to conduct a trial by way of urgent application,
which in my opinion, is exactly what the applicants in this matter are
attempting to do.
15] With regard to the question of irreparable harm, if interim relief
is not granted and the ultimate relief is granted, Mlambo J found that
loss of income as a result of dismissal is an inevitable consequence of a
dismissal as such provides no good grounds for granting interim relief.
He further says, and I agree with him, that special circumstances must
be advanced to persuade a court to oblige.
16] In Kgethe v LMK Manufacturing (1998)19 ILJ 542 (LAC) Kroon
JA held as follows:
“if in fact a transfer of as a going concern had been effected, the appellant will be
entitled to the benefit accorded to them in terms of section 197 as they will be entitled to
reject any other benefits which either of the respondents sought to accord in lieu thereof.
In the event of nonrecognition by the respondent’s of the first mentioned benefit and an
instance that the last mentioned be accepted, the appellants could, in terms of section
158(1)(a)(iv) approach the Labour Court for an appropriate declarator.
If on the other hand, no transfer as going concern was effected, but the effect of all that
transpired was a transfer of contract of employment of the applicants without their consent
and on the evidence that possibility cannot be excluded such transfer could have fallen foul of
the provisions of section 197. Again if need be, the appellants can approach the Labour Court
for the appropriate declarator.”
17] In Paledi v Botswana Broadcasting Corporation(LC) dated 21
February 1998 under case number J 323324 1998 reported in 3, 4 Labour
Law Digest 184, the Labour Court held as follows:
“The Labour Court has the exclusive jurisdiction to grant temporary relief ancillary to
the relief which could be sought in the CCMA in an appropriate case where the
employees are entitled to accommodation supplied by their employer: and they will
suffer harm and prejudice if this is not granted; and the balance of convenience is in
their favour. In such circumstances the court would be justified in terms of the Act to
come to their relief on a temporary basis.”
It is quite plain that there certainly would be circumstances where the Labour
Court would grant urgent interim relief.
18] I do not believe that there is any difference between the views
held by Mlambo J and myself. The Fordham judgment does not have
the result that interim relief can never be granted by the Labour Court,
but emphasises the reluctance of the Labour Court to grant status quo
relief in dismissal matters, in other words, reinstatement of dismissed
employees, when there are alternative remedies available.
19] Mr Buirski, who appeared on behalf of the applicant, referred me to a
judgment of De Kock SM in the matter of Blair v STC Business
Communications (Pty)Ltd (1991) 12 ILJ 629(IC) at 634(A)(E) where it was
held that the loss of medical aid cover per se established urgency under section
17(11)(a) of the 1956 Act. In this matter the circumstances were very different
from the case before me. The Blair decision was given when the 1956 Act was
applicable and status quo relief was available to the applicant in terms of
section 43 of that Act, which was simply expedited, due to special
circumstances.
20] In my view, a medical aid benefit, per se , does not establish special
circumstances. Virtually all employees, particularly those employed by large
companies, are members of a medical aid fund. A medical aid benefit is often
obtained on the same basis as the general remuneration package of an
employee. Loss of income, probably the worst consequence of dismissal, is not
a ground for urgency. Therefore it is difficult to understand the argument , that
a loss of a medical benefit per se, is a ground for urgency.
21] If interim reinstatement may be granted on the ground that medial aid benefits
are lost to employees as a result of their dismissal, it would be very unfair on
an employer, in my view, if the dismissal was for a fair reason, and the
employer is obliged to pay medical aid contributions from the time of dismissal
until the time when dismissal is found to be fair by the Labour Court. I am of
the opinion, that there may be some circumstances where the loss of a medical
aid benefit could be extremely prejudicial, eg, where the employee’s death is
foreseen, and could then form grounds for urgency, but in the present matter I
am not persuaded that the mere loss of a medical aid benefit entitles the
applicants to the relief they seek.
22] I have sympathy for the two employees who have diabetes related
complications, but they have not demonstrated, with sufficient particularity, the
urgency inherent in the circumstances of their medical condition.
23] There is an alternative remedy open to the applicants, namely
adjudication. As far as the balance of convenience is concerned, Mr Buirski
attempted to persuade me that the sooner the retrenchment process is started
again, the better the chances are that any harm done can be undone. On the
other hand, the respondent argued that temporary reinstatement would have the
respondent “over a barrel” during the conciliation process. Having found that
there is an alternative remedy open to the applicants, namely adjudication, I am
not persuaded that the balance of convenience favours the applicants.
24] The applicants’ case on urgency seems to be that status quo relief is always a
matter of urgency. I do not agree. I believe that the applicants waited
unnecessarily for a period of over a month to approach this court to have their
dismissals set aside. On their own version, they knew of possible retrenchments
as early as September 1998. I consequently find that the matter is not urgent
and on this basis alone the application should fail.
25] For all the aforesaid reasons, the application was dismissed with costs.
E REVELAS
For the applicant
Advocate Peter Buirski
Instructed by ROUTLEDGEMODISE
For the respondent
Advocate Craig WattPringle
Instructed by BELL DEWAR & HALL
This Judgment is also available on the Internet at website:
http//www.law.wits.ac.za/labourcrt