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Revised
25 March 1999
Signature
IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Johannesburg)
Case No: J
469/99
In the matter between:
Applicant
and
STANDARD BANK OF SOUTH AFRICA (PTY)LIMITED Respondent
REASONS FOR JUDGMENT
Revelas J:
[1] The applicant contends that he was employed by Standard Bank Financial
Services (Pty) Ltd (“Stanfin”) as a General Manager until 31 December
1998 and that with effect from 1 January 1999, Stanfin’s business was
transferred as a going concern to the respondent. Accordingly, in terms of
section 197 of the Labour Relations Act, No 66 of 1995 (“the Act”), his
contract of employment was transferred automatically to the respondent,
which was obliged to employ him on the same terms and conditions as he
had previously enjoyed at Stanfin. Instead, according to the applicant, the
respondent offered him employment on terms and conditions, which were
less favourable, in terms of remuneration, than he enjoyed at Stanfin. The
applicant contended that the respondent had unilaterally changed his terms
and conditions of employment, and he has referred this dispute on those
grounds to the Commission for Conciliation Mediation and Arbitration
(“the CCMA”).
[2] The applicant alleges, that by way of letter dated 1 February 1999, the
respondent terminated the contract of employment then subsisting between
himself and the respondent. The applicant’s case is that this termination
constituted an unfair dismissal. That dispute, too, has been referred to the
CCMA.
[3] Pending the final resolution of these proceedings the applicant argues, that
he is entitled to the order sought in the notice of motion which reads as
follows :
“Pending the final resolution of the proceedings instituted by the applicant against
the respondent and/or Standard Bank Financial Services (Pty)Ltd in the CCMA...
on 29 January 1999 and 6 February 1999 this respect of reference numbers GA
55843 and GA 56455;
2.1 An order setting aside the respondent’s termination of the applicant’s services,
2.2 An order directing the respondent to employ the applicant on the same terms
and conditions as the applicant’s employment with Stanfin, alternatively on the same
terms and conditions set out in annexure “N87” attached to this application.”
[4] The respondent’s case on the other hand, was as follows. The applicant was
employed by Stanfin with effect from 31 December 1998. Stanfin ceased
operating as a separate entity and its business was incorporated into the
respondent‘s three banking divisions. As a consequence, it engaged its
employees in retrenchment consultations in terms of section 189 of the Act.
[5] Some of the employees of the respondent were retrenched and paid
retrenchment packages. Others were able to procure offers of alternative
employment from the respondent. The applicant formed part of the latter
group since the respondent’s offer of alternative employment to him was
comparable with the terms and conditions under which the applicant worked
for Sasfin, he was not entitled to any severance pay having regard to section
196(3) of the Act.
[6] The applicant initially accepted the respondent’s offer of employment with
effect from 1 January 1999. He later repudiated that contract by asserting
that he had accepted the offer subject to the qualification that he had done
so under protest and with full reservation of his rights to dispute with the
respondent, the view that the terms and conditions of the respondent’s offer
was comparable to those enjoyed by him whilst he was employed by
Stanfin. The respondent argues that such termination was at the instance of
the applicant and did not constitute a dismissal as contemplated by the Act.
It was further the respondent’s case that, in any event, since the business of
Stanfin was not transferred as a going concern to the respondent, and since
Stanfin did not agree with the respondent that it would transfer the
applicant’s contract of employment, section 197 of the Act, is not applicable
to the facts of the matter before me. The applicant, according to the
respondent, is therefore not entitled to the relief sought by him.
[7] The respondent raised the point of urgency as a point in limine. It was
agreed that I should decide the question of urgency first and then, if
necessary the merits of the application.
[8] The applicant contended that his application was urgent for the following
reasons:
(1) His reputation would be injured as a result of the summary dismissal ;
(2) He would lose his membership of his medical aid scheme which he cannot
afford;
(3) There is a danger that the respondent could employ another employee in his
position;
(4) There was a prospect of serious financial embarrassment to him.
[9] The Act does not make provision for the kind of status quo relief as was
found in section 43 of the Labour Relations Act, No 28 of 1956 (“the
former LRA”). However, the Labour Court has very wide powers to grant
urgent interim relief in terms of section 158(1)(a)(i) of the Act. The Labour
Court is therefore empowered to grant relief tantamount to urgent
reinstatement on an urgent basis. The court will however, only grant such
relief, where an applicant is able to persuade the court that extremely cogent
grounds for urgency exist.
See: National Union of Metalworkers of South Africa and others v
Comark Holdings (Pty)Ltd (1997) 18 ILJ 516 (LC) at 526 CD
Fordham v O K Bazaars (1929) Ltd (1998) 19 ILJ 1156 (LC )
University of Western Cape Academic Staff Union & Others v University of the Western Cape, case number C645/98 (unreported)
South African Chemical Workers Union & Others v Sentrachem, case
number J 789/99 (yet unreported)
[11] These above cases illustrate the principle that the Labour Court would only
grant urgent interim relief amounting to status quo relief, in very special
circumstances, has now been firmly established ..
[12] I have considered the grounds for urgency raised by the applicant. Insofar as
the applicant alleges that there would be an injury to his reputation and a
possibility that the respondent could employ another person in his position,
these are not factors which distinguish the applicant’s case from any other
dismissal case. The applicant has not demonstrated with reference to proper
facts why his particular case is different in this regard.
[13] Financial hardship or loss of income is not regarded as a ground for
urgency. Mlambo J in the University of Western Cape matter (supra) found
that loss of income cannot establish a ground for urgency in an attempt to
obtain urgent interim relief from this court. The applicant, in its founding
papers, has not put forward any evidencery detail with regard to injury to
his reputation if he is not reinstated in his former position, by way of urgent
interim relief.
[14] The applicant’s main concern, as I understand it from reading his affidavit,
is that his loss of membership of the medical aid scheme of which he was a
member, constitutes a ground of urgency. According to the applicant, his
wife suffers from an illness which requires her to be dependant on medical
aid and he could not afford not being employed by the respondent, and
being dismissed, he could not afford to pay for her medical expenses which
she would have to incur due to his wife’s illness.
[15] The applicant does not assert that he is unable to make ends meet in the
period pending the resolution of the dispute. He has also not established in
his founding papers, that there is no alternative remedy, other than
approaching this court on an urgent basis, to secure medical care for his
wife.
[16] There was also evidence before me by way of documents handed up to me,
by consent, during the hearing of argument, that the respondent had applied
on 1 March 1999 for the continuance of his medical aid benefits with the
respondent. On 5 March 1999 the applicant received a letter from the
respondent stating the following :
“Following your telephone call last week I acknowledge receipt of your application
form for continuation membership of Bankmed which has been forwarded to them
for processing.
I am pleased to confirm that you will be eligible for continuation membership in
accordance with the agreement that the Bank has made with Bankmed as you were a
member of a Group Company Stanfin (Pty)Ltd, retrenched, and over the age of fifty
years. As you acknowledged on the telephone, the contributions will be for your own
account.
Yours sincerely ”
This letter is signed by the Head :Compensation and Benefits, of the
respondent.
[17] In the South African Chemical Workers’ Union & Others matter, (supra) I
held that medical aid benefits, per se , does not establish special
circumstances (in paragraphs 1920 of that judgement). Medical aid benefits
are often obtained in the same circumstances as general remuneration for
services rendered. If a loss of income, which is the harshest consequence of
a dismissal, does not constitute a ground for urgent interim relief, ( a trite
principle), it has to be, that the mere loss of a medical benefit, per se , is not
a ground for urgent interim relief either. Exceptional circumstances have to
exist before urgent interim relief is granted on this ground.
[18] Even if I were to find that the applicant’s personal circumstances
surrounding the medical complications suffered by his wife, were a ground
to grant interim relief, I cannot ignore the fact that the applicant was assured
by the respondent that he would receive medical aid benefits from the
respondent as late as 5 March 1999. This application was brought by the
applicant only some days after he received this assurance.
[19] Since the applicant has failed to prove urgency, this application had to be
dismissed. As far as the question of costs is concerned, the applicant has in
the face of Labour Court decisions to the contrary, persisted that he is
entitled to urgent interim relief amounting to a status quo order, when he
had an alternative remedy available to him, namely a process of conciliation
and adjudication/arbitration. In the normal course, costs should follow the
result. I saw no reason to deviate in this particular case from this
established principle.
[20] Consequently, the application was dismissed with costs.
E REVELAS
For the Applicant
Adv J Bester
Instructed by: M T De Bruin Attorneys
For the Respondent
Adv C.D.A Loxton & Adv A. E. Franklin
Intructed by : Deneys Reitz
This Judgement is also available on the Internet at Website :
http//www.law.wits.ac.za/labourcrt