IMATU obo Viljoen v Ekurhuleni Metropolitan Municipality and Another (J2275/2014) [2014] ZALCJHB 528 (17 September 2014)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: J2275-2014

DATE: 17 SEPTEMBER 2014

In the matter between

IMATU obo L VILJOEN..........................................................................................................Applicant

And

EKURHULENI METROPOLITAN MUNICIPALITY.............................................First respondent

D MBETHE N.O........................................................................................................Second respondent

J U D G M E N T

STEENKAMP J:

This application is brought on an urgent basis, on less than one day’s notice. The applicant, Imatu, asks for a rule nisi why the following order should not be made final:

“(a) Declaring the disciplinary hearing scheduled to proceed against Ms Elsabe Viljoen to be unlawful;

(b) Interdicting and restraining the respondents [that is Ekurhuleni Metropolitan Municipality and the chairperson of the disciplinary hearing, D Mbhete] from proceeding with the disciplinary enquiry without first having obtained condonation from the South African Local Government Bargaining Council as envisaged in clause 6.3 of the Disciplinary Procedure Code and Collective Agreement;

(c) Costs.”

It is common cause that the disciplinary procedure referred to is binding on the parties. I will deal with the application with reference to the well known principles relating to applications for urgent interim relief.

As far as urgency is concerned, despite the extremely short notice on the respondents, I do accept that in so far as the disciplinary hearing is proceeding as we speak, the matter is urgent. The municipality had obtained the services of counsel at short notice, and Mr Theron has appeared for it today, albeit only on the applicant’s papers.

I turn now to the merits. Firstly, the question is whether the applicant has a prima facie right for the relief she seeks. In this regard Mr Mkwibiso referred to a recent judgment of this court, SAMWU on behalf of Nesengani v Mogale City Local Municipality, delivered on 5th August 2014 under case number J 1784/2014.

In that case the municipality was interdicted from proceeding with a disciplinary hearing against the Union’s member, before a final determination of a review application dealing with clause 6.3. It is immediately apparent that that matter is distinguishable from the current one. In that case it was common cause that the municipality did not comply with clause 6.3 of the collective agreement. In those circumstances it applied for condonation at the bargaining council, as it had to do. The bargaining council ruled that condonation was granted. The Union took that ruling on review immediately and it only sought relief pending the outcome of that review application. That is not the case before this court. In fact, in this case, the chairperson of the hearing initially, Mr Vusi Mazibuko, already made a ruling that the municipality had complied with the provisions of clause 6.3. and dismissed the employee’s point in limine.

The Union has not told the court when that ruling was made, but it is common cause that it was made and that it has not been overturned. That ruling therefore stands. In those circumstances the employee and the Union have exercised their rights to raise the issue of whether clause 6.3 had been complied with and the presiding officer at the time made a ruling. That ruling stands as it is, and in those circumstances the applicant does not have a prima facie right for the relief it seeks in this court.

I then turn to the question of irreparable harm. Any harm that the employee may suffer if the disciplinary hearing is run to its conclusion is not irreparable. The LRA provides for dispute resolution procedures in terms of which, whatever the outcome of the hearing eventually may be, which one does not know at this stage, the employee and the Union can pursue their remedies.

The Union has raised a specific complaint about alleged non-compliance with clause 6.3. As I have said, that has already been ruled on. Despite that, the second chairperson -- who is the second respondent in these proceedings -- gave the Union another opportunity to address him on the point. And he prescribed time limits to do so. The Union did not comply with those time limits and it is against that background that the chairperson decided to proceed with the disciplinary hearing. Any harm that the Union’s member suffered because of that was due to its own negligence.

I now turn to the question of an alternative remedy. It is tied up with the question of irreparable harm in the sense that the employee and the Union have a remedy prescribed by the Labour Relations Act, should the eventual disciplinary hearing not be in their favour.

The Labour Appeal Court has spelt out in clear terms in Booysen v Minister of Safety and Security (2011) 1 BLLR 83 (LAC) that it is only in exceptional circumstances that this court will interfere with incomplete disciplinary hearings. That principle has now been codified in the recent amendment to the Labour Relations Act that was promulgated last month. The court will not generally interfere in uncompleted disciplinary proceedings and will avoid piece meal litigation wherever possible.

The balance of convenience lies with the municipality. Ms Viljoen has been accused of misconduct and it has been a lengthy period in which the municipality has attempted to discipline her for that alleged misconduct. It is in the interest of justice that those allegations be tested, and the employee be given the opportunity to state her case at a disciplinary hearing. The balance of convenience favours the municipality and the ratepayers who are funding both the applicant’s employment and the disciplinary hearing.

There is no prejudice to the employee as she will have a full opportunity to state her case at that hearing, ably represented by her Union. With regard to costs. I take into account the very short notice on which this application has been brought and the fact that it did not have any prospects of success.

The application is dismissed with costs.