Jumbo Cash & Carry (Pty) Ltd v South African Commercial Catering and Allied Workers Union and Others (D623/14) [2014] ZALCJHB 258 (17 July 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

NOT REPORTABLE

CASE NO: D 623/14

In the matter between:

JUMBO CASH & CARRY (PTY) LTD Applicants AND SOUTH AFRICAN COMMERCIAL, CATRING AND ALLIED WORKERS’ UNION First Respondent THE EMPLOYEES LISTED ON ANNEXURE “A” TO THE FOUNDING AFFIDAVIT Second Respondent

Heard: 17 July 2014

Delivered: 17 July 2014

Summary: (Final interdict to prohibit misconduct by suspended employees).

LAGRANGE, J

Introduction

[1] This is an urgent application to interdict the second and further respondents from committing various criminal and other unlawful acts at the respondent’s premises following their suspension after an incident which took place on 11 July 2014.

[2] The factual allegations in support of the relief sought relate to:

2.1 an incident on Friday 11 July 2014 in which management claims to have been forcibly coerced to unconditionally withdraw disciplinary proceedings pending against shop stewards employees who had been on strike;

2.2 an incident the following day when the premises were closed apparently out of fear of some kind of repetition of what transpired the previous day. It is alleged employees burned tyres and other items in front of the store, and

2.3 on Monday 14 July 2014 employees tried to force their way into the premises by pushing on the gates.

[3] The last mentioned allegation was not confirmed on affidavit, but appears in a letter of the same date, which the union did not respond to at the time.

[4] The respondents deny the allegations and claim that the agreement to withdraw charges was reached voluntarily. It is further denied that any incident of burning items occurred on Saturday 12 July 2014.

[5] In Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd & others v National Bargaining Council for the Road Freight Industry for the Road Freight Industry & another[1] the test in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [2]was described thus: 'The applicants seek final relief in motion proceedings. Insofar as the disputes of fact are concerned, the time-honoured rules … are to be followed. These are that where an applicant in motion proceedings seeks final relief, and there is no referral to oral evidence, it is the facts as stated by the respondent together with the admitted or undenied facts in the applicants' founding affidavit which provide the factual basis for the determination, unless the dispute is not real or genuine or the denials in the respondent's version are bald or uncreditworthy, or the respondent's version raises such obviously fictitious disputes of fact, or is palpably implausible, or far-fetched or so clearly untenable that the court is justified in rejecting that version on the basis that it obviously stands to be rejected.'

[6] Clearly there are disputes of fact about what transpired on Friday and Saturday leaving aside the issue of what allegedly took place on Monday. In broad terms, the respondents version is that having called a meeting to issue notices of disciplinary enquiries to individual respondents who had previously participated in a strike, the applicant agreed to withdraw those charges and charges pending against shop stewards apparently because of the union’s contention that the company had not complied with the relationship agreement prior to initiating disciplinary action.

[7] I have a difficulty with accepting the union’s refutation of the employer’s version for these reasons:

7.1 The company had called the meeting to issue notices of disciplinary enquiries.

7.2 Even on the union’s version it is clear this was met with belligerent opposition from the assembled workers.

7.3 The agreement concluded to withdraw charges is, on the face of it, unconditional and makes no reference to prior compliance with the Relationship agreement if that was the stumbling block. It appears to be final in effect. Why would management have withdrawn charges unconditionally if the basis for not proceeding was simply a procedural stumbling block?

7.4 If everything was orderly on the premises, the presence of police inside the premises and the intrusion of security personnel is difficult to understand.

7.5 The company sent a letter to the union setting out its version of what happened by the following Monday.

7.6 The company closed the premises on a Saturday, which it is reasonable to assume they would not have done lightly because of the loss of trade that would have entailed. If nothing untoward had happened the previous day, why would management have taken such a drastic step?

[8] These factors lead me to conclude that the union version of what transpired on Friday is far-fetched and that there was more probably a serious amount of coercion that prompted the firm to close the premises the next day. The union denial of items being burnt outside the premises is a bald denial and there is no elaboration on what those gathered outside the premises on Saturday were doing. In the light of events on Friday which appear to have been unpleasant enough to lead to closing the premises on Saturday, it does seem plausible that there might have been incidents of the kind described by management.

[9] The applicant has a clear right to conduct its business without unlawful interference and without coercion being imposed on customers, suppliers and other employees. I take the point raised by Mr Orr that there may be members of the union who were not involved in the incidents. Even though only a few were identified by name, the group in the room where the incident took place comprised a significant number and it is reasonable to suppose the group is larger than the few persons identified by name. In such circumstances should the court hesitate to grant precautionary relief where there is a reasonable apprehension that harm to its business or to those it engages with in the course of its business might occur at the hands of at least a substantial portion of the union members? A consideration here is that the relief sought does not interfere with the lawful actions of the respondents. It is only members or officials who act unlawfully who will be troubled by the order. It does not impose an onerous burden on any of the members who are law abiding.

[10] Mr Orr referred me to the case of Woolworths (Pty) Ltd v SACCAWU & others [2006] 7 BLLR 713 (LC) in which the court held that there must be some attempt to identify those involved in order to obtain final relief. In that case it is important to note that the employer sought confirmation of a rule which effectively undermined the employee’s right to picket in support of a protected strike by requiring them not to come within 500 metres of its premises. Moreover, the respondent union and its members were prepared to give an undertaking that that there would be no intimidation or incitement, which is not the case here. In this instance, the evidence tends to suggest that management has reason to fear that activities at the premises by those suspended will not be peaceful and is seeking limited relief simply to protect itself from unlawful action, mostly of a criminal kind.

[11] I am also mindful of the fact that in this situation, the individual respondents are on suspension, and the employer is entitled to direct how they should conduct themselves while on suspension, provided such instructions are not unreasonable. There is also no industrial action in progress which requires a careful balancing of rights to participate in lawful strike activity.

[12] In the circumstances, the applicant is entitled to an order in the following terms:

[13] That pending the outcome of an action to be instituted by the applicant against the respondents within 15 (fifteen) days of the granting of this order for an order setting aside the alleged agreement, annexure "D" hereto, the respondents be and are hereby interdicted from committing or conspiring to commit any one or more of the following acts:

(i) assaulting or committing any act of violence or inciting, instigating, encouraging, threatening violence or assault against any employee, customer or service provider at or on the applicant's premises at corner Main Reef and Crownwood Roads, Crown Mines, Johannesburg ("the premises");

(ii) damaging or threatening to damage any of the applicant's property at the aforementioned premises;

(iii) entering upon the aforesaid premises or congregating in an area closer than fifty metres of the entrances to the applicant's premises in Locomotive Road, Driver Close and off Main Reef Road, Crown Mines, Johannesburg;

(iv) impeding access to or egress from any of the entrances to the applicant's premises;

(v) unlawfully obstructing the normal operation of any aspect of the applicant's business.

[14] That the South African Police Services have the authority in law to intervene and assist the applicant and its employees when they require protection from unlawful acts committed by any of the respondents.

[15] That the respondents be and are hereby directed to pay the costs of this application.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: G.O.

van Niekerk SC instructed by Goodrickes Attorneys

FIRST RESPONDENT: C.Orr instructed by Dockrat Inc

[1] 2009) 30 ILJ 1031 (W) para 19

[2] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C