Ntsae v Financial Advisory and Intermediary Services Ombud (FAIS Ombud) and Another (J1058/14) [2014] ZALCJHB 395 (14 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J1058/14

MORAKA LESEGO TSHIAMO NTSAE

Applicant

and

FINANCIAL ADVISORY AND INTERMEDIARY SERVICES

OMBUD (FAISOMBUD)

First Respondent

MANDLA MNYATHELI

Second Respondent

Decided in Chambers.

Delivered: 14 October 2014

LEAVE TO APPEAL – JUDGMENT

TLHOTLHALEMAJE, AJ

[1] The applicant approached the Court on an urgent basis, on 3 June 2014, seeking to interdict and to restrain the first respondent from continuing with the disciplinary process against her pending finalisation of the dispute that was before CCMA under case GATW6517/14. She further sought a declarator to the effect that her appointment as assistant case administrator was invalid and unlawful, and that the first respondent should be ordered to restore her to her to the position of receptionist. In addition, she also sought an order directing the first respondent to negotiate the terms of change of her appointment.

[2] The application was dismissed in terms of an ex tempore judgment delivered on the hearing date. The applicant was further ordered to pay the respondents’ costs on attorney and own

client scale.

[3] The applicant has since filed an application for leave to appeal, which application is not opposed.

[4] It is trite that in considering applications for leave to appeal, the main consideration is whether there are reasonable prospects that the Labour Appeal Court will come to a different conclusion as opposed to that arrived at by the court a quo[1].

[5] Central to the applicant’s main application was the fact that she wanted the disciplinary process against her to be stopped whilst a dispute referred to the CCMA was pending. Secondly, she was aggrieved at what she perceived to be maltreatment by the

respondents, unfair or unilateral changes to the terms and conditions of her employment, and lastly, her alleged unfair suspension.

[6] This Court and the Labour Appeal Court has over the years stressed that applicants are not entitled to by-pass the dispute resolution

mechanisms created by the provisions of the Labour Relations Act under the guise of urgency. In the ex tempore judgment and as it is being repeated for the purpose of this application for leave to appeal, the Labour Appeal Court in North West Provincial Government v Gradwell[2], held the following in this regard;

“Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of s 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of the unfair labour practice proceedings.”

[7] In this case, the applicant had already exercised the right to refer an unfair labour practice pertaining to her suspension to the CCMA, and the latter had not at the time dealt with the dispute. As at the time that the leave to appeal was filed and this judgment is rendered, it is more than likely that the CCMA might have dealt with the unfair labour practice dispute referred. To persist with this application is indeed misguided.

[8] The Applicant has not shown any extraordinary or compellingly urgent circumstances that would necessitate the circumvention of the provisions of section 191 (1) (a) and (b), and (5) of the LRA. Furthermore, the nature of the declaratory relief she seeks is one, which this or any other court should not even consider.

[9] The applicant lamented the fact that notwithstanding the fact that I found that the application before the court was not urgent, I had proceeded to deal with the merits, and therefore it was impliedly or tacitly accepted that there was a basis to deal urgently with the matter. This argument can however not be sustained because in the judgment, I clearly indicated that even if the matter was not urgent, the merits of the application were dealt with purely on the basis that the matter might find itself back on the ordinary roll, and in my view, the application had to be disposed of then as clearly no purpose would have been served in placing it on the ordinary roll as it had no merits.

[10] In the light of the above, I come to the conclusion that that there are no reasonable prospects that the Labour Appeal Court may come to a different conclusion that I had reached, and the application for leave to appeal should therefore fail.

Order:

The application for leave to appeal is dismissed.

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

[1] Minister of Safety and Security and Another v Madyibi (1034/2004) [2008] ZAECHC 180 (30 October 2008) (See also Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel & others (1999) 20 ILJ 2889 (LC) at 2890 B)

[2] [2012] 8 BLLR 747 (LAC) at para 46