Public Servants Association of South Africa obo Members and Others v Department of Health, Gauteng Provincial Government and Another (J 2753/14) [2014] ZALCJHB 476 (28 November 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 2753/14

PUBLIC SERVANTS ASSOCIATION OF

SOUTH AFRICA obo MEMBERS.................................................................................First Applicant

MAKULEKA AND OTHERS..............................................................Second and Further Applicants

and

DEPARTMENT OF HEALTH, GAUTENG

PROVINCIAL GOVERNMENT................................................................................First Respondent

MEC FOR HEALTH, GAUTENG PROVINCIAL

GOVERNMENT.......................................................................................................Second Respondent

Heard: 18 November 2014

Delivered: 28 November 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] This matter came before this court on an urgent, opposed basis. The applicants seek interdictory relief in terms of which the second to further applicants (the employees) are reinstated with immediate effect and to commence their usual shifts of 07h00 – 19h00 and 07h00 – 19h00 until the Respondent has complied with a fair procedure; the upliftment and withdrawal of any suspension, dismissal or other disciplinary action taken against the employees on or about 4 November 2014 as a result of their alleged misconduct; and an interdict against suspending or dismissing the employees until the respondents have complied with fair procedures.

Background:

[2] The facts of this case are fairly common cause. The employees are employed within the first respondent’s emergency medical services. They provide an essential service in the Gauteng Province as emergency personnel in their capacities as ambulance attendants and emergency call centre operators.

[3] The employees embarked on a strike between 13 and 17 October 2014. The strike was declared unlawful and unprotected, and consequently interdicted by this Court on 17 October 2014, with the return date being 29 January 2015. The strike was allegedly inter alia in support of employees’ demands relating to overtime payments.

[4] The first respondent’s contention is that as a consequence of the strike action, it suffered significant damages due to being forced to employ private emergency services to attend to the medical needs of the Gauteng citizens. Further damages were inflicted on its assets flowing from the conduct of the strikers. The damages are estimated to be in the amount of R1 684 179.09 in respect of of payments made to private emergency medical services and a further amount of R157 436.50 in respect of damage to its property.

[5] Pursuant to the strike action the first respondent embarked upon disciplinary steps against employees. This resulted in some employees being issued with final written warnings, others being suspended, whilst others were dismissed.

[6] The dispute arises out of a pay dispute related to overtime, which dispute had been on-going despite various consultation meetings held between the parties. The employees all work on a shift system in terms of which they work four 12 hour shifts and thereafter have four days. The employees are of the view that they are entitled to overtime payments for hours worked above the 40 hours per week which is provided for in the Basic Conditions of Employment Act (the BCEA). Effectively the argument is that the employees often work a 48 hour shift week instead of a 40 hour per week, and should thus be paid overtime for these additional 8 hours worked.

[7] After the strike was interdicted on 17 October 2014 and the employees had returned to work, a meeting was held between organised labour and the first respondent on the same day after which the parties had agreed to discuss the issue of overtime further. On 28 October 2014 another multilateral meeting was held, and when nothing came out of that meeting, the first applicant (PSA) essentially gave the first respondent an ultimatum to pay the disputed overtime to its members failing which, its members would not work shifts of longer than 8 hours, i.e. they would not work between 15h00 and 19h00 with effect from 1 November 2014. According to the applicants, this proposal was supported by one of the unions, NEHAWU.

[8] The applicant’s contention is that following from that meeting, which was attended by the respondents’ senior management, none of these had raised any objections to the unions’ position on the matter, and Mr Hall of the PSA had left that meeting with the bona fide belief that the union’s proposal was accepted. Hall further gained the impression that the parties would hold further discussions

on the matter, more specifically at a meeting scheduled for 15 November 2014.

[9] Pursuant to that meeting of 28 October 2014, the first applicant on 30 October 2014, issued to its members an ‘Informus’, (A PSA publication) informing them that with effect from 1 November 2014, EMS staff will no longer perform overlapping hours, and that shifts will be from 07h00 – 15h00 and 07h00 – 19h00. As a result of this information, members of the first applicant engaged in further industrial action by refusing to work more than 8 hours of their 12hour shifts on 1 and 2 November 2014. Employees who were involved in this second spate of industrial action were issued with letters of dismissal and were subsequently dismissed on 4 November 2014.

[10] The PSA has since lodged a collective appeal to the second respondent on 11 November 2014. As at the time that this application came before the court, the 30 days within which the appeal was to be considered had not as yet expired.

Urgency:

[11] The application having been brought on an urgent basis in accordance with Rule 8 of the Rules of this Court[1], the first hurdle for the applicants to surmount is whether the application is indeed urgent. The applicants’ grounds for

urgency are based on the following:

11.1 The individual applicants rendered an essential medical service to the citizenry of Gauteng;

11.2 The respondents had acknowledged that the failure of the employees to perform their functions put many lives in danger;

11.3 The mass dismissals and suspensions had caused substantial disruption of the emergency medical service;

11.4 The dismissals took place whilst a legitimate dispute existed;

11.5 No procedures were followed in either dismissing or suspending the employees, and lastly;

11.6 The dismissals have deprived the employees of an income at a time when the festive season was approaching.

[12] The respondents’ starting point was that the application lacked urgency and should be struck off the roll on that account. In this regard, it was contended that the urgency that the applicants claimed was self-created, and that the employees had failed to set out any facts in the pleadings as to why they cannot find redress in the normal course.

[13] In contending that the matter was not urgent, the respondents had pointed out the following;

13.1 The employees engaged in an unprotected strike action from 13 October 2014 with full knowledge that they were engaged in an essential service, and thus precluded from doing so by virtue of the provisions of section 65 (1) (d) (i) of the LRA;

13.2 When the employees embarked on that unprotected action, they rendered the Gauteng EMS non-functional, thus putting the lives of people in Gauteng at risk;

13.3 The employees were determined to ensure that the people of Gauteng could not access the much needed EMS by causing damage to ambulances and preventing access to the Midrand office, where emergency calls were logged in;

13.4 In the light of the above events, it was ironic that the employees would suddenly realise that they offered a much needed service, when at the time that they took part in the strike action, they did not take the lives of people into account;

13.5 The EMS in Gauteng has a staff compliment of 1422 employees who are Basic Ambulance Assistants, and only 36 were dismissed. This has not affected the provision of emergency medical services in Gauteng;

13.6 On 14 October 2014, the employees were informed through a memorandum that they were precluded from participating in an industrial action during working hours, and further warned that disciplinary action might follow if they engaged in industrial action;

13.7 The first respondent had to engage the services of private emergency medical services to attend to medical emergencies in the Province, and had in the process, incurred costs, and also costs in respect of damage done to property during the strike action.

13.8 Despite the employer engaging with the employees on 15 October 2014 with a view of resolving the dispute and requesting them to return to work, they had refused to do so even on 16 October 2014. Even after a court order was issued on 17 October 2014, the employees had refused to return to work notwithstanding the oath they took to ‘serve unselfishly and continuously in order to help make a better world for all mankind’.”

13.9 The application was premature in that the second respondent still has time to consider the appeal, which was submitted for consideration, as the 30 day period for same has not yet lapsed.

Evaluation: Re: Urgency:

[14] It is trite that an applicant seeking urgent relief must adequately set out in the founding papers, the reasons for the urgency, and must give cogent reasons in some detail and explain why urgent relief is necessary. Failure to do so inevitably will result in the application being struck off the roll for want of urgency[2]. The basis for allowing parties to dispense with the Rules of Court relating to time periods is to prevent the occasioning of an

injustice and involves the balancing of this consideration with that of the rights of parties to a considered opportunity to place their cases before the court.[3].

[15] In this case, I am not satisfied that the grounds advanced by the applicants necessitate that this matter be treated as urgent for the following reasons;

15.1 The applicants approached the court with this application on 12 November 2014. Other than the grounds set out above as to the reason they deem the application to be urgent, no attempt was made to explain the reasons the application was only launched on that date when it was common cause that as at 28 October 2014, the first respondent had made it clear that should labour be withheld again between 15h00 and 19h00, that action would be viewed as a continuation of the strike and dire consequences may follow. In effect, a party cannot claim urgency in circumstances where it reasonably foresaw the consequences of its own actions.

15.2 On 31 October 2014, final written warnings were issued to employees who had engaged in a strike action during 13 October 2014 to 17 October 2014. Notwithstanding these final written warnings, the employees or some of them, had on 1 and 2 November 2014, withheld their labour between 15h00 and 19h00. These are employees, who profess to have the interests of the community at heart and yet deem it fit to deprive communities of essential services for four hours. Four hours without the necessary emergency services can be a matter of life and death for ordinary citizens dependent on such services.

15.3 The employees were issued with dismissal letters on 4 November 2014. Only on 11 November 2014, did the PSA lodge a collective appeal against the dismissals or the final written warning, and at the same time, approached the Court with this application. The explanation that the PSA had on 5 November 2014 forwarded correspondence to the first respondent to request intervention, and that a meeting in this regard was only held on 10 November 2014 shows the ‘urgency’ with which the PSA had dealt with the matter. In my view, the failure to resolve the matter at the meeting of 10 November 2014 cannot suddenly make the matter urgent. The steps taken in ensuring that the matter should be treated with urgency in the same manner that it is expected of the court to treat it in like manner must be evident from the pleadings. In this case, the applicants clearly fail to satisfy this requirement.

15.4 It is further my view that the applicants have wilfully placed themselves in the situation they find themselves in. They had embarked on an illegal strike action being fully aware that they provided an essential service. Notwithstanding a court order issued on 17 October 2014, they continued with their unprotected action on 1 and 2 November 2014 albeit for four hours.

15.5 PSA’s contention that it belaboured under the wrong impression that there was an agreement reached that the employees would work the normal 8 hours shift is belied by the fact that its own “Informus’ issued on 30 October 2014 clearly stated the following under the heading:

“Overlapping hours (Overtime)

o 'No agreement could be reached between labour and the employer on the issue

o The employer has been informed that as from 1 November 2014 EMS staff will no longer perform the overlapping hours

o Shifts will thus as from 1 November 2014 be as follows: 7am-3pm and 7pm-7am”

15.5 In the light of the above, it is apparent that no agreement was reached on the issue and it is inconceivable that the respondents could have agreed to any ‘proposal’ that effectively sanctioned non-delivery of services to communities between 15h00 and 19h00, and when it had obtained a court order on 17 October 2014 on the same issues that led to the strike action.

15.6 It is clear from the “Informus” that the PSA had simply informed the respondents of the consequences of not acceding to its demands and had clearly carried out its threats. It is therefore fallacious that the PSA could have been mistaken as to the nature and conclusions of the meeting held on 28 October 2014. No basis was laid in the pleadings to indicate what could possibly have led the PSA to believe that there was an agreement on an issue that had been long standing. With its belligerent and confrontational approach, the PSA clearly led its members on the wrong path it chose for them.

[16] Given the conclusions reached above, the Court has not been placed in a position where it can fully appreciate that if it does not issue the relief requested as a matter of urgency, the applicants will suffer an injustice. As matters stand, the dismissals, the suspensions and final written warnings issued to the employees are consequences which the employees anticipated and bargained for. Their contention that without their services, communities will be prejudiced is mere red herring. As it was correctly pointed out on behalf of the respondents during argument, these are concerns that should have been foremost in the employees’ minds when they embarked on the illegal work stoppage on 1 and 2 November 2014 despite being cautioned. These considerations cannot make the application urgent, as the respondents have demonstrated that services to communities will continue to be provided without the employees concerned.

[17] The contention that the employees will or are currently deprived of an income at the time when we are approaching the festive season is equally of no substance as these are the consequences of irrational actions on their part, which they should have foreseen. Furthermore, I align myself with the general rule that financial hardship and loss of income should not be considered to be grounds for urgent relief as held in Malatji v University of the North[4] and Nasionale Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO en Andere[5]

[18] It was further common cause that a collective appeal has since been lodged and the required period of its consideration has not elapsed. In the end, the application before the court is premature, and if not, then no basis has been laid for a conclusion to be reached that the applicants will not be afforded redress in the normal course.

Costs:

[19] It is trite that a cost order involves a consideration of law and fairness. In my view, a cost order is appropriate in this case in that the situation the applicants find themselves in is clearly of their own making. They had deliberately ignored a court order declaring their conduct to be unlawful and yet seek assistance from the same court. In my view, such conduct amounts to an abuse of the court’s process and can thus not be countenanced. Accordingly, the following order is made:

Order:

i. The Applicants’ application is struck off the roll on account of lack of urgency.

ii. The First Applicant is ordered to pay the costs of this application.

__________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: Adv Van Der Merwe

Instructed by: Martins Weir-Smith Inc

For the Respondents: Adv Ramaepadi

Instructed by: State Attorney, Johannesburg

[1] “(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7). (2) The affidavit in support of the application must also contain- (a) the reasons for urgency and why urgent relief is necessary; (b) the reasons why the requirements of the rules were not complied with, if that is the case; and (c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted

[1] “(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain-

(a) the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case; and

(c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted

[2] See also Sithembiso Oliphant Ndlovu v Minister of Police Case no: D 322/12

[3] See National Police Services Union v National Commissioner of the National Police Services and Others (1999) 20 ILJ 2408 (LC)

[4] [2003] ZALC 32 (LC)

[5] (1990) 11 ILJ 971 (T)