Rabie v Department of Trade and Industry and Competition and Others (J742/20) [2020] ZALCJHB 120 (12 August 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J742/20

In the matter between:

RABIE, VIRGIL HUMPHREY Applicant

and

THE DEPARTMENT OF TRADE & INDUSTRY AND COMPETITION First Respondent THE GENERAL PUBLIC SERVICE SECTOR BARGAINING COUNSEL ("GPSSBC") MARTIN SAMBO N O THE DEPARTMENT OF PUBLIC SERVICE ADMINISTRATION ("DPSA") Second Respondent Third Respondent Fourth Respondent

Heard: 11 August 2020

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 12 August 2020.

Summary: application to stay implementation of a section 188A arbitration award suspending the applicant without pay –

arbitration award taken the review – no need to give security as here is no reinstatement of payment of compensation

JUDGMENT

COETZEE AJ

[1] The parties agreed for the matter to be decided on the papers.

[2] The applicant wishes to stay the implementation of a S188A imposed finding and sanction suspending the applicant without pay from 1 August to 31 October 2020 and issuing him with a six-month final written warning.

[3] The applicant instituted review proceedings under case number JR1040/20 to review and set aside the outcome of the S188A proceedings.

[4] In addition, the applicant wants

[4.1] an order compelling the respondents to encash some accumulated leave.

[4.2] Absolving the applicant for furnishing security for costs pending the review.

[4.3] And costs.

[4.4] Urgency

[5] The first respondent ("the DTIC") opposes the application on various grounds.

[6] Firstly, that the matter is not urgent as the applicant did not explain why he delayed from 4 July 2020 to serve the application.

[7] I have considered the period and is not persuaded that he did not act in good time. He gave the respondents very little time to respond, but the DTIC succeeded in filing an affidavit.

[8] Normally financial prejudice does not render a matter urgent. In this case the implementation of the sanction would cause some other prejudice aside from financial hardship too in that he is suspended which affects one's dignity if it is unwarranted. The aspect of dignity has been rejected as a cause for urgency. This case is to be distinguished from the authorities relied upon by the DTIC in that in most of those cases the applicant wanted to uplift a suspension that preceded disciplinary steps. In this case it is a final sanction that once implemented cannot be undone.

[9] It is also submitted that this Court should not interfere with disciplinary enquiries. That is so, but the enquiry has been completed and the outcome as an arbitration award is taken on review.

[10] I treat the application as urgent.

[11] The relief in respect of the leave pay is not urgent and is struck from the roll.

[12] The other grounds are that the applicant did not give security for costs, did not satisfy the requirements of an interdict or that the review has no prospects of success.

[13] According to the Relations Act security is only required in review proceedings in respect of a reinstatement or payment of compensation. That is not the case here. There is no requirement for the applicant to provide security.

[14] The question is whether the applicant is entitled to have the implementation of the suspension suspended pending the finalisation of the review. It appears that the review was instituted in good time and that the applicant may have some prospects of success, although disputed by the first respondent.

The interim interdict:

[14.1] Clear right – the applicant relies upon the review to establish a right. The first respondent says it in itself is not a right. However, once the applicant succeeds with a review, it means he has exercised a right successfully. He has a right to proceed with his review and thus to ask for the implementation of the outcome to be suspended.

Balance of convenience:

[14.2] The review is against the outcome and sanction. Applicant contends if payment is made now and to wait with the warning does not inconvenience respondents but applicant. That is so. It seems that applicant has been on suspension prior to the S188A proceedings. This is not addressed fully on the papers but referred to in the heads of argument. It seems that if that was the case, then the suspension would have been pending disciplinary proceedings. If that is so the suspension would have terminated when the S188A proceedings were concluded.

[14.3] Suspending the implementation of the S188A outcome should not have an adverse effect upon the status of the applicant as employee and he would have to return to work irrespective as to the outcome of his review application. He should thus return to work also pending the review. The balance of convenience favours the applicant.

[14.4] By suspending the implementation of the award, the Court is not interfering with the Constitutional independence of the executive organs of state. The first respondent acted as an employer and did not exercise a public power when disciplining the applicant.

[14.5] The absence of an alternative remedy. There is no alternative remedy to set aside the award.

[14.6] Irreparable harm lies in the fact that a suspension that has been implemented cannot be undone subsequently without any prejudice.

Costs

[15] There is no reason in law or fairness that justifies a cost order.

[16] I make the following order:

[16.1] The application is heard as an urgent application

[16.2] The arbitration award dated 3 July 2020 issued by the third respondent under case GPBC -615/2017 is stayed and the first and fourth respondents restricted from implementing the award pending the finalisation of the review under case JR1040-2020.

[16.3] Dispute about leave pay is struck from the roll as it is not urgent.

[16.4] There is no order as to costs

____________

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant: Decided on the papers

Instructed by:

For the First Respondent: Decided on the papers (Adv R Ramawele SC and with him D Mtsweni)

Instructed by: State-attorney

Pretoria