South African Municipal Workers Union v Coka and Others (J 140/21) [2021] ZALCJHB 25 (3 March 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 140/21

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION Applicant

and

THABILE GOODNESS COKA First

Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION, JOHANNESBURG Second

Respondent

SHERIFF OF JOHANNESBURG CENTRAL

Third Respondent

Heard: 23 February 2021 (Virtual hearing)

Delivered: This judgment is handed electronically by circulation to the parties' legal representatives by email and released to the Court’s library. The date for hand-down is deemed to be 03 March 2021.

JUDGMENT

MAHOSI J

Introduction

[1] This is an urgent application brought by the applicant, the South African Municipal Workers Union (SAMWU), for an order to declare unlawful and set aside the enforcement award issued under the auspices of the second respondent, the Commission of Conciliation, Mediation and Arbitration (the CCMA) under case number GAJB218-17.

Background

[2] The first respondent (the employee) was employed by SAMWU as a National Logistics Officer until she was dismissed on 20 October 2016. Aggrieved by her dismissal, the employee referred an unfair dismissal dispute to the CCMA. The dispute was conciliated unsuccessfully and proceeded to arbitration. Subsequently, the arbitration award was issued in terms of which SAMWU was ordered to reinstate the employee and to pay her backpay amounting to R350 800.00.

[3] Aggrieved by the outcome of the arbitration, SAMWU launched an application to review and set aside the arbitration award during October 2017. SAMWU further launched an application to stay the enforcement of the award pending the review application under case number J2811/2017, which application was granted with the rider that the order would lapse should SAMWU fail to furnish security as required by section 145(8) of the Labour Relations Act[1] (LRA) within 7 days.

[4] On 4 June 2019, an agreement facilitated by COSATU was entered into by SAMWU and its disgruntled members and employees. In terms of the agreement, all SAMWU’s members suspended or dismissed between 2015 and the effective date of the agreement must have their membership immediately reinstated. In addition, all SAMWU’s officials unfairly suspended or dismissed between 2015 and the effective date of the agreement, must have their suspension or dismissal immediately reviewed and subjected to a fair process.

[5] The agreement further provided that SAMWU would ensure that all pending litigation matters between the parties were withdrawn from court and that the agreement was made an order of court. SAMWU submitted that the agreement was subsequently made an order of court and as a result, it abandoned its review application.

[6] Following the agreement, the employee was allegedly re-employed. Subsequently, the charges of misconduct were allegedly levelled against the employee and the employee was dismissed on 18 October 2019. The employee did not challenge her dismissal. Instead, on 22 December 2020, she applied for certification of the arbitration award, which application was granted on 29 December 2019.

[7] On 03 February 2021, the third respondent proceeded to SAMWU’s premises to enforce the arbitration award. This prompted SAMWU to launch this application.

SAMWU’s submissions

[8] It was SAMWU’s case that the enforcement of the award was unlawful because the dispute between the parties was settled in terms of the settlement agreement. The relevant clause it relied on was the one requiring SAMWU to ensure that all pending litigation matters were withdrawn from court and that the agreement be made a Court order. According to SAMWU, when the employee was reinstated in terms of the settlement agreement, she forfeited her back-pay. It is for this reason that SAMWU prays for this Court to intervene on an urgent basis.

The employee’s submissions

[9] The employee opposed this application on the basis that it was not urgent and further that it was without any merit. To support her assertion, the employee submitted that the Court order under case number J2811/2017 to stay the enforcement of the arbitration award lapsed as a result of SAMWU’s failure to furnish security within 7 days. In this regard, I agree with SAMWU that the employee is confusing the current application with the previous one under case number J2811/2017. It is important to note that there is a difference between the application to stay the enforcement pending the finalisation of the review application and the application to declare the enforcement of the award unlawful and to set it aside.

[10] The employee further submitted that the agreement was between SAMWU and its members, not officials and that to an extent that it provided for the review of the suspension and dismissal of officials, it did not nullify her award but provided for the suspended and dismissed officials to be subjected to a fair process. Furthermore, the employee denies that she was re-employed or reinstated following the settlement agreement.

Urgency

[11] I have considered the issue of urgency and I am of the view that the matter ought

to be dealt with urgently.

Applicable legal principles and analysis

[12] The employee seems to distance herself from the settlement agreement. The question that arises is whether the employee was a party to the settlement agreement or benefitted from it and, if so, whether the settlement agreement nullified the arbitration award issued by the CCMA. In making a determination of the issues, the Court must have regard to the agreement.

[13] As aforesaid, this agreement was facilitated by COSATU and the simple reading thereof shows that the parties thereto were SAMWU and its members who were aggrieved by decisions previously taken by SAMWU. As a result, it was signed for and on behalf of SAMWU, aggrieved members and COSATU. However, the list of disgruntled SAMWU’s members was not attached to the agreement.

[14] To support its submission that the employee formed part of the disgruntled members, SAMWU submitted its report that was prepared for COSATU dated 19 August 2021, in terms of which it was stated that the employee was re-employed as an Administrator. SAMWU further submitted the employee’s salary advices for the months of August, September and October 2019. Furthermore, it is common cause that the employee’s first dismissal occurred on 20 October 2016, which is a period covered by the agreement.

[15] In light of the above evidence, there is evidence that the employee was one of the disgruntled members of SAMWU and that she benefitted therefrom. It is so, because the employee returned to work following the settlement agreement as per the salary advices.

[16] The next issue is whether the settlement agreement nullified the arbitration award. Clause 5.1 and 5.2 of the agreement deals with the reinstatement of suspended and dismissed SAMWU’s members and review of the suspended and dismissed SAMWU’s officials as follows:

‘5.1 Suspended or dismissed members

5.1.1 All SAMWU members suspended or dismissed between 2015 and to date, and is the result of a decision taken by SAMWU, must have their membership immediately reinstated.

5.1.2 The COSATU CEC task team will have oversight and final verification of the reinstatement process.

5.2 Suspended or dismissed officials

5.2.1 All SAMWU officials suspended or dismissed between 2015 and to date must have their suspension or dismissals immediately reviewed and subjected to fair processes.

5.2.2 The review must be effected in terms of SAMWU’s staff manual and will be undertaken by SAMWU and a COSATU task team.

5.2.3 The COSATU CEC task team will have oversight and final verification of the review process. Observers from the purchase present during this process.’

[17] It is apparent from the above terms that the agreement provided for the immediate reinstatement of SAMWU’s disgruntled members who were suspended or dismissed between 2015 and the date of the agreement. It further requires SAMWU and COSATU task team to review the suspension or dismissal of SAMWU’s officials who were suspended or dismissed between 2015 and the date of the agreement, which review had to be effected in terms of SAMWU’s Staff Manual, and to subject them to a fair process.

[18] At the time when the agreement was entered into, the employee already had an award in terms of which she was to be reinstated and paid back-pay. Nowhere in the agreement does it provide that the employee would abandon her arbitration award, be re-employed and forfeit her back pay. Instead, the agreement requires fair treatment of the suspended or dismissed officials. Stripping the employee of her rights and benefits arising from the award would definitely not amount to fairness. In fact, it would amount to gross violation of her fundamental rights enshrined not only in the LRA but most importantly in the Constutution[2].

[19] To an extent that the employee’s arbitration award was not reviewed and set aside, it is binding on the parties and the employee is entitled to enforce it.[3] There is, therefore, no reason for this Court to declare its enforcement unlawful and to set it aside. As such, the application

must fail.

Costs

[20] This Court has a wide discretion in awarding costs. The guiding principle is that of equity and fairness. In this matter, it is my view that this is a case where the interests of justice and fairness will be best served by making no order as to costs.

[21] Accordingly, the following order is made:

Order

1. The applicant’s non-compliance with the Rules of this Honourable

Court is condoned, and this application is dealt with on an urgent basis.

2. The application for an order to declare unlawful and set aside the enforcement award issued under the auspices of the second respondent, the Commission of Conciliation, Mediation and Arbitration (the CCMA) under case number GAJB218-17 is dismissed.

3. There is no order as to costs.

_____________

D. Mahosi

Judge of the Labour Court

Appearances:

For the applicant: Mr Phumudzo Ndou of Ndou Incorporated Attorneys

For the first respondent: Self

[1] Act 66 of 1995, as amended.

[2] See section 23(1) of Act 108 of 1996, as amended.

[3] Section 143(1) of the LRA provides that: “An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitration award.”