National Education Health and Allied Workers Union and others v University of South Africa and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Nkutha-Nkontwana J |
| Judgment Date | 21 June 2022 |
| Citation | 2023 JDR 2375 (LC) |
| Hearing Date | 26 May 2022 |
| Docket Number | J569/22 |
| Court | Labour Court |
Nkutha-Nkontwana J:
On 26 May 2022 this Court heard, as a matter of urgency, an application by the applicants. They were seeking an order declaring the dismissal of the second to sixth applicants (applicant employees), the members of the first applicant (NEHAWU) invalid and of no effect and force; interdicting the respondents from terminating the applicant employees contracts of employment without compliance with the Employee Disciplinary (Disciplinary Code) read with recognition agreement; and, alternatively, the reinstatement of the applicant employees pending the finalisation of the suspensions or finalisation of the disciplinary enquiry or pending a referral of the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) arising from the summary termination of their contracts of employment.
The application was opposed by the respondents who in turn took two points in limine; firstly, urgency and secondly, the jurisdiction of this Court. I made an order dismissing the application and these are the reasons for the order.
Pertinent facts
NEHAWU has a collective bargaining relationship with the first respondent, the University of South Africa (UNISA). The applicant employees were its shop stewards at UNISA.
2023 JDR 2375 p3
Nkutha-Nkontwana J
On 19 April 2022, the applicant employees were served with notices of suspension. In those notices, the second respondent (Prof Lenkabula) accused the applicant employees of acting contrary to the Code of Ethics and Conduct (Ethics Code) and Disciplinary Code in relation to alleged various acts of misconduct which, inter alia, included organising and participating in an illegal and unprotected strike from 15 March to 26 March 2022, disrupting graduations of 15 March 2022 until 26 March 2022, violating the integrity of the academic programme which resulted in bringing the name of UNISA into disrepute, and violating the High Court order obtained against NEHAWU on 15 March 2022, despite being properly served.
The applicant employees were given up until 22 April 2022 to provide reasons why their contracts of employment should not be terminated summarily. On 6 May 2022, the applicant employees were served with notices of summary termination of their contracts of employment.
Urgency
On 18 May 2022, the applicants launched this application on an extremely urgent basis. The respondents impugned the truncated time periods they were afforded to oppose this application. The respondents were served with complete set of papers on 19 May 2022 and were still expected to serve and file their answering affidavit on 20 May 2022. That was so, despite the applicants having given themselves about 10 days from the date of the applicant employees’ dismissal to launch this application. When challenged, the applicants contended that they had no easy access to legal representatives. This reason is flimsy because NEHAWU is not a novice trade union.
The applicants, in addition, contended that they would not be afforded substantial redress at a hearing in due course, quintessentially because the conduct of the respondents was patently unlawful; they would suffer financial hardship, though tersely pleaded; and that they would suffer irreparable harm if they were to refer the dispute to the CCMA.
2023 JDR 2375 p4
Nkutha-Nkontwana J
It will be, clear later in this judgment the applicants case is deliberately pleaded in an inexplicit manner in order to circumvent the impugn on urgency and, in turn, jurisdiction. In Association of Mineworkers and Construction Union and others v Northam Platinum Ltd and another [1] , referred to by the respondents, Snyman AJ lamented the developing proclivity for litigants to challenge dismissals as being unlawful on an urgent basis and as such unlawfulness being the basis for urgency. He pertinently stated that:
But, and as a result of the judgment in SABC, an unforeseen, and I am quite sure unintended, consequence has arisen. The judgment has been taken to now establish some sort of licence for litigants to approach the Labour Court on an urgent basis challenging dismissals as being unlawful. There seems to be a general view that the fact that the dismissal may be considered to be unlawful, and is challenged on that basis, is in itself a basis of urgency. It needs to be made clear that such an approach would be wrong. In fact, this was recognised by Lagrange J himself in SABC, where the learned judge said: ‘The mere fact that the applicants have been dismissed in breach of their contracts of employment might not in and of itself warrant urgent relief. What makes the application urgent is related to a number of factors. . .’
Whilst it may be so that a dismissal could in particular circumstances, and where the LRA is not relied upon, be considered to be unlawful and consequently invalid because of a specific provision in a contract of employment which has been breached, this cannot per se serve to jump the queue of all other dismissed employees relying on the provisions of the LRA waiting for their turn in Court. This kind of situation is merely another cause of action upon which the termination of a contract of employment can be challenged in the Labour Court. But other than that it holds no particular magic.’ (Emphasis added)
2023 JDR 2375 p5
Nkutha-Nkontwana J
Tellingly, in the present case, other than a broad reference to section 77(3) of the Basic Conditions of Employment Act [2] (BCEA), there is no iota of evidence to support the applicants’ contractual claim. I deal with this issue in detail when I address the second point in limine.
It is also trite that financial hardship is not a sufficient ground to establish urgency. [3] The only exception to this general principle is when there are exceptional circumstances that would justify the granting of urgent relief. [4] In University of the Western Cape Academic Staff Union and others v University of the Western Cape, [5] Mlambo J, as he then was, pertinently stated that:
‘With regard to the notion of irreparable harm it needs to be mentioned that loss of income as a result of dismissal is the inevitable consequence and as such provides no good ground for the granting of urgent interim relief. Special circumstances must be advanced to persuade a court to oblige. Loss of accommodation has been found to be a special feature accepted by the courts in order to grant urgent interim relief. . . .]n considering the issue of irreparable harm the court will also consider the adequacy or not of any alternative remedy that may be available.’ (Emphasis added)
In the present case, the applicant employees’ financial hardship is pithily pleaded. Moreover, contrary to the applicants’ contention, the applicant employees, like all other dismissed employees, have an ample alternative remedy in terms of the Labour Relations Act [6] (LRA).
2023 JDR 2375 p6
Nkutha-Nkontwana J
It follows that the applicants failed to make a case for the urgent intervention of this Court. Ordinarily, this would have been the end of the matter and the application be struck off the roll for lack of urgency. Nonetheless, I also considered the second point in limine for expediency and finality.
Jurisdiction in terms of section 77(3) of the BCEA
The respondents impugned the jurisdiction of this Court to deal with the matter. They contended that the applicants were bound by their pleaded case which essentially called to question the fairness of the conduct of the respondents. To the extent that applicants sought to invoked section 77(3) of the BCEA, it was contended that they failed to clearly demonstrate that the Disciplinary Code on which they relied forms part of the applicant employees’ contracts of employment. To buttress this contention, the respondents referred to the decision of the Constitutional Court in Gcaba v Minister for Safety and Security and Others, [7] were it was pertinently observed that:
The specific term “jurisdiction”, which has resulted in some controversy, has been defined as the “power or competence of a Court to hear and determine an issue between parties”. . .
Jurisdiction is determined on the basis of the pleadings. . . and not the substantive merits of the case. . . . In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but...
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