THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 406/2023

In the matter between:
SANTA WALTER SHABANGU		 Applicant
and
PRODUKTA MOTORS (PTY) LTD	        Respondent
Heard: 	20 July 2023
Delivered: 	4 August 2023
This judgment was handed down electronically by consent of the parties’ representatives by circulation to them by email. The date for hand-down is deemed to be 4 August 2023.

JUDGMENT

PRINSLOO, J
Urgency
[1]	The Applicant approached this Court on an urgent basis for relief. The application is opposed and the Respondent submitted that the application is not urgent and is an abuse of process. 
[2]	Considering the sequence of events and the timeline as set out in the Applicant’s founding affidavit, there is no doubt there is merit in the Respondent’s argument on the issue of urgency. In the ordinary course, the Applicant would not have crossed the hurdle of urgency. However, I am inclined to deal with this matter notwithstanding the lack of urgency. 
[3]	This matter was enrolled for hearing in Court on 19 April 2023, when it received judicial attention and was struck off the roll for lack of urgency. The Applicant subsequently withdrew the urgent application and filed another urgent application, seeking to some extent substantially the same relief as was sought in the application this Court had already struck for lack of urgency. What is astonishing is that the Applicant used the same case number as the application that was struck for lack of urgency and subsequently withdrawn. This is highly improper and irregular.
[4]	Be that as it may, if this application is struck off the roll for lack of urgency, as it should, it will in all probability be enrolled in the normal course (or may appear as another urgent application), which another judge would have to spend time on and another Court day will be allocated for it. Judicial resources are scarce and limited and this matter lacks merit to the extent that it should be put out of its misery sooner rather than later and it should not make its way back to Court, be it on an urgent basis or in the ordinary course. No other Court should be burdened to deal with it, therefore I will deal with this matter, despite the lack of urgency.
The relief sought 
[5]	In the Applicant’s notice of motion the following relief is sought, in addition to a prayer that the matter be dealt with as one of urgency:
‘1.	THAT it be declared that the decision taken by the Respondent on 12 June 2023 to terminate the employment contract of the Applicant is an act of victimisation against the Applicant, a breach of his contract of employment and it is, therefore, unlawful.
2.	THAT it be declared that the decision taken by the Respondent on 05 June 2023 to suspend the Applicant with full pay and benefits is an act of victimisation against the Applicant, a breach of his contract of employment and it is, therefore, unlawful.
3.	THAT it be declared that the decision taken by the Respondent on 05 June 2023 to institute disciplinary proceedings against the Applicant on 07 June 2023 is a form of victimisation against the Applicant, a breach of his contract of employment and it is, therefore, unlawful.
4.	THAT it be declared that the decision taken by the Respondent on 04 January 2023 to suspend the Applicant from his work duties was a form of victimisation of the Applicant, a breach of his contract of employment and it is, therefore, unlawful.
5.	THAT it be declared that the decision taken by the Respondent on 24 March 2023 to transfer the Applicant from Produkta Motors (Honda), Mbombela to Produkta Motors (Ford), Malelane was an act of victimisation against the Applicant, a breach of his contract of employment and it is, therefore, was unlawful.
6.	THAT the Respondent be ordered to re-instate the Applicant to the position he held before the termination of his employment contract on 12 June 2023.
7.	THAT the Respondent be ordered to transfer the Applicant back to Produkta Motors (Honda), Mbombela to the position he held prior to the suspension and transfer referred to in prayer 6 and 7 above, within forty-eight (48) hours of service of this order upon him or it.
8.	THAT the Respondent be ordered to pay the Applicant a remuneration of 24 months, as compensation for the victimisation and discrimination he suffered at the hand of the Respondent and/or its employee/s.
9.	THAT it be declared that the history of the Respondent’s handling of the Applicant’s complaints of harassment demonstrate the failure of the Respondent to take appropriate and adequate steps to eliminate harassment within a reasonable time once an allegation of harassment by an employee has been submitted in its workplace.
10.	THAT the Respondent be ordered to, within ninety (90) calendar days of the service of this Court Order upon it, take proactive measures and remedial steps to prevent all forms of harassment in its workplace; to adopt an attitude of zero-tolerance towards harassment in its workplace; and to create and maintain a working environment in which the dignity of all its employees is respected by:
a.	Conducting an assessment of the risk of harassment that employees are exposed to while performing their duties, as far as is reasonably possible.
b.	Creating and maintaining a climate in the workplace in which employees who raise complaints about harassment will not feel that their grievances are ignored or trivialised.
c.	Adopting policies and procedures that provide a clear statement of its position regarding the prevention, elimination and management of the various forms of harassment in the workplace.
d.	Developing and implementing ongoing awareness programmes and training initiatives to educate its employees at all levels about harassment, in order to reinforce and maintain compliance with the policies and procedures adopted in terms of 12.3 above.
e.	Taking appropriate action in accordance with all applicable laws and guidelines (codes) where instances of harassment occur in the workplace. 
f.	Ensure that its employees at all levels attend a training programme in the subject of racial tolerance from an accredited institution or training provider at its own costs.
11.	THAT a Rule Nisi be issued calling upon the Respondent to return to the Honourable Court on the 09th day of November 2023, to report on the progress of its implementation of the order made in terms of 12 above.
12.	THAT the Respondent be ordered to pay the costs of this application on a scale as between Attorney-and-Client scale.’
[6]	There is a number of difficulties with the relief sought. Firstly, it is evident from paragraphs 4, 5 and 7 supra that the relief sought in this urgent application is the same relief that was sought in the urgent application that was filed in April 2023. On 19 April 2023, the Court struck the application for lack of urgency, after the Court had considered the relief sought on an urgent basis and found that it was not urgent and did not justify the attention of the urgent Court. The Applicant subsequently withdrew that application and launched another application, effectively seeking the same relief, ignoring the fact that this Court has already pronounced on the lack of urgency. The Applicant could not, in view of the decision of the Court in respect of the lack of urgency, pursue the same relief in another urgent application, even worse, using the same case number. He had to pursue it in the ordinary course. It was not open to the Applicant to simply file another urgent application, seeking essentially the same relief, which was already found not urgent. Such conduct not only displays a lack of understanding of the court process but is a serious abuse of process.
[7]	Secondly, the Applicant has referred a number of disputes to the MIBCO. Those are an unfair labour practice dispute relating to unfair treatment, which was referred on 13 December 2022 and an unfair labour practice dispute relating to unfair suspension, which was referred on 10 January 2023. The disputes had been conciliated, certificates of outcome had been issued and they were consolidated and set down for arbitration on 7 July 2023. The Applicant however stayed the arbitration proceedings, pending the outcome of this urgent application, wherein he effectively seeks relief in respect of the same disputes that had been set down for arbitration. 
[8]	I canvassed with Ms Mashego for the Applicant on what basis would this Court have jurisdiction to adjudicate a dispute and grant relief in respect of an unfair labour practice dispute that had been referred for arbitration. The question of jurisdiction in suspension disputes had been considered by this Court on numerous occasions. 
[9]	This Court has observed a tendency that parties elect to approach the Labour Court, on an urgent basis, for relief where the issue clearly relates to suspension. Suspension disputes are specifically provided for in the Labour Relations Act (LRA) and instead of approaching the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant bargaining council to challenge the fairness of the suspension, the suspension dispute is pursued as a contractual one, challenging the lawfulness of the suspension.
[10]	The Constitutional Court held in Steenkamp and others v Edcon Ltd (National Union of Metalworkers of SA intervening) (Steenkamp) that: 
‘The LRA created special rights and obligations that did not exist at common law. One right is every employee's right not to be unfairly dismissed which is provided for in s 185. The LRA also created principles applicable to such rights, special processes and fora for the enforcement of those rights. The requirement for the referral of dismissal disputes to conciliation is one of the processes created by the LRA. The CCMA, bargaining councils and the Labour Court are some of the fora. The principles, processes, procedures and fora were specially created for the enforcement of the special rights and obligations created in the LRA. Indeed, the LRA even provides for special remedies for the enforcement of those rights and obligations. The special remedies include interdicts, reinstatement and the award of compensation in appropriate cases. These special rights, obligations, principles, processes, procedures, fora and remedies constitute a special LRA dispensation.’
[11]	The rights created, as referred to in Steenkamp, include the right to fair labour practices. An aggrieved employee is fully entitled to invoke the dispute resolution structure established by the LRA by referring an unfair labour dispute to the CCMA or the relevant bargaining council. Section 193 (4) of the LRA empowers an arbitrator to determine an unfair labour practice dispute on any terms deemed reasonable, including the ordering of reinstatement, re-employment or compensation. 
[12]	In Tlhakudi v The President of the Republic of South Africa and others the applicant approached the Court to challenge her suspension on an urgent basis and the Court held that:
‘To the extent that the applicant contends that his claim would be constrained by considerations of fairness (as opposed to the claim of unlawfulness the applicant pursues in these proceedings), the distinction between lawfulness and fairness in the context of a consideration of the adequacy of the alternative remedy that an unfair labour practice referral presents is less Manichean, and the ‘election’ that the applicant assumes is questionable.’
[13]	This Court, as well as parties approaching the Court for relief, must be particularly cautious not to undermine the dispute resolution structures and processes, specifically provided for in the LRA and established in the CCMA or bargaining councils.
[14]	In casu, the issue goes even further – the Applicant is well aware of the dispute resolution route he has to follow, which he indeed followed up to the point where the disputes had to be arbitrated. Why that process was stayed or abandoned in order to proceed with an urgent application remains a mystery. This Court has no jurisdiction to adjudicate disputes that should be arbitrated and that much is clear from section 157(5) of the LRA which provides that the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if the LRA or any employment law requires the dispute to be resolved through arbitration. An unfair labour practice dispute relating to suspension is such a dispute and this Court has no jurisdiction to adjudicate same. To dress such a dispute up as one of an unlawful breach of contract is to be avoided, specifically if no contractual terms relating to suspension exist or are not even pleaded. This is even more so when such a dispute is already pending before a bargaining council and ready for arbitration.
[15]	Thirdly, the Applicant seeks relief to the effect that decisions taken by the Respondent be declared a form of victimisation. In his founding affidavit, the Applicant elaborated on this and stated that he is victimised by the Respondent and “that is harassment and it constitute an act of discrimination” and he made reference to the provisions of the Employment Equity Act (EEA). 
[16]	Mr Mashego submitted heads of argument wherein he reiterated that in this application, the Applicant seeks relief in that the Court should declare certain actions of the Respondent as acts of victimisation and for the Court to order relief to counter or remedy the acts of victimisation, harassment and discrimination. Mr Mashego submitted specifically that the applicable law is sections 5 and 6 of the EEA.
[17]	Section 6(3) of the EEA provides that the harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in section 6(1). Mr Mashego placed reliance on the said section and also referred to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. 
[18]	It is evident from the averments in the Applicant’s founding affidavit as well as the submissions made in Mr Mashego’s heads of argument that his case is premised on the provisions of the EEA and the prohibition of harassment and discrimination, as provided for in the EEA.
[19]	Section 10 of the EEA provides that any party to a dispute concerning Chapter II of the EEA (which includes sections 5 and 6), may refer the dispute in writing to the CCMA and the CCMA must attempt to resolve the dispute through conciliation. If the dispute remains unresolved after conciliation, it may be referred to the Labour Court for adjudication or to the CCMA for arbitration.
[20]	The Applicant has not referred any dispute in terms of the provisions of the EEA to the CCMA.
[21]	In argument, I canvassed the question of this Court’s jurisdiction to deal with the issues raised in terms of the EEA, absent any referral to conciliation, with Mr Mashego.
[22]	The Constitutional Court considered the issue of conciliation in Bell Equipment and National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and others (Intervalve). Although the focus of the judgment was different, the issue of conciliation was considered in broad and general terms and the Constitutional Court addressed general principles and more specifically, the preconditions to the Labour Court’s jurisdiction. The Constitutional Court accepted the reasoning of the majority in National Union of Metalworkers of SA and others v Driveline Technologies (Pty) Ltd and another:
‘On the point crucial to this case, the majority firmly rejected the proposition that the Labour Court has jurisdiction to adjudicate a dispute not referred to conciliation at all.’
[23]	This Court has no jurisdiction to adjudicate disputes that should first be conciliated and that is clear from section 157(4)(a) of the LRA which provides that the Labour Court may refuse to determine any dispute, other than an appeal or review, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation. 
[24]	Mr Mashego was unable to respond to this Court’s questions in respect of the difficulties he faced in the application, as alluded to supra and he eventually withdrew the relief sought in prayers 6, 7, 9, 10, 11, 12 and 13 of the notice of motion. Those are reflected in paragraphs 4, 5, 7, 8, 10 and 11 under paragraph 4 of this judgment.
[25]	Mr Mashego indicated that the Applicant only persisted with the relief set out in prayers 3, 8 and 14 of the notice of motion. I will deal with those in turn.
Breach of contract
[26]	In prayer 3, the Applicant is seeking an order that it be declared that the decision taken by the Respondent on 12 June 2023 to terminate his employment contract is an act of victimisation against the Applicant, a breach of his contract of employment and it is, therefore, unlawful. I already alluded to the fact that this Court has no jurisdiction to grant relief in respect of a claim relating to victimisation, absent a referral to conciliation, as contemplated in the EEA.
[27]	The relief sought is limited to a contractual claim, as Mr Mashego confirmed in argument. The Applicant effectively seeks an order to declare that the decision to terminate his contract of employment, constitutes a breach of his contract and is therefore unlawful. The Applicant’s cause of action arises from the breach of his contract of employment and relief is sought in terms of the provisions of section 77(3) of the Basic Conditions of Employment Act (BCEA). The Applicant has denounced any reliance on his rights in terms of the LRA, as the relief he pursues relates to the alleged unlawful termination of his contract of employment. A contractual claim in terms of the BCEA is a cause of action different and separate from an unfair dismissal claim in terms of the LRA. 
[28]	The Applicant was issued with a notice to attend a disciplinary hearing on 7 June 2023 and the charges levelled against him related to his conduct in that he had insulted and assaulted a fellow employee. He was issued with a notice of termination on 12 June 2023, after he was found guilty of misconduct in a disciplinary hearing. 
[29]	For the Applicant to succeed with his contractual claim, he must plead the relevant terms of his contract and show that there was a breach of contract in that the respondent was not entitled to terminate his contract of employment.
[30]	The Applicant attached a copy of his contract to his founding affidavit and pleaded the material terms and conditions of his contract. 
[31]	Clause 3 of the Applicant’s contract specifically provides for the termination of the agreement in certain circumstances and clause 3.2.1 provides that the contract may be terminated if the Applicant is fairly dismissed for a reason related to his conduct or capacity as an employee. In casu, the Applicant was dismissed for a reason related to his conduct. As the Applicant pursued his case in terms of section 77 of the BCEA, the question of fairness does not arise.
[32]	The question is whether the Respondent breached the Applicant’s contract of employment and acted unlawfully when the Applicant’s contract was terminated for reasons related to his conduct. 
[33]	The Applicant has to prove that the terms of his contract of employment do not allow for the termination of his contract for reasons related to his conduct. The reality is that the Applicant did not refer to any clause in his contract which the Respondent breached when his services were terminated. The Applicant had to assert the term of the contract relied upon, the alleged breach of that term and record an election to enforce the contract by way of specific performance or claim damages and seek consequential relief. The mere reference to section 77(3) of the BCEA is not sufficient to sustain a claim based on the breach of contract. 
[34]	In my view, the Respondent terminated the Applicant’s contract for a reason related to his conduct, as provided for in clause 3.2.1 of the contract. 
[35]	The wording of the contract is clear and entitles the Respondent to terminate the Applicant’s employment for reasons related to his conduct. In terminating the Applicant’s contract in accordance with the said clause, the Respondent exercised a contractual right to terminate the contract. 
[36]	The Applicant cannot show that the termination of his contract is unlawful because the Respondent was not entitled to terminate his employment contract in accordance with the terms of the contract and he failed to plead such a case. The termination accords with the express terms of the contract and it cannot be said that such termination was in breach of the contract and therefore unlawful. 
Reinstatement
[37]	In prayer 8, the Applicant seeks an order to re-instate the Applicant to the position he held before the termination of his employment contract on 12 June 2023. There are two main reasons why this relief cannot be granted. 
[38]	Firstly, this Court found that the termination of the Applicant’s contract did not constitute a breach of his contract and absent a breach, the Applicant is not entitled to any consequential relief.
[39]	Secondly, there are five remedies available for a breach of contract: specific performance, interdict, declaration of rights, cancellation and damages and the choice among these remedies rests primarily with the injured party. The Applicant did not seek any contractual remedy, but he seeks reinstatement, a remedy specifically provided for in section 193 of the LRA. Reinstatement is not a remedy available to a party denouncing the LRA and seeking contractual relief in terms of the BCEA.
[40]	As already alluded to, the Constitutional Court in Steenkamp confirmed that the LRA provides for special remedies which include reinstatement and that these special remedies constitute a special LRA dispensation.
Costs
[41]	In prayer 14 of the notice of motion, the Applicant seeks a punitive cost order against the Respondent.
[42]	In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. 
[43]	The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.
[44]	In Zungu v Premier of the Province of KwaZulu-Natal and Others, the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.
[45]	This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The generally accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others, it was emphasized that:
‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’
[46]	Mr Eastes on behalf of the Respondent submitted that a punitive cost order should be made in favour of the Respondent. In support of this argument, he submitted that there is no employment relationship existing between the parties, this is the second urgent application, in which no case had been made out for urgency and it is a serious abuse of process. The Applicant should not have brought this application in the first place. 
[47]	Mr Mashego submitted that the Applicant is entitled to a punitive cost order, as prayed for in his notice of motion. 
[48]	In my view, this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success, more so where an application is filed on an urgent basis. This Court’s displeasure should be shown – an urgent application, comprising of 527 pages, wherein the same relief is sought as what had already been determined by this Court not to be urgent, where this Court is approached to grant relief it has no jurisdiction to grant and where seven prayers are abandoned during argument and only three prayers were persisted with indicates nothing but a serious abuse of process.  
[49]	In casu, the application was wholly misguided and meritless. The Respondent had to defend a meritless urgent application and fairness dictates that it cannot be expected to endure enormous costs defending litigation that ought not to have been brought in the first place. Ultimately, the Applicant is the author of his own misfortune. He was told in April 2023 that some of the relief he sought, was not urgent, yet he persisted to bring another urgent application, seeking the same relief and added even more prayers, seeking relief this Court has no jurisdiction to grant. He had his disputes set down for arbitration, yet he abandoned that process, which is the appropriate and correct process, to burden this Court to adjudicate on issues it has no jurisdiction to hear. 
[50]	The Applicant did not come to Court as an unrepresented layperson, he was legally represented and therefore in a position to consider the consequences of instituting meritless litigation and he had to put in some earnest thought and consideration into the merits of this case before filing this urgent application. 
[51]	Furthermore, the relief that was persisted with invoked this Court’s jurisdiction under section 77(3) of the BCEA, a jurisdiction that the Court exercises concurrently with the civil courts. The rule applied in those courts that costs ordinarily follow the result, is to be applied in casu.
[52]	In my view, the Applicant’s conduct in bringing and pursuing this application warrants a cost order on a punitive scale.
[53]	In the premises, I make the following order:
Order
1.	The application is dismissed;
2.	The Applicant is to pay the Respondent’s costs on a scale as between attorney and client.

__________________
Connie Prinsloo
 Judge of the Labour Court of South Africa

Appearances:
For the Applicant:		Mr D Mashego from Dima Mashego Attorneys 
For the Respondent:	Advocate J Eastes
Instructed by:		Du Bruyn & Morkel Attorneys