The requirements for urgent interim relief are well known and an applicant must show:
- a prima facie right (although open to some doubt) to the final relief that will be sought in due course;
- an apprehension of irreparable harm, if the application is not granted and an applicant ultimately establishes a valid claim;
- that the balance of convenience favours the applicant; and
- the absence of any other satisfactory remedy.
Steenkamp J in the labour court has recently provided valuable guidance concerning the situation in which urgent interim relief is likely to be granted. In a nutshell it seems that the following simple and basic rules apply in the labour court in addition to the four legal requirements:
- urgency must be proved;
- the circumstances must be exceptional;
- if other options exist they must be exercised:
- alleged unfairness requires prior referral of dispute to CCMA;
- alleged unlawfulness requires a prior application to labour court.
The employer was interdicted from proceeding with a disciplinary hearing pending the adjudication of a legality review application of disciplinary proceedings. The applicant relied on unlawfulness and not unfairness so the alleged dispute could not be referred to the CCMA. Pending the outcome of that review decision Steenkamp J interdicted the employer from proceeding with a possible illegal process.
Unfair labour practice disputes
“Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of section 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of section 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate when the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of the unfair labour practice proceedings.” [para 43]
“Where a person in truly extraordinary circumstances … approaches the Labour Court on the basis that a disciplinary inquiry was, for instance, about to commence or was being conducted in the hands of a biased or unqualified presiding officer, or on another factual basis so serious as to vitiate in law the inquiry, I have little doubt that the Labour Court would in law exercise these powers to stop it”.
“In his reasons, Cheadle, AJ stresses the lack of an inherent jurisdiction in the Labour Court, a creature of statute (in contradistinction to the High Court). … he holds that the Labour Court ‘does not have an ail-embracing jurisdiction over the employer-employee relationship’”.
“As already indicated, that has to be accepted as a truism … . But with respect, that is not the point. It does not address the fact that unfairness in the dismissal process is a ‘matter’ which the LRA clearly regulates”.
Major portion quoted with approval in Booysen v The Minister of Safety and Security & others  1 BLLR 83 (LAC) at para .
The LAC held that if the approach adopted by the labour court was correct, it could never intervene in any situation where the LRA provides for disputes to be referred for arbitration. ‘Apart from the fact that the Labour Court has done so in innumerable cases, that view was wrong because it created the potential for absurdities’.
The LAC also held that s 157 of the LRA must be interpreted purposively. The Legislature confined employment and labour disputes to specialised tribunals created under the LRA. It was the main reason for limiting the jurisdiction of the High Court.
The Constitutional Court ruled that s 157 is meant to extend the jurisdiction of the Labour Court to constitutional matters relevant to labour disputes. If it lacked jurisdiction in matters ‘where employees seek to interdict disciplinary proceedings, those employees would have to approach the High Court. That would result in the High Court ruling on matters that could later come before the Labour Court on review under section 145, and the Labour Court might then have to consider the correctness of the High Court’s ruling. This could not have been the Legislature’s intention. Furthermore, the court a quo had erred by finding that the LRA does not regulate the conduct of disciplinary proceedings. The procedural fairness of dismissals is a matter regulated by the Act’.