Johannesburg - The Labour court in Johannesburg has dismissed the Municipal and Allied Workers Union of South Africa (Demawusa’s) application seeking a final interdictory relief against the City of Joburg following the alleged unlawful suspensions of over 200 firefighters and paramedics in July.
The court ruled that the matter was “a waste of time and outside of its jurisdiction” and advised that it be taken to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Judge Andre van Niekerk said: “The applicants (Demawusa’s) claim of an unlawful suspension is not a claim contemplated by the Labour Relations Act (LRA) and neither that Act nor any other jurisdiction on this court to make a determination of the lawfulness or validity of suspension".
Demawusa has been in dispute with the City of Joburg since July. The dispute escalated to what the City of Joburg claimed was an illegal strike that occurred in July.
However, Demawusa dismissed the claims and said it wanted the city to comply with the Health Professions Council of SA (HPCSA) standard rules in clinical practice.
The court however granted an interim interdict against the union, interdicting it from participating in an unprotected strike.
Van Niekerk said the application arose from what the City of Joburg considered to be open defiance of the interim interdict.
During the hearing in October, Demawusa stated that the city of Joburg didn't only suspend its members unlawfully, it has also unlawfully made deductions from their salaries.
It therefore on its application stated: “In relation to suspension, it should be noted that the employees do not seek to deal with the fairness of their suspensions and deductions of their salaries,but require the lawfulness of the suspension and deductions to their salaries be determined,” read the court papers.
However Judge van Niekerk said the Labour Court was not in a position to look into matters of unlawfulness but unfair dismissals.
“The effect of this judgment is that when an applicant alleges that a dismissal is unlawful, that applicant has no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness. If a remedy is sought under the LRA, the applicant must categorise the alleged unlawfulness as unfairness,” he said.
He added that the disputes between the two parties needed to be resolved by arbitration.
“The Labour Court does not have jurisdiction to adjudicate an unresolved dispute if any employment law requires the dispute to be resolved through arbitration.
“For this reason this court has no jurisdiction to entertain the applicant (Demawusa’s) claim of an unlawful suspension.
Demawusa did not respond to questions sent to them regarding the dismissal of the application.