Van Schoor and Others v Minnie and Others (3735/2006) [2006] ZAFSHC 132 (23 November 2006)

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[2006] ZAFSHC 132
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Van Schoor and Others v Minnie and Others (3735/2006) [2006] ZAFSHC 132 (23 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 3735/2006
In
the case between:
S
VAN SCHOOR AND 22 OTHERS
Applicants
and
MR.
MINNIE
1st Respondent
(in
his capacity as the Fire Chief of
the
Matjhabeng Municipality)
MR.
LEETO
2nd
Respondent
(in
his capacity as the Acting Executive
Manager:
Public Safety and Transport
of
the Matjhabeng Municipality)
THE
MUNICIPAL MANAGER OF THE
3rd
Respondent
MATJHABENG
MUNICIPALITY
THE
MATJHABENG MUNICIPALITY
4th
Respondent
JUDGMENT:
VAN DER MERWE, J
HEARD
ON:
19 OCTOBER 2006
______________________________________________________
DELIVERED ON:
23 NOVEMBER 2006
[1] The applicants are
station officers and firemen employed by the fourth respondent in its
fire brigade department. The fourth
respondent’s fire brigade
department has fire stations at Welkom, Odendaalsrus, Virginia and
Hennenman. The applicants are presently
stationed at Welkom,
Odendaalsrus and Virginia respectively.
[2] The first respondent
is the chief of the fire brigade department of the fourth respondent.
The second respondent is the acting
executive manager: public safety
and transport of the fourth respondent and the third respondent is
the municipal manager of the
fourth respondent. The fourth
respondent is a local municipality established in terms of
section 12
of the
Local Government: Municipal Structures Act, No. 117 of 1998
with legal personality in terms of
section 2
of the Local Government:
Municipal Systems Act, No. 32 of 2000. It appears that it would have
been quite sufficient and proper to
cite only the fourth respondent
as a party hereto, but it is not necessary to decide whether it was
necessary or proper to join the
first three respondents as parties
hereto.
[3] At the hearing
counsel for the applicants limited the substantial relief claimed by
the applicants to a temporary interdict, pending
the final
adjudication of an action for specific performance of the employment
contracts entered into between each of the applicants
and the fourth
respondent to be instituted within 30 days of the order, in the
following terms:
g
That
respondents be interdicted from varying applicants’ conditions of
service unilaterally by -
1. implementing a four shift system
from
1 September 2006
as anticipated;
2. reshuffling
applicants’ shifts whereby they are required to work from different
fire stations from
1
September 2006
;
3. insisting
that applicants’ overtime hours be reduced from 80 to 40 hours per
month,..”
[4] It is clear from the
papers that the case of each of the applicants is based on contract.
Each applicant avers that the fourth
respondent does not comply with
alleged terms of the employment contract between each of the
applicants and the fourth respondent
and that therefore the
applicants are entitled to an interim interdict preventing the fourth
respondent from unilaterally varying
the terms of contract, pending
an action for specific performance by the fourth respondent of the
terms of contract.
[5] It was submitted on
behalf on the respondents that the jurisdiction of this Court to
adjudicate upon the application is excluded
and that the matter falls
within the exclusive jurisdiction of the Labour Court. In the light
of the aforegoing, this submission
must fail. Neither a dispute
about the unilateral change of terms of an employment contract nor a
claim for specific performance
of the terms of an employment
contract, are in my judgment matters that are to be determined by the
Labour Court in terms of
section 157(1)
of the
Labour Relations Act,
No. 66 of 1995
. See in this regard
FEDLIFE
ASSURANCE LTD v WOLFAARDT
2002 (1) SA 49
(SCA) at 61,
FREDERICKS
AND OTHERS v MEC FOR EDUCATION AND TRAINING, EASTERN CAPE, AND OTHERS
[2001] ZACC 6
;
2002 (2) SA 693
(CC) at 712 to 714 and
MONYELA
AND OTHERS v BRUCE JACOBS trading as LW CONSTRUCTION
(1998) 19 ILJ 75 (LC) at 83I to 84A. I also do not think that these
disputes are matters in terms of the Basic Conditions of Employment
Act, Nr. 75 of 1907, as envisaged by section 77(1) thereof. Whether
this Court has jurisdiction must be determined on the applicants’
case and in my judgment the applicants do not claim or rely upon any
right created or granted to them in terms of Act No. 75 of 1997.
[6] It is common cause
between the parties that over the past number of years, the fourth
respondent employed a three shift system
in respect of the personnel
at its four fire stations (according to the applicants this system
has been in use since 1999, whilst
according to the respondents this
was the position since approximately October 2002, but nothing turns
on this). In terms of the
three shift system the personnel at the
particular fire station were divided into three groups or shifts.
Each shift was on duty
for an uninterrupted period of 12 hours. This
means that in every 24 hours, two shifts were on duty for 12 hours
each, whilst the
third was off duty in order to rest. The last three
hours of every 12 hour shift was regarded and remunerated as overtime
duty.
This system resulted in 80 hours per month overtime on average
for the fire station personnel. However, 44 hours thereof only was
the result of the three shift system itself. The overtime over and
above the 44 hours overtime per month, was caused by the absence
of
personnel on leave for vacation or because of illness or whatever
reason. Therefore, if all the personnel of a particular fire
station
were on duty for a whole month, each employee at that station would
work overtime for 44 hours per month as a result of
the three shift
system. In accordance with this system employees were stationed at a
particular fire station and not rotated between
fire stations.
[7] It is also common
cause that the fourth respondent intends to change the three shift
system to a four shift system and to rotate
the personnel between the
different fire stations on a three month basis. The applicants say
that the fourth respondent took a decision
to implement this new
system from 1 September 2006. This is denied by the respondents who
say that the four shift system cannot
be implemented until additional
personnel are employed and that the process of employment of
additional personnel has not yet been
finalised. There are
indications that the applicants are correct in this regard, but it is
similarly unnecessary to determine this
dispute as it is common cause
that the fourth respondent intends to implement the new system in the
near future. In terms of the
four shift system, the personnel at the
particular fire station will be divided into four groups or shifts,
each doing duty for 8
hours uninterrupted at a time. In every period
of 24 hours therefore, three shifts would be on duty for 8 hours
each, whilst the
fourth shift would be off-duty to rest. In terms of
the four shift system there would be no overtime as a result of the
system itself.
The parties are however
ad
idem
that approximately 40 hours overtime duty per month per employee
would in terms of the new system still be done and paid for as a
result of absence of personnel on leave as stated above. In terms of
the new system, the personnel would be rotated between the
four fire
stations under the jurisdiction of the fourth respondent. The main
purpose hereof is to familiarise all the fire station
personnel with
the whole of the area of jurisdiction of the fourth respondent, in
order to minimise reaction time of the fire brigade
department in
case of a substantial fire or other emergency.
[8] I must say that my
understanding of the applicants’ case is that they are not in
principle opposed to the reduction of the working
hours in terms of
the four shift system, but that their real objections are to the
effect of the new system on overtime payment and
to the rotation
system. Be that as it may, the question for decision is whether the
applicants have proved
prima
facie
,
even though open to some doubt, that the employment contract of each
of the applicants with the fourth respondent includes, as contractual
terms, that each applicant is entitled to work for 12 hours at a time
on a three shift system, is entitled to work and be paid for
overtime
of 80 hours per month on average and is entitled to do duty only at
the particular fire station where the particular applicant
is
stationed. As these averments are disputed by the respondents, the
accepted test for a
prima
facie
right or case in the context of an interim interdict is to take the
facts averred by the applicants, together with such facts set
out by
the respondents that are not or cannot be disputed and to consider
whether, having regard to the inherent probabilities, the
applicants
should on those facts obtain final relieve at the trial of the
action. The facts set up in contradiction by the respondents
should
then be considered and, if serious doubt is thrown upon the case of
the applicants, they cannot succeed. See
SIMON
NO v AIR OPERATIONS OF EUROPE AB AND OTHERS
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228 G – H. What the applicants have to
prove
prima
facie
,
even though open to some doubt on the aforesaid test in this case, is
that the fourth respondent is bound to the aforesaid alleged
contractual terms (“the alleged terms”).
[9] From the outset and
throughout the papers, the applicants relied on the alleged terms and
therefore that the fourth respondent
in implementing the new system
has or would unilaterally amend their respective employment contracts
with the fourth respondent.
However, the applicants adduced no
evidence as to how and when and under which circumstances the alleged
terms were agreed upon
between each of the applicants and the fourth
respondent or its legal predecessor or as to how, when and under
which circumstances
the terms became part of there respective
employment contracts with the fourth respondent. On the contrary, it
is common cause that
each applicant was appointed by the fourth
respondent or its legal predecessor in terms of a written letter of
appointment. Examples
of these letters of appointment form part of
the papers, including the letter of appointment in terms of which the
first applicant
was appointed by the legal predecessor of the fourth
respondent during 1993. These letters state that the particular
applicant is
appointed
g
...
onderworpe aan die Raad se Diensvoorwaardes en verdere voorwaardes
soos hierna uiteengesit:”
In each letter of
appointment only the following is then stated in respect of what is
relevant in this case:
g
Werkweek:
sesdag werkweek
Werktye: Skofte”.
The letters of
appointment do not mention a particular fire station where the
employee would be entitled to do duty or where the
employer would be
obliged to allow the employee to do duty. In several instances it
further appears that the 12 hour three shift
system was on
applicants’ version introduced after the particular applicant
became an employee of the first respondent or his legal
predecessor,
in some cases many years later.
Prima
facie
therefore the letters of appointment constituting the relevant
written contracts of employment, exclude the alleged terms relied
on
by the applicants. Put differently, on the averments of the
applicant taken together with the undisputed facts put forward by
the
respondents, the applicants will not prove the alleged terms at the
trial.
[10] There
are also further reasons why in my judgment, there is on the totality
of the evidence at least serious doubt and not only
some doubt, as to
whether the alleged terms are tacit terms of the employment
contracts. In my view it does not appear to be a necessary
inference
that the alleged terms form part of the employment contracts. There
appear to be substantial reasons why the fourth respondent
or its
predecessor would not bind itself as the applicants would have it.
It seems to me that flexibility and adaptability in respect
of the
duty of emergency personnel such as the applicants, lie at the heart
of the provision of emergency services and that therefor
an employer
such as the fourth respondent would not relinquish the power to
change the hours and circumstances of duty of emergency
personnel.
At the very least I am satisfied that to a question by the so-called
officious bystander at any time when the employment
contract of any
of the applicants was negotiated, as to whether the alleged terms
form part of the employment contract, at least
the fourth respondent
or its legal predecessor would not have responded in the affirmative.
Compare
WILKINS
NO v VOGES
[1994] ZASCA 53
;
1994 (3) SA 130
(AD) at 136I – to 137C and
BOTHA
v COOPERS & LYBRAND
2002 (5) SA 347
(SCA) at 359 and 360. It follows that in my judgment
the applicants failed to prove a
prima
facie
right, even though to some doubt.
[11] In the light of this
conclusion it is unnecessary to consider the argument of the
respondents based on
sections 3
,
4
,
5
and
10
of the
Basic Conditions
of Employment Act, No. 75 of 1997
.
[12] For these reasons
the application for an interim interdict cannot succeed. On behalf
of the respondents an order allowing costs
of two counsel was asked
for, but opposed on behalf of the applicants. I do not think that
the employment of two counsel was justified
by either the scope or
the complexity of the matter.
[13] The application is
dismissed with costs.
________________________
C.H.G. VAN DER MERWE,
J
On behalf of
Applicants: Adv. J. P. Daffue
Instructed by:
McIntyre & Van
der Post
BLOEMFONTEIN
On behalf of
Respondents: Adv. F. W. A. Danzfuss SC
With him
Adv.
S. E. Motloung
Instructed
by:
Moroka Attorneys
BLOEMFONTEIN
/em