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[2010] ZALAC 39
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Mopani District Municipality v South African Local Government Bargaining Council and Others (JA02/09) [2010] ZALAC 39 (20 May 2010)
18
JUDGMENT
2010-05-20
JA02/09
- D K DE JAGER
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
:
JOHANNESBURG
CASE NO
: JA02/09
DATE
: 2010-05-20
In
the matter between
MOPANI
DISTRICT MUNICIPALITY Appellant
And
SOUTH
AFRICAN LOCAL GOVERNMENT First Respondent
BARGAININGCOUNCIL
FATIMA
CACHALIA N.O. Second Respondent
JACOBUS
DANIEL VISSER Third Respondent
_____________________________________________________________
Coram: DAVIS JA, TLALETSI JA, HENDRICKS AJA
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
DAVIS JA
: This is an appeal against the judgment
of Cele AJ, in the court
a quo,
of 13 August 2008, leave
having being granted on 22 December 2008.
In the court
a quo
, Cele AJ, having reviewed the decision of
the second respondent, dismissed the review application with costs
and made the arbitration
award of the second respondent an order of
costs. It is against that order that the appellant has proceeded to
this court.
Briefly, the facts of the case can be summarised thus:
The appellant is a municipality established in terms of Section 12
of the Local Government Municipal Structures Act, 117
of 1998 (the
Municipal Structures Act).
The third respondent, Mr Jacobus Daniel Visser (Visser) was employed
as regional director, fire emergency services by the then
Northern
District Council. He conducted his employment at the Tzaneen Fire
Station.
According to the evidence, during 2000, major structural changes took
place in the area of local government. A number of municipalities
were disestablished and new municipalities were created. It was
pursuant to this restructuring process that the Tzaneen Fire Station,
where Visser was fire chief, was transferred to the appellant. It
appears that this transfer took place on 1 July 2003, in terms
of
section 197 of the Labour Relations Act, 66 of 1995 (LRA). During
the process of negotiation leading to the transfer, as I
have
outlined it, it appears that the various representative trade unions,
including the union to which Visser was a member, IMATU,
participated
in this process which included the placement of Visser from the
Tzaneen to the Giyani Fire Station, the latter being
some 115
kilometres away from Tzaneen.
On 12 November 2003, Visser was informed about the new policy and his
new place of employment. To the extent that it is relevant,
the
letter which was sent to Visser by Mr Maake, director, corporate
services of appellant, reads:
“It is with great pleasure to inform that you have now been
placed into the organogram of Mopani district as a Chief Fire
Officer
under Emergency Services. Your placement is with effect from
10 November 2003, subject to your acceptance”.
It appears that Mr Visser greeted this offer with somewhat less
pleasure than it had been articulated by Mr Maake. He responded
inter alia
as follows, in a letter dated 17 November 2003:
“I hereby conditionally accept the offer for placement as Chief
Fire Officer (Job Level 3) … with the explicit understanding
that the following benefits and privileges be maintained to the
remaining period of my service contract with the Mopani District
municipality (sic) … Payment of travelling and subsistence
allowance for official trips. I also placed on record that for
various practical reasons, that I cannot relocate to Giyani.
Therefore an undertaking is request (sic) for the finalisation of
additional travelling arrangements or for the continued payment of
travelling costs generated from the change of workplace …”
The evidence was that a further letter of 17 December 2003
was generated by Mr Maake in which he stated:
“You will be expected to move to the offices of the district in
Giyani whereby your removal costs will be borne by the municipality
upon submission of 3 quotations … Whilst still sorting out
issues of accommodation, the municipality will either pay for
your
travelling or accommodation for a period not exceeding three (3)
months”.
There is no dispute that this letter was written by Maake. What was
placed in dispute was that this letter was never received
by Visser
and accordingly both the second respondent and the court
a quo
accepted correctly in my view, that this letter had not been received
by Visser, hence he was never appraised in writing of the
approach
which the appellant had adopted towards his so called conditional
offer.
Visser tendered his services at the Giyani Fire Station from
November 2003 until 10 February 2004. He then took sick leave
until 28 February 2004. On 1 March 2004, he addressed a
letter to his employer pointing out, as from the beginning of
February 2004, his travelling expenses had no longer been paid. The
non payment of his travelling claims, had the effect of jeopardising
his placement and henceforth he said that he would be reporting to
the Tzaneen Fire Station “until the breach” had
been
corrected.
On 10 March 2004, his superior Ms Mathebula, the director of
community services of the appellant, wrote a letter to Visser
enquiring
as to how he intended execute his duties whilst he was
stationed at Tzaneen. On 6 April 2004, Visser was invited
to
attend a grievance hearing which was scheduled to be heard on 13
April 2004. On 13 April 2004, he wrote a letter to Ms Mathebula
indicating “the locks to his office in Tzaneen had been
changed”. At the grievance hearing, it was pointed out to
Visser that he was stationed in Giyani and he was accordingly not
entitled to occupy his office in Tzaneen. The very point of
the
transfer was that there was no longer to be a fire station in Tzaneen
and that if he was to occupy a position as fire chief,
it had to be
where there was a fire station, namely in Giyani.
On 20 April 2004, Visser addressed a letter to his supervisor,
stating that he would be willing to accept the placement in Giyani
as
a chief fire officer with the proviso to that previously been
articulated, that adequate travelling arrangements be made or
alternatively the costs of such travelling be negotiated. It appears
that he put up an alternative that he be placed in Tzaneen
as station
commander of fire prevention officer on a contractual basis.
On 26 April 2004, Visser sent a telefax to Ms Mathebula informing
her that he was available in Tzaneen for “any administrative
work and orders given from your office”. Ms Mathebula informed
him that a follow up meeting to the one held on 13 April
would be
convened on 10 May 2004. On 20 May 2004, IMATU sent a
letter to appellant requesting an official response
to issues which
had been raised by Visser as well as apparently other employees. In
relation to Visser, the appellant was called
upon to indicate whether
it was prepared to enter into negotiations with respect to the travel
costs. In this connection, the
letter invoked clause 7.6 of the
so called placement policy; that is the agreement which had been
entered into with the South
African Local Government Association
‘SALGA’ with regard to questions of placement.
Clause 7.6 thereof provides:
“In the case where the employee does not move his place of
residence, additional travelling arrangements or costs may be
negotiated with the Municipality”.
On 21 May 2004, the appellant issued a letter terminating Visser’s
employment on the ground of desertion. He was informed
that if he
reported back to duty, the employer would convene an enquiry to
determine the reasons for his absence and if satisfied
with the
explanation, there was a possibly of reinstatement.
Of relevance, is the following passage:
“According to our records you failed to report to your working
station in Giyani since your placement. The municipality,
being your
employer is currently not aware of your whereabouts and/or your
activities since then. This letter therefore serves
to advice you
that your services have been terminated with immediate effect on the
ground of desertion”.
On 1 June 2004, Visser referred an unfair dismissal dispute, to
conciliation. On 16 July 2004, the unresolved matter was referred
to
arbitration under the auspices of the
South African Local Bargaining Council.
The second respondent, being the arbitrator, found that the
dismissal had been both substantively and procedurally unfair. That
finding was then upheld by the court
a quo
and it is on those
two decisions that this appeal turns.
The crux of second respondent’s findings was that
Visser’s acceptance of his placement was conditional and
should
have become the subject of negotiation and perhaps thereafter
arbitration in terms of the placement policy to which I have
made
reference. In particular, second respondent referred to the SALGA
agreement and clauses 3.1.10 and 4.1 thereof which read
thus:
Clause 3.1.10:
“Employees that cannot be placed in any of the categories of
posts or are not offered an alternative post that is not reasonable
will remain the pool of the transferred employees for a period of at
least six months from the expiry of the period referred to
in
paragraph 3.5, unless otherwise agreed, whereafter the employees
shall be dealt with in terms of existing redundancy policies
or
Section 189
of the
Labour Relations Act&rdquo
;.
Clause 4.1 reads:
“Every individual employee and or trade union on behalf of
their members shall have the right to refer a dispute about a
placement or non- placement to arbitration. Such dispute shall be
referred to arbitration within 5 working days of the date of
receipt
of a decision by an individual employee”.
On this particular legal edifice, the second respondent analysed the
evidence and concluded thus:
“The evidence further indicates that the applicant had at all
times indicated his willingness to render his services as Chief
Fire
Officer. “Desertion” presupposes an intention not to
return to work. In this matter, the evidence indicates
that the
intention of the applicant at all times, as evidenced from his
conduct and correspondence, indicate an intention to render
his
services to the employer”.
In short, the essential finding of the second respondent was that,
given the conditional approach that the second respondent had
taken
to the initial placement and given the non response of the appellant
to this correspondence, the placement of Visser had
not yet been
finalised. Because it had not yet been finalised, it could not be
suggested that the SALGA agreement had come into
operation. Coupled
with the uncertainty of the placement, as viewed by second
respondent, was the further finding, to which I
have already made
reference, that desertion could not be justified in this case because
in the first place, Visser had tendered
his services at the Tzaneen
Fire Station. Secondly, the evidence, particularly of Ms Mathebula
on behalf of the appellant,
indicated, contrary to the letter of
dismissal, that the appellant, or at least certain of the appellant’s
officials, knew
well that Visser was at Tzaneen and consequently knew
about his whereabouts.
The court
a quo
dismissed the review application, as I have
already noted. In particular, Cele AJ held that the conduct of
Visser were such as
to gainsay the arguments of the appellant that
the only options which were available to Visser pursuant to the
decision of transfer,
was to invoke one or other of the provisions of
SALGA agreement. The following passage from this judgment of Cele
AJ’s judgment
is particularly relevant:
“It is common cause between the parties that Mr Visser
conditionally accepted his geographical relocation to Giyani.
In the
consideration of his transfer, he had a right to be consulted and to
agree to such transfer. If he did not agree to the
transfer, he
might probably have ended in the pool, in terms of clause 3.1.10
unless an alternative reasonable post was agreed
upon by him and the
applicant. Mr Visser was clearly entitled to a response to the
conditional acceptance of a geographical relocation.
The letter
which the applicant issued to limit the travelling claim payment to 3
months was certainly not a response to the conditional
acceptance of
a transfer (that refers to the letter of Mr Maake of 17 December
2003).
There appears to be merit in the second respondent’s finding
that Mr Visser did not receive that letter. Apart from the absence
of
proof of its delivery, Mr Visser would probably have made reference
to it in his subsequent correspondence with the applicant.
It is
also not the applicant’s case that this letter was an answer to
the conditional acceptance of a transfer. Ms Mathebula’s
evidence corroborates the version of Mr Visser that no response was
given by the applicant to the conditional acceptance of the
transfer.
Until such time that the parties negotiated in full, the form of a
geographical relocation of Mr Visser, such transfer process
could not reasonably be held to have been finalised”.
Cele AJ then went on to say:
“The conditional acceptance of the geographical relocation was
in itself reasonable. It left room for parties to negotiate
whether
or not Mr Visser was to be paid for his travelling costs. If
the applicant chose to decline such payment, it would
have been up to
Mr Visser whether he repudiated his agreement to the transfer. The
parties would then be left to consider alternatives.
It is only at
the stage that Mr Visser could also consider whether to resort to the
dispute or appeal processes open to him.
It is the applicant’s
non cooperation which prevented him from having recourse to these
processes”.
So much for the judgment of Cele AJ and in addition the decision by
way of an arbitration award of the second respondent. It
is
important to make the following trite observation. The mandate of
Cele AJ on review of the decision of the second respondent
was to
come to the conclusion that the particular decision was one which on
all the facts which I have set out, could or could
not have been
arrived at by a reasonable decision maker.
Mr Cassim, who appeared together with Mr Mosam on behalf of the
appellant, submitted that the court was correct in stating that
the
review turned on whether the placement process had been finalised.
However, in his view the court had not simply been materially
incorrect but the second respondent have been clearly unreasonable in
coming to the conclusion that the process had not finalised
and
accordingly the SALGA agreement should not have been the only form of
resolution of the dispute. In particular, Mr Cassim
referred to the
fact that Visser’s union IMATU participated in the process
which led to Visser being deployed to Giyani.
Furthermore, Visser
had initially accepted the reality that he had to tender his services
in Giyani, notwithstanding the conditional
nature thereof.
Furthermore Mr Cassim submitted that Visser’s, in his view,
blatant non compliance and defiance by reporting
for duty at the
Tzaneen Fire Station was part of a strategy to ensure that he, rather
than his employer, could dictate where he
would tender his
employment. In short, Mr Cassim classified this as a dispute in
which Visser wanted to be placed on terms
and condition that suited
him and otherwise he was not prepared to work for his employer being
the appellant.
In summary therefore, the appellant’s argument are articulated
by Mr Cassim and Mr Mossel, is that the relationship
within the
parties was not that of an employer and employee because Visser had
not accepted his placement in Giyani, it was his
fault that this had
not occurred and he should have invoked the provisions of the SALGA
agreement, declared a dispute concerning
the travelling allowance
which he claimed and the matter could have been properly and
adequately resolved. Instead he had invoked
a form of self help
and was therefore to blame for the termination of the employment
agreement.
These contentions however, do not appear to me to be entirely
congruent with the thrust of all the material evidence. Briefly
summarised, in my view, the evidence placed before the second
respondent can be summarised thus:
Visser accepted the offer to move but conditionally.
In a letter of 17 November 2003, he indicated that he wanted to
negotiate arrangements insofar as that offer was concerned, in
particular the problem of relocation and consequently thereto
travelling costs.
The SALGA agreement envisaged a process of negotiation.
That process could not commence because the parties insofar as the
Visser relocation was concerned were, in a position of abeyance
1:30:01 in that appellant did not respond to the conditional offer
of Mr Visser. In other words, notwithstanding the letter
of Mr
Maake which appears to be the only written response to the Visser
conditional offer, there had been no process by which
the appellant
had articulated a firm refusal or counter offer to the conditional
offer which had been proposed by Visser.
As from 1 March 2004 and on the basis of the evidence, to the
appellant’s knowledge, particularly Ms Mathebula, Visser
had
tendered his services at Tzaneen.
On the basis of this evidence, there is little to justify the
contention Mr Visser had deserted his post.
I return to that point which was urged upon us by Mr
Ackermann, who appeared on behalf of the respondent. The case which
had been brought before the second respondent pursuant to
the
arbitration hearing, was that the appellant had terminated the third
respondent, Visser’s services “on a charge
of desertion”.
It was on the basis of this charge that the second respondent
proceeded to examine the evidence and come
to a decision. A claim of
desertion is unjustifiable and unsustainable because even if there
was a form of unilateral action on
the part of Visser, it did not
amount to desertion and certainly, as I have indicated already, it
did not prompt a response on
the part of the appellant to negotiate
in relation to the conditional offer which had initially been made,
or I might add, the
further correspondence to which I have made
reference of Visser, in which he claimed that the appellant was in
breach of its undertaking
with regard to transport costs.
When it comes to the question of the procedural evidence, it
appears that very little notification was generated by the appellant
to the respondent with regard to its decision to dismiss. Only after
the letter of dismissal was generated, were there some attempt
to
hold a disciplinary enquiry. There can be no question that in this
particular regard, procedural fairness had hardly been complied
with
in terms of which are required by the law.
To summarise:
The approach which has to be adopted by this court, is not whether
it would have found that the dismissal was justifiable, but
whether,
on the evidence which was placed before the second respondent, the
second respondent comported herself in regard to the
decision in a
manner which was congruent with that of the reasonable decision
maker. On any stretch of the test of reasonableness,
in my view,
there is no basis to overturn the decision of the second respondent,
either on the grounds of substantive or procedural
fairness, for
reasons which I have already set out.
That leaves the question of the appropriate award.
The second respondent made an award that the third respondent be
reinstated to the position of chief fire officer and the appellant
was further ordered to finalise the issue of Visser’s placement
within 30 days of the reinstatement. Furthermore, the appellant
was
ordered to compensate Visser for a period of two months, to be
calculated at the rate of his salary at the date of dismissal.
Visser was then reinstated and compensated pursuant to this order on
or before 15 December 2004. It is the award which
was
confirmed and made an order of court by Cele JA.
In debate with counsel this morning, this court raised the issue as
to whether this was an appropriate award. This court cannot
come to
any decision as to why it has taken six years for this dispute to
finally be resolved in this court. It goes without saying
that when
disputes of this kind take so long to be resolved, the very purpose
of the LRA which is to ensure expeditious resolution
of labour
disputes is subverted. It also means that the question of remedy
becomes all the more complex. Consider the position
in this case.
Were this court to uphold the initial approach of second respondent,
Mr Visser would return to Giyani after a six
year absence. No
evidence before this court as to what happened over this six years,
whether the fires have broken out in an area,
who the fire officer
is, whether he is suitable for job, what he has been doing in the
interim.
Furthermore,
section 193(2)
of the LRA, made some provision for
these exigencies by it providing that the Labour Court or an
arbitrator must require the employer
to reinstate or reemploy the
employee, unless it is not reasonably practical for the employer to
reinstated or reemploy the employee
(Section 193(2)(c)
of the LRA).
Realising this difficulty, Mr Ackermann contended that an
appropriate award would be to reinstate Visser as the chief fire
officer
for Giyani, subject to 12 months compensation and payment by
the appellant of the pension contributions during the previous six
year period. That particular approach does not resolve the
difficulties which I have outlined. Mr Ackermann’s attempt to
classify appellant’s approach as seriously lacking in moral
integrity ignores the core of the dispute. In substance, the
third
respondent did not want to go to Giyani. He said so in terms. If he
was going to Giyani, he insisted on certain further
payments and that
demand in essence what caused the entire dispute to finally end up in
this Court. That he was substantively
and procedurally unfairly
treated is made clear from this Court’s finding. That he
should be reinstated in a job which he
did not want in the first
place, is an entirely different matter. It is impractical to send
him back to Giyani after such a long
period of time, when assessed in
terms of the evidence available.
For this reason, it appears to me that this court should follow the
approach which was prefigured in
section 193(2)(c)
of the LRA which
is to ensure that the unfairness which was visited upon the appellant
should be responded to by way of an award
of compensation and that
the matter should then be brought to finality.
There is a further question of costs. There is firstly a cross
appeal which is really a
de minimis
matter because it turns on
whether in the opposition to the making of the second respondent’s
award an order of costs which
was opposed, should have been visited
with costs. To the extent that the matter was opposed in the court
a
quo
and that Visser won, those costs should have, in their
totality, have been granted.
It is another matter where we consider costs with regard to this
hearing. Mr Ackermann submitted that firstly, The nature of
appeal
had not raised the question of costs on appeal nor which presumably
may have allowed Visser the opportunity to reconsider
his position
and negotiate a settlement. That is in the realm of speculation.
What is clear, is that there has been a measure
of success obtained
by the appellant because the remedy which is now to be granted is
significantly different from that which formed
the basis of Cele AJ’s
order. Furthermore, it has resulted in a significant diminution of
the amount of money which
the appellant will be required to pay to
third respondent.
However, I would consider a fair and equitable decision to be that
there should be no order as to the costs on appeal. For these
reasons therefore, I would made the following order:
The appeal is dismissed insofar as the fairness of the dismissal of
the third respondent is concerned. It is upheld insofar as
the
remedy is concerned.
The order of the court
a quo
is therefore set aside and
replaced with the following order:
The review application of second respondent’s decision to
dismiss the applicant is dismissed with costs;
The arbitration award issued by the second respondent on
23 November 2004, is altered so as to read as follows:
The dismissal of the applicant is declared to be both substantively
and procedurally unfair.
The respondent is ordered to pay the applicant an amount of
compensation, being 12 months remuneration, calculated at the rate
of
the applicant’s salary at the date of his dismissal. Such
remuneration is to be paid to Mr Visser by 1July 2010.
The costs incurred in making the arbitration award an order of
costs, are awarded in favour of the applicant.
_________________________
DAVIS JA
TLALETSI AJA
: )
HENDRICKS AJA
: ) Concur
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