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[2013] ZALAC 11
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Minister of Public Service and Administration and Another v Kaylor (CA18/12) [2013] ZALAC 11; [2013] 9 BLLR 858 (LAC); (2013) 34 ILJ 3111 (LAC) (11 June 2013)
Reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Case no: CA18/12
In the matter between:
THE MINISTER FOR PUBLIC SERVICE
AND ADMINISTRATION
..............................................................................
First
Appellant
THE DIRECTOR-GENERAL OF
PALAMA NO
...........................................................................................
Second
Appellant
and
GAYLE SHERYL KAYLOR
..............................................................................
Respondent
Heard: 07 May 2013
Delivered: 11 June 2013
Summary: Unilateral change of
conditions of employment- Employer unilaterally placing employee in
new post- not permissible for
employer to place an employee in a new
post without any meaningful consultation.
Authority to create a new post in
terms of the Public Service Act- necessary delegation needed by
employer to create a new post-
delegation lies with the executive
authority, the Minister responsible for the particular department. No
proof that the Minister
has delegated to employer any power to create
new post- employer exceeding his powers in creating the new post
without the necessary
delegation of powers.
Appeal dismissed with costs -
Labour Court decision set aside and substituted- appointment of
respondent to the position of Chief
Director: Quality Assurance
reviewed and set aside. Appellants ordered to engage in meaningful
consultation within 90 days of the
judgment with the respondent
.
Coram: Tlaletsi ADJP, Davis JA and
Coppin AJA
______________________________________________________________________
JUDGMENT
______________________________________________________________________
DAVIS JA
Introduction
This is an appeal against a judgment
of Steenkamp J in the Labour Court, in terms of which he reviewed
and set aside the respondent’s
appointment to the position of
Chief Director: Quality Assurance, in the Public Administration
Leadership and Management Academy
(‘PALAMA’). The
appointment had been made by second appellant on 8 July 2011 with
respect from 1 April 2011.
It is common cause that, prior to
this appointment, respondent had been employed by PALAMA in the
position of Chief Director:
Business Development with effect from 1
July 2009. The respondent worked from Cape Town. The appointment
from 8 July 2011 was
to take up a post in Pretoria, the relevance of
which will become apparent after an examination of the key facts
relating to
the dispute.
The factual matrix
Many of the facts in the dispute are
common cause and consequently can be set out briefly. Respondent
applied for two Chief Director
positions which were advertised by
PALAMA during February 2009. The advertisements for these positions
indicated that, while
it was envisaged that ‘most’
appointees would work in the Pretoria head office, appointments were
also considered
for Cape Town, Durban and Johannesburg. Applicants,
who were only available to be appointed in any or one of these three
locations,
had to indicate accordingly.
During the employment interviews,
respondent indicated to the selection panel that, as a result of
personal circumstances, she
could only be based in Cape Town and
relocation to Pretoria was not an option for her. She was appointed
to the position of Chief
Director: Business Development Provincial
and Local Government with effect from 1 July 2009. In terms of her
employment contract
she was to serve ‘the employer at such
place as may from time to time be directed by the employer or any
other officer
duly authorized thereto in this respect’.
On 12 November 2010, respondent
received a directive from the second appellant instructing her to
relocate to the head office
of PALAMA in Pretoria. She made certain
representations to second appellant in relation to this decision.
For example, in a letter
of 23 November 2010, she wrote to second
appellant:
‘
I
believe that your decision to direct me to relocate is unfortunately
not reasonable nor is it arrived at in a procedurally fair
manner.
Aside from the two meetings in which ‘relocation’ was
raised, there has been no proper consultation with me
so as to allow
me an opportunity to make any meaningful representation to you on
these very important terms and conditions of my
employment at
PALAMA
.’
Notwithstanding these
representations, she received another instruction from the second
appellant on 14 January 2011 to relocate
to Pretoria, failing which
she would be disciplined for insubordination. Further
representations to the second appellant followed,
in which
respondent requested that a proper consultation process be initiated
in relation to the relocation directive. In this
letter, she
reiterated her view that the decision to relocate her was
unreasonable and that there had been unilateral change
in the
condition upon which she had accepted employment at PALAMA.
Notwithstanding this representation, a further instruction
was
received from second appellant on 28 January 2011 to relocate to
Pretoria in four days upon receipt thereof, failing which
she would
face disciplinary proceedings.
On 1 February 2011, she lodged a
formal grievance in relation to the decision to relocate her with
first appellant, in which she
complained that the decision to
relocate her had been made without due and proper consultation. On
30 March 2011, before any
decision had been taken by first appellant
in respect of this grievance, second appellant announced a new
organisational structure
for PALAMA with effect from 1 April 2011.
In terms of this new structure, respondent’s existing position
was abolished
and she was appointed to the new position of Chief
Director: Quality Assurance based in Pretoria with effect from 1
April 2011.
Respondent avers, in uncontested
evidence that she found out about this new position by way of a
conversation with a junior staff
member who attended the meeting in
Pretoria where the general restructuring and her placement into the
new position had been
announced on 30 March 2011.
In his answering affidavit second
appellant provides the following explanation for the appointment to
the new post:
‘
When
I did the matching and placement applicant was found to be the best
candidate for the position of Chief Directorate: Quality
Assurance.
But the fact is that consultative meetings were held with employees
where the changes were discussed. People were informed
that they
could be affected with this by different placements. The consultative
meetings were open to everyone. If the applicant
had attended those
meetings she would know about this.’
On 18 April 2011, respondent received
a response to her grievance in relation to the initial decision to
relocate her. In terms
thereof, first appellant wrote that he had
instructed second appellant to consult with respondent and to
consider her personal
circumstances.
On 25 and 30 May 2011, second
appellant met and consulted with the respondent in relation to the
relocation directive and the
restructuring of PALAMA which had
already taken effect on 1 April 2011. Following these meetings,
respondent made further representations
to the second appellant in
relation to the relocation directive and directed certain inquiries
to the Head of Corporate Services,
in relation to the restructuring
process, enquiries which were never responded to by the Head of
Corporate Services.
Dissatisfied with this impasse,
respondent wrote to first appellant requesting his intervention on 4
August 2011. When by 16 August
2011 she had received no response,
she lodged a grievance with the General Public Service Sectorial
Bargaining Council (‘GPSSB’)
complaining about the
relocation directive as well as the directive placing her in a new
post which she contested amounted to
a unilateral change of terms
and conditions of her employment.
On 16 September 2011, first appellant
confirmed that he was satisfied with the process of consultation in
relation to the relocation
issue and, further, that he was in
agreement with second appellant’s directive that respondent
should relocate to Pretoria.
On 30 September 2011 second appellant
directed the respondent to relocate to Pretoria on 1 November 2011.
On 18 October 2011 the GPSSBC advised
that matters concerning an alleged unilateral change to terms and
conditions of employment
could not be arbitrated by it and that it
would therefore be ‘closing the case’.
Pursuant thereto, on 19 October 2011,
respondent obtained an urgent interim interdict in the Labour Court
in which the court ordered
a stay of the implementation of the
relocation and placement directives, pending the determination of
the application for review
of that relocation directive and her
appointment into the position as Chief Director: Quality Assurance.
The decision of the court
a quo
By the time the respondent sought
final relief by way of a review in terms of s 158 (1)(h) of the
Labour Relations Act 66 of 1995
(‘LRA’) from the Labour
Court, she no longer sought any order from the court in relation to
the first directive,
in terms of which she had initially been
ordered to relocate to Pretoria. That directive, and the relief
which was sought as
a result thereof, had effectively been rendered
moot by second appellant’s second directive that she take up
the position
of Chief Director: Quality Assurance in Pretoria. In
short, the court
a quo
was solely concerned with whether this
placement directive should be reviewed and set aside.
In interpreting s 158(1)(h) of the
LRA, Steenkamp J found that the review jurisdiction within this
section was based on the doctrine
of a legality which implied that
public officials could only exercise their powers and perform their
functions as is permissible
and conferred upon them by law.
Furthermore, any exercise of a power conferred by law had to be
exercised in a manner which was
not arbitrary, unreasonable,
irrational and which was not procedurally unfair.
Applying these concepts to the
present dispute, the learned judge found that the second appellant
had not consulted the respondent
before he issued the directive
which appointed her to the new position of Chief Director: Quality
Assurance at the PALAMA head
office in Pretoria.
In addition Steenkamp J found that in
terms of s 9 of the Public Service Act of 1994, the ‘executive
authority’ was
the authority, which was granted the power to
appoint any person in accordance with the Act, in such a manner and
in such conditions
that may be prescribed. Executive authority was
defined in this case as first appellant. While s 42A(1) (a) of the
Public Service
Act provided that the first appellant could delegate
to the second appellant any power conferred on the first appellant
by the
Act, appellants had provided no proof of such delegation.
Accordingly, Steenkamp J found that the placement directive had not
been lawfully issued and therefore stood to be set aside in terms of
s 158(1)(h) of the LRA.
For these reasons, he ordered that
the respondent’s appointment to the position of Chief
Director: Quality Assurance should
be reviewed and set aside and
that the second appellant should be ordered to engage in a full
consultation process with the appellant
within one month of the
judgment ‘
with regard to
suitable alternative positions either in PALAMA or in another
department in Cape Town’
. If a suitable alternative
position was available in another department, Steenkamp J ordered
second appellant to do all things
necessary to engage with the
respondent, the Minister and/or the head of the relevant department
with regard to the transfer
of the respondent from that department.
In the event that no suitable alternative position was available,
second appellant was
directed to engage in a consultation process in
accordance with section 189 of the LRA.
The appeal
In the heads of argument prepared by
Mr Tokota and Mr Gwala, on behalf of the appellants, the submission
was made that, as the
cause of action by the respondent was based on
an alleged breach of contract in that the second appellant had
allegedly breached
the terms and conditions of the contract in a
unilateral fashion, his conduct had not amounted to administrative
action and therefore
was not subject to judicial review. Further, as
respondent had relied on contract and eschewed any reliance on the
Promotion
of Administrative Justice Act 3 of 2000 (‘PAJA’),
her remedy did not rely in a review of the decision of the second
appellant. When the matter was argued before this Court, Mr Dukada,
who appeared together with Mr Gwala on behalf of first and
second
appellants, did not persist with this line of attack.
This was a decision wisely made.
Section 158(1)(h) empowers the Labour Court to review any decision
taken or any act performed
by the State in its capacity as an
employer on such grounds as are permissible in law. The respondent’s
case was that a
decision had been taken which was not permissible in
law for two reasons: there had been no proper consultation and
secondly
the post which she had been offered had not been properly
constituted, in that it was created in breach of the relevant
provisions
of the Public Service Act.
The case thus had nothing to do with
PAJA. It fell squarely within the scope of an employment dispute.
See
Gcaba v Minister for Safety and Security
2010 (1) SA 2038
(CC) at para 68. See also the instructive article of Halton Cheadle
“
Deconstructing Chirwa v Transnet
” 2009 (30) ILJ
741, where the learned author emphasizes the important distinction
between the right to administrative action
in terms of s 33 of the
Republic of South Africa Constitution Act 108 of 1996 (‘the
Constitution’) and labour relations
dealt with in terms of s
23 of the Constitution and given express content by the LRA.
It is not permissible in terms of the
LRA for an employer, such as first and second appellant, to decide
to place an employee
in a new post without any meaningful
consultation. See
Nxele v Chief Deputy Commissioner, Corporate
Services, Department of Correctional Service and others
(2008)
29 ILJ 2708 (LAC) at para 61 and 69, where Zondo JP (as he then was)
said: ‘
A decision to
transfer an employee that is made before the employee can be heard
is generally speaking unlawful and invalid in
law.’
An examination of respondent’s
answering affidavit shows devastatingly that no proper consultation
took place between the
appellants and respondent prior to the
appointment of the new post on 1 April 2011. All that was said is
that two meetings took
place on 25 and 30 May 2011. At those
meetings second appellant avers:
‘
I
pertinently pointed out the operational needs and the strategic
imperatives of the Academy which dictated that she be stationed
at
Pretoria for her to effectively, efficiently and economically
contribute towards the achievement of the strategic as well as
the
financial objects of the Academy.’
Second appellant then refers to the
second meeting in which the respondent presented two options which
were designed to ensure that
she remained in Cape Town. No mention
was made in these paragraphs or anywhere else in second appellant’s
answering affidavit
as to the new post which had been created and as
to any meaningful engagement which had taken place between second
appellant and
respondent, pursuant to the decision to abolish the
position of Chief Director: Business Development and appoint the
respondent
to the newly created post of Chief Director: Quality
Assurance in Pretoria.
In short, there was no consultation
which was sufficient to justify the conclusion that the appellants
had acted fairly and in
a manner which is permissible in law, which
term incorporates the right to procedural fairness and the
concomitant right to be
consulted in such circumstances. Given that
no consultation took place regarding respondent’s ability to
function in the
new post, or where it was to be located, this case
can hardly fall within the limited exception referred to by Zondo JP
in
Nxele,
supra
at para 59.
The second argument concerned the
question of the establishment of the post of Chief Director: Quality
Assurance which had been
found to have been created unlawfully and
in an invalid fashion by the court
a quo
.
The power to appoint public servants
to departments in the public service and transfer employees from one
post or position to
another post or position in the same or any
other department is a power which, in terms of the Public Service
Act, resides with
the ‘executive authority’, which as
was already noted, means the Minister responsible for the particular
department.
In terms of s 42A(1) (a) of the Public Service Act,
first appellant may delegate to second appellant any powers which
had conferred
upon him by the Act. In terms of s 42A(7), any
delegation of such a power shall be in writing.
In the founding affidavit, respondent
challenged second appellant’s authority to create the new post
of Chief Director:
Quality Assurance. In response to this challenge,
second appellant alleged that he was ‘responsible’ for
the efficient
management and administration of PALAMA, which
included the effective utilization and training of staff. No proof
in writing
was provided by second respondent as to how the authority
to create new post had been delegated to him by first appellant.
To the extent that second appellant
claimed that his powers were derived from the terms of the
delegation of authority, which
he annexed to his answering
affidavit, it was clear that this delegation had been made by the
then Minister of Public Service
and Administration in 2007, in
respect of PALAMA’s predecessor, the South African Management
Development Institute (SAMDI),
and did not constitute proof of a
delegation of authority to the second appellant to make appointments
to PALAMA.
In the light thereof, I find, on both
grounds, that the court
a quo
was correct in finding,
pursuant to s 158(1)(h), that the placement directive fell to be
reviewed and set aside in terms of this
section. There were no prior
consultation with the respondent and further second appellant had
exceeded his powers in creating
the new post, if he acted on the
basis of the delegations that he relied upon in his answering
papers.
Relief
The further question that arose
relates to the relief which should have been ordered. In my view,
the court
a quo
overreached the scope of appropriate relief
when it granted an order for the second appellant to engage in a
consultation process
with the applicant for a suitable alternative
position in Cape Town, either in its department or another
department. No evidence
was provided to the court, which would have
shown how second appellant could comply with such a specific order.
Furthermore,
the purport of this order served to circumscribe the
essential purpose of the consultation process, which was to ensure
that
negotiations took place between the parties which could resolve
the dispute. If second appellant was constrained by an order of
court to create a post in Cape Town which was beyond his power, such
as in another department government or, arguably, within
the
department but within the Cape Town area where no such post could be
created, this would render significant a component of
the
consultation process to be meaningless.
For these reasons therefore, the
order of the court
a quo
is set aside and replaced with the
following order:
1. The appeal is dismissed with costs.
2. The order of the court
a quo
is set aside and replaced with the following order.
2.1 The applicants’ appointment
to the position of Chief Director: Quality Assurance is reviewed and
set aside.
2.2 The second respondent is ordered
to engage in the full consultation process with the applicant within
90 days of this judgment
with regard to a suitable position in PALAMA
or in another department.
2.3 The respondents are ordered to pay
the applicant’s cost.
_________________
Davis JA
I agree
________________
Tlaletsi ADJP
I agree
________________
Coppin AJA
APPEARANCES:
FOR THE APPELLANTS: BR Tokota SC and
Adv M Gwala
Instructed by the State Attorneys
FOR THE RESPONDENT: Adv ML Sher
Instructed by Bowman Gilfillan
Attoneys