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[2014] ZALAC 64
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South African Municipal Workers Union and Another v South African Local Government Bargaining Council and Others (JA 84/13) [2014] ZALAC 64; (2015) 36 ILJ 441 (LAC) (23 October 2014)
R
EPUBLIC
OF SOUTH AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no:
JA 84/13
In the matter
between:
SOUTH AFRICAN
MUNICIPAL WORKERS
UNION
..............................................
First
Appellant
HLONIPHO
MM
........................................................................................................
Second Appellant
and
SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
MATLALA L:
N.O
....................................................................................................
Second
Respondent
EKURHULENI
METROPOLITAN
MUNICIPALITY
...........................................
Third
respondent
Heard:
10 September 2014
Delivered:
23 October 2014
Summary: Review
of arbitration award. Employee applying for early retirement after
unsuccessful lodging grievance against her superior-
employee
withdrawal of early retirement refused- employee contending her
dismissal and that her superior not having authority to
approve her
application - evidence proving that superior had authority and had
approved employee’s early retirement application-
commissioner
dismissing employee claim and finding that employee was not
dismissed. Labour Court upholding commissioner’s
decision.
Appeal dismissed with costs.
Coram:
Musi JA et Murphy AJA et Setiloane
AJA
JUDGMENT
MUSI JA
[1]
This is an appeal against the judgment of
the Labour Court wherein it dismissed the appellants’ review
application. The appellants
unsuccessfully applied for leave to
appeal in the court a
quo.
A
subsequent petition to this court was successful. The appeal is
therefore with the leave of this Court.
[2]
The second appellant (Ms Hlonipho or the
employee), who was a member of the first appellant (SAMWU or the
Union), was employed by
the third respondent (the Municipality) since
1996 in various capacities, culminating in her being appointed as the
Executive Manager:
Multi-Sectoral HIV and AIDS Unit. On 03 September
2007, she applied to terminate her service with the Municipality by
way of early
retirement. On 04 September 2007, she requested to
withdraw the said application. Her application to withdraw was
refused. She
was not immediately informed about the refusal. On 25
September 2007, she noticed that she did not receive her monthly
salary.
Upon enquiring, she was informed on 25 September 2007 that
the Executive Director: Health, Dr Mashazi, did not approve her
application
to withdraw her application. On 05 October 2007, the lock
of her office door was changed and she found a letter attached to the
door requesting her to vacate her office.
[3]
She referred an unfair dismissal dispute to
the first respondent, the South African Local Government Bargaining
Council (SALGBC).
Conciliation was unsuccessful. She then referred
the dispute to arbitration. The Municipality raised various points in
limine
to
the effect that the SALGBC had no jurisdiction to arbitrate the
dispute. On 18 February 2009, Commissioner Serero ruled that
the
SALGBC had jurisdiction and therefore dismissed the points
in
limine
. The second respondent
(arbitrator) ultimately presided over the arbitration proceedings. He
found that Ms Hlonipho failed to prove
that she was dismissed. He
therefore dismissed the claim. The appellants, being dissatisfied
with the arbitrator’s decision,
applied unsuccessfully to the
court a
quo
to review and set aside the decision. This appeal is against the
dismissal of the review application.
[4]
The facts of this case are mostly common
cause. Ms Hlonipho was initially employed by the Alberton
Municipality as the Head of its
Health Department. After the
amalgamation of various municipalities in the East Rand to form the
Municipality, she led the Municipality’s
HIV and AIDS Unit. She
reported to Mr Sibeko, the Strategic Executive Director in the City
Manager’s Office.
[5]
On 13 June 2007, after an institutional
review process, Ms Hlonipho was informed that it was resolved by the
Municipality that her
unit will resort under the Municipality’s
Health Department with effect from April 2007. She was also informed
that with
effect from 20 June 2007, she would have to report to the
Director: Family Health, Mrs Botha.
[6]
She was dissatisfied with that decision.
She lodged grievances against Dr Mashazi, the Executive Director:
Health and Mrs Botha.
The first grievance being on 08 June 2007 and
the last on 08 October 2007. She was of the view that Dr Mashazi and
Mrs Botha were
making “unreasonable and unprocedural demands”
and thereby victimizing her. Most of her grievances were considered
by Mr Sibeko, the Deputy City Manager: Operations, at a properly
constituted grievance hearing and rejected on 10 July 2007.
[7]
The grievances lodged after the ones that
formed the subject matter of the 10 July 2007 report were not
resolved. I pause to mention
that these grievances were nothing but
the old grievances recycled. She felt aggrieved that she did not
receive a response from
the Municipality in connection with her
grievances and referred a dispute to the SALGBC.
[8]
The strain of strife became unbearable and
on 02 September 2007, she discussed her intention to resign with her
son and nephew.
They both convinced her not to resign.
[9]
According to her, the most important
component of her responsibilities- that of being responsible to
manage the AIDS Council- was
taken away and given to a junior staff
member in her unit. That fact, coupled with the fact that her
grievances were not attended
to made her feel despondent.
[10]
On 03 September 2007, she received an
e-mail from Ms Botha, which according to her, was the last straw, and
she decided to terminate
her employment. She was very emotional and
downloaded the termination form and completed it. She considered her
options and opted
to apply for early retirement rather than
resignation. Her decision was informed by the fact that she qualified
to apply for early
retirement because she already reached the
qualifying age of 55 years. She gave the form to Mrs Botha who asked
her why she wanted
to go. She told Mrs Botha that she (Botha) knew
the reason and that it is the best option that she could take because
she would
not lose her benefits. She lodged another grievance on the
same day.
[11]
After she submitted the form, she went to a
shop steward. The shop steward advised her to withdraw the
application for early retirement.
[12]
On 04 September 2007, she wrote a request
to withdraw her application for early retirement to Dr Mashazi. She
stated the following:
‘
I
have not yet proceeded with the application for my early retirement
to HRMD and Finance due to important personal outstanding
matters
that are delaying beyond my control. I will not retire at the end of
September and request withdrawal of my application.
As soon as the
outstanding issues are sorted out, I will continue with the process
and I will inform you in due course.’
[13] On the same day
Mrs Botha requested her to provide her (Botha) with the details of
the outstanding personal matters so that
she could make a
recommendation to Dr Mashazi. She responded by stating that the
outstanding matters were her “financial
planning matters”.
She heard nothing from Mrs Botha or Dr Mashazi.
[14] On 25 September
2007, she wanted to withdraw money and noticed that her salary was
not paid into her bank account. On enquiring
why her salary was not
paid she was informed that payment will be effected on 30 September
2007 because her employment was terminated.
She also went with a
representative of the union to Mrs Botha to enquire about the salary
debacle. Mrs Botha wrote her an email
on 25 September 2007 at 14h15
informing her that:
‘
Your
request to retract your request for early retirement has not been
approved by the Executive Director of Health.’
In spite of this
e-mail she continued to report for duty.
[15] On 02 October
2007, she wrote the following e-mail to Mrs Botha:
‘
I
hereby request an update of the ED’s response to my request for
withdrawal of the request for early retirement after advise
(sic) by
Mr Hoffman on the 27
th
September 2007.’
[16] On 04 October
2007, Mr Hoffman wrote the following e-mail to the appellant:
‘
I
think that you are aware that your ED did not accept your withdrawal
as I saw the email referred to you by Annatjie (Mrs Botha)
on behalf
of the ED. My e-mail with the letter from Richard copied to your
serve (sic) as further confirmation that your request
for early
retirement is upheld as per instruction from you (sic) ED. Please
contact me should you need further clarity.’
[17] Mrs Botha
testified, at the arbitration hearing, that the appellant reported to
her. On 03 September 2007, the appellant entered
her office and gave
her the request for early retirement form (the form). She did not
expect the appellant’s application
and therefore asked her
whether that is what she thought it was to which the appellant
answered in the affirmative. The appellant
told her that she “felt
that she wants to take early retirement,” and that she had
personal matters that she wanted
to attend to. She took the form and
said “okay, I accept it,” and signed it. She then
requested the appellant to take
the form to Dr Mashazi. When she was
asked why she requested the appellant to take the form to Dr Mashazi
she responded thus “because
he (sic) is the accountable officer
and she has got the delegated power to actually except (sic) a
retirement or a resignation.
I have not got it on my level.”
She asked the employee to give her a copy of the signed form, which
she did. Later the same
day, she wanted to give Dr Mashazi a copy of
the form and the latter told her that she knew about it.
[18] Dr Mashazi
testified that the form is a standard form that must be completed by
the employee, the immediate supervisor and
the Head of Department
(HoD). She confirmed that she signed the form in her capacity as HoD
of the Health Department.
[19] She testified
that on 03 September 2007, Ms Hlonipho arrived at her office with the
form, and handed it to her. She asked Ms
Hlonipho whether she was
sure of what she was doing. She said yes, she had reached the age of
55 and that she was going to look
after her grandchildren. Dr Mashazi
signed the form in the appellant’s presence and said “Good
luck in looking after
your grandchildren” where after the
appellant left her office.
[20] Dr Mashazi
confirmed that she received Ms Hlonipho’s request to withdraw
the application for early retirement. Her evidence
in this regard is
as follows:
‘
Having
accepted the retirement, that is sealed. When we received this
retraction we referred the matter to HR and Legal Department
to
assist. They advised that the Executive Director is mandated to
accept the withdrawal of her retirement and that decision was
communicated (not to accept the withdrawal) to Maria on 25 September
2007.’
[21] During
cross-examination, she was asked “you said you were mandated to
accept or refuse appointment or withdrawal of
termination.” Her
answer was “Executive Director is mandated in terms of the
systems of council”. The following
is recorded, in the
transcript of the arbitration proceedings, as part of the
cross-examination:
‘
Question:
I am going to hand you dedicated powers and ask you to show us where
in that bundle it is shown
Answer: Page 96
Question: I put it
to you that it is not in there.
Answer: It is. If I
can terminate, I can appoint.
Question: I put it
to you that page 98 I can do that.
Answer: Termination
of Maria’s job was accepted or confirmed by the Deputy City
manager and by myself and it was off. I can
appoint or terminate from
level 5 upwards as Executive Director. The HOD is the last person to
sign the termination form...
Question: It is the
applicant’s case that you had no power to accept her
termination.
Answer: I have the
power. If I am not delegated to do that it will not be, it will not
be processed, according to council processes
or procedures.
Question: I put it
to you in terms of the delegation of power you are not entitled to
accept that termination
Answer: That is your
opinion. In terms of council systems I am delegated as Executive
Director.
Question: You said
Mr Leybrandt, the Acting City Manager at the time accepted the
termination
Question (sic): we
communicated with the City Manager, the withdrawal.’
During
re-examination the following is recorded:
‘
Question:
Who requested this report?
Answer: Mr Johan
Leybrandt, Acting City Manager who requested this document.
Question: Did he
communicate with you about this?
Answer: Mr
Leybrandt? Yes. Let me shed. He said you may or may not accept.
Acting City Manager was Mark Wilson. Mr Leybrandt
was the Deputy City
Manager. Mr Leybrandt was the Deputy City Manager...’
[22]
The arbitrator had regard to section 186(1) of the Labour Relations
Act 66 of 1995 (the Act) and concluded that a dismissal
can only
arise in six different situations.
[1]
He
concluded that the appellant’s claim was not based on any of
the instances mentioned in the Act. He also considered constructive
dismissal (Sec 186 (1)(e)) and concluded that this was not a case of
constructive dismissal. He ruled that the appellant failed
to prove
the existence of a dismissal and consequently dismissed the claim.
[23] The court
a
quo
also found that the appellant was not constructively
dismissed. In respect of the contention that she was dismissed, the
court
a quo
said the following:
‘“
This
contention seems to be oblivious of what happened on 03 September
2007. On this day, Hlonipho signed a form, which was titled
Resignation/ Termination form. The reason she provided for
resignation was retirement. The effect of this in law is that she was
herself terminating her employment. A resignation is a unilateral act
and it requires no acceptance by the employer. In such instances,
where an employee resigns, there is no dismissal.’
[24] The appellants
submitted that the conduct of the Municipality amounted to a
dismissal as contemplated in Section 186 (1)(a)
of the Act. They
contended that Dr Mashazi did not have the requisite authority to
accept or approve Ms Hlonipho’s request
for early retirement
and, secondly, that the acceptance of the request, should we find
that Dr Mashazi had the requisite authority,
was communicated, to
her, after she had requested to withdraw her application.
[25] Mr Maenetjie,
on behalf of the appellants, argued that the evidence of Dr Mashazi
to the effect that the termination was accepted
or confirmed by the
Deputy City Manager and herself was an indication that there was no
proper acceptance or approval of the application
to go on early
retirement when the application was withdrawn. According to the
appellants, there is no evidence as to when the
Deputy City Manager
confirmed or accepted the termination. Mr Masina, on behalf of the
Municipality, submitted that there was indeed
proper acceptance and
communication.
[26] In
Maada v
Member of the Executive Council of the Northern Province for Finance
and Expenditure and Another
(JA 34/01)
[2003] ZALAC 2
(19 March
2007) at para [33] to [36] the following was said
“
[33]The
general principle in our law is that an open offer – that is
one which the offeror has not bound himself to keep open
for a
specified period – can be withdrawn at any time before it is
accepted. A decision by the offeree to accept the offer
does not
constitute an acceptance of the offer if it has not yet been conveyed
to the offeror. An acceptance must be communicated
to the offeror for
it to be effective.
[35] Is there any
difference between the acceptance of an offer and the approval of the
request or application within the context
of thus case? I see none.
In my view in law it makes no difference that the special initiative
referred to an “approval”
of the request and not to an
acceptance of an offer. In effect the appellant offered that he be
discharged in return for the payment
to him of a special severance
package. The first respondent was entitled to accept or reject the
offer. If he was happy with the
offer, he could approve or accept it
and, once that approval or acceptance had been conveyed to the
appellant, the two parties
would have had an agreement. If he was
opposed to the appellant being discharged in terms of the special
initiative, he could reject
the request and there would have been no
agreement.”
[27] I agree. I must
however add that the acceptance or approval must be done by a person
who has the necessary authority to do
so and it must also be
unconditional and unambiguous. See
Roberts v Martin
[2005] ZAWCHC 12
;
2005 (4)
SA 163
(C).
The acceptance can be by an express
act or implied by conduct that manifests an intention to be bound by
the terms of the offer.
The communication of the acceptance will be
complete when it comes to the knowledge of the offeror. The
communication of the acceptance,
is among other factors, important as
it determines the time when and place where the contract came into
existence. Where the offeror
indicated that the acceptance should be
made and communicated in a particular manner, the acceptance must be
done in accordance
with the prescribed method. If no particular
method of acceptance and communication is stipulated then any
reasonable means of
communication will suffice.
[28]
The Labour Court correctly found that the issue before it was whether
there was a dismissal. It was also alive to the fact
that it fell on
it to determine objectively whether a dismissal existed, because
whether the SALGBC had jurisdiction or not was
a matter for it to
decide. It is trite that if there was no dismissal then the SALGBC
would not have jurisdiction to entertain
the dispute in terms of
Section 191 of the Act. See SA
Rugby
Players Association (SARPL) and others v SA Rugby (Pty) Limited and
Others; SA Rugby Players Union and Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at paragraphs [39] to [41].
[29] It seems to me
that the court
a quo
was wrong in categorising Ms Hlonipho’s
act of termination as a resignation in the conventional sense.
Although early retirement
and resignation involve a voluntary act on
the part of the employee to leave the service of the employer, they
operate differently.
[30] One must
understand and appreciate the difference between an application for
early retirement and a resignation in order to
properly resolve the
dispute between these parties. I mention a few obvious differences.
[31] Resignation can
be tendered at any time by an employee but early retirement can only
be sought after the employee has tendered
a prescribed number of
years of service and or attained a particular age. Resignation is
generally a unilateral act requiring no
permission from the employer,
whereas early retirement is bilateral, requiring the assent of the
employer. Another distinction
is that an employee who resigned is
normally denied retirement benefits but with early retirement the
employee receives such benefits.
[32] This being a
case concerning an application for early retirement, the acceptance
of the employer was required. It was therefore
not an unilateral act
which did not need the employer’s consent, as the court
a
quo
opined. The first question to consider is whether Dr Mashazi
had the necessary authority to accept the offer for early retirement.
[33] The arbitrator
found that she did have the necessary authority. The arbitrator said
the following in this regard:
‘
Dr
Mashazi further confirmed that she had the authority to appoint and
terminate contracts of employees in her department from level
5
upwards, that she discussed the withdrawal of Ms Hlonipho’s
retirement termination with the deputy city manager, was mandated
to
accept of (sic) reject it, and she elected to reject. I find the
respondent’s version to be more persuasive.’
[34] I find no fault
with the arbitrator’s reasoning and conclusion. The appellants
attempted to dispute the arbitrator’s
conclusion with reference
to what Dr Mashazi said during cross-examination. The appellants,
grasping at straws, wanted to elevate
an ambiguous, unclarified piece
of evidence into the loadstar.
[35] It is
profitable to repeat the relevant part of Dr Mashazi’s
evidence. She said:
‘
Termination
of Maria’s job was accepted or confirmed by the Deputy City
Manager and myself and it was off. I can appoint and
terminate from
level 5 upwards as Executive Director. The HOD is the last person to
sign the termination form.’
[36] It is not clear
when the acceptance or confirmation by the Deputy City Manager
occurred. The confirmation or acceptance by
the Deputy City Manager
is in any case irrelevant. It can only become relevant if it is
showed that it was indeed a requirement
for the acceptance of the
offer to be binding. There was no such evidence.
Au contraire,
all
the evidence indicated that Dr Mashazi had the necessary authority.
[37] Dr Mashazi said
she had the necessary authority to approve the request. Mrs Botha
expressly testified that Dr Mashazi had the
necessary authority to do
so. Her evidence was uncontroverted.
[39] Dr Mashazi’s
evidence was properly contextualized later during cross-examination
when she was asked about her earlier
evidence. Again it is beneficial
to quote from the record:
‘
Question:
You said Mr Leybrandt, the Acting City Manager at that time, accepted
the termination
Question: (sic) we
communicated with the City Manager, the withdrawal.’
[40] It is clear
that the request for withdrawal and not the initial approval was
discussed with the Acting City Manager. If there
is still any doubt,
during re-examination she again testified that the withdrawal was
discussed with Leybrandt and he said to her
“You may or may not
accept.” In my view, it is clear that Dr Mashazi’s
evidence that it was confirmed or accepted
by Leybrandt does not mean
that Leybrandt’s acceptance was a requirement. In its proper
context, it only means that the application
to withdraw the request
was discussed with Leybrandt and he confirmed that she had the power
to accept or reject it. There is no
place on the route form for the
City Manager or Acting City Manager to sign. If it was a requirement,
one would have expected the
form to provide for his/her signature.
[41] Ms Hlonipho
also knew that it was not necessary for the City Manager or Acting
City Manager to approve the request. I say so
because she took the
form to Mrs Botha and Dr Mashazi to sign. She did not take it to the
City Manager or Acting City Manager.
In fact in her e-mail requesting
the withdrawal of her application she expressly stated the following:
‘
I
have not yet proceeded with the application for my early retirement
to HRMD and Finance...’
[42] She therefore
knew that from Dr Mashazi it had to go to the Human Resource
Management and Development (HRMD) and Finance sections.
[43] Ms Hlonipho
filed an affidavit resisting the Municipality’s points
in
limine
raised at the SALGBC. In paragraph 9 of her affidavit she
stated the following:
‘
(the)
respondent submitted a letter from the council containing the
council’s position regarding the process of early retirement
at
the council, a position which is not accepted by me as a
comprehensive exposition of the issue.’
[44] She attached a
letter written on 15 August 2008 by M Mokaba the Municipality’s
Director: Provisioning and Maintenance
to Khomotso Fambe of the
Municipality’s Legal and Administrative Services. The letter
reads as follows:
‘
SUBJECT:
POLICY ON EARLT RETIREMENT
1.
This serves to confirm that council has no
policy on early retirement.
2.
Termination of service in respect of early
retirement is subject to the provisions of the terms and conditions
service, and the
rules of the relevant pension of provident funds.
3.
Notification of early retirement /
resignation must be submitted by an employee to his/her direct
supervisor for acknowledgement
and then to the Head of Department for
approval.
4.
Then the letter will be forwarded to the
relevant Human Resources and Finance Departments for processing.
5.
The City Manager only deals with the
termination of contract (sic) of Section 57 employees.’
[45] Ms Hlonipho
stated that she did not accept this as a comprehensive exposition of
the issue but she did not say in what sense.
She also did not state
that it was an incorrect exposition of the application process.
[46] All the
evidence indicates that Dr Mashazi did indeed have the necessary
authority to approve the appellant’s request
for early
retirement, and that she did, in fact, approve it. Did she
communicate her approval to the appellant?
[47] Dr Mashazi’s
testimony is clear and unambiguous. She signed the form in Ms
Hlonipho’s presence and handed it to
her. Ms Hlonipho went to
her with the form. It can, therefore, be accepted that Ms Hlonipho
had to have known that Dr Mashazi’s
signature on the form and
the handing over of the form signified acceptance and the
communication of such acceptance.
[48] Dr Mashazi’s
testified was that she enquired from Ms Hlonipho why she wanted to
take early retirement and Ms Hlonipho
said that she wanted to look
after her grandchildren. When Dr Mashazi said “Good luck in
looking after your grandchildren,”
the appellant must have
known that the request had been approved. Dr Mashazi would not have
wished her good luck if she refused
the request.
[49] Ms Hlonipho’s
testimony demonstrates that she is very perceptive. Her highly
developed insight into her problem would
be commendable if it was
harnessed for the right purpose. She realised that if she admitted to
being in Dr Mashazi’s office
on 03 September 2007, when the
form was signed and handed over, that would spell the end of her
assertion that there was no communication
of the approval. She then
decided to put distance between herself and Dr Mashazi. In order to
achieve that, she testified that
she left the form with Mrs Botha and
that she did not know whether Mrs Botha took the form to Dr Mashazi.
She testified as follows:
‘
Arbitrator:
I need clarity on something before I hand over for cross-examination.
You handed in your application for early retirement.
Ms Hlonipho: The
application was presented to Mrs Botha as gave to Mrs Botha (sic). I
gave it straight to Mrs Botha because she
wants (sic) to sign it and
I suppose she sent () to Dr Mashazi, but I am not sure how far it had
gone the following day when I
submitted the withdrawal but I handed
it to Mrs Botha.’
During her
evidence–in-chief she testified that Mrs Botha said she will
take the form to Dr Mashazi. This was never put to
Mrs Botha, but
strangely it was put to Dr Mashazi that she asked Hlonipho why she
applied and she said “it was her grandchildren.”
This
could only have happened in Dr Mashazi’s office. This
contradicts her testimony that she did not take the form to Dr
Mashazi’s office.
[50] I agree with
the arbitrator that the version of the Municipality is more probable.
The arbitrator correctly came to the conclusion
that the appellants
did not prove that Ms Hlonipho was dismissed. In my view there was an
unambiguous, clear and instantaneous
communication of the approval.
The order of the court
a quo
should be upheld. The fairness or
otherwise of the refusal to accept the application to withdraw the
request for early retirement
need not be addressed in this judgment.
[51] The appellants
drove a case based on blatant lies. Hlonipho knew that the request
was accepted and communicated but in spite
of that, she still
litigated to this level. The law and fairness dictate that a cost
order should be made in this matter. The parties
were in any event
also
ad idem
that costs should follow the result.
[52] I accordingly
make the following order:
52.1. The appeal is
dismissed.
52.2.
The appellants are ordered to pay the costs jointly and severally,
the one paying the other to be absolved.
__________________
C J Musi JA
Murphy
AJA and Setiloane AJA concurred.
APPEARANCES:
FOR
THE APPELLANTS: Mr Maenetjie SC
Instructed
by Cheadle, Thompson & Hayson Inc
FOR
THE THIRD RESPONDENT: Mr Masina
Instructed
by: Tshingi Zebediela Inc (Kempton Park)
[1]
The
relevant parts of section 186 read as follows: “(1) DISMISSAL
means that –
(a)
An employer has terminated a contract of
employment with or without notice;
(e)
An employee terminated a contract of
employment with or without notice because the employer made
continued employment intolerable
for the employee…”