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[2015] ZALAC 56
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IMATU v Drankenstein Municipality and Others (CA01/2014) [2015] ZALAC 56 (15 April 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
CA 01/2014
Reportable
In the matter between:
IMATU
Appellant
and
DRAKENSTEIN
MUNCIPALITY
First Respondent
SALGBC
Second Respondent
C DE KOCK N.O.
Third Respondent
Heard:
24 March 2015
Delivered:
15 April 2015
Summary:
Review of arbitration award
– union contending that agreement
entered into with the municipality concerning the implementation of
the payment of allowances
to employees – arbitrator ordering
the payment of the allowances – Appeal limited on the sole
ground whether an agreement
was concluded – evidence showing
that only issue under consideration at the meeting and in the
Municipal Manager’s
statement was the compilation of the list
of employees eligible for the allowances. Contention that the
Municipal Manager concluded
an agreement for the payment of
allowances not borne out by the facts – arbitrator
misconstruing the facts in finding otherwise
and rendering
unrealistic order which necessitating the setting aside of the award.
Labour Court correct to the extent that it
set aside the award but
incorrect in remitting the matter to be heard
de novo
–
issue for which matter remitted not pleaded by union – Labour
Court’s judgment substituted with an order that
the review
application is set aside - Appeal dismissed with costs
Coram: Tlaletsi DJP,
Davis
et
Sutherland JJA
JUDGMENT
SUTHERLAND JA
Introduction
[1]
This
appeal is against a judgment of the Labour Court (Visagie AJ) which
reviewed and set aside an award of an arbitrator of the
South African
Local Government Bargaining Council (SALGBC). The arbitrator had
ordered the first respondent, the Drakenstein Municipality
(the
municipality) to implement the municipality’s “Scare
Skills Policy” and in terms thereof to make payments
of
allowances to certain members of the appellant trade union (IMATU),
who were employees of the municipality.
[1]
The Labour Court, upon setting the award aside, ordered that the
dispute be remitted for fresh adjudication, an aspect which is
addressed discretely hereafter.
[2]
The
claim made by IMATU on behalf of its members was that a collective
agreement exists which confers the benefit of money allowances
on
employees of the municipality which the municipality wrongfully
refuses to pay. The case of IMATU is unequivocally based on
a
contract allegedly concluded on 28 April 2009, in which, the
municipality was represented by its Municipal Manager, Dr Sidama
Kabanyane, and the employees were represented by their union
representatives in the Local Labour Forum (LLF).
[3]
In
argument, the reliance on this “agreement” wavered as to
its collective character and also in its reliance on an
“agreement”
of 28 April, contending that an alleged earlier “agreement”
supposedly concluded on 25 February
2009, which, though superseded by
the 28 April agreement, somehow survived in part. These
contradictions in the argument contributed
to weakening the thesis of
an agreement existing, rather than broadening the basis of support
for it.
[4]
The
critical point, however, on which the case turns, is whether a
contract entitling employees to money payments, was concluded.
Despite the issue being that crisp, an odyssey of huffing and puffing
around this issue produced a weighty record. This judgment
shall
decline the invitation to explore the several tangential issues and
shall deal only with the point dispositive of the case.
What
is the contract relied upon by IMATU?
[5]
The
claim is based on a resolution of the LLF on 28 April 2009, minuted
as follows:
‘
2. SCARCE
SKILLS
The municipal manager read his
statement regarding the implementation of the scarce skills policy
(attached hereto) to the house.
A proposed list of the most critical
skills posts, as updated on 17 April 2009 (attached hereto) is handed
to the house.
The employer’s budget will
naturally have an effect on the implementation of scarce skills
allowances and therefor will have
to be taken into consideration.
RESOLVED
(a)
The
employer will implement the revised list (updated 17 April 2009) of
employees that qualify for a scarce skills allowance by
1 May 2009.
(b)
IMATU
fully reserves its right with regard to their members who were
identified and informed that they qualify for scarce skills
as per
the original list.
(c)
The
employer will meet with individuals referred to in paragraph 2 [sic]
(
the
reference should be (b))
with a view to explain the reasons why they were taken off the list.
(d)
The
implementation of scarce skills allowances is not a permanent
arrangement and will be revised from time to time.’
[2]
[6]
The
critical passage founding the alleged obligation to make payment is
clause (a). Read alone, this minute is unintelligible. It
cannot,
per
se
,
support the appellant’s contention that money payments were
due. What does it mean to commit to “implement the revised
list”? The context for that is common cause; at an earlier
time, 25 February, a longer list of eligible employees had been
drawn
up. It had been pruned, and the pruning, which was not well received,
was, as the text of the resolution indicates, the focus
of the
discussion.
[7]
Importantly,
two other documents are alluded to in the minute; the scarce skills
policy itself and the “statement” of
the Municipal
Manager, read to the meeting. On the standard principles for the
interpretation of a contract, regard must be had
to these documents
to make sense of the text of alleged agreement. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[3]
Wallis JA held thus:
‘
[18] Over
the last century there have been significant developments in the law
relating to the interpretation of documents, both
in this country and
in others that follow similar rules to our own. It is unnecessary to
add unduly to the burden of annotations
by trawling through the case
law on the construction of documents in order to trace those
developments. The relevant authorities
are collected and summarised
in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School
.
The present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words
used
in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading
the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary
rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material
known
to those responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the
light of all
these factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to
insensible or
unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against,
the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in
regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context
it is to
make a contract for the parties other than the one they in fact made.
The 'inevitable point of departure is the language
of the provision
itself', read in context and having regard to the purpose of the
provision and the background to the preparation
and production of the
document.’ [Footnotes omitted]
[8]
The
adoption of the scarce skills policy is a decision of the council of
the municipality adopted by resolutions in meetings of
the council on
3 September 2008 and 2 October 2008.
[4]
That policy document and the statement read to the meeting of 28
April 2009
[5]
despite their
length need to be cited, save for the tables annexed to the
statement, and obviously immaterial passages. The reason
to belabour
this judgment with these citations is to relate what was ordered to
be “implemented” in the award.
[9]
The
policy reads thus, passages of significance being underlined:
‘
SCARCE
SKILLS AND RETENTION POLICY
2.1.
There is a nationwide skills shortage, mostly in technical fields. ….
2.4.
Addressing remuneration challenges
will be short-term,
the
policy will be
annually reviewed
to address issues leading to
retention and mass exit, broader/holistically. In order to achieve
this, the strategies a listed in
par 5.1 hereof, will be researched
and developed for implementation.
5.
STRATEGIES TO ATTRACT AND RETAIN SCARCE AND STRATEGIC SKILLS
5.1.
Strategies to attract and retain scarce and strategic skills
may
include
the following:
·
Payment
of allowances for the attraction and retention of scarce skills.
·
Payment
of allowances
for
the retention of strategic skills.
·
Performance
related notch increments.
·
Staff
career planning and development.
·
Maintaining
of remuneration strategies.
·
Attraction
of pre-identified individuals.
·
Maintaining
a positive work environment and climate.
6.
TECHNICAL REMUNERATION COMMITTEE
6.1. The
Municipal Manager in terms of the Municipality Systems Act (Act 32 of
2000) as amended, is
responsible, inter alia, for the appointment of
staff other than those referred to in section 56 of the said Act.
This duty include
the remuneration of staff in accordance with
national bargaining approved systems and Council’s policy
direction.
In order to assist the municipal manager in performing
these duties, a Technical Remuneration Committee must be established
to:-
·
advise
the Municipal Manager on the implementation of strategies in terms of
this policy;
·
conduct
surveys and submit proposals for consideration by the Municipal
Manager and MAYCO;
·
facilitate
the development, implementation and review of remuneration-related
strategies;
·
give
guidance, technical support and make recommendations to the Municipal
Manager on remunerations issues;
·
develop
and implement a communication strategy for remuneration-related
issues; and
·
to
advise the Municipal Manager on financial implications of the
strategies being proposed and to ensure the necessary financial
planning.
7.
IDENTIFICATION OF SCARCE SKILLS
7.1. The
Technical Remuneration Committee shall, identify occupational groups
affected by a scarce
skills challenge, using the following criteria.
…
..
7.3.
On
receipt of recommendation from the Technical Remuneration Committee
for the designated of an occupational group/s as a scarce
skills, the
Municipal Manager shall consult with the Local Labour Forum before a
final decision is taken by the Municipal Manager
.
7.4. All
designations determined in terms of clause 7.2
above shall be
reviewed annually
to allow relevant adjustments, based on
changing trends.
8.
IMPLEMENTATION OF STRATEGIES
The strategies as set out in par 5
above shall be implemented as set out hereunder and
must be
considered and recommended by the Technical Remuneration Committee to
the Municipal Manager on
a case to case
basis as
and when necessary.
8.1.
Payment of allowances for the attraction and retention of scarce
skills.
In order to attract and retain scarce
skills, allowances for scarce skills/individual cases identified in
terms par 7
may
be rewarded in one or more of the following
ways;
8.1.1. Scarce skills and
vehicle allowances as set out hereunder.
POST LEVEL
ALLOWANCE
0-3
1. Scares skills allowance of up to
a maximum of 10%
2. Motor vehicle allowance of
850km/month
4
1. scares skills allowances of up
to a maximum of 10%
2. Motor vehicle allowance of 750
km/month
5
3. care kills allowance up to a
maximum of 10%
2. Motor vehicle allowance of 650
km/month
6 and lower
Scares skills allowance of up to a
maximum of 15%
8.1.2. Starting on higher
notch within the approved salary scale subject to the maximum to the
scale
8.1.3. The retention of
technical /non-management skilled employees who do become managers,
by allowing them to develop
and be rewarded laterally (broad banding)
8.1.4. any other method
recommended by the Technical Remuneration Committee, not exceeding
the financial cost of 8.1.1
8.1.5. the scale skills
allowance shall be calculated as the percentage indicated in the
table in 8.1.1 of the basic
salary.
8.2.
Payment of allowances for the retention of strategic skills
If an
Executive Director
is of
the view that there is a proven danger that the directorate stands to
loose [sic] the services of an employees with strategic
skills,
irrespective whether such post is from a designated scarce skills
group or not, the Technical Remuneration
Committee may consider
any one of the strategies under 8.1 above in order to retain such
services
.
8.3.
Performance related notch increments
8.3.1. Reward for
performance may be paid in the form of notch increments within the
post salary scale. Such rewards
shall be provided for and managed in
terms of Council’s Performance Management Policy. Should the
incumbent already be at
the top notch of the salary scale an
alternative arrangement will be considered.
8.3.2. As an interim
arrangement until performance management and recognition has been
implemented in terms of the Performance
Management Policy,
a
recognition scheme that recognise and reward individuals financially
or non-financially for their contribution to service delivery
objectives, may be developed by the Municipal Manager on advice from
the Technical Remuneration Committee
. Such scheme must be
introduced against predetermined and measured targets. Where poor
performance is identified, corrective and
improvement measure must be
introduced.
8.4.
Staff career planning and development
The Municipality acknowledges the need
to determine a framework to support employee’s career paths,
while advancing organisational
needs and service delivery
imperatives. For this purpose, the Municipal Manager together with
the Technical Remuneration Committee
must determine a framework to
facilitate:
8.4.1. career planning,
development and management; and
8.4.2. implementation of
focused training and development
8.4.3. programmes to
facilitate employee’s career movements.
8.4.4. the development of
acknowledgement and reward for in-service completion of job related
academic qualifications.
Such framework may provide for the
considering of positions for advancement between scales, subject to
the identification of the
necessary competence, experience and
qualifications required for such advancements.
8.5.
Maintaining a positive work environment and climate
The Municipal Manager shall initiate
programmes to promote a positive work environment, for all employees.
These programs may include
8.5.1. employees wellness
programs
8.5.2. surveys to
determine
·
How
employees feel about their work, i.e., is it challenging and
stimulating
·
How
employees feel about Drakenstein a an organisation they work for and
the people they work with, i.e., organisational culture
and climate;
·
Do
employees feel valued and respected;
·
Do
employees feel that their career aspirations are met by the
organization;
8.5.3. consider and
implement corrective measures based on the results from the surveys
in 8.5.2.
8.6.
Attraction of pre-identified individuals
…
..
8.7.
Maintaining of remuneration strategies
Though the determination and review of
salaries falls within the scope of SALGBC, the Municipality has to be
up to date with all
the changes in the labour market to ensure that
its strategies remain relevant and do not compromise its capacity to
compete for
skills in the labour market. To this view the Municipal
Manager in conjunction with the Technical Remuneration Committee
shall
maintain these remuneration strategies by:
·
the
annual review of this policy
supported
by the necessary research, and approval by council where necessary
·
annual
review of the designated scarce skills groups
.
8.8.
….’
[6]
[10]
A
reading of the policy reveals that it was composed of a wide range of
options some of which, but not all, involved payment of
money to
employees. Throughout the text, the tenor of the provisions
emphasises the short term, provisional and permissive character
of
the scheme.
[11]
The
statement of the Municipal Manager
[7]
referred to in the minute of 28 April, further contextualises that
event. The Municipal Manager described the process of the policy’s
development. The statement juxtaposes the twin challenges of a
rational selection process and the appropriation of funding to serve
its objectives. The burden of finding money is highlighted and its
absence is given as the reason why the first list of the eligible
was
pruned.
He
states:
‘
At the time
of adopting the policy, what could not be ascertained and known was
the full financial impact that will come with the
implementation
thereof. This is because the list of affected positions in the
administration was yet to be finalized and the necessary
calculation
could only be done when that list was presented. What then transpired
after the adoption of the policy were the following:
·
Our
municipality was to identify all those broad critical scarce skills
found in different departments in the administration;
·
Out
of those broad critical skills extraction of those very skills that
fully comply with all criteria a captured in the policy
should be
undertaken;
·
Deliberation
should also take place to highlight and identify those that may not
be seen to be fully compliant with the criteria
but make sense to be
considered as urgent and critical.
With this in mind the important
consideration needed by the Municipal Manager in the implementation
of the policy rests with the
following:
·
The
affordability of the scheme by the municipality
·
Manner
to deal with the possibility of opening a flood gate of many
inquiries from those employees who would feel that they too
possess
scarce skills.
·
The
clear message that the implementation of the policy is not permanent
and may need to be reviewed from time to time.’
[12]
The
statement goes on to recount the debacle in which unauthorised
letters were sent to employees on the first list purporting to
inform
them of the benefits they would get. In an empathetic tone, he
apologises and explains that the errors cannot be allowed
to stand.
He concludes the statement with a recommendation; it reads:
‘
It is
proposed that:
(a)
The municipal manager consults the LLF in terms of item 7.3 of
Council’s Scarce
Skills and Retention Policy the unforeseen
costs of implementing the current list;
(b)
The application of the criteria for the identification of scarce
skills positions
be revisited;
(c)
A revised list of posts should then be recommended by the Technical
Remuneration Committee
to the Municipal manager;
(d
)
as per the policy recommendation list be forwarded to the Municipal
Manager to approve
and implement forthwith as from 1
st
of April …[This passage not wholly legible]
(e)
Employees who no longer qualify for such an allowance (after the
above mentioned exercise
is completed) be duly informed in this
regard and that the letter informing them should state that the
initial list of identified
positions recommended by the Technical
Remuneration Committee proved to be regrettably unaffordable and that
the criteria had proved
to be inconsistent;’
[13]
A
reading of the text demonstrates the burden of the Municipal
Manager’s address was to sooth the ruffled feathers of those
excluded, to explain that funding dictated the scope of the scheme,
and that the assessment of affordability was possible only
when the
pool of the eligible had been ascertained.
The award: what does
it order and upon what grounds is it founded?
[14]
So
much for the material available to the arbitrator about the terms of
the policy and the alleged agreement to “implement”
it.
Given the tenor of the award, what would the municipality understand
it was obliged to do? The award itself does not specify
exactly what
is to be paid. Cryptically, it orders implementation of the policy
retrospectively from 1 November 2008 plus interest
thereon. This
obscurity is itself a defect in the award which, independently of
other considerations, renders it liable to be set
aside. But that
aside, what payments are contended for? From the text of the award,
it may be gleaned that allowances are due for
scarce skills and
vehicle allowances. No greater detail exists. To what
does
,
indeed,
can
,
the award refer?
[8]
[15]
The
policy, as cited above, provides in paragraph 5 for seven
“strategies”. The first two strategies are “payment
of allowances for the attraction and retention of scarce skills”
and “payment of allowances for the retention of strategic
skills”. None of the other strategies are,
per
se
,
“allowances”. Semantically, the award must refer only to
the first mentioned allowance for “scarce” as
distinct
from “strategic” skills. As cited above, what such
allowances contemplate is set out in paragraph 8.1 of the
policy.
[16]
Patently
obvious is that paragraph 8.1 does not prescribe a definitive sum in
any case. The table in 8.1.1 provides for allowances
of “up to
a maximum” of 10% or of 15%, of basic salary. Moreover,
paragraph 8.1 stipulates that “... scarce skills,
allowances
for scarce skills/ individual cases identified in terms of para 7 may
be rewarded
in
one or more of the following ways”
.
The table of allowances in paragraph 8.1.1 is only one of the ways
that may be employed; others involve no direct payments. Paragraph
8.1.2 proposes a notch increase and paragraph 8.1.4 mentions “any
other method recommended by the Technical Remuneration
committee not
exceeding the cost of 8.1.1”.
[17]
On
which of the several premises postulated in the policy must the award
be complied with? It must be inferred that the arbitrator,
in
composing his award, must have realised the impossibility of giving
effect to the fatuous order to “implement the policy”
and
dodged the embarrassment by telling the parties to calculate the sums
themselves and come back if they disagreed. Such an exercise
would
have itself been impossible because the award fails to give a fixed
formula to perform a calculation. The award is fatally
defective for
these reasons alone.
[18]
More
fundamentally, the award is plainly wrong in concluding that a
contract existed that could found a claim for specific performance
of
a money payment on any basis upon the “implementation” of
the policy. In this, the Labour Court was correct in finding
that no
rights, as alleged, could arise in terms of the policy, once it was
implemented, which could found any claim as alleged
or indeed any
money claims at all.
[19]
The
reason is plain: the policy created a discretionary regime for the
conferment of benefits. The discretion was to be exercised
by the
Municipal Manager. However, the authority of the Municipal Manager to
exercise such a discretion was not unfettered. The
Technical
Remuneration Committee first had to make a recommendation “…on
a case by case basis as and when necessary.”
[9]
No part of the appellant’s case hints that such a step was
taken.
[20]
In
argument, it was contended that the Municipal Manager, exercising his
delegated power,
de
facto
overrode the terms of the policy and bound the municipality to a
novation in terms whereof the maximum rate of the allowance for
scare
skills was payable and fell due. This improvisation argument, apart
from contradicting the appellant’s initial thesis,
is in my
view unsubstantiated and fanciful.
[21]
Plainly,
as alluded to earlier, the policy is heavily impregnated with several
contingent factors shutting out a claim of the nature
alleged.
Paragraphs 5,6, 7.3, and 8 read together make plain that the policy
was an enabling measure whose aim was to serve the
interest of the
municipality (only benefiting the employees instrumentally) and that
a wide range of options were to be drawn upon.
Moreover, recognising
the fluidity of the predicament of staff retention over time and the
prospects of circumstances changing
that would free the municipality
from the burdens of topping up benefits, the measures were not
permanent and were to be applied
ad hoc.
[22]
Thus,
even if it were possible to conclude that on 28 April, an agreement
was reached that the policy would be “implemented”
(whatever that could mean, however generously construed),
no
rights to payments of any allowance could arise from such an
agreement
.
It was in an attempt to scale this sheer cliff face, that the
submissions about the Municipal Manager’s
de
facto
override of the terms of the policy were vainly proffered.
[23]
What
remains to address is the untenable argument that an agreement was
concluded on 28 April 2009 which bound the municipality
to
“implement” the policy. The bare text of the resolution,
in my view, deals with the settling of a list of eligible
persons to
whom the policy would be made applicable. Addressing the
circumstances dealt with by the persons at the meeting, which
must
include the matters traversed in the statement read by the Municipal
Manager, it is plain that the resolution concerned itself
with a list
of fewer eligible persons that had beforehand been under
consideration. The question of the unaffordability of funding
measures for the longer list was at the forefront of the discussion.
In light of these facts, the notion that the Municipal Manager
came
to that meeting to commit the municipality to pay money allowances is
preposterous.
[24]
The
Municipal Manager’s denial of a negotiation and an agreement
being concluded is not dented by the probabilities in the
least
degree. Several elaborate arguments against this denial were mounted,
none of which tally with the plain facts.
[25]
It
is common cause that the LLF is used to both consult and negotiate.
However, the fact that the LLF does sometimes negotiate collective
agreements does not support the idea that it was a forum for
negotiation in this case. The gross improbability that the Municipal
Manager sought to negotiate on these issues is illustrated by the
very fact that the policy expressly and unequivocally prescribes
consultation in paragraph 7.3.
[26]
However
chummy the exchanges might have been, and whatever phraseology used
by the scribe of the LLF minutes, there is no room whatsoever
for any
union representative at the meetings, all of whom had full knowledge
of the text of the policy, to imagine that any negotiation
was taking
place. For these reasons too, any thought of the Municipal Manager
having concluded an agreement binding the municipality
by reason of
his supposed ostensible authority to do is wholly absent.
[27]
A
proposition that somehow consultation could morph into negotiation is
fanciful. The idea that because a Municipal Manager is vested
with
authority to deal with the terms and conditions of employment of
staff, the council is denuded of authority to also regulate
such
matters and needs only to be informed of the Municipal Manager’s
decisions is untenable.
[28]
Lastly,
the submissions that the notion of unaffordability to implement any
such policy is a falsehood because the costs “must”
have
been worked out beforehand are vacuous and are inconsistent with both
the hard evidence and with the probabilities. It was
suggested that
the Municipal Manager made concessions on these issues. That reading
of his evidence is incorrect. A witness whose
demeanour is
deferential to the views of the other party and is empathetic to
aspects of their grievances ought to be commended
for his humanity
not accused of conceding his own case. Curiously, this part of the
cross-examination of the Municipal Manager
was conducted by the
arbitrator, who in a display of bad-temperedness harangued the
witness about the implications of an “agreement”
which
the questioning took as an established fact, rather than as the very
subject of the enquiry. A fair reading of the evidence
of the
Municipal Manager is that he was in full agreement with the
proposition that a decision was taken on 28 April, in consultation,
about which persons were to be included in the pool of eligible
persons. As to implementation, he was at pains to make clear that
he
thereupon embarked on the exercise to see
how
that could be done
,
given the constraints of adequate funding. A nominal sum of R1million
had already been budgeted. He recognised the inadequacy
of that sum
and the need to pilot a proposal to the council to revise the
municipality’s budget to cater for more money,
if possible. The
absence of adequate funding was an objective bar to implementation
and, until that was resolved, to speak of implementation
was a
nonsense, still less the actual payment of sums. The debacle of the
unauthorised letters to certain employees indicating
payments to
which individuals were supposedly entitled was explained to be an
error which, at once the Municipal Manager was aware
thereof, he put
right. A question put to the witness about whether there was enough
money “in the budget” to pay the
allowances of the three
individual employees illustrated the unreality of the attack;
self-evidently, payment of any sum had to
be appropriated to that
purpose in a properly approved budget - it is not simply a matter of
how much money is in the bank account.
[29]
Accordingly,
the award misconstrued the facts, reached an untenable conclusion
about the existence of a contract and its terms,
and thus the award
rendered was unreasonable and must be set aside. (
Sidumo
and Another v Rustenburg Platinum Mines Ltd and
Others
2008 (2) SA 24
(CC))
The Labour Court’s
remittal order
[30]
The
Labour Court correctly held that no contract as alleged was proven.
Upon that finding, the Labour court should have simply set
aside the
award. However, the Labour Court expressed a view that IMATU had a
different and better cause of action by articulating
a complaint that
there was an unfair exercise of the discretion which had been
conferred on the Municipal Manager by the policy
to award benefits,
and on that basis remitted the matter for that issue to be
adjudicated afresh.
[31]
This
was inappropriate. First, the issue to be remitted was never the case
referred by IMATU to the SALGBC and could thus never
form the basis
for a remittal; and second, it is inappropriate for a court to
extract from a factual matrix a supposedly overlooked
cause of
action, however meritorious, and propel it into adjudication. Courts
decide the issues put before them by the parties
and do not second
guess them. (Cf
:
Fischer and Another v Persons Unknown
2014 (3) SA 292
(WCC);
2014 (4) SA 614
(SCA))
[32]
There
has been no cross-appeal. However, that is no bar in this case to the
setting aside of the order. The reason for this outcome
is that the
order is not being set aside because it is unmeritorious but because
it is incompetent. Even in the absence of a direct
challenge by a
party, an appeal court, upon recognising that the court
a
quo
has erred by making an order that it could not have made, is by
reason of its inherent jurisdiction, empowered to correct that
error.
[33]
Accordingly,
the remittal order cannot stand and is set aside.
Conclusions
[34]
In
the result, the appeal must be dismissed.
[35]
Costs
fall to be decided on equitable grounds. In labour litigation, there
is a full appreciation that costs awards may have an
undesirable
chilling effect on under-resourced parties seeking relief. However,
some measure of self-discipline in Labour litigation
is appropriate.
The pursuit of an appeal, despite such manifest absence of merit, in
my view warrants an order directing the appellant
to pay the costs of
the appeal, such costs to include the costs of employing senior
counsel. The defence of an award, however unmeritorious
stands in a
different light and defending even a weak award in a review
application will rarely be inappropriate. However, persistence
in
litigation, at all costs (usually the adversary’s), ought not
to be rewarded, despite an on-going employment relationship
between
the employer and the employees who are members of the union.
The order
[36]
The
appeal is dismissed.
[37]
The
order of the Labour Court is set aside and substituted with an order
dismissing the review.
[38]
The
appellant shall pay the costs of the appeal.
____________
Sutherland
JA
Tlaletsi
DJP and Davis JA concur in the judgment of Sutherland JA
FOR
THE APPELLANT:
Attorney Minnaar Niehaus
FOR
THE FIRST RESPONDENT: Adv A
Freund SC
Instructed
by Herold Gie Attorneys
[1]
[1]
The text of the award is thus:
[19.1]
The respondent is ordered to implement the scarce skills policy with
effect from 1 September 2010 back dated to 1 November
2008. Any
payments due to the applicants for the period 1 November to 30
august 2009 must be made to the applicants by no later
than 30
September. Interests on [sic] the appropriate legal rate (section 2
of the Prescribed Rate of Interest Act of 1075) must
also be
included in the amounts due and payable to the applicants as from
the date that each monthly allowance became due and
payable to each
applicant up until date of payment.
[19.2]
In the event that the parties are unable to agree on the amounts due
and payable to each of the individual applicants either
party has
the right to request that this matter be re-scheduled for evidence
ad or argument to be led and fir a decision to be
made regarding the
amounts due and payable to reach applicant.”
[2]
Record
vol I: 126.
[3]
2012 (4) 593 (SCA)
at para 18.
[4]
Record vol 1: 58-
65.
[5]
Record vol 2:102-
107.
[6]
Record vol 1: 58 –
64.
[7]
Record vol 2:102
-107.
[9]
Policy paragraph 8
– preamble.