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[2015] ZALAC 9
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Independent Municipal And Allied Trade Union v City of Cape Town and Others (CA 13/2013) [2015] ZALAC 9 (23 April 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA,
CAPE
TOWN
Case no: CA
13/2013
DATE: 23 APRIL
2015
Not Reportable
In the matter
between:
THE INDEPENDENT
MUNICIPAL AND ALLIED
TRADE
UNION
........................................................................................................................
Appellant
And
THE
CITY OF CAPE
TOWN
.....................................................................................
First
Respondent
SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL
......................................................................................
Second
Respondent
C
DE KOCK
N.O-
......................................................................................................
Third
Respondent
Heard: 21 August
2014
Delivered:
23 April 2015
Summary:
Interpretation of a collective agreement - Amalgamation of
municipalities - transfer of employees into the amalgamated
municipality – municipality entering into a collective
agreement with the trade union to set criteria and procedure for the
placement employees within the new staff establishment. Employees
dissatisfied with their placement and referred dispute to the
Bargaining Council in terms of the collective agreement -
arbitrator’s power in terms of the collective agreement to set
aside placement – arbitrator extending his power to place
employees on the correct posts. Power to place employees on the
establishment vested on the municipal manager - Arbitrator usurping
municipal manager by placing employees on the establishment-
Labour
Court’s judgment upheld - appeal dismissed.
CORAM: Tlaletsi
DJP, Hlophe
et
Kathree-Setiloane AJJA
JUDGMENT
Tlaletsi DJP
Introduction
[1]
The appellant is appealing against the judgment and orders of the
Labour Court (
per
Rabkin-Naicker J) in terms of which four
awards issued under the auspices of the second respondent were
reviewed and set aside
with no order as to costs being made. The
Labour Court granted the appellant leave to appeal to this Court. The
dispute related
to the interpretation and application of a collective
agreement concluded between the first respondent (the City) and the
appellant,
Independent Municipal and Allied Trade Union (IMATU) on 1
November 2006. A brief factual background is necessary for a better
understanding
of the dispute.
Background
[2]
It
is common cause that following the promulgation of the Local
Government Municipal Structures Act
[1]
(the Structures Act), the City was established out of the seven
disestablished municipalities in the Cape Town Metropolitan area.
The
amalgamation involved the transfer, in terms of section 197 of the
Labour Relations Act
[2]
(the LRA), of the services of all existing employees into the City,
with 1 September 2000 being the effective date.
[3]
The consequence of this arrangement was
that the City employed a staff complement on varying terms and
conditions of employment,
which had been inherited by virtue of the
operation of section 197. There were now essentially seven different
staff structures,
which were not compatible with the need to operate
a single municipality. By way of example in the case of nurses, after
the amalgamation,
the City employed nurses who were variously
described by the former separate municipalities as: Enrolled Nurse,
Nurse, Special
Grade; Senior Enrolled Nurse, Senior Staff Nurse and
Staff Nurse / Senior. Although these employees performed broadly the
same
functions, their designations and conditions of service varied
depending on the municipality they came from before the amalgamation.
[4]
It is common cause that the City engaged in
a consultation process with the unions representing the employees in
terms of sections
189 and 189A of the LRA aimed at restructuring the
municipality. As at January 2005, the employees employed below level
4 on the
City’s structure had already been placed as a
consequence of the restructuring initiative.
[5]
On 3 January 2005, an agreement known as
the Placement Agreement was concluded between the City and the
appellant in terms of section
189 and 189A of the LRA. The agreement
provided in its introductory part,
inter
alia
, that:
‘
1.3
It is therefore agreed that employees in level 5 and below have been
placed in positions within the City on their pay scales
and terms and
conditions of employment and these employees will not be retrenched
in terms of the employer’s notice of retrenchment
dated 20 July
2004.
1.4
Affected employees that have not been placed in terms of the process
set out herein below will not be retrenched in terms of
the
employer’s notice of retrenchment dated 20 July 2004. Such
employees will be offered reasonable alternative positions
on their
current pay scales and terms of conditions of employment.’
[6]
The placement process was a competitive one
and was based on a process of attempting to match employees to posts
on a direct close
match or major change basis. The employees who were
not placed were to be offered reasonable alternatives.
[7]
A dispute developed between the City and
the appellant regarding the application of the Placement Agreement
and this led to the
conclusion of a “Settlement Agreement”
on 25 October 2005. What this agreement sought to do was to regulate
the placement
of certain level 4 employees as well as those who
believed that they were
de facto
level 4 employees into the existing organisational structure.
[8]
Following
local government elections held in 2006, a change in political
leadership occurred which resulted in the City appointing
a new
executive team in terms of s 57 of the Local Government Municipal
Systems Act
[3]
(the Systems Act). This necessitated the realignment of the positions
reporting to the executive management structures.
[9]
The collective bargaining process between
the City and the appellant resulted in the conclusion of an agreement
known as Collective
Agreement on Organisational Realignment and
Parity (the ORP Agreement) by the two parties. The parties sought to,
inter alia
,
achieve the promotion of job security, parity and the retention of
skills and to avert and mitigate adverse effects of the
organisational
re-alignment process on employees. The purpose of the
ORP Agreement is:
‘
2.1
To conclude the placement process started in December 2000 which
resulted in the amalgamation of seven previous administrations
into a
single entity; and
2.2 To implement an
orderly structuring and placement process which is equitable,
accountable and transparent and based on the application
of fair and
objective criteria; and
2.3 To provide
mechanisms for eliminating the current inequalities arising from the
use of seven different grading schedules, salary
scales and
conditions of services without negatively impacting on any current
employee; and
2.4 To provide for
cost effective and expeditious procedures for the resolution of
disputes that may arise in the implementation
of the Agreement; and
2.5 To provide for
matters in connection therewith.’
[10]
The ORP Agreement expressly states that it
applies and binds the City and the appellant and its members. It
however operates to
the exclusion of employees appointed in terms of
s 57 of the Systems Act. The principles agreed upon for placement
were the following:
‘
5.1.1
A placement process is hereby established for the placement of all
employees into the City’s new organisational structure
on a
permanent basis.
5.1.2. Employees in
substantive positions employed on fixed term contracts (excluding
employees at levels 2 & 3, provided that
the parties can agree
otherwise) shall be offered permanent positions based on the terms
and conditions referred to in clause 6.
5.1.3 This process
will be done on the basis that the current staff complement and their
current functions will form the basis of
the new organisational
structure below the level of senior managers. Employees will be
placed in the new organisational structure
on a close match basis
utilising the job content of the employee and the function of the
business unit into which the employee
will be placed.
5.1.4 The City will
ensure that all employees are accommodated in the City’s new
organisational structure in terms of the
placement process set out
herein.
5.1.5 The placement
process must meet the requirements of procedural and substantive
fairness and will be applied fairly and consistently.
No employee may
be unfairly advantaged or disadvantaged by the placement process.
5.1.6 The placement
process outlined in this Agreement will not under any circumstances
lead to retrenchment of employees.
5.1.7 Some employees
may be required to relocate to new work stations. However, the
employer will provide the necessary support
in relocation assistance,
as per this Agreement.
5.1.8 Displaced
employees will be accommodated on the basis of reasonable alternative
placements offers being made.’
[11]
The ORP Agreement provided further that the
City had created a standard grading schedule and will match all
existing job designations
to this grading schedule, based on the job
content of existing job designation; and that the said grading
schedule will be used
as a basis for making placement offers to the
employees; that notwithstanding what has been stated above, no
employee will be adversely
affected financially by being matched to
the new schedule and further that every new job on the schedule will
be eligible for confirmation
of grade via a job evaluation process
agreed to within the second respondent (SALGBC).
[12]
The criteria to be used by the City to
match employees to designations are the following:
‘
5.3.1
The current designation, subject to clause 5.2.1 above, will be used
as the primary indicator of an employee’s current
functions.
5.3.2 Where the
employee’s job content has increased in scope and complexity
and where such change would ordinarily have resulted
in the job being
submitted for evaluation, the employer will match the employee to a
more appropriate designation, commensurate
with the changed job
content.
5.3.3 Where this
results in a difference in progression of one or more grades between
the employee’s current designation and
the new designation,
such matching will be subject to confirmation via a verification
process.
5.3.4 Affected
employees will be informed of the verification process underway and
will be invited to provide input, prior to such
employees receiving
formal placement offers. Employees will be entitled to be represented
during this process.
5.3.5 The City will
communicate details of the verification procedure to the Trade Union
in writing.’
[13]
The ORP Agreement had stipulated the
following Placement Procedure:
‘
5.4.1
All employees shall be offered placement based on the process
outlined in the above two clauses (5.2 & 5.3) subject to
the
following criteria:
5.4.1.1 Unchanged
posts: that is posts that have no change to job content. Where the
job content of the employee matches exactly
(unchanged posts 100% of
the key functions [duties and responsibilities]) the content of the
job on the new organisational structure,
and the number of posts
equal to or greater than the number of employees, direct placement is
undertaken.
5.4.1.2 Minor
changed posts: (close match), that is posts where the match is more
than 50% of the key functions (duties and responsibilities).
Where
the job content of the employee matches substantially the content of
the job on the new organisational structure and the
number of posts
are equal to or greater than the employees, direct placement is
undertaken.
5.4.1.3 Competitive
process: Where there are more employees than positions in 5.4.1.1 &
5.4.1.2, such employees will be required
to compete for the positions
provided that the competition will be limited to those employees who
matched the positions on a minor
or unchanged basis and further
provided that this clause will not apply to Directors’
positions.
5.4.1.4 Director’s
positions which are either major changed, vacant or where more than
one employee has a possible match,
shall be advertised internally
prior to any external advertising of such positions.’
[14]
Clause 8 of the ORP Agreement, dealing with
confirmation of placements provided that:
‘
8.1
Notwithstanding anything to the contrary herein, no individual
placement may be confirmed until a dispute resolution process
relating to that specific placement has been finalised. The placed
employee may be required to act in the approved post until such
time
as the dispute has been resolved and the placement date has been
confirmed.’
[15]
The ORP Agreement provided for an objection
procedure in the event that an employee was unhappy with his/her
placement. The objection
must be in the prescribed form lodged within
10 working days of the decision notifying the employee of his/her
placement. Upon
receipt of the objection, the City was obliged to
convene forthwith an objection committee consisting of an equal
number of employer
and trade union representatives. This committee
was required to meet on a weekly basis to consider the objections by
applying the
principles of the placement process contained in the ORP
Agreement. The aim of the objection committee was to reach consensus
on
matching the maximum number of employees to proposed designations
and functional units. The City was obliged to make available to
the
objection committee all information that is necessary for the
determination of the objection. In the event of the objection
committee being unable to reach consensus on a particular objection,
the matter would be regarded as unresolved and the employee
had the
right to lodge a dispute in terms of the dispute resolution
procedures available.
[16]
The procedure to be adopted for the
resolution of a dispute was that of an expedited arbitration process
as provided for in the
bargaining council. The expedited arbitration
had to be commenced within 21 days of referral. Clause 12.4 of the
ORP Agreement
dealing with the powers of the arbitrator provided
that:
‘
12.4
The arbitrator shall be entitled to make any appropriate award
including the setting aside of placements where appropriate.
All
arbitration awards shall be rendered promptly by the arbitrator and
unless otherwise agreed by the parties, no later than 14
days from
the conclusion of the arbitration.’
The Dispute
[17]
The respondent referred various disputes on
behalf of its members to the Bargaining Council concerning the
interpretation and application
of the ORP Agreement.
[18]
The employees in question had been placed
as follows by the City into the new structure:
‘
C178
(Crown and Others): the 19 employees were previously employed as
Leading Fire Fighters in the disestablished South Peninsula
Municipality. They were placed as Senior Fire Fighters in the new
structure.
C201 (Nel and
Bailey): They were formally employed as Assistant Divisional Officers
in the South Peninsula Municipality. They were
now placed as Station
Commanders of Lakeside and Ottery Fire Stations respectively.
C256 (Okkers,
Eksteen, Van der Byl and Abrahams): Okkers and Eksteen were
Divisional Officers in the SPM. Van der Byl and
Abrahams were Senior
Divisional Officers in the disestablished Blaawberg Municipality.
They were all placed as Divisional Commanders
in the new structure.
C366 (Abrahams) was
placed in the new structure as a Clerk 2.’
[19]
Those employees who were dissatisfied with
their placements lodged their objections with an internal objections
committee comprised
of employer and employee representatives as
provided in the ORP agreement. Since the employees’ objections
were not resolved
to their satisfaction, the appellant referred the
dispute to the SALGBC on their behalf for arbitration. The employees
contended
that the City had placed them incorrectly. The dispute was
conducted, primarily, on the basis of written representations made by
both parties. However, in the case of the Leading Fire Fighters, the
arbitrator heard the oral evidence of Mr Ian Schnetler, City’s
Chief Fire Officer at the time.
[20]
In deliberating on the dispute, the
arbitrator recorded the issue for determination to be whether the
employees had been correctly
placed by the City as provided for in
the ORP agreement. By way of an example, in the case of Boshoff, the
arbitrator recorded
the issue for determination to be whether he was
correctly placed in the designation of Senior Fire Fighter at grade
T9, in the
City’s new organisational structure, based on the
process prescribed by the ORP Agreement.
[21]
During the arbitration process, the City
challenged the powers of the arbitrator. As a result, the arbitrator
had to determine what
his powers were in terms of the collective
agreement. In so doing , the arbitrator found that the dispute
referred by the appellant
was of the type capable of being
referred to the SALGBC, in terms of Clause 12 of the ORP agreement,
for arbitration., and
that the ORP agreement provided that the
arbitrator shall be entitled to make any appropriate award, including
the setting
aside of placements where appropriate. The arbitrator
held further that the word placement should include ‘designation’
insofar as disputes lodged in terms of the ORP agreement are
concerned. The arbitrator observed that the ORP agreement did not
give an arbitrator the power to order placement of an employee, where
it was found that the placement made by the City was incorrect.
The
arbitrator recorded that if he had the power to set aside a
placement, then he “must surely” also have the power
to
order the respondent to place an employee in the correct designation.
He held further that any other finding would amount to
an absurdity,
as he would simply set aside the placement and leave the parties with
an unresolved dispute. The arbitrator held
further that any award
made by him setting aside a placement by the City, and substituting
it with what he thought was the correct
placement was capable of
being back dated.
[22]
The arbitrator, having decided what his
powers were, considered the merits of the dispute namely, whether the
employees had been
correctly placed by the City. He found that the
employees had not been correctly placed by the City, and proceeded to
substitute
these placements as follows:
‘
C178
(Crown and Others). The employees to be placed as Platoon Commanders;
C201 (Nel and Baile)
They be placed in the designation of Divisional Commander as per the
City’s new organisational structure
at grade T14. These
employees were not placed into specific positions within any
particular division.
C256 (Okkers,
Eksteen, Van der Byl and Abrahams) All these employees be placed into
a generic “Functional / Operational /
Head / Manager”
post (Okkers and Eksteen at grade T15 and Van der Byl and Abrahams at
grade T16.)
C366
(Abrahams) She was to be placed in the post of Assistant Professional
Officer
.’
[23]
The arbitrator determined the effective
date for placement to be 1 July 2008. In addition, he ordered the
parties to attempt to
reach an agreement on the amount of back pay
that was to be paid to the employees arising from the placements as
ordered by him,
failing which either of the parties could approach
the Bargaining Council on application for the purpose of quantifying
the amount
payable.
The Review
[24]
Aggrieved by the decisions of the
arbitrator, the City instituted review proceedings against the awards
made by the arbitrator.
Its grounds of review were that the
arbitrator exceeded his powers, committed an irregularity and that
the award was unreasonable.
[25]
The Labour Court found that the arbitrator
exceeded his powers as reflected in his understanding that the word
“placement”
included the word “designation”,
and that a proper reading of the ORP agreement with particular focus
on the words
of clause 5.1 reveals that “placement” meant
matching an employee with the categories contained in the “benchmark
list”; that in the absence of an approved staff establishment
as required by law, the arbitrator had no power to designate
the
posts into which individual employees could be placed, nor to do so
with retrospective effect. The Labour Court found the award
to be
reviewable and set it aside on this basis alone, having found no need
to consider other grounds of review. The Labour Court
further
declined to remit the disputes to the Bargaining Council because of
the considerable time that had passed since the conclusion
of the ORP
agreement, as well as the amendment of section 66 of the Systems Act.
The Labour Court concluded that there was no possibility
of
substitution of the awards in question given the way in which the
arbitrations were conducted.
The Appeal
[26]
The appellant has in the main raised three
grounds of appeal against the judgment and order of the Labour Court.
Firstly, it contends
that the arbitrator was entitled to set aside
the City’s proposed placement to the extent that he was of the
view that it
was incorrectly done, and to substitute the proposed
placement with a different one, based on the proposed designations
contained
on the benchmarking jobs list. It, therefore, contends that
the arbitrator had not inappropriately clothed himself with the power
reserved for the municipal manager in terms of the Systems Act as
found by the Labour Court, and that it was left to the municipal
manager to either approve or reject the new staff establishment. If
the decision of the municipal manager is ultimately not to
accept the
new staff establishment it would therefore mean that the award made
by the arbitrator would not be implemented.
[27]
Secondly, the appellant contends that in so
far as the Labour Court correctly found that the arbitrator
incorrectly conflated the
terms “placement” and
“designation”, and that what he ought to have done was to
have matched an employee
with the categories contained in the
benchmarking list, the Labour Court erred by not simply correcting
the awards accordingly.
The corrections, which the appellant suggests
that the Labour Court ought to have made to the awards are that: (a)
the employees
were incorrectly matched to the proposed designations
on the benchmarking job list; the employees ought rather to have been
matched
to the proposed designation claimed by them; (b) the City be
ordered to reconsider the final placement of the employees in light
of that finding; and (c) in the event of the placements and
designations being made final in an approved staff establishment,
that those placements be made with retrospective effect.
[28]
Thirdly, the appellant contends that the
Labour Court erred by not remitting the matter for reconsideration by
another arbitrator.
This ground, which was raised for the first time
on appeal, is premised on the assumption that the arbitrator had
incorrectly defined
his powers and that the Labour Court had
correctly found that there was insufficient evidence before the
arbitrator to make a rational
decision regarding the correct matching
of the employees. The appellant contends, based on this premise, that
there was no reason
why the dispute was not remitted to the
Bargaining Council for re-determination by another arbitrator, and
that there is
accordingly no basis for the findings made by the
Labour Court that the passing of time and the amendments to the
Systems Act prohibited
such relief.
[29]
It must be reiterated that the appellant’s
case in the Labour Court was that the employees were entitled to the
placement
orders that the arbitrator made, and that the City be
compelled to implement the orders made by the arbitrator. The City in
response
contended that the arbitrator did not have the power to make
such orders. However, on appeal, the appellant changed tact, by
contending
that the arbitrator’s orders be interpreted as mere
proposals to the City. Implicit in this contention is an
acknowledgment
that the arbitrator did not have the power to order
the City to comply with his placement orders.
[30]
Section
66 of the Systems Act, as it then was before its amendment, obliged
(the word ‘must’ is used) the municipal
manager , within
a policy framework determined by the municipal council and subject to
any applicable legislation, to inter alia,
approve a staff
establishment for the municipality; provide a job description for
each post on the staff establishment; and attach
to those posts the
remuneration and other conditions of service as may be determined in
accordance with any applicable labour legislation.
[4]
[31]
It is common cause that at the relevant
time no organisational structure existed listing a finite number of
posts for each and every
position below senior managers. By making
the placements, the arbitrator usurped the duties of the municipal
manager and created
a staff establishment contrary to the dictates of
s 66 of the Systems Act. The finding of the Labour Court, that in the
absence
of an approved staff establishment the arbitrator had no
power to designate the posts into which individual employees could be
placed and doing so retrospectively, cannot be faulted. The
arbitrator had indeed exceeded his powers by acting
ultra
vires
the provisions of the Systems
Act. The arbitrator is not empowered to interpret a collective
agreement in a manner that trumps
the provisions of a statute. I am
mindful of the submission made by Mr Van der Riet SC, who appeared on
behalf of the appellant,
that the City never contended that the posts
were not available before the arbitrator and, as such, that was never
an issue before
the arbitrator. I find this argument to be without
merit because posts cannot be said to be available in the absence of
an organisational
structure setting out the existence of the posts,
as well as the necessary details regarding job descriptions and
remuneration
for such posts. This is a fact that cannot be ignored.
It will be incorrect to assume that posts existed when, as a matter
of fact,
they did not. Furthermore, the Labour Court remarked that:
“
However,
it was common cause before me that at the time of the lodging of the
disputes and their arbitration, no organogram existed
showing the
exact number and type of posts available on the new establishment. A
proper reading of clause 5 reflects that in fact
the ‘placement’
process depended on what jobs would exist on the new organisational
structure yet to be finalised.”
The
appellant has not disputed this finding.
[32]
I find the appellant’s contention,
that the arbitrator’s awards are mere proposals which were
subject to the approval
by the municipal manager and the City, to
also be without merit. In the first place, the arbitrator underwent
an exercise to determine
what his powers, in terms of the ORP
Agreement, were. He found that since he had the specific power to set
aside placements he
“‘surely also ha[d] the power to
order the respondent to place an employee in the correct designation”
i.e the
one that the arbitrator found to be appropriate. It is
therefore axiomatic that the arbitrator viewed his decision to be
final,
and any failure by the City to comply with his order would be
in contempt thereof. This much is clear from the wording used,
by the arbitrator, in the awards themselves. Therefore, to suggest
that the awards were mere proposals is without logic. There
is no
plausible basis on which to interpret the awards as being merely
conditional or “provisional” as contended for
by the
appellant.
[33]
The appellant contends further that it was
always its understanding that after the arbitrator had set aside the
placements made
by the City, and substituted them with placements,
which he considered to be correct after carrying out a
matching
exercise, it was expected of the City to compile a
staff establishment in line with the awards of the arbitrator. The
effect of
this submission is that the municipal manager’s hands
would be tied, and he will be left with no option but to create a
staff
establishment based solely on the awards of the arbitrator, and
not in line with the mandate and statutory responsibilities of the
municipality. This would, in my view, be an improper way of creating
a staffing establishment for a municipality. The staff establishment
should not be based on the number of employees and posts in
existence, but rather on the mandate and objectives of the
municipality.
The situation that not all employees would be placed in
positions was envisaged, hence the inclusion of clauses 5.4.1.1 and
5.4.1.2
in the ORP Agreement, which contemplate that the number
of posts into which employees may be placed, may be fewer than the
employees matched to such posts. Similarly, the inclusion of clauses
5.5.1 and 5.5.2, which contemplate the possibility of unplaced
employees. In addition, there is the guarantee that no employee would
be retrenched as a result of the process.
[34]
The next ground of appeal is that the
Labour Court erred in not making its own order in substitution for
the awards of the arbitrator,
in the terms referred to in paragraph
[27] of this judgment. Mr Freund SC, who appeared on behalf of the
City, correctly submitted
that the Labour Court could not have erred,
in the exercise of the discretionary power conferred on it by s
145(4) of the LRA,
by not making the order which the appellant now
seeks, for the simple reason that the appellant had not requested the
Labour Court
to make such an order. The terms of the proposed order
were also not placed before the Labour Court. This ground, is
therefore
raised for the first time on appeal. In my view, the
appellant has not established that the Labour Court exercised its
discretion
in a manner, which is appealable.
[35]
Mr Van der Riet submitted that the Labour
Court erred by not remitting the matter to the Bargaining Council for
determination by
another arbitrator. He argued that the dispute
should have been automatically referred back, and that the Labour
Court did not
have the power to decide against remitting the dispute
to the Bargaining Council. In my view, it is not entirely
correct
that once the Labour Court finds that an award is reviewable,
that the dispute is automatically remitted to the arbitrating
authority,
and that the Labour Court lacks the power to order
otherwise. It would, in my view, depend on the nature of the dispute:
the reasons
of the court in support of the decision to review; the
relief sought as well as any other factors relevant to the dispute.
The
list is not exhaustive.
[36]
It has been correctly pointed out on behalf
of the City that on the pleadings, as they stand before the
arbitrator, the appeal will
inevitably fail because it has already
been established that, the relief originally sought by the appellant
is legally impermissible
and remittal will serve no purpose. Given
the stance adopted by the appellant on appeal, it would appear that
it is seeking remittal
so as to enable another arbitrator to
entertain a claim different from the claim initially sought. The
appellant appears to no
longer seek orders directing the City to
comply with the placements made by the arbitrator to a non-existent
establishment, or
create a staff establishment that would be solely
based on the awards of the arbitrator. In my view, it has not been
established,
and I am unable to find that the Labour Court improperly
exercised the discretion accorded to it in terms of s 145(4) of the
LRA.
The Labour Court was free to determine the dispute in a manner
it considered appropriate or make an order it considered appropriate,
about the procedures to be followed, in determining the dispute.
[37]
In conclusion, I am of the view that the
appeal should, on the three grounds raised by the appellant, fail. In
light of this finding,
it is not necessary to decide whether this
Court can deal with the remaining grounds of review raised by the
City, in the Labour
Court, but which were not considered by that
court. Consequently, the appeal falls to be dismissed. In my view, it
shall be in
accordance with the requirements of the law and fairness
that there be no order as to costs.
[38]
In the result, the following order is made:
a)
The appeal is dismissed.
b)
There is no order as to costs.
Tlaletsi
DJP
Hlophe
et Kathree-Setiloane AJJA concur in the judgment of Tlaletsi DJP
APPEARANCES:
FOR THE
APPELLANT: Mr Van der Riet SC
Instructed by
Cheadle Thompson & Haysom
FOR THE FIRST
RESPONDENT: Mr Freund SC
Instructed
by Webber Wentzel
[1]
Act No 117 of 1998.
[2]
Act
No 66 of 1995.
[3]
Act No 30 of 2000.
[4]
The section has since been amended and the power to approve a staff
establishment is vested in the municipal council after the
municipal
manager has developed it.