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[2015] ZALAC 68
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IMATU v City of Cape Town (CA 13/2013) [2015] ZALAC 68 (23 April 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: CA 13/2013
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.