About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2016
>>
[2016] ZALAC 59
|
|
Mhlekude v South African Airways (Soc) Ltd and Others (PA5/15) [2016] ZALAC 59; (2017) 38 ILJ 577 (LAC) (24 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PA 5/15
In the matter between:
NOMBULELO
MHLEKUDE
Appellant
and
SOUTH AFRICAN AIRWAYS
(SOC) LTD
First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
Second Respondent
COMMISSIONER A NYONDO
NO
Third Respondent
Heard:
13 September 2016
Delivered:
24 November 2016
Summary:
Demotion. Full-time shop steward, removed from office by virtue of
her expulsion from the union,
deployed to her former position in the
employer’s organisation. Interpretation of a collective
agreement. Union alleged shop
steward unfairly demoted by not being
offered a position on the same level at which she was remunerated as
a full-time shop steward.
Held, on correct interpretation of
agreement, deployment to previous position not a demotion.
Coram:
Coppin JA, Landman JA and Phatshoane AJA
Neutral citation:
Nombulelo Mhlekude v South African Airways (Soc) Ltd and Others
(LAC
:
PA 5/15)
JUDGMENT
LANDMAN JA
Introduction
[1]
Ms Nombulelo Mhlekude, the appellant, appeals against a judgment of
the Labour Court (Van Niekerk J) reviewing and setting aside
an
arbitration award by Commissioner A Nyondo of the Commission for
Conciliation, Mediation and Arbitration (CCMA) that held that
the
South African Airways (Soc) Ltd (SAA) had demoted the appellant and
granted her relief.
Background
[2]
The South African Transport and Allied Workers Union (SATAWU)
represents a sufficient number of employees of SAA to warrant
its
recognition by SAA. In terms of clause 5.2 of a collective agreement
entitled: “recognition amendment agreement”
(the
agreement), the union is entitled to have one full-time shop steward
(the FTUR) for every 600 members employed by SAA.
[3]
The function of a full-time shop steward, is to represent the union
as regards SAA both locally and nationally, to participate
in the
collective bargaining process at those levels and to perform the
further duties listed in clause 5.2.3 of the agreement.
SAA bears the
full cost of remuneration of the FTUR. In terms of clause 5.2.4.3,
the career plan of the FTUR was to be determined
by the employee
relations manager, acting in junction with the union. The agreement
provides that the FTUR shall be subject to
the same regulations,
employment conditions and disciplinary measures as are applicable to
other employees taking into account
item 4.2 of schedule 8 of the
Labour Relations Act 66 of 1995 (LRA).
[4]
What is of importance in this appeal is what happens on the
termination of the office of a FTUR. This is governed by clause
5.2.6
of the agreement. It reads:
‘
Upon the
ending of the office term of the FTUR, or his removal from office:
5.2.6.1 Management shall, where
practicable and possible, offer the same, or equivalent, or higher
alternative employment to the
FTUR.
5.2.6.2 The term of office and
benefits of a FTUR shall automatically cease to exist when the FTUR
is dismissed, or his or her services
are terminated due to death,
incapacity, resignation or according to the union’s
constitution.’
The
facts
[5]
The appellant commenced employment with SAA as a customer service
agent in 2002. She was employed at remuneration level 6-9.
She was a
member of the union. On 11 June 2011, while still holding her level
6-9 post, she was appointed as a FTUR in terms of
the agreement. This
entailed her fulfilling the duties of this office and not those of a
customer service agent. She was remunerated
by SAA, in her capacity
as FTUR, on remuneration level 13. She also received an allowance of
R3 000 per month.
[6]
On 3 February 2014, the union expelled the appellant as a member.
This had the immediate effect that she no longer served as
the
union’s FTUR.
[7]
SAA then redeployed her to the position which she occupied prior to
her becoming a FTUR, namely a customer service agent. SAA,
however,
continued to remunerate her on the level 13, i.e. the salary that she
had earned as a FTUR. But, in accordance with the
agreement, the
allowance of R3 000 ceased.
[8]
The appellant was dissatisfied with the situation. After some time
she referred a dispute to the CCMA. She couched the dispute
as:
‘
Unfair
demotion contrary to collective agreement. Employer seeks to place
the employee at level 10-11 position from level 13 position
when
there are alternatives available.’
[9]
After hearing the parties, the arbitrator found that the appellant
had been demoted by SAA and that the demotion was unfair.
He ordered
SAA to offer the appellant the same level 13 or equivalent or higher
alternative position by 30 August 2014.
The
review
[10] Subsequently, SAA
launched an application in the Labour Court to review and set aside
the award. In his judgment, Van Niekerk
J analysed the award and
concluded that the matter turned upon the correct interpretation of
clause 5.2.6.1 of the agreement. The
learned Judge held, that
properly construed, this clause:
‘…
[R]ead
in its context, especially in relation to the evidence of record
concerning full-time union representatives and ….
requires the
applicant to do no more than seek to place the employee in another
position at the level or equivalent or higher than
that which she
occupied at the time of her appointment.’
[11]
The learned judge went on to say at paras 11 and 12:
‘
It follows
on a proper interpretation of the recognition agreement that the
employee had no right to remain engaged at level 13L
after her
dismissal from office as a full-time union representative. Her
placement in a post-graded at the same level in which
she was engaged
prior to her appointment therefore did not constitute a demotion; it
was no more than a reversion to the status
quo.
It follows that the flawed reasoning
adopted by the commissioner had the result of an outcome that fell
outside of a band of decisions
to which reasonable people could come.
There is nothing on record that serves to sustain the result of the
proceedings under the
review, even if the commissioner’s flawed
reasoning was to be disregarded. For that reason, the application to
review and
set aside the arbitration award stands to succeed.’
Evaluation
[12]
Mr Grogan, who appeared for the appellant, submitted that on a proper
interpretation of clause 5.6.2.1 of the collective agreement,
the
appellant, because she was remunerated on level 13 and retained that
remuneration, should have been offered a position in SAA
on that
level unless it was impractical or impossible. Mr Grogan’s
submissions rest upon his interpretation of the words
“same…
employment” in clause 5.2.6.1, that reads: “Management
shall, where practicable and possible, offer
the same, or equivalent,
or higher alternative employment to the FTUR.” Mr Grogan
submits that “same... employment”
refers to the FTUR
post. But, there is no FTUR post in SAA’s organizational
structure and the context clearly shows that
it is a reference to the
post held by the FTUR in SAA before she was appointed by the union to
this position.
[13]
The FTUR post fell outside SAA’s organization and there was no
equivalent post within SAA although there were other posts
on level
13. Assuming, for a moment, that the appellant was entitled to be
offered a level 13 post, then it would be a promotion
from her
previous position within SAA. The deployment of the appellant to the
same post (apparently at level 10-11L; ie a slightly
higher level
than her initial appointment) she occupied before she became a FTUR
does not constitute a demotion. It is an action
contemplated by the
collective agreement. The character of her deployment to her previous
post is not affected by SAA’s gesture
of allowing her to retain
her higher salary.
[14]
The CCMA has the power to interpret collective agreements. However,
the Commissioner was not requested to perform this function
of simply
interpreting the agreement. He was requested to arbitrate a dispute
concerning an alleged unfair labour practice and,
in the course of
doing so, he was obliged to interpret the agreement. This is an
important distinction because his jurisdiction
to grant the appellant
relief was contingent on his finding that the appellant had been
unfairly demoted. No relief could be granted
if she had been wrongly
or unfairly refused an equivalent or higher post than she occupied
prior to becoming a FTUR.
[15]
The Commissioner relied
on
Nxele v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services, and Others
(
Nxele)
,
[1]
which was concerned with the transfer of a correctional services
official. This Court held that the official’s transfer
constituted a demotion, even though his salary and rank remained the
same because far greater responsibilities and status were attached
to
the official’s previous position than to the new position to
which he was transferred. This accordingly constituted a
demotion.
[16]
Nxele’s
case is relevant and binding in so far as it
decides what constitutes a demotion. But, the facts of the appeal
before us are not
concerned with the demotion of an employee
qua
employee. Rather the circumstances in which the appellant finds
herself was caused by her union expelling her and thus removing
her
from her position as a FTUR, which was a union position and not a
position within SAA. In so far as there may have been a diminution
in
her status, which she certainly perceives to be the case, it was not
caused by her employer. It has to do with her fall from
grace in the
union. In my view, the interpretation of clause 5.6.2.1 by the court
a quo
is the correct interpretation.
[17]
Furthermore, I am of the opinion that this Court is entitled to
interpret the agreement and is not required to be deferent
to the
commissioner’s finding or interpretation. This is because of
the nature of the dispute that the appellant referred
to the CCMA.
She categorised the dispute as one concerning an unfair labour
practice. Whether or not it is an unfair labour practice
is,
therefore, a jurisdictional fact, which must be decided by the
courts. See in this regard, the incisive analysis by Hulley
AJ in
Distinctive
Choice 721 CC t/a Husan Panel Beaters v The Dispute Resolution Centre
(Motor Industry Bargaining Council) and Others.
[2]
[18]
Finally, I must point out that Ms Msizi, who appeared for SAA,
correctly submitted that the benefits in the agreement rest
on the
basis that the appellant is a member of SATAWU.
[3]
(Clause 17). Ms Msizi went on to make the further submission that, at
the moment the appellant was expelled from the union, she
lost the
position of FTUR as well as the dispensation applicable to a FTUR
whose term had ended. This proposition was not raised
in the
arbitration and in the court
a
quo
.
In any event, SAA was entitled to act as it did in the exercise of
its prerogative as an employer as if the agreement was binding.
[19]
In the result, the appeal falls to be dismissed. I am not inclined to
award costs against the appellant.
Order
[20]
I make the following order:
1.
The
appeal is dismissed.
2.
There
is no order as to costs.
________________
A A Landman
Judge
of the Labour Appeal Court
I
concur,
_____________
P Coppin
Judge
of the Labour Appeal Court
I
concur,
________________
M V Phatshoane
Acting
Judge of the Labour Appeal Court
APPEARANCES:
FOR
THE APPELLANT:
Adv J Grogan SC
Instructed
by Gray Moodliar Attorneys
FOR
THE FIRST RESPONDENT:
Adv N Msizi
Instructed
by Poswa Inc
[1]
[2008] 12 BLLR
1179 (LAC).
[2]
(2013) 34 ILJ 3184
(LC).
[3]
Clause 17.2 of the
agreement provides ‘This agreement shall be legally binding
upon the parties and their members within
the Company.’