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[2018] ZALAC 14
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IMATU obo Joubert v Modimolle Local Municipality (JA9/2017) [2018] ZALAC 14; [2018] 11 BLLR 1106 (LAC) (8 March 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JA9/2017
In
the matter between
IMATU
obo KC JOUBERT
Appellant
and
MODIMOLLE
LOCAL MUNICIPALITY
Respondent
Heard:
08 March 2018
Coram:
Waglay JP, Musi JA and Savage AJA
EX TEMPORE
JUDGMENT
SAVAGE
AJA
[1]
This appeal, with the leave of this Court, is against the judgment of
the Labour Court, Snyman AJ, in which the appellant’s
application to have the first and second respondents held in contempt
of court for failing to comply with the court order granted
by Gush J
was dismissed.
[2]
Ms KC Joubert was employed by the first respondent, Modimolle Local
Municipality, on a fixed term contract from 6 May 2005
to
15 November 2005. After she was informed on the 7 October 2005
that she had been unsuccessful in her application for appointment
in
to a permanent position as an administration clerk, Ms Joubert
referred an unfair labour practice claim to the South African
Local
Government Bargaining Council for determination.
[3]
On 15 March 2006, the arbitrator found in favour of Ms Joubert
and ordered that the first respondent appoint her retrospectively
into the position as administrative clerk. This, the arbitrator
recorded, was informed by the fact that the position remained
vacant.
[4]
The first respondent’s application to review the award was
dismissed by Gush J after the Municipality was found to have
failed
to prosecute the review timeously. In April 2006, the appellant,
being IMATU on behalf of Ms Joubert, launched a contempt
application
against both the first respondent and the second respondent, the
Municipal Manager. On 29 April 2016, Van Niekerk J
ordered that the
respondents appear in court on the 5 of August 2006 to show cause why
they should not be found guilty of contempt
of court and that they
file an affidavit to explain their failure to comply. An affidavit
filed on behalf of the respondents in
due course stated that the
position of administration clerk no longer existed in the first
respondent’s organogram.
[5]
Thereafter the contempt application came before Snyman AJ, who
found that the respondents were aware of the arbitration
award, were
aware of the order of Gush J, and that there had been no compliance
with such order. In considering whether this failure
had been
mala
fide
and deliberate, Snyman AJ found that given that the unfair
labour practice jurisdiction extended only to employees and that
since
Ms Joubert’s contract had terminated on the 15 November
2005, she was not entitled to be promoted into the position of
administration
clerk. This was so in that at the time of the
arbitration award, the employment contract had expired, and with no
challenge to
the expiry of an employment contract having been made,
it was no longer competent for Ms Joubert to demand reinstatement so
that
she could be promoted. The court found that the award in an
unfair labour practice dispute concerning promotion could not restore
the employment relationship between an employee and employer.
No order of costs was made.
[6]
On appeal, it was contended that the dispute before the Bargaining
Council concerned an unfair labour practice to promote, and
since an
arbitrator may determine such dispute in terms of section 193(4) of
the LRA on terms that the arbitrator deems reasonable,
which may
include ordering reinstatement, re employment or compensation,
the relief granted was competent. When the fixed
term contract
expired a
lis
had existed between Ms Joubert and the
first respondent. As a result, it was contended that the award was
competent and enforceable,
and the Labour Court in its judgment had
effectively sought to review the award when the contempt application
before it should
have been granted.
[7]
The facts show that at the time that the arbitrator’s award was
issued on the 15 March 2006, Ms Joubert was no longer
an employee of
the respondents. Since no unfair dismissal dispute had been
referred to the Bargaining Council for adjudication,
the expiry of
her fixed term contract went unchallenged. The arbitrator in
the promotion dispute was not empowered to determine
an unfair
dismissal dispute and could consequently not order the reinstatement
of Ms Joubert into a position with the respondents.
[8]
The terms of the section 193(4) do not provide differently. A
fixed term contract employee is only employed for a limited,
and in
this case specified, period of time in a particular post. While such
an employee may apply and/or be offered a permanent
position and
accept such position, this would remove her from the realm of a fixed
term contract employee and see her employed
in another post.
[9]
In this matter, having regard to the testimony of the employee, it is
apparent that she applied for a post, was told first that
the post
was hers, although no date of commencement was provided or other
terms agreed. However, she was later informed that she
had not been
unsuccessful in her application. This cannot amount to a failure to
promote because she was not an employee who could
be promoted on the
basis of her fixed term contract. By the time the matter came to
arbitration, she was no longer an employee.
She had, in effect,
applied for a vacant post and had not sought promotion to a vacant
post.
[10]
A fixed term contract employee is in the same position as a
non employee who applies for an advertised post, hence the
reliance on an unfair labour practice jurisdiction for lack of
promotion was misconceived. There can, therefore, be no reinstatement
in a matter such as this. Reinstatement implies status
quo ante
,
hence since the employment had terminated by the effluxion of time,
if there is a dispute, it is not one about promotion.
[11]
In considering a contempt application, it is proper that the court
consider not simply the order of the court sought to be
enforced, but
the reasons behind that order. This so as to ensure that it has been
considered whether it is in the interest of
justice that the order be
enforced or not. In this case, it is clearly not. It follows that the
finding made by the Labour Court
that given these facts the
respondents had not been shown to have behaved in a wilful and
mala
fide
manner cannot be faulted.
[12]
Ms Joubert was no longer an employee of the first respondent, given
the expiry of her fixed term contract, and consequently
no effect
could therefore be given to an order that she be retrospectively
reinstated into the promoted position of administration
clerk with
her former employer. In any event, and, in fact, perhaps most
centrally to this dispute, the post no longer exists
on the
respondents’ infrastructure. There can, in such
circumstances, be no contempt of court for this reason; the
award is
incapable of implementation, at least due to intervening
impossibility. For these reasons the appeal must fail.
[13]
The Labour Court correctly stated that Ms Joubert may well have a
claim sounding in money for the difference in her salary,
if it
exists, between the date of 1 October 2005, when the arbitrator found
she should have been appointed into the position of
administration
clerk, and the termination of her employment on the 15 November 2005.
Should such a claim exist, it would have to
be quantified and pursued
by way of normal execution proceedings.
[14]
Having regard to considerations of law and fairness, I make no order
as to costs.
[15]
In the result, the following order is made:
Order
1.
The appeal is dismissed.
2.
No order as to costs.
Waglay
JP and Musi JA agree.
______________
Savage
AJA