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[2019] ZALAC 64
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Mampane N.O and Others v National Union of Public Service and Allied Workers ("NUPSAW") and Another (JA51/2018) [2019] ZALAC 64; [2020] 2 BLLR 115 (LAC) ; (2020) 41 ILJ 363 (LAC) (16 October 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 51/2018
In the matter between:
THABANG MAMPANE,
N.O First
Appellant
NATIONAL LOTTERIES
COMMISSION
Second Appellant
THE BOARD OF THE
NATIONAL LOTTERIES
COMMISSION
Third Appellant
KHAU MOLOKO,
NO
Fourth Appellant
and
NATIONAL UNION OF
PUBLIC SERVICE
AND ALLIED WORKERS
("
NUPSAW
")
First Respondent
KELEBOGILE
MOKGATLHA
Second Respondent
Heard:
05 September 2019
Delivered:
16 October 2019
Summary:
Employee relocated due to the
restructuring of the employer – employee appealing against her
relocation – Commissioner
delegated the authority to the Human
capital manager for consideration which rejected the appeal –
employee contending that
the decision to refuse her appeal
ultra
vires
and void and that
commissioner did not have the authority to delegate his power
Held
that: firstly, the evidence does not establish that the employee had
any right to an internal appeal (under the policy or otherwise)
against the decision to relocate her; secondly, even if she enjoyed
such a right of appeal, the Commissioner personally reconsidered
the
decision; and thirdly, even if the decision had been reconsidered by
the HCM rather than the Commissioner, the Commissioner
had the
statutory power under section 2D of the Act to delegate the authority
to the HCM and clause 9 of the policy imposed no
limitation upon that
power. In the result, it cannot be said that the decision in relation
to the request for reconsideration was
unlawful and reviewable
because the decision-maker acted under a delegation of power which
was not authorised by any applicable
empowering provision. Further
that it is inconceivable that a collective agreement to which a
person is bound as a party can constitute
a decision capable of
review. Labour Court’s judgment set aside and appeal upheld
with costs.
Coram:
Waglay JP, Murphy and Kathree-Setiloane AJJA
JUDGMENT
MURPHY AJA
[1]
The four appellants (“the appellants”) are respectively,
the Commissioner
of the National Lotteries Commission (“the
NLC”), the NLC, the board of the NLC and the Human Capital
Manager of the
NLC (‘the HCM”). They appeal against the
judgment and order of the Labour Court (Lagrange J) of 18 January
2018 finding
that the refusal of the fourth appellant (the HCM) to
deviate from the decision of the first appellant (the Commissioner)
to deploy
the second respondent, Ms. Mokgatlha, (“Mokgatlha”)
to KwaZulu-Natal was
ultra vires
and therefore null and void.
[2]
In 2011, the NLC (then the National Lotteries Board) embarked on an
organisational
development process aimed at transforming the
organisation in accordance with pending amendments to the Lotteries
Act
[1]
("the Act").
The Act was amended in 2013 with the aim of accelerating service
delivery and ultimately required the NLC
to provide services in all
of the provinces. This necessitated the deployment of staff to newly
established provincial offices.
The NLC thus was required to embark
on a process to select which employees it should transfer.
[3]
Prior to the restructuring, 10 assistant managers, including
Mokgatlha, were based
at the NLC's offices in Pretoria. These
assistant managers were eventually all relocated to various provinces
throughout the country.
All the employees of the NLC were affected
and Mokgatlha’s entire department of 13 staff members was
relocated to Durban.
[4]
On 5 March 2012, a general notice was circulated to all staff of the
NLC informing
them of the proposed restructure. The notice explained
that there would be nine regional offices across the Republic in
order to
ensure greater efficiency and that the NLC became more
accessible to its beneficiaries and applicants.
[5]
Thereafter a consultation process, involving all the relevant trade
unions including
the first respondent (“NUPSAW”), was
undertaken by an independent service provider to determine the
selection of staff
for re-deployment and the finalisation of new job
descriptions. The process took longer than anticipated and only began
in earnest
in February 2015.
[6]
As part of the process, an engagement forum for the provincial
deployment was established.
The forum members comprised of affected
divisional executives and managers, NLC management, NEHAWU, NUPSAW
and non-unionised staff
representatives. Numerous meetings were held
between 16 April 2015 and 4 December 2015 at which NUPSAW was duly
represented. No
objections were raised in relation to the assessment
process and criteria adopted. The unions accepted the method of
selection
of employees to be transferred and agreed to the process
followed.
[7]
Consultations were held with affected employees to explain the
reasons for the restructuring
and to inform them of the positions to
which they would be allocated under the new structure, their new job
descriptions and the
terms and conditions applicable to them. The
process allowed the employees an opportunity to be heard and for
their representations
to be considered. Change management workshops
were conducted and one on one counseling sessions were provided to
all impacted employees
in order to assist affected employees with the
management of their personal circumstances in accordance with the
NLC's Relocation
Policy (“the policy”).
[8]
The policy, which was adopted by the board in early 2014, governs the
compensation
of employees chosen for relocation. Clause 6 of the
policy sets out its purpose as follows:
‘
This
policy regulates the manner in which the NLB compensates an employee
for actual reasonable expenditure where, in the interest
of the
organisation, the employee is transferred, appointed or utilised at a
location other than the one where he/she has normally
resides (sic)’.
[9]
The policy provides for payment of: i) travel and subsistence for a
pre-visit; ii)
travel and subsistence for moving to the new place of
work; iii) transportation and storage of personal belongings; iv)
interim
accommodation; v) new school books, uniform and travel
expenses for dependent school children; vi) transfer fees of
property; and
vii) relocation allowances.
[10]
Clause 9 of the policy has assumed some importance in this appeal. It
reads:
‘
The
board delegates authority to consider written requests for deviations
from this policy to the CEO.’
[11]
The implementation of the process was conducted in three phases.
Firstly, a call for volunteers
was made and employees were given an
option of choosing three provinces based on their preferential
choice. Nineteen employees
volunteered and some were placed in
accordance with their choice. The majority of the employees elected
to remain in Gauteng, it
was therefore not possible to accommodate
all of the employees in Gauteng and therefore an assessment process
was introduced. Where
there was more than one volunteer for the same
position, employees were deferred to the second phase which focused
on the multiple
positions that were available. In order to fairly
allocate these positions, an external panel was sourced to conduct
interviews
on behalf of NLC. The panel interviewed the assistant
managers, grant officers and junior grant officers and the employees
were
appointed to various positions that were available. Mokgatlha
was not placed during these phases of the process.
[12]
A third phase was then opened. Four assistant managers remained
unplaced at this stage, including
Mokgatlha. The employees were
subsequently consulted on an individual basis which resulted in one
assistant manager volunteering
for the Monitoring and Evaluation
specialist position in Limpopo. The remaining three assistant
managers were requested to undergo
capacity assessments and the final
deployment to the Eastern Cape, KwaZulu-Natal and North West was
made, based on these interviews
and assessments. The assessments were
based on merit and took into consideration the experience of the
assistant managers and the
needs of the respective provinces.
Mokgatlha was interviewed and assessed as part of this phase on 2
September 2015 and was the
lowest scoring candidate.
[13]
On 12 October 2015, Mokgatlha requested to be placed in the position
of assistant manager in
Mahikeng, North West Province starting
January 2016. There were three applications for the position in the
North West and thus
additional assessments were conducted. Mokgatlha
did not perform well in the assessment and was again rated the lowest
amongst
the three employees who had applied for the position in the
North West.
[14]
At the conclusion of the assessment, the Commissioner advised
Mokgatlha, in a letter dated 18
November 2015, that she would be
deployed to Kwa-Zulu Natal in terms of the agreed criteria. The
letter informed her that the change
would not have any adverse impact
on her current status and conditions of employment and that her
relocation would be dealt with
in terms of the applicable policy
prescripts. It is common cause that this decision was taken by the
Commissioner personally.
[15]
In response to the letter of 18 November 2015, Mokgatlha filed an
appeal on 23 November 2015
objecting to her re-deployment on the
basis that she was involved in a building project in Gauteng which
was capital intensive
and required her full time management in order
to avoid delays and additional costs. She also had two children at
university who
were wholly dependent on her financially and had
recently lost her father and thus needed to support her mother.
[16]
The Commissioner and the HCM convened a meeting to discuss the
appeal. The meeting concluded
that the reasons put forward by
Mokgatlha did not justify a deviation from the decision to transfer
her to KwaZulu-Natal.
[17]
The engagement forum met for the last time on 4 December 2015 in what
was referred to as a “close
out meeting". The report of
the meeting dated 31 December 2015, and signed subsequently (in
February 2016) by the various
parties including NUPSAW, indicated
that there were no objections and that there was consensus on the
processes and its outcomes.
The specific outcome in relation to
Mokgatlha was recorded in the report as follows:
‘
The
other 3 Assistant Managers (NW) were then taken for capacity
assessments, and a final deployment for EC, KZN and North West
were
made based on the interviews and assessments. Other than the order of
merit that was utilised, the final placement had to
take into
cognizance the experience of the Assistant Managers and the needs of
the respective provinces, culminating into tackling
the unique
challenges each province faced.’
[18]
Mokgatlha was informed on 7 December 2015 that her appeal had been
considered and rejected and
accordingly she was requested to make
arrangements for her relocation. On 11 December 2015, a meeting was
held to discuss the concerns
raised by four assistant managers,
including Mokgatlha, who were required to relocate. At the conclusion
of this meeting it was
agreed that the employees would be permitted
to continue at the NLC's head office until 31 March 2016.
[19]
On 22 January 2016, Mokgatlha submitted a memorandum complaining
about the decision to relocate
her to KwaZulu-Natal and asking for it
to be re-considered. On 14 March 2016, Mrs. Lucia Baker, the NLC's
human resources assistant,
addressed an electronic mail to Mokgatlha
requesting engagement with her in respect of her transfer to
KwaZulu-Natal. Mokgatlha
advised Baker that she had lodged an appeal
with the Commissioner and was still awaiting a response. On 15 March
2016, Mokgatlha
submitted a further memorandum to the Commissioner
again requesting the Commissioner to reconsider the decision.
[20]
On 16 March 2016, the Commissioner addressed a letter to Mokgatlha
informing her that her correspondence
had been referred to the Human
Capital Division and asked her to “approach the Senior
Executive of Grant Funding and the
Talent and Performance Manager on
your redeployment”. Ms Mokgatlha was not satisfied with this
response, and addressed an
electronic mail to the Commissioner on 16
March 2016. In the e-mail, Mokgathla again expressed dissatisfaction
about the decision
and the fact that the Human Capital Division was
seeking to engage her on the logistics of her re-deployment. She
concluded the
memorandum as follows:
‘
The
above Commissioner, is the reason why I have escalated this matter to
your office as the Accounting Authority for your consideration
and
intervention. It is therefore my still my humble request Commissioner
that I receive a decisive response from your office.’
[21]
A further meeting was held on 31 March 2016 subsequent to which the
Commissioner reconfirmed
the NLC's decision to deploy Mokgatlha to
KwaZulu-Natal. On the same day, a letter was addressed to Mokgatlha
by the HCM as follows:
‘
SUBJECT:
OUTCOME OF APPEAL OF REDPLOYMENT TO KZN –YOURSELF
Following receipt of your
appeal addressed for the attention of the Commissioner dated the 22
nd
day of January 2016 and the subsequent follow up date the 15
th
day of March 2016; please be advised that your appeal was
unsuccessful.
You are therefore
expected to arrange with the Senior Executive Granting Funding, Mr.
Jeffrey Du Preez on or before the 1
st
day of April 2016 as
to the time that you will be able to assume your duties in your new
work station (KZN Province).’
[22]
Mokgatlha failed to take the necessary steps and as a result was
instructed by the Commissioner
in a letter dated 5 April 2016 to
report for duty on 11 April 2016, failing which the NLC reserved its
rights to terminate her
contract of employment. The letter read as
follows:
‘
Following
the outcome of your unsuccessful appeal which was communicated to you
through correspondence dated the 31
st
day of March 2016; this office has been reliably informed by the
office of Senior Executive: Grant Funding that you failed to respond
by yesterday (as promised on 1 April 2016) nor discussed with a view
to reach agreement on a date for you to report for work at
your new
work station (KZN Provincial Office) as expected without any valid
reason.
In view of the
aforementioned, please be advised that you are expected to report for
work at the abovementioned office on or before
the 11
th
day of April 2016 and failure to do so will be construed as
repudiation of your contract of employment and the employer reserves
the right to terminate same with or without further correspondence on
the subject matter.
Hope you will treat this
matter with the urgency it deserves.’
[23]
On 7 April 2016, NUPSAW addressed a letter to the NLC claiming that
its correspondence of 31
March and 5 April 2016 to Mokgatlha amounted
to victimisation and that the NLC had failed to properly consider
Mokgatlha's personal
circumstances. It requested the deployment of
Mokgatlha be delayed pending the outcome of a meeting to be arranged.
[24]
In response to NUPSAW's letter, the Commissioner addressed a further
letter to Mokgatlha on 8
April 2016 informing her that the decision
to transfer her to KwaZulu-Natal was final and that no further
correspondence and/or
appeals would be considered. Mokgatlha
eventually reported for duty to KwaZulu-Natal on 26 April 2016 under
protest and reserving
all her rights.
[25]
The respondents (NUPSAW and Mokgatlha) instituted an application in
terms of section 158(1)(h)
of the Labour Relations Act
[2]
(“the LRA”) to set aside the decision of the Commissioner
taken on 18 November 2016 to transfer and redeploy Mokgatlha.
They
essentially raised four grounds of review. It was alleged that:
firstly, Mokgatlha had not been given an opportunity
during the
re-deployment process to present her personal circumstances in
support of her request to remain in Gauteng; secondly,
“her
requests for deviation” (her appeal) had been unreasonably and
irrationally refused; thirdly, the Commissioner
had failed to take a
decision on her various appeals and abdicated the decision to an
official who was not invested with the authority
to consider them;
and fourthly, the HCM (Moloko) had dismissed her appeals without the
authority to do so.
[26]
Section 158(1)(h) of the LRA provides that the Labour Court may
review any decision taken or
any act performed by the State in its
capacity as employer, on such grounds as are permissible in law. It
is not disputed that
the NLC is an organ of state. Thus, its
decisions, in its capacity as employer, are reviewable either under
the Promotion of Administrative
Justice Act
[3]
(“PAJA”), provided they constitute administrative action,
or on legality grounds under the Constitution. The broad
constitutional principle of legality is an aspect of the rule of law
recognised as a fundamental value of our constitutional order
in
terms of section 1(c) of the Constitution. All exercises of public
power must be lawful.
[27]
Disputes over the transfer or relocation of an employee are not
specifically dealt with in the
LRA. They thus cannot be arbitrated
under the LRA by the CCMA or a bargaining council, unless the
transfer constitutes an unfair
labour practice by unfairly impacting
on the provision of benefits, is an unfair disciplinary measure or
demotion, or results in
an unfair constructive dismissal.
[4]
As the relocation of Mokgatlha was not disciplinary in nature and did
not impact on her benefits or status, the respondents sought
a
legality review under section 1(c) of the Constitution
[5]
and alleged that the decision was procedurally unfair and irrational,
as well as being illegal because the HCM had acted under
a delegation
of power by the Commissioner which was not authorised by the relevant
empowering provision, in particular the policy.
The latter contention
rests on the assumption that employees of the NLC had a statutory or
contractual right to appeal to the Commissioner
against a relocation
decision, and that the Commissioner was required to decide the appeal
personally.
[28]
The Labour Court held that the decision to transfer Mokgatlha was not
procedurally unfair or
irrational. There is no cross-appeal against
those findings. It, however, found that the intertwined third and
fourth grounds of
review had merit. The learned judge held that it
was common cause that the Commissioner had not herself decided
Mokgatlha’s
appeal and had unlawfully delegated the power to
decide the appeal to the HCM. He rejected the Commissioner’s
contention
that she had the power to delegate authority to consider
the appeal in terms of section 2D of the Act, which provides that the
Commissioner may delegate, with or without conditions, any of the
powers of the Commissioner to any suitably qualified employee
of the
NLC. His reasoning in this regard was as follows:
‘
However,
the applicants argue that the Commission’s relocation policy
only contains evidence that the board delegated authority
to the CEO
to consider written requests for ‘deviations’ from the
policy. The policy does not mention any other delegations.
Further,
the respondents provide no other evidence of the alleged delegation
under section 2D.’
[29]
After mentioning the Commissioner’s letter of 16 April 2016
referring the matter to the
human capital division, the learned judge
continued:
‘
This
alone indicates that the Commissioner did not regard Mokgatlha’s
appeal against deployment as a matter requiring her
own personal
attention after the meetings she held with Mokgatlha in December
2015, but is not evidence that she had clearly delegated
the power to
consider the appeal or deviations to anyone in particular or when
this might have been done. In addition, the Commissioner’s
letter of 14 March reinforces the view that she declined to take
responsibility for the final decision on Mokgatlha’s appeal
or
request for deviation relating to her re-deployment, without a clear
express delegation of authority.’
[30]
The learned judge went on to say that the mere say-so of the
Commissioner that she had delegated
authority to consider the appeal
was “simply insufficient”. He, accordingly, upheld the
review on this ground, declared
the HCM’s decision “to
refuse to deviate” from the decision to transfer Mokgatlha
ultra vires
and null and void and ordered the Commissioner to
take a fresh decision “whether or not to deviate from the
decision to deploy”
Mokgatlha. He later granted leave to appeal
against his judgment. As there is no cross-appeal, the only issue on
appeal is whether
there was an unlawful delegation in the alleged
failure by the Commissioner to deal with Mokgatlha’s appeal in
accordance
with the prescripts of the policy.
[31]
The reasoning of the Labour Court is flawed in more than one respect.
[32]
Firstly, it was not common cause that the Commissioner did not deal
with the request by Mokgatlha
for reconsideration of the decision of
18 November 2015. In paragraph 61 of the answering affidavit, the
Commissioner stated:
‘
Upon
receipt of the appeal dated 23 November, a meeting was arranged with
myself, Tintswalo Nkuna…and Moloko. The purpose
of this
meeting was to discuss the appeal received from Mokgatlha and to
further consider her reasons for the appeal. All the submissions
were
properly considered. Those reasons in my view did not justify a
deviation from the decision to deploy Mokgathla to KwaZulu-Natal….’
[33]
This averment was not denied or disputed in the replying affidavit
and accordingly must be accepted
as factually correct.
[6]
[34]
Furthermore, the evidence (as appears from the correspondence)
suggests strongly that the Commissioner
was personally involved in
further reconsideration of the decision between January and April
2016.
[35]
However, be that as it may, there is a more fundamental flaw in the
reasoning of the Labour Court.
Its decision is falsely premised on
the notion that Clause 9 of the policy gave Mokgatlha a right to
appeal or “to request
a deviation” from the decision to
transfer. That proposition is not correct. Clause 9 of the policy has
nothing to do with
the decision to transfer an employee. It simply
delegates the board’s authority to the CEO
(the Commissioner) to consider written requests for deviations from
the principles
governing reimbursement of expenditure incurred by
employees called upon to relocate. The policy does not deal with the
substantive
decision to relocate an employee. It is concerned only
with the compensation of employees for reasonable expenditure
incurred in
relocating; and clause 9 gives the Commissioner the power
to deviate from the generally applicable norms. It gives no right to
an employee to appeal to the Commissioner against a decision to
relocate and most certainly does not impose a limitation of any
kind
upon the Commissioner’s authority to delegate her powers in
terms of section 2D of the Act.
[36]
Hence, to summarise, the decision of the Labour Court is wrong for
the following reasons. Firstly,
the evidence does not establish that
the employee had any right to an internal appeal (under the policy or
otherwise) against the
decision to relocate her; secondly, even if
she enjoyed such a right of appeal, the Commissioner personally
reconsidered the decision;
and thirdly, even if the decision had been
reconsidered by the HCM rather than the Commissioner, the
Commissioner had the statutory
power under section 2D of the Act to
delegate the authority to the HCM and clause 9 of the policy imposed
no limitation upon that
power. In the result, it cannot be said that
the decision in relation to the request for reconsideration was
unlawful and reviewable
because the decision-maker acted under a
delegation of power which was not authorised by any applicable
empowering provision. The
appeal, concerned solely with this narrow
issue, must succeed for these reasons alone.
[37]
Finally, there is merit in the submission of the appellants that
Mokgatlha was bound by a collective
agreement to relocate to
KwaZulu-Natal. NUPSAW agreed not only to the process in the
engagement forum close out report in December
2015 but also to the
final outcome report in February 2016, which constituted a collective
agreement as defined in section 213
of the LRA and thus was binding
on Mokgatlha in terms of section 23(1)(b) of the LRA.
[7]
In these circumstances, there was an agreement and not a unilateral
administrative decision or exercise of public power. It is
conceivable that a collective agreement could be reviewed where it is
extended by the Minister of Labour in terms of section 32
of the LRA
to a non-party to the agreement,
[8]
but it is inconceivable that a collective agreement to which a person
is bound as a party can constitute a decision capable of
review. The
Labour Court erred in finding that the decision to deploy Mokgatlha
was reviewable in such circumstances.
[38]
For all the aforegoing reasons, the appeal must be upheld and the
judgment of the Labour Court
be set aside.
[39]
The appellants seek costs. Mokgatlha was given ample consideration
and there was no merit at
all in the application. The grounds of
review were spurious and the decision to transfer Mokgatlha entirely
fair. She was properly
consulted, fully assessed and more than
reasonably accommodated. Having signed off on the closure report it
was unreasonable for
NUPSAW to persist with the application and
appeal on behalf of its member. In the circumstances, equity demands
that NUPSAW should
bear the costs.
[40]
In the premises, the following orders are made:
40.1
The appeal succeeds and the orders of the Labour Court are set aside
and substituted with the following orders:
“
a).
The application is dismissed.
b) The first applicant
(NUPSAW) is ordered to pay the costs of the application”
40.2.
The first respondent (NUPSAW) is ordered to pay the costs of the
appeal.
______________
JR Murphy
Acting
Judge of Appeal
I agree
______________
B Waglay
Judge
President
I agree
______________
F Kathree-Setiloane
Acting
Judge of Appeal
APPEARANCES:
FOR THE
APPELLANTS:
Adv N Cassim SC
Instructed by: Hogan
Lovells
FOR THE RESPONDENTS:
Adv P van Wyk
Instructed
by Ndumiso Voyi Inc
[1]
Act
57 of 1997.
[2]
Act
66 of 1995.
[3]
Act 3 of 2000.
[4]
See J Grogan
Workplace
Law
(10
th
ed) Juta 89-91;
Matheyse
v Acting Provincial Commissioner, Correctional Services and Others
(2001) 22 ILJ 1653 (LC); and
Egerton
v Mangosuthu Technikon
[2002] 10 BALR 1047 (CCMA).
[5]
A transfer in the employment context is not administrative action
but rather a labour practice, and thus PAJA does not apply.
[6]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[7]
Section 23(1)(b) of the LRA provides that a collective agreement
binds each party to the collective agreement and the members
of
every other party to it, in so far as the provisions are applicable
between them.
[8]
Association
of Mineworkers and Construction Union and others v Chamber of Mines
of South Africa and others
[2017] 7 BLLR 641
(CC)