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[2007] ZALCCT 14
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Lyners v Minister of Education Province of the Western Cape and Another (C3444/2007) [2007] ZALCCT 14 (23 July 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NO: C3444/2007
In
the matter between:
JOHN
LYNERS
Applicant
and
THE
MINISTER OF EDUCATION
PROVINCE
OF THE WESTERN CAPE
First Respondent
DEPARTMENT
OF EDUCATION
PROVINCE
OF THE WESTERN CAPE Second
Respondent
J
U D G M E N T
NEL, AJ
[1]
This is an urgent application in which the applicant initially filed
his urgent application on 13 July 2007, indicating that
the matter
was to be heard on Tuesday 17 July 2007, at 14h00 or so soon
thereafter as the matter may be heard.
[2]
By reason of the fact that a Court was not available to hear the
matter on the stipulated date, which fact was made known to
the
parties, the respondent parties herein had indicated that the
decision to fill a post would, in any event, not be taken until
August this year. Under these circumstances the urgent
application was then, by agreement, to be heard today, being
23 July
2007.
[3]
On 12 July 2007, the respondents’ attorneys of record
dispatched a letter to the applicant’s attorneys of record
and
in this letter a proposal was made that the matter be dealt with in a
particular manner and with stipulated time-frames, but
with the
purpose of hearing an expedited or urgent review application.
The letter indicated that the respondents’ attorneys
were
instructed to request a reply from the applicant to the offer, that
is the offer to regulate the matter in a particular manner,
and that
such response should be made by not later than 09h00 the following
day, which was Friday 13 July, 2007.
[4]
Suffice it for me to say that there was no formal response to this
letter and at one point in time, Mr Osborne, who appeared
before me
on behalf of the applicant, did informally indicate to Mr de Waal,
who is one of the counsel who appeared before me on
behalf of the
respondents, that the proposal appeared acceptable.
[5]
The further events relevant to this particular part is simply that on
17 July 2007, the respondents’ attorneys of record
then advised
the applicant that, as it had heard nothing in relation to the
proposals made, the urgent application would proceed.
[6]
The respondents accordingly filed extensive answering papers on
Friday, 20 July 2007. On that day the respondents’
attorneys also dispatched a letter to the applicant’s attorneys
in which it referred to the application set down for today.
It
confirmed that the respondents’ answering papers had been
served on the applicant. It sought that it be advised
as a
matter of urgency whether the applicant intended to serve replying
papers. It further asked in this letter that if the
applicant
intended to do so, the respondents would need sufficient time to go
through these papers before the hearing today.
A suggestion was
made that the replying papers should be filed not later than 12h00 on
Saturday, 21 July 2007.
[7]
It again repeated the call for a reply as to whether replying papers
were to be served and the letter concludes by indicating
that a
security officer would be on duty at the offices of the respondents’
lawyers and further leaving the cellphone numbers
of two of the
attorneys dealing with the matter at the respondents’ attorneys
of record.
[8]
When the matter was called today, it appeared that the applicant
wanted to have the matter postponed in order that he could
properly
and fully reply to the answering affidavit filed on behalf of the
respondents. This application was opposed and
in the event the
end result was that I indicated that I would want the parties to
address me on what I will refer to as the technical
arguments raised
by the respondents so that, in the event of me concluding that the
matter should not proceed by reason of the
respondents persuading me
that there is merit in the technical points, then of course the
postponement would not be necessary.
In the event of me not
being persuaded that there is merit in the technical points, at that
point in time most likely and obviously
the matter would have been
postponed so that the substance could be properly aired.
[9]
Equally briefly, what this matter involves is that the applicant, who
was employed in the Department of Education of the Western
Cape
Province in a very senior position, has come to the Court on the
basis that, following a restructuring exercise, and with
the number
of posts at the level of the applicant having been increased from the
three existing to four positions, he contends
that he ought to have
been placed in one of those positions.
[10]
Relevant, in the sequence of events as far as this particular issue
is concerned, is the fact that it is clear that consultations
had
taken place between the respondent parties and as far as the
applicant is concerned, his union, namely the Public Service
Association. (I will refer to it hereinafter as “the PSA”).
[11]
It is further apparent that during March 2007, it was indicated to
the applicant’s union (the PSA) that the applicant’s
position was going to be affected by the restructuring and that the
applicant was not going to be placed in one of the existing
positions. It would appear that this decision was made known to
certainly the PSA somewhere about 6 March 2007.
[12]
On 16 March 2007, the applicant was informed by the member of the
Executive Council responsible for this particular portfolio
that he
could not be matched and he was invited to make representations.
The applicant thereupon did submit substantive representations
to the
MEC and although the letter itself does not expressly indicate that
it is a reply to such representations, the MEC then
replied to the
applicant on 27 March 2007, in which he confirmed yet again the
respondents’ decision, namely that the applicant’s
position was affected and that he was not going to be placed.
[13]
A number of important dates herein are alleged to have been known to
certainly the applicant’s union. The one is
that it is
contended that the PSA, who had been consulted in this matter by the
respondents, was aware of the fact that affected
positions would be
advertised on 5 April 2007. It is further contended that the
PSA had been consulted about the fact that
the applicant’s post
was affected and that such consultations had taken place on 20 March
2007. As I indicated, the
Minister’s decision, which
clearly was to the effect that the applicant was not going to be
placed, was conveyed to him on
27 March 2007.
[14]
On the papers before me it would appear that the applicant took no
further steps regarding the matter until almost two months
later,
when he in a letter dated 23 May 2007, asked for the reasons for the
Provincial Minister’s decision. It is placed
in issue
whether the reply from the Minister dated 11 June 2007, did
constitute the provision of such reasons, but nevertheless
on that
date there was a reply to the applicant’s letter of 23 May
2007.
[15]
On 22 June 2007, the applicant’s attorneys of record wrote a
letter in which they sought confirmation from the respondents
that
they would not proceed with the recruitment and selection process,
failing which an urgent application would be launched.
[16]
It would appear that a meeting between the legal representatives of
the parties took place on 3 July 2007, and when the parties
were not
able to reach agreement on the way forward, it is contended that the
respondents at that point in time indicated to the
applicant that,
under these circumstances, he must bring his urgent application.
[17]
The contention, or the grievance, which the applicant puts forward is
that an unfair labour practice has been perpetrated against
him
relating to his alleged demotion. It must also be mentioned
that the employer has raised the point that the applicant
has failed
to apply for the particular position which he contends he ought to be
placed in. The applicant appears to be adamant
that he is not
going to apply for such position and he appears to persist that
properly assessed, he ought to be placed in the
particular position
in the restructured organisation and his position appears to be
that, accordingly, he need not apply
for the position.
[18]
The technical points raised on behalf of the respondents are briefly
the following. In the first instance it is contended
that the
applicant has failed to comply with the mandatory requirements of the
General Law Amendment Act, and specifically section
35 thereof, which
provides as follows:
“
Interim
interdicts against the State
Notwithstanding anything
to the contrary contained in any law, no court shall issue any rule
nisi
operating as an interim interdict against the Government
of the Union, including the South African Railways and Harbours
administration
or the administration of any province or any Minister,
Premier or other officer of the said Government or Administration in
his
capacity as such, unless notice of the intention to apply for
such a rule accompanied by copies of the petition and of the
affidavits
which are intended to be used in support of the
application was served upon the said Government, Administration,
Minister, Premier
or officer at least 72 hours or such lesser period
as the court may, in all the circumstances of the case, consider
reasonable
before the time mentioned in the notice for the hearing of
the application”.
[19]
Mr Kahanovitz, appearing on behalf of the respondents, with Mr de
Waal, argued that this requires a separate notice to be served
and
that the filing of an applicant’s application for a rule
nisi
is not sufficient. It is common cause that no such separate
notice has been filed in this matter.
[20]
I was referred to the relevant case law, which confirms that section
35 of the General Law Amendment Act is peremptory and
the argument
was further raised that under these circumstances, the Court is
precluded from hearing the matter. Mr Osborne referred
me to a case
heard in this court and he indicated that the Court did not find but,
it would appear,
obiter
, mentioned that the possibility
existed that this particular section does not apply to the State in
its capacity as employer.
[21]
I do not share that particular view and am therefore of the view that
for this reason alone the application stands to fail.
If I were
wrong in this conclusion, I proceed to deal with the next proposition
and that is that the urgency herein has been self-created.
[22]
In this regard I do not believe that there can be any question that
the letter of 27 March 2007, constitutes a clear confirmation
to the
applicant that he is not going to be placed, that his position was
affected and to the extent, therefore, that he contends
that an
unfair labour practice was perpetrated by reason of his demotion
surrounding the factors which I have referred to, I am
satisfied that
27 March 2007 is the date on which he patently became aware of this
being the case.
[23]
Mr Osborne in this regard referred me to the questions as to when the
clock starts ticking but did so with particular reference
I believe
more to the application of PAJA herein, and further also with
reference to the question of a review application.
[24]
It is clear that the time period within which the applicant had to
take action, either by way of referring a grievance to his
employer
or, if he elected to rather pursue his grievance through the
bargaining council, he had to do so within 90 days from the
date on
which the dispute arose. In the event, it would appear that he
has referred a dispute to the bargaining council but
now he faces
another predicament, namely that the bargaining council makes it very
clear that it will only have jurisdiction once
the internal grievance
procedures of the employer had been complied with. It is,
therefore, the present situation, in my
view, that no proper referral
has been made to the bargaining council in question. Mr Osborne
referred me to a letter which
the applicant had sent to the Minister
and in which he indicated that he was formally in dispute.
[25]
Dealing with the issue of self-created urgency, I am not going to be
detained by the question whether that letter in and by
itself
complies with the proper referral of a dispute to the employer of the
applicant.
[26]
Another relevant factor is that on the facts placed before me, it is
patently clear that, in the event of the applicant not
being placed
in one of the four newly created positions at his level, then he will
continue to be carried against his post. It
is further apparent that
he would continue to be carried at the same rank and with the same
remuneration. In this regard
Mr Osborne has referred me to, and
obviously the Court is quite aware of, the fact that a person’s
salary remaining the same
is not the end all and the be all of the
matter.
[27]
The fact of the matter is that this Court is of the view that the
dispute it has before it, declared by the employee herein,
or if I
say declared, I should rather rephrase that by saying alleged by the
employee herein, relates to the fact that he contends
that in the
restructure, he is the person suitable to be placed in a particular
restructured position. When he was advised
that he was not
going to be placed in that position, it is equally further clear that
it was required of the applicant to apply
for the position. I
have already indicated that the applicant appears to be very adamant
that he is not going to apply.
Again, I do not believe it
necessary for me to determine whether, under these circumstances, he
has made out a case on a
prima facie
basis that there may be
an unfair labour practice relating to his demotion.
[28]
The fact of the matter is that an urgent application has been brought
to this Court under circumstances where the applicant,
in the event
of him not being placed in any one of those four positions, and it
would appear as if that event is now fairly certain
by reason
particularly of the fact that he is failing and refusing to apply for
the position, he is not going to lose out as far
as his remuneration
is concerned, and it is made further clear that he is going to
continue to be used in the most effective manner.
[29]
In this regard, I wish to simply quote from the letter which I have
referred to a number of times now, namely that of the Provincial
Minister dated 27 March 2007. The second-last and last
paragraphs of this letter read as follows:
“
Intussen word daar
van u gewag om voort te gaan met die uitvoering van u huidige
verantwoordlikhede en alle bestaande delegasies
bly van krag totdat u
andersins in kennis gestel word.
U welsyn is van kardinale
belang vir die Departement en alle moontlike hulp sal aan u verskaf
word, indien u dit sou verlang.
In hierdie verband kan u die
Hoofdirekteur : Interne Menslikekapitaalbestuur, mnr J A Hurter, in
Kamer 918, 9de vloer, Grand Central
Towers, Kaapstad nader. Dit
staan u ook vry om met hom by telefoon nommer 021 467 2539 kontak te
maak”.
[30]
The question that immediately jumps to mind is what makes the
applicant’s position different to that of any other employee
faced with a restructure in respect of which the employee is then
identified as occupying an affected position and with the employee
disagreeing with his employer. This Court is of the view that
the urgent application processes in this court are very often
abused. If every employee, who is confronted either with a
dismissal or, as in the present case, confronted with what he
or she
contends to be a demotion, is able to run to this court on an urgent
basis, one wonders what the need would then be for
the arbitration
processes which the Labour Relations Act makes provision for.
[31]
Reference has been made by Mr Kahanovitz to the fact that the
legislature has deemed it fit and proper not to reproduce what,
in
the previous Act, became commonly known as “
status quo
applications” or the applications brought in terms of section
43 of the former Labour Relations Act. My attention was
also
drawn to the fact that, in the referral to arbitration, the applicant
actually indicated to the bargaining council that the
matter is
urgent.
[32]
Mr Osborne in this regard has referred me to cases to the effect that
the Court is reluctant to order the reinstatement, or
the instatement
of employees, under circumstances where their positions have been
filled. This again raises the same question
as to what makes
the applicant different to the many cases of alleged unfair dismissal
which come before the CCMA and bargaining
councils on a daily basis.
When an employee alleges that he has been unfairly dismissed, most
always his vacant position would
have been filled by the employer who
so has dismissed the employee. Equally often, if not always,
the employer will be aware
of the fact that the employee has declared
an unfair dismissal dispute against the employer. When
the employer then
fills that position, it does so full well knowing
that it faces the risk of having the employee reinstated. I do
not believe
that in the present circumstances, where the applicant
contends that, once the position is filled, he will not be able to
obtain
substantive relief, that this is a sound proposition.
[33]
In the event of the employee satisfying an arbitrator that he had
been demoted or, in the event of the matter proceeding on
the basis
that he ought to have been placed because he is suitably qualified
for the newly created position, I am of the view that
in the event of
the position having been filled, and particularly under circumstances
where the employer now does it at its own
peril, it will be perfectly
open to the arbitrator to make an order to the effect that the
applicant needs to be instated in the
particular position which he
contends he ought to have been placed in.
[34]
But reverting to the issue of self-created urgency, I am of the view
that the urgency of this matter has as a matter of fact
been created
by the applicant. I am in addition to that also, as is apparent
from what I have said a moment ago, of the view
that this is a matter
where the Court has not been persuaded that the applicant stands to
suffer irreparable harm in the event
of him not being granted the
relief he is seeking.
[35]
I am also not of the view that the Court has been persuaded that this
is the only remedy available to the applicant.
In fact, as I
have indicated, the Court is of the view that, if anything, the
energies of the applicant and his lawyers ought to
have been directed
at attempting to persuade the bargaining council to have heard this
matter in arbitration on an urgent basis.
[36]
For these reasons the Court is satisfied that the application should
be dismissed.
[37]
I may just also lastly very briefly deal with the proposition made on
behalf of the respondents that the applicant has not
established a
prima facie
right in labour law. I believe there is merit in
that contention and I do not at this point in time intend dealing any
further
with that because for the reasons I have already indicated, I
am of the view that the application should fail.
[38]
That leaves me to deal with the issue of costs. Mr Kahanovitz
has argued before me and raised a number of facts as to
why the Court
should consider granting costs on a punitive scale. He further
contended that the Court should also order such
costs as it does to
be against the applicant as well as the PSA. The reasons raised
by Mr Kahanovitz as to why the Court
should consider granting a
punitive costs order in summary were to the effect that a number of
important documents were not attached
to the applicant’s
papers. Mr Osborne replied to this by conceding that the
applicant’s founding papers may not
be perfect but that some
leniency ought to be granted to him in that regard. It was
further proposed by Mr Kahanovitz that
the fact that no mention was
made of a consultation process should also operate as a reason why
punitive costs should be granted.
[39]
Further, it was contended that because the applicant had not made
mention of the fact that the PSA had indicated that they
were
generally happy or satisfied with the consultation process, should be
considered as a reason why punitive costs should be
granted. Also the
fact that no mention was made thereto by the applicant that the PSA
had not objected to his position having been
declared affected.
Further reference was made by Mr Kahanovitz to the fact that there
was no compliance with section 35 of
the General Law Amendment Act
and a number of other points were raised by him.
[40]
Having considered all of these, I am not persuaded that in the
exercise of my discretion, the costs to be awarded herein should
be
on a punitive scale. As far as the request that the order of
costs be granted against the PSA as well, the Court is of
the view
that it understands the argument put forward that the PSA has
throughout been the party acting on behalf of the applicant.
This the
Court says with particular reference to the fact that the papers
before me indicate that the referral of the dispute to
the bargaining
council was made by the PSA on behalf of the applicant. However, the
Court is of the view that only under circumstances
where a union
party, or a party not cited in the papers before it, has actively
supported a party in the application, should it
consider granting
costs against it, in this case, the PSA. It may very well be
that the PSA at this point in time has intentionally
elected not to
assist the applicant any further herein. I am also, although
this was not raised, of the view that whilst
a party’s ability
to pay is not a factor to be taken into consideration in considering
whether that party should be made
to pay the costs, this is a case
where, in the event of the PSA in fact assisting the applicant to the
extent, as Mr Kahanovitz
suggested that the Court should have ordered
costs against it, it is very likely that it will assist and continue
to assist the
applicant in respect of payment of costs.
[41]
In the event of the Court being correct that the PSA has possibly at
this point in time made an intentional decision
no longer to assist
the applicant, then I am of the view that the respondents herein
ought nevertheless not to have difficulty
in getting its costs paid
by the applicant. However, as I said, that is not a factor of
great relevance. I simply mention
that obviously if the position was
herein that the respondents made out a case that it will not be able
to recover its costs, and
that an award of costs will be a hollow
one, then the Court would perhaps have proceeded in a different
manner. As Mr Kahanovitz
I believe suggested, one then would deal
with it on the basis of giving the party against whom one intended
seeking an order for
costs whilst it was not present, or party to the
proceedings, the opportunity to advise and argue why it should not be
done.
[42]
Because of the fact that the Court has come to the decision that it
is not inclined to grant costs against the PSA, the end
result is
simply that the application is dismissed and the applicant is ordered
to pay the first and the second respondents costs
of suit herein.
The Court has just been reminded that I need to also in my cost order
indicate whether the order will include
the costs incurred by
employing two counsel. The Court is of the view that because of
the nature of the matter, as well as
particularly the volume of
factual allegations and matter which had to be dealt with, that it
was warranted for the respondents
to have employed two counsel.
[43]
Under these circumstances the order as far as costs that I have
already indicated the Court made is amplified by indicating
that the
costs are to include the costs of two counsel.
____________________
DEON
NEL
ACTING
JUDGE OF THE LABOUR COURT.
Date
of hearing and judgment
: 23 July 2007.
Appearances:
For
the applicant
:
Adv Michael Osborne, instructed by Smith Tabata Buchanan Boyes.
For
the respondents
: Adv C Kahanovitz and Adv J de Waal,
instructed by Edward Nathan Sonnenbergs.