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[2009] ZALCD 34
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Ethekwini Municipality v IMATU and Others (D760/08) [2009] ZALCD 34 (9 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO:
D760/08
Not Reportable
In
the matter between:
ETHEKWINI
MUNICIPALITY
APPLICANT
and
IMATU
FIRST
RESPONDENT
COMMISSIONER
JABULANI NGWANE
SECOND RESPONDENT
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
THIRD RESPONDENT
MAJOZI,
THAMBIRAN & 5 OTHERS
FOURTH & FURTHER RESPONDENTS
JUDGMENT
Conradie
AJ
1. In this matter the
Applicant seeks,
inter alia,
to review and set aside an
arbitration award handed down by the Second Respondent under Case
Number EMD02 0807 and EMD 10836.
2. At the heart of the
matter is a collective agreement known as the Subsidised Locomotion
Scheme for the City of Durban.
3. The scheme deals with
the payment of “Locomotion Allowances” to employees.
According to the scheme its objects are
to provide for the following:
“
1. Guidelines,
conditions and limitations in terms of which the scheme is to run.
2. The
basis of compensation and Scheme Benefits. “
4. Clause 3 of the scheme
provides as follows:
“
3. SCHEME
STIPULATIONS
In respect of new
entrants into the SCHEME, it is the responsibility of the EXECUTIVE
DIRECTOR, with due regard to the SCHEME stipulations,
to determine to
what extent PRIVATE TRANSPORT shall be utilised for Municipal
purposes where Municipal Transport is in his opinion
inappropriate or
unavailable. Other aspects which should be considered include:-
Distance travelled
Frequency of use
Duration of trips
Urgency of usage
requiring standby vehicle at all times.
Hours of duty
(Bargaining Forum
1995-08-22)”
5. In the matter before
me the Fourth and Further Respondents applied to the Applicant to
participate in the Locomotion Scheme.
It is common cause that they
were unsuccessful in their application and further that no reasons
were given to them by the Applicant
for rejecting their applications.
6. The Fourth and Further
Respondents were unhappy with the Applicant’s decision and
after unsuccessfully attempting to address
the situation internally
they referred an unfair labour practice dispute to the Third
Respondent.
7. The Third Respondent
appointed the Second Respondent to arbitrate the matter.
8. It appears that there
was agreement between the parties to the arbitration that they would
submit documentary evidence to the
Second Respondent in order for him
to peruse and issue an award. As a result of this approach the Second
Respondent states in his
award that “no
viva voce
evidence was led.”
9. It also appears from
paragraphs 4.2 to 4.5 of the Award that some kind of argument was
presented at the arbitration but the extent
of this is not clear from
the affidavits submitted by the parties or from the record.
10. In his arbitration
award the Second Respondent identified the issues to be decided as
follows:
“
2.
ISSUE TO BE
DECIDED:
2.1 Whether the
applicants were entitled to a Locomotion Allowance in accordance with
the Re-imbursive motor vehicle scheme.
2.2. Whether the
respondent committed unfair labour practice by denying the applicants
the access to the scheme which other employees
at the same level as
the applicants had access to.”
11. In his award under
“ANALYSIS OF EVIDENCE AND ARGUMENTS” the Second
Respondent states as follows:
“
5.1. It is trite
that a benefit to an employee accrues ex lege or ex contractu.
5.2. In this matter it
was common cause that there was a Collective Agreement which the
Locomotion policy was part thereof.
5.3. The employees, whom
it was not in dispute that enjoyed Locomotion Allowance had the
regulation of their benefits flowing from
the same Collective
Agreement which the applicants were also party to.
5.4. In this manner, the
respondent’s actions had the effect of treating the applicants
arbitrarily by perpetrating differential
treatment on its employees.
5.5. It is logical to
conclude that a legitimate expectation is created by an employer when
some employees performing the same or
similar tasks have a benefit
that is tied to post extended to them.
5.6. Those employees ho
did not enjoy the benefit yet would legitimately expect the employer
to extend the same benefit to them
at a given time.
5.7. Going by the parties
Collective Agreement and the Locomotion Scheme, the evidence and
arguments I find that the applicants
are entitled to the Locomotion
Allowance in accordance with the Scheme.
5.8. In conclusion, based
on the evidence and arguments presented before me, I find that the
respondent in this dispute committed
an unfair labour practice by
arbitrarily denying the applicants access to the Locomotion Scheme
which other employees of the same
standing and performing duties
equivalent or similar to those performed by the applicants were
allowed access to the same Scheme.”
(sic)
12. The above is the sum
total of the Second Respondent’s reasoning in the matter.
13. Mr Maeso, who
appeared on behalf of the Applicant submitted that the issue of
legitimate expectation has no place in a dispute
such as the one
which the Second Respondent had to determine. This on the basis that
the fact that other employees may also be
receiving the allowance was
not the test for determining whether the Fourth and Further
Respondents should also have received it.
Rather what was required
was that the Second Respondent had to determine whether the Fourth
and Further Respondents qualified for
the allowance, but
notwithstanding this, were denied access to it by the unfair conduct
of the employer.
14. Mr Seery who appeared
on behalf of the First and Fourth and Further Respondents argued that
although it was not apparent from
the record that the Second
Respondent considered whether or not the Fourth and Further
Respondents qualified in terms of the allowance,
it is dealt with in
the answering affidavit at paragraphs 16 and 17. He submitted that
this should be accepted as what happened
at the arbitration insofar
as there is doubt as to whether or not this important evidence was
led, particularly as the Applicant
had not disputed this in a
replying affidavit as none was filed.
15. Even if this version
of what was before the Second Respondent, as put up in the answering
affidavit, must be accepted on the
basis of
Plascon-Evans Paints
Limited v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
,
this in itself does not explain why this critical reasoning was
not dealt with in his award.
16. I agree with Mr Maeso
that what was required in order for the Fourth and Further
Respondents to be successful at the arbitration
was that they had
shown that they had met the criteria for qualification in terms of
the scheme, but notwithstanding this they
were not entitled to
participate in it as a result of the unfair conduct of the employer.
The latter could then possibly be illustrated
by the Fourth and
Further Respondents referring to the fact that other employees who
similarly qualified and held the same or similar
posts received the
“benefit.” I use the term “benefit” loosely
in that I have not decided whether this
allowance is in fact a
benefit or a condition of service as alluded to by Mr Maeso. However
given the approach that I take to this
matter I do not have to
determine this issue.
17. I thus conclude that
there is insufficient to no reasons advanced as to how the Second
Respondent reached the conclusion that
he did. Not only are such
reasons normally required, even if brief, but in the circumstances of
this case necessary to show that
the Applicant had in fact committed
an unfair labour practice. The Second Respondent committed a
reviewable irregularity in this
regard and in doing so came to a
conclusion that no reasonable decision-maker could in this regard.
18. With regard to costs,
I am of the opinion that the requirements of law and fairness dictate
that no order as to costs should
be made.
19. In the circumstances,
I make the following order:
1. The
arbitration award issued under case number EMD 020807 and EMD 010836
is reviewed and set aside.
2. The
matter is to be referred back to the Third Respondent for
consideration by a Commissioner other than the
Second Respondent.
3. No
order as to costs.
_____________
Conradie
AJ
Date
of Hearing: 8 December 2009
Date
of Judgment: 9 December 2009
Appearances:
For
the Applicant:
Mr Maeso – Shepstone
and Wylie
For
the Respondent:
Adv T Seery – instructed by Shanta Reddy Attorneys