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[2010] ZALCJHB 327
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Jaarsveld and Others v Mangaung Local Municipality and Another (J637/10) [2010] ZALCJHB 327 (11 June 2010)
IN
THE LABOUR COURT OF SOUITH AFRICA
(HELD
AT BRAAMFONTEIN)
CASE
NO J 637/10
In
the matter between:
M
VAN JAARSVELD
FIRST APPLICANT
N
J MASITHELA
SECOND APPLICANT
M
J MOLOYENI
THIRD APPLICANT
R
R NAIDOO
FOURTH APPLICANT
T
M M
MOCHOCHOKO
FIFTH APPLICANT
M
F MOKGOBU
SIXTH APPLICANT
and
MANGAUNG
LOCAL MUNCIPALITY
FIRST RESPONDENT
THE
CITY MANAGER: MANGAUNG
LOCAL
MUNICIPALITY
SECOND RESPONDENT
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application brought on a semi-urgent basis in which the
applicants seek what amounts to a final order declaring the
second
respondent’s decision to re-assign the applicants to posts
other than those in which they were employed to be unlawful.
The
applicants rely on s 77 of the Basic Conditions of Employment Act
read with s 158 of the Labour Relations Act to contend that
they were
engaged to perform specific and defined work, and that the
respondents’ conduct in directing them to engage in
other
materially different work, constitutes a breach of their contracts of
employment.
The
facts
[2]
The applicants are all employed as general managers of the first
respondent. They all work in Bloemfontein, where they hold
various
portfolios.
The
applicants’ terms and conditions of employment are regulated by
signed contracts. For the purposes of these proceedings,
the first
applicant’s contract annexed to the papers, in circumstances
where it was not disputes that the contracts signed
by the remaining
applicants are materially similar. The nature of the first
applicant’s responsibilities is spelled out in
his contract of
employment, over some three pages. In broad terms, he is required to
provide legal advice to the first respondent,
with a managerial
responsibility for the process of amending by-laws, drafting
contracts, litigation and the like.
[3]
Clause 6.4 of the contract provides as follows:
“
The Employee’s
head office and ordinary place of work is Bram Fischer Building, 5 De
Villiers Street, Bloemfontein or such
other municipal workplace in
the municipality are as determined by the Municipality…”
[4]
Clause 16 of the contract reads as follows:
“
VARIATIONS NOT
EFFECTIVE UNLESS IN WRITING
No variation,
modification or waiver of any provision of this agreement, or consent
to any departure therefrom, shall in any way
be of any force or
effect unless confirmed in writing and signed by both parties. Such
variation, modification, waiver or consent
shall be effective only in
the specific instance and for the purpose and to the extent for which
it was given.”
[5]
The second respondent, the city manager, assumed office in August
2009. He soon formed the view that the first respondent had
a bloated
management structure, and that regional structures ought to be
strengthened
inter alia
to respond better to challenges
relating to service delivery. In November 2009, a report was prepared
on how the first respondent’s
operations might be
decentralized. A meeting was held on 8 December 2009 at which the
report was presented by means of a PowerPoint
presentation. For
reasons that are not material, four of the six applicants were not
present at the meeting. On 10 February 2010,
a meeting was held with
each of the affected employees, including the applicants, when it was
explained to them that they would
be assigned new positions at post
level 4 (the applicants were appointed on the higher post level 3),
that their personal profiles,
qualifications and skills would be
taken into account in the re-designation of their positions and the
re-assignment of their duties,
functions and responsibilities. The
applicants were given seven days to reflect on the proposed changes.
After this meeting, the
applicants were advised of their new
positions. All but the fifth applicant were allocated posts with
different portfolios in the
Thaba Nchu or Botshabelo regions.
[6]
On 25 February 2010, the second respondent addressed letters to the
affected employees, including the applicants, informing
them of the
re-designation of their respective positions and their re-assignment
and directing them to commence their new duties
on 1 March 2010.
[7]
The letter addressed to the first applicant on 25 February reads as
follows:
“
RE-DESIGNATION
OF YOUR POSITION AND RE-ASSIGNMENT OF YOUR DUTIES, FUNCTIONS AND
RESPONSIBILITIES
I refer to the
previous consultation meetings with all members of management (City
Manager, Executive directors and General Managers),
including you in
your individual capacity on 10
th
February 2010; on the
above matter. I confirm having advised you in the aforementioned
consultation meetings, inter alia, as follows:
1.
The institution is faced with a declining performance as it relates
to basic
service delivery;
2.
The current management arrangement of the municipality is not aligned
to the
service delivery challenges of the municipality; and
management and close supervision are major contributors to regular
failures
experienced in the system, sometimes;
3.
The situation is deteriorating with centralized decision-making
delaying implementation,
which situation is not conducive to
effective and optimal utilization of the Municipality’s human
resources, and is completely
unhelpful to effective and efficient
delivery of services to communities falling within the area of
jurisdiction of Mangaung Local
Municipality;
4
The re-alignment and devolving of additional powers and functions to
the
three (3) Regional Offices will effectively decentralize
operations of the Municipality and bring services closer to the
communities
the Municipality is serving. It will assist in removing
bureaucratic red tape; which more often hinders service delivery and
has
been thoroughly discussed, consulted and debated with relevant
stakeholders. It has also been overwhelmingly received as the best
way to address the deteriorating performance of the Municipality by
senior management.
5. The following is
hereby re-confirmed:
(i) The re-alignment
of the current micro-organizational structure will take effect as
from 1
st
March 2010;
(ii)
You are officially being re-assigned from your current position of
General Manager:
Legal Services; to the position of Manager:
Corporate Support and finance (Thaba Nchu Region), with effect 1
st
March 2010. The rest of the terms and conditions of service as it
relates to your employment will remain unchanged; and so will
your
salary notch and incremental date, where applicable.
(iii)
The duties, functions and responsibilities assigned to you
pursuant to your aforesaid re-designated position are set out in the
attached Annexure A10 of this letter.
(iv)
You will report to the General Manager: Regional Office: Thaba
Nchu; with effect 1
st
March 2010, who will
allocate the necessary office accommodation at the Regional Office on
your assumption of duty.
[8]
The extent of the changes effected by this directive can be
illustrated by reference to the circumstances of the first applicant.
He contends that his status has been diminished, that the effect of
the respondents’ directive is to inconvenience him since
Thaba
Nchu is some 70 kilometers from his home (which is in Bloemfontein),
that he is being obliged to perform work outside of
the scope
contemplated by his contract of employment, that he does not have the
necessary qualifications, skills and experience
to perform the job of
a manager for corporate support and finance, and that he will
accordingly be prejudiced by the performance
rating system applied by
the first respondent. All of these and other issues were incorporated
into the terms of a grievance lodged
by the applicants on 1 March
2010. After correspondence with the speaker and thereafter between
the parties’ respective attorneys,
this application was filed.
[9]
The ‘mobility’ issue was abandoned at the hearing of this
application – Mr. Venter, who appeared for the applicants,
properly conceded that the terms of the applicant’s contracts
were such that the first respondent was entitled to require
them to
work at any place within the municipal boundaries, and that this
included Thaba Nchu and Botshabelo. I did not understand
the
respondents to dispute that the second respondent’s directive
to the effect that the applicants’ positions were
re-designated
and their duties re-assigned constituted a variation of their
employment contracts. The dispute boiled down to whether
or not the
applicants had consented to the variation.
Legal
principles
[10]
The founding affidavit does not clearly articulate the right on which
the applicants rely to secure the relief that they claim.
However, it
is sufficiently apparent that their primary complaint is that the
respondents acted in breach of their employment contracts
by taking a
unilateral decision to transfer them and re-assign their duties. The
starting point in any consideration of the applicable
legal
principles is the nature and extent of an employee’s obligation
to render services to the employer. Writing in
Labour and
Employment Law,
Wallis says the following:
“
The primary
purpose of the contract of employment is that the employee should
render services for the employer. That obligation
is not entirely
general. The scope of the services to be rendered will be determined
by the terms of the contract. The employee
is only obliged to perform
those services which fall within the defined scope of the post which
he or she has been employed to
fill and those which are reasonably
ancillary thereto. The employer cannot demand that the employee
perform tasks falling outside
those parameters
.” (At 4-3,
para 21, footnotes omitted).
It
follows that an employer seeking to vary the terms of an employment
contract (for example, by varying the scope of the services
to be
rendered) must do so in a manner that is lawful. Ordinarily, this
requires any amendment to be brought about by the same
mechanism that
was necessary in the first place for the conclusion of the contract,
i.e. agreement to the new terms (see Wallis
supra
at
7-18(4)).
[11]
The respondents contend that the applicants consented to the change
to their employment contracts. In this regard, they rely
on the
meetings held on 8 December 2009 and 10 February 2010, and in
particular the fact that the applicants failed to offer any
alternatives to the proposals made by the respondents during what was
described as a period of consultation. The furthest the respondents
go is to suggest that after the ‘one on one’ meeting in
February, the applicants “all accepted their positions”,
and that in the following seven days that the applicants were
afforded time to make further inputs or suggestions, they did not
do
so. Even on this version of events (the applicants’ dispute
that they accepted or acquiesced in the respondent’s
proposals), in my view, the failure by an employee to respond to a
variation proposal does not ordinarily amount to agreement as
it is
understood in contractual terms, i.e. an offer and a clear and
unequivocal acceptance of that offer. The second respondent’s
letter dated 25 February 2010 does not refer to or confirm any
agreement to the varied terms, nor does the lodging of a grievance
by
the applicants less than a week later sustain this version. Thus on
the respondents’ own version, consent to variation
of the scope
of responsibilities has not been established.
[12]
Even if I am wrong in coming to this conclusion, assent by
acquiescence is not sufficient to effect a lawful variation of the
applicants’ employment contracts. Clause 16 of the contract
requires any variation of its terms to be reduced to writing
and
signed by both parties. It is common cause that the first respondent
did not seek to secure or confirm the applicants’
written
consent to the changes that it proposed to their employment
contracts, nor did the applicants sign any record of any variation,
thus signifying their assent thereto. In these
circumstances, clause 16 provides that a variation or departure from
the agreement is of no force and effect.
[13]
The applicants have accordingly established a clear right to the
relief that they seek. None of the other requirements for
final
relief were in issue.
For
these reasons, I make the following order:
The re-assignment of the
applicants’ positions and the re-designation of their duties
constitute a breach of the applicants’
contracts of
employment.
The respondents are
ordered to comply with the terms of the applicants’ contracts
of employment.
The respondents are
ordered to pay the costs of these proceedings, jointly and
severally, the one paying the other to be absolved.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing 9 June 2010
Date
of judgment 11 June 2010
Appearances:
For
the applicants: Adv Venter instructed by Lovius Block
For
the respondents: Adv RT Sutherland SC, instructed by Lebea and
Associates.