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[2010] ZALCJHB 33
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Premier, Limpopo Province v Makgoka and Others (JR1194/10) [2010] ZALCJHB 33 (29 June 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR 1194/10
In the matter between:
THE PREMIER, LIMPOPO
PROVINCE
Applicant
and
THIVAKHONI
DAVID MAKGOKA
1
ST
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
2
ND
Respondent
THE
REGISTRAR, LABOUR COURT OF
SOUTH
AFRICA
3
RD
Respondent
SHERIFF
OF THE HIGH COURT FOR THE
DISTRICT
OF POLOKWANE
4
TH
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.
This is an application to stay a writ of execution on a settlement
agreement, which was brought on an urgent basis. The
matter was
set down on 22 June 2010.
2.
The settlement agreement had been made an arbitration award under
section 143(3) of the Labour Relations Act 66 of 1995 (‘the
LRA’). The applicant seeks to set aside the writ pending an
order of this court that it has complied with the award or,
alternatively, seeks an order remitting the matter back to the
bargaining council to have the quantum of what is owing to the first
respondent in terms of the settlement agreement determined.
Background
3.
The first respondent attended a human resources planning course in
India from 1 February to 31 October 2008 at the invitation
of the
office of the Indian High Commission.
4.
The cost of the course, return air tickets, book allowance and a
living allowance of ten thousand rupees a month were paid for
by the
High Commissioner.
5.
On his return to South Africa, the applicant claimed a subsistence
allowance for the time spent in India. On account of the amounts
paid
from the High Commission, the applicant states it was only willing to
pay the first respondent a subsistence allowance of
R 74,00 per day.
The first respondent disputed the proposed rate of the allowance,
believing he was entitled to an allowance of
R 95-00 per day.
He based his claim on the tariffs for overseas official visits
to India which are set out in a document
entitled “Accomodation
on Official Journeys outside the Republic” issued by the
Department of Public Service and Administration
(‘the DPSA
document’). The first respondent referred an unfair labour
practice dispute over the unpaid allowance to
the bargaining council.
6.
The parties concluded a pre-arbitration minute in terms of which they
agreed that the matter to be determined was “…
(w)hether
or not the respondent’s decision to use a flat rate of R 74-00
per day for paying the applicant’s subsistence
and traveling
allowance for the period he was nominated to study in New Delhi,
India constitutes an unfair labour practice.”
7.
The applicant concedes that its representative “…
realised
that the First Respondent was in fact entitled to be paid in
accordance with the DPSA document
”, and consequently
concluded a written settlement to that effect with the first
respondent.
8.
The
key provision of the settlement agreement was that the parties agreed
that the “…
the
applicant/employee will be paid his subsistence and traveling
allowance for the period 1 February 2008 to 31 October 2008 using
the
tariffs and rates that were applicable to official trips outside the
RSA as contemplated in Annexure A of the Financial Manual.
[1]
”
9.
However, the applicant took the view that the DPSA document provided
for an allowance of $ 63 (US) per day for employees who
traveled to
India, but this was subject to the provisions of paragraph 2 of the
DPSA document.
10.
Paragraph 1.1 of the document reads as follows:
“
1. When
expenditure on accommodation is wholly met from public funds an
employee is compensated on the following basis:
1.1.
In
the case of official visits to countries listed in the table
hereunder:
1.1.1.
The
reasonable actual expenses in respect of accommodation, dry cleaning
and laundering; and
1.1.2.
A
special daily allowance to compensate for the employee’s three
meals (breakfast, lunch and dinner) and incidental expenses
(e.g.
reading matter, private telephone calls, soft drinks which do not
form part of meals, etc).
”
11.
India is one of the countries listed in the schedule which follows.
On the applicant’s version of the schedule the
special daily
allowance for India, which is specified for employees who are not
heads of department or accompanying a minister
applicant was $ 63
(US) per day.
12.
The applicant now contends that this allowance was subject to the
provisions of paragraph 2 of the PDSA document, which
states:
“
2. The amounts
set out in the table hereunder are maximum amounts. Therefore when
accommodation expenditure and related expenses
are wholly or
partially sponsored by a donor or sponsor or where part of the meals
(e.g breakfast included in hotel accommodation
expenses) is paid by
the Employer, the payment of a reduced special daily allowance must
be considered.
Due to the above, it
is advisable to have a departmental policy on the payment of such
reduced amounts. In the formulation of such
policy, departments are
strongly advised to consider the following breakdown of the special
daily allowance to determine the reduced
special daily allowance to
be paid:
2.1 Incidental
expenses (15%)
2.2 Breakfast (20 %)
2.3 Lunch (20 %)
2.4. Dinner (45 %)
”
13.
The first respondent disputes the applicability of the reduced
allowance provisions as he contends the applicant has never
had a
departmental policy as paragraph 2 recommends. He further contends,
as I understand his argument, that a reduced tariff has
not been
applied to other employees with similar entitlements.
14.
The first respondent, using the same DPSA document but one with a
revised schedule of daily allowances effective from
1 September 2008,
demanded to be paid a special daily allowance of $ 95 (US) per day
for each day he was away from1 February to
31 October 2008.
This he calculated to be R 208,744 - 92 based on a rand-dollar
exchange rate of R 8.02055 over the 274 day
period.
15.
By contrast, the applicant took the view that the amount payable was
15 per cent of a daily allowance of $ 63 (US) per
day. Using the same
exchange rate as the applicant this amount works out as R 20,767.61,
which the applicant paid to the first
respondent in April 2010, which
it claims amounted to compliance with the award.
16.
The first respondent first lodged his claim for the larger
amount in November 2009 and when the applicant did not
satisfy his
claim he set in motion the enforcement proceedings in the LRA. It
seems it was his notification to the applicant of
10 March 2010 that
he was going to apply to have the agreement, which had already been
certified as an award in October 2009, made
an order of court which
galvanised the applicant to initiate the payment it made in April.
17.
The first respondent disputes the validity of this payment as proper
recompense of his claim and alleges that the claim
form for S & T
expenses in the same amount, which purportedly bears his signature
and dated 8 March 2010, is unrelated to his
claim and moreover, is a
fraudulent document.
18.
The first respondent pursued his claim and ultimately obtained a writ
on 20 May 2010 in an amount reflecting his calculation
of what was
due to him. On 4 June the applicant allegedly asked for his
indulgence for 14 days before executing the writ, in order
for the
applicant “to assess the situation”.
19.
After apparently consulting the state attorney and counsel, the
applicant took the view that the only way to resolve the
dispute over
the quantum of the settlement agreement was to refer the matter back
to the bargaining council.
20.
The applicant then sought to arrange a meeting between itself, its
advisors and the applicant to discuss the matter and
avoid what it
believed would be unnecessary litigation to stay the writ. The first
respondent was not receptive to these overtures
and declined to meet
with the applicant and its representatives. He advised them that he
would be pursuing execution of the writ.
The first respondent
was by that time of the view, understandably, that the applicant had
been dragging its heels since the settlement
in September 2009 and
was seeking to avoid giving affect to it. He contends therefore that
the urgent application is brought too
late to justify the short
notice on which it was brought, and represents a belated attempt by
the applicant to thwart his legitimate
claim.
21.
The
applicant for its part alleges that the writ was not issued in strict
compliance with the interim requirements laid down by
the
constitutional court in its recent decision in
Minister
for Justice and Constitutional Development v Nyathi
2010(4) BCLR 293 (CC)
for the execution of writs against the state pending the revision of
the State Liability Act.
[2]
There appears to be some substance to this claim. The first
respondent retorts that he has substantially met the requirements
even if it has not complied with all of them in having the writ
executed.
Evaluation
22.
The application is for interim relief staying the execution of the
writ, pending either confirmation by this court that
the first
respondent’s claim has been satisfied by the belated payment
of R 20,767.61 by the applicant, or the determination
of the
correct quantum of the settlement agreement by the bargaining
council.
23.
In relation
to the alternative claim, the applicant has taken the view that the
bargaining council is the appropriate forum to determine
the quantum.
Essentially the issue of the correct quantum stems from a
disagreement about the interpretation of the settlement
agreement. It
is well established that the arbitral powers of CCMA commissioners
and bargaining council arbitrators are limited
when it comes to
matters of interpreting agreements to the interpretation and
application of collective agreements.
[3]
This court has routinely deals with the interpretation of settlement
agreements particularly where there is a dispute about whether
a
settlement agreement which has been made an order of court has been
complied with or not.
[4]
24.
Accordingly, it would seem that the appropriate forum to determine
the dispute about what is due in terms of the settlement
agreement is
the Labour Court, and whether the payment made by the applicant
amounts to compliance with the award.
25.
I am satisfied despite the certainty of the first respondent about
the correctness of his claim that there is some doubt
about the basis
of his calculation even if he is ultimately shown to be correct that
the agreement meant that the applicable tariff
in the schedule of the
DPSA document should be applied without a reduction. As mentioned
above, he seems to base his calculation
on a tariff that only came
into effect in September 2008. Equally there are questions which need
to be answered by the applicant
about how it justifies its
application of 15 % of the specified tariff.
26.
Accordingly, I am not satisfied that the sum mentioned in the writ
correctly reflects the intention of the settlement
agreement. As
mentioned above there are
prima facie
good grounds for
believing the writ does not comply with the precepts laid down by the
Constitutional Court, which is another good
reason to stay its
execution pending the determination of what is due in terms of the
settlement agreement.
27.
Although the applicant could have defended its position on the
settlement agreement more vigorously, I accept that it
did attempt to
try and address the matter with the applicant to try and avoid having
to bring an application to stay the writ.
The applicant’s
reluctance to engage with it at that stage and his execution of the
writ did justify the urgency of this
application in my view.
28.
I agree that the applicant might have acted more expeditiously in
defending its claim about what was due and its heel
dragging in
implementing the settlement might have caused understandable
frustration for the first respondent. However, the first
respondent
should at least have explored the applicant’s belated attempts
to resolve the matter before pressing ahead with
execution of the
writ, which would only have entailed a relatively short delay.
29.
In the light of these considerations, I make the order below.
However, I believe that if the parties look dispassionately
at their
respective interpretations of the settlement agreement and engage
constructively with each other to try and settle this
matter it
should be unnecessary for this court to deal with the matter again.
Order
30.
Accordingly, the following order is made:
30.1. The writ issued by
the fourth respondent in the amount of R 208,744 – 92 is stayed
pending the determination of the
quantum of the settlement agreement
and whether it has been complied with by the applicant;
30.2. the dispute over
the determination of the quantum of the settlement agreement and
whether it has been complied with by the
applicant is to be set down
on the opposed motion roll for hearing on 11 November 2010, after the
parties have supplemented their
papers as set out below;
30.3. the first
respondent may file a supplementary affidavit setting out the basis
on which he believes he is entitled to the amount
claimed in the
abovementioned writ, by no later than 9 July 2010.;
30.4. the applicant may
file answering affidavit dealing with the first respondent’s
supplementary affidavit and his answering
affidavit in this
application insofar as it is pertinent to dealing with the dispute
referred to in paragraph 30.2 by no later
than 23 July 2010;
30.5. the first
respondent may file a replying affidavit to the applicant’s
answering affidavit by no later than 30 July 2010.
30.6. in the affidavits
mentioned above, the parties must
inter alia
address the
following issues:
30.6.1. the
applicable tariffs during the period the first respondent was in
India;
30.6.2. the first
respondent’s explanation for why he believes the tariff
published in September 2008 applies to his
claim.
30.6.3. the
applicant’s explanation of the origin of the claim form for S &
T expenses on which it calculated the
amount owing to the first
respondent;
30.6.4. the
applicant’s explanation for the application of a reduced tariff
on a rate of 15 %, and
30.6.5. whether or
not other employees of the applicant who travelled abroad in similar
circumstances have been subject to
the same reduction in the tariff
in the DPSA document.
30.7. No order is made as
to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 22 June 2010
Date
of Judgment: 29 June 2010
Appearances:
For
the Applicant: C Prinsloo instructed by the State Attorney
For
the Respondent: Mr H T Mathotho of N T Mathothoho Attorneys
[1]
The DPSA document.
[2]
At
309-310, par [57] of the judgment.
[3]
See e.g,
Independent
Municipal & Allied Trade Union v Northern Pretoria Metropolitan
Substructure & Others
(1999) 20 ILJ 1018 (T)
at 1022 C-F or, more recently
First
National Bank Ltd (Wesbank Division) v Mooi NO & Others
(2009) 30 ILJ 336 (LC)
at
340, par [16].
[4]
See
e.g,
Mathosi
& Others v Kintetsu World Express (Pty) ltd & Another
(2008) 29 ILJ 2785 (LC)