About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2010
>>
[2010] ZALCD 22
|
|
Ethekwini Municipality v Chetty and Others (D761/08, D381/09) [2010] ZALCD 22 (5 February 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
DURBAN
REPORTABLE
CASE
NO:
D761/08 & D381/09
In
the matter between:
ETHEKWINI
MUNICIPALITY
Applicant
And
M. CHETTY
First Respondent
IMATU
Second Respondent
BONISILE KOJANE
N.O.
Third Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT BARGAINING COUNCIL
Fourth Respondent
JUDGMENT
CONRADIE
AJ
INTRODUCTION
1.
This judgment deals with two applications. The one is a review
application in terms of section 145 of the Labour Relations
Act 66 of
1995 (LRA) in terms of which the Applicant seeks to review an
award of the Third Respondent.. The other is
an application by
the First and Second Respondents in terms of section 158(1)(c) of the
LRA to make the award an order of court.
2.
The underlying dispute relates to the refusal by the Applicant (the
Municipality) to allow the First Respondent (Chetty) to participate
in a motor vehicle scheme. The Third Respondent (the
Arbitrator) determined that the Municipality had committed an unfair
labour practice by so doing and ordered that Chetty be allowed to
participate in the scheme.
THE
MOTOR VEHICLE SCHEME
3.
The motor vehicle allowance scheme is contained in a collective
agreement known as the Durban Metropolitan Council and North
Central
and South Central Local Council Rules of the Reimbursive Motor
Vehicle Scheme 1999 (the Motor Vehicle Scheme).
4.
The Motor Vehicle Scheme aims to regulate the use of an employee’s
own vehicle for purposes of the Municipality’s
work in
circumstances where the Municipality’s transport is
inappropriate or unavailable.
5.
In considering an application to participate in the Motor Vehicle
Scheme the Municipality will consider factors such as the frequency
of use, duration of the trips and urgency of usage as well as the
hours of duty.
6.
Resorting to the situation where employees use their private vehicles
for work purposes is, however, something which the Municipality
only
considers as a last resort as it has a large number of its own
vehicles for use by its employees in the course and scope of
their
duties.
CHETTY’S
APPLICATION
7.
Chetty was appointed to the position of Superintendent: Ottawa Water
Waste Depot on 8 October 2005.
8.
Chetty applied to participate in the Motor Vehicle Scheme. From
the information submitted in support of his application
it appears
that he was required to be on call in order to assist with mechanical
breakdowns and safety related problems at any
time on a twenty four
hour basis. It was also confirmed by his line managers that
Chetty:
8.1.
was responsible for supervising a gang of mechanical artisans in the
maintenance
of mechanical equipment at the Municipality’s 76
waste water pump stations and 6 waste water treatment works;
8.2.
was required to undertake regular inspections of mechanical
installations that
covered a large geographical area;
8.3.
provided assistance to artisans after hours;
8.4.
attended to site meetings and inspections of mechanical equipment at
various
mechanical contractors’ workshops;
8.5.
liaised with employees from the works branch and systems branch;
8.6.
attended various safety meetings.
9.
The following information was also submitted in support of Chetty’s
application:
9.1.
the previous incumbent of the post enjoyed a motor vehicle allowance;
9.2.
his job required him to be available on short notice and also for
emergency
call outs after normal working hours;
9.3.
should a Municipality vehicle be available to him he may not be in a
position
to respond to emergencies which could affect the process of
waste water pumping and treatment increasing the risk of pollution to
the environment.
10.
Chetty submitted his application to the Head of the Water Sanitation
Unit, a Mr. Macleod. Macleod, however, did not decide
the
application but referred it to the management services and
organizational development unit which in turn forwarded it to the
locomotion sub- committee which turned down Chetty’s
application.
11.
Chetty was of the view that in terms of the collective agreement the
sub-committee does not have authority to make this decision
as it’s
decision making power is limited to appeals against decisions by the
Executive Director / Head of the Unit.
As there was no decision
by the Head of the Unit the sub-committee did not have the authority
to make the decision refusing the
award of the vehicle allowance.
12.
Chetty was also unhappy with the decision because other
superintendents in the same department as him received the
reimbursive
allowance. He could not see any distinction between
their jobs and his and therefore regarded the decision not to pay him
the allowance as inequitable. A further anomaly according to
Chetty was that those superintendents who received allowances
were on
a lower grade than what he was.
13.
As a result of his unhappiness with the outcome he referred a dispute
to the Fourth Respondent and an award was subsequently
issued by the
Arbitrator in the following terms.
13.1.
“
Based on the evidence and argument presented at this
arbitration, the applicant is entitled to a locomotion allowance in
accordance
with the scheme.
13.2.
The Respondent’s refusal to grant the applicant
locomotion allowance constitutes an unfair labour practice.
13.3.
The Respondent is ordered to grant the applicant locomotion
allowance effective from 1
st
of June 2007.
13.4.
There is no order as to costs”.
14.
In her award, after briefly summarising the respective parties
arguments, the Arbitrator dealt with the evidence and arguments
as
follows
“
Survey of
Evidence and Argument
“
The memorandum
dated the 7
th
of May 2003 circular no. 16 of
2003 issued by a municipal manager is in contravention with the
collective agreement and it seeks
to unilaterally alter the
collective agreement by conferring powers to the Departmental
Sub-Committee to approve or disapprove
locomotive allowance
applications which is in contradiction with Clause 3.1 which vests
the power in the hands of the head of the
department. Clause
2.2 provides that a scheme may be amended only by agreement duly
negotiated at the Bargaining Council.
The employer failed to do
that: instead he issued a memorandum, which was unilaterally
altering the terms of that collective
agreement. The Head of
the Department cannot unilaterally introduce changes that affect the
accessing of the locomotive benefit
because he waived that right when
he entered into that collective agreement.
Section 23(1)(c) of
the LRA provides that a collective agreement binds the members of a
registered trade union and the employers
who are members of a
registered employer’s organization that are party to the
collective agreement if the collective agreement
regulates terms and
conditions of employment or the conduct of the employees in relation
to their employers. It is common
cause that 2001 Constitution
of SALGBC is a collective agreement and is binding upon all parties
to the agreement. Section
24 of the Act provides for a
mechanism for the resolution of disputes arising out of a collective
agreement. The respondent
was open to invoke these provisions
if they found the policy to be cumbersome.
My understanding of
the policy is that the Sub-Committee only features appeal on
instances where the employee is not satisfied with
the decision of
the Head of the department he may then refer the matter to the
Sub-Committee for internal resolution which is provided
for in Clause
9 of the Locomotive Scheme.”
(sic)
15.
The above is the extent of the Arbitrator’s reasoning in the
matter. It is clear that the Arbitrator only deals with the
issues of
who was the competent person or body to determine an application for
the motor vehicle allowance and that if the Municipality
was unhappy
with the way that the agreement worked it could have invoked the
dispute resolution mechanisms contained in the collective
agreement.
16.
Nowhere in the Arbitrator’s award is the issue of the alleged
unfair labour practice dealt with at all other than the
statement
under the “Award” section that “
the Respondent’s
refusal to grant the Applicant locomotion allowance constitutes an
unfair labour practice.”
She also did not deal with
whether or not Chetty in fact complied with all the requirements in
terms of the scheme and as
such she was also not in a position to
find that he should have received the motor vehicle allowance.
17.
The Arbitrators failure to deal with the essence of the dispute
before her amounts to a gross irregularity and in the circumstances
the Arbitrator reached a decision which a reasonable decision maker
could not have reached. The application to review and
set aside
the award must therefore succeed.
18.
As far as the section 158 application is concerned this must
obviously fail on the basis that the award is set aside.
19.
With regard to costs, I am of the view that the requirements of law
and fairness dictate that no order should be made as to
costs.
20.
In the circumstances I make the following order:
20.1.
The award issued under case number EMD 030802 is reviewed and set
aside.
20.2.
The matter is referred back to the Fourth Respondent for
determination by a commissioner
other than the Third Respondent.
20.3.
No order as to costs.
__________________________
Conradie AJ
Date of hearing
7 December 2009
Appearance for
Applicant
Mr M Maeso of
Shepstone & Wyle
Appearance for First
and
Second Respondent
S Reddy of Shanta
Reddy
Attorneys
Date of judgment
5 February 2010