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[2010] ZALCD 21
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Moodley v Minister of Safety And Security and Another (D734/10) [2010] ZALCD 21 (10 September 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(Held
at Durban)
CASE
NO: D 734/10
Not
Reportable
In
the matter between:
DERERAJH
MOODLEY
Applicant
And
MINISTER
OF SAFETY & SECURITY
First
Respondent
COLONEL
M R
VORSTER
Second Respondent
JUDGMENT
CELE
J
Introduction
[1]
The application before Court is the one in terms of section 158(1)(a)
of the Labour Relations Act, 66 of 1995 (hereafter referred
to as
“the Act”), where the applicant seeks to be granted an
urgent and interim order whose terms appear in now what
is called an
amended order prayed for. This begins from page 297 of the
paginated bundle. The terms of the order sought
are the
following:
"The applicant's
non-compliance with the rules of the Court are sought to be
condoned. Pending the outcome of the review
application filed
under Case No D734/10:
1.
Respondents be and are hereby interdicted
from stopping applicant's salary.
2.
Respondents be and are hereby interdicted
from proceeding with the disciplinary proceedings instituted against
the applicant arising
from his failure to report to the crime office.
3.
The respondents be and are hereby
interdicted from ordering or instructing the applicant to report to
the crime office at Montclair
SAPS.
4.
The respondents be are hereby interdicted
from preventing applicant from performing the duties he is presently
performing at the
detective branch Montclair SAPS, South Coast Road."
Then
finally, there is a prayer that the respondents be ordered to pay the
costs of this application.
[2]
Both parties appeared before me on 28 August when the matter was
before Court. The matter was postponed to 6 September
2010 on
the understanding that the respondents were to be granted time to
file opposing papers. On Monday morning, 6 September
2010, the
file had thickened and was just brought to me in the morning. I
just could not deal with the matter. I attempted
to move the
parties to a settlement. My attempts were in vain. That
necessitated me having to postpone the matter to
have it heard
today. Further papers were filed this morning. Clearly
therefore the application is opposed by the two
respondents.
Background
Facts
[3]
The one aspect that remains common cause is that the applicant was
injured on duty. He was involved in a car accident
and was
indisposed for quite some time. He returned to work and again
he unfortunately was injured on his knee. He
then had to be off
duty for quite some months or quite a long period of time and when he
finally came back, he was then accommodated
in the sense that he
could no longer proceed to do the normal duties that he had been
doing as a detective and he was given what
the parties seem to agree
were light duties. It does not appear that there is an issue
around the nature of those duties
that he was doing, namely that they
were somehow light. It happened at the time that there was a
lady who had been doing
those duties. She had been indisposed
or she was unwell and was hospitalised for quite a long period of
time. It appears
common cause that he took over those duties.
[4]
There is a dispute about whether or not he only did those duties, but
it would seem that he might have done more than that,
judging by the
submissions that he has made in the affidavit. The lady came
back. He continued to work and then some
time this year, I
think it was in March, after the lady had come back, he was called to
a meeting, I think it was on 14 March,
which he attended and there
was a further attempt to hold a further meeting on 17 March.
The one on 17 March brings about
the dispute between the parties in
terms of the purpose for it and how it was to be structured.
[5]
It is in the running of the affairs of the police that if a person a
disabled, there will be a meeting where officers come together
to
determine what kind of duties he may therefore continue to do in his
career and out of that a decision is then taken.
It would
appear that according to the respondent, an attempt may have been
made to hold that employer support group meeting, but
from the side
of the applicant, clearly that kind of a meeting falls short of being
one such. After the 17 March 2010, the
events that follow
appear to be then the following which are more than relevant to the
present matter. A letter dated 25
March 2010 was issued to the
applicant. It reads:
"Placement
Inspector D Moodley
1.
Arising from your meeting with Supt B E
Dube and Capt Y P Reddy on 2010/03/17, kindly be advised that
management can only offer
the following posts at the following
components at SAPS Montclair:
Ø
Crime office: Investigator.
Ø
Detective branch: Investigating official.
Ø
Vispol: which is visible police crime
prevention/CSC official.
2.
Kindly be advised that upon resumption of
duties after your injury On Duty, you were accommodated by the Branch
Commander and given
light duties to perform. This however,
cannot be on a continuous basis.
3.
In light of the above, you are afforded the
opportunity to consider the abovementioned posts and advise the
office of your decision
within 05 working days.
4.
Kindly acknowledge receipt on duplicate
hereof."(sic)
[6]
A further document is dated 13 April 2010. It is issued and
addressed to the applicant. It reads:
"1.
In response to your grievance dated 2010/03/19, kindly be advised
that it was
management's decision to offer you the respective posts
at the components that were available and mentioned in my minute
dated
2010/03/19.
2.
The performance of light duties as previously delegated cannot be on
a continuous
basis. You were accommodated in performing light
duties by assisting with D/Typ NB Van Loggenberg’s duties.
Mrs
Van Loggenberg resumed duties in January 2010 and this affects
your placement. Circumstances have changed and all employees
have to be utilised effectively to maintain productivity.
3.
It must be pointed out, that the detective component at South Coast
Road is currently
not equiped for you to perform any functions on the
CAS. The crime office situated at SAP Montclair on Roland Drive
falls
under the detective component and has facilities to accommodate
you. You would be working in an office environment as an
investigative official and could also assist with the CAS functions
as mentioned in your grievance.
4.
You are not being prejudiced as Management is accommodating you by
affording
you the opportunity to choose your placement as mentioned
in our minute dated 2010/03/25. Your decision herein is
expected
on Friday, 16 April 2010.
5.
Kindly acknowledge receipt on the duplicate hereof."
[7]
Regrettably this document has highlights which have obliterated
clarity of some aspects making it difficult to read. I
may just
point out that between the two documents, the applicant had then
filed a grievance. That is what this document relates
to.
Then there is a letter dated 19 April 2010, placement, also issued to
the applicant. It reads:
"1.
This office's evenly numbered minutes
2010/03/25 and 2010/04/13 bears reference.
2.
You have failed to inform this office of your decision regarding your
placement.
3.
This office is hereby instructing you to report to the Crime Office
as an investigative
official with immediate effect, pending the
outcome of your grievance.
3.
Kindly acknowledge receipt on duplicate hereof."(sic)
This
appears to have been signed but the date appears to be 15 April
2010 and the letter is issued on 19 April 2010.
Effectively
then the applicant consulted his attorney and finally the matter came
before Court, as I have already indicated earlier
on.
[8]
What the application turns on is whether or not his intended
placement at the crime office, whichever word is used, whether
or not
it amounts to a transfer. If it is construed to be a transfer,
then the policy of the department kicks in. It
is clear then
that if he has to be transferred, certain steps have to be taken.
He must be told of the intention to transfer,
he must make
representations, they must be considered and a final decision should
be made. There is an exception where the
transfer is done on an
urgent basis. I have looked at the policy document which is
filed in the papers and it is clear in
terms of this document that it
is only in terms of paragraph 10.1.6 that a transfer on an urgent
basis may be done and it is worded
in the following:
"In
urgent cases if the interest of the State requires that an employee
immediately assume duties at another component."
This
is not the case that is before me. From the affidavits filed on
behalf of the respondents by Vorster and Reddy that it
does not come
across that the transfer of the applicant is intended to be treated
as one of urgency, if it were to be regarded
as a transfer. Is
it a transfer?
[9]
I have been taken through the papers that are filed as a means of
showing that what the applicant is currently doing is very
much
different from what he is called upon to do at the police station.
We are talking of normal duties. It is clear
that the two
functions are different and there is no doubt about that, and again I
am limiting myself to what the normal duties
are. The duties
that are performed at the police station by the crime unit
necessarily bring the officers closer to the heat.
They have to
very often go out to a crime scene, very often they have to come
across the suspects that would have been arrested
at the time and
therefore that environment is very much different from the
environment that is prevailing at the detective branch
where they are
working separately and away from the police station. I have
indicated to the parties as well that I am familiar
with the two
premises. I put it on record that I have a fair idea of those
premises.
[10]
It has been indicated to me that the applicant stands to suffer
prejudice if he is moved from where he is reporting to the
police
station. Firstly, in terms of the distance that he has to travel as
he lives in the Bluff. Certainly if there is any
difference, it
is not a major issue. It is very close by. He can choose
to take a shorter route, because there is a
route that starts from
the Bluff straight, you go past the police station along the South
Coast Road and down to his office.
He has indicated that he
takes a shorter route through the Mondi Road. That I take it to
mean that there would therefore
be a longer distance, but even if one
were to consider it might be longer, it is a question of just
probably less than a kilometre
or if it is, it is a very short
distance. I do not think that it becomes a bigger issue.
[11]
From the documents that have been shown to me, the applicant, if he
were to be moved, would be going to the same command line
in my view,
because he will be falling within the authority of the same station
commander. He will still be under the command
line of a second
officer who reports to the station commander. The documents
that are here seem to suggest that both the
crime unit and the
detective apparently have one authority they report to, who is junior
to the station commander. I have
looked at the papers and it
does not appear that they report to different personnel. That
therefore he would be reporting
to his immediate supervisor who is a
different officer does not in my view amount to it being soundly said
that it amounts to a
transfer. It cannot be.
[12]
In any government environment people get to be transferred
from one supervisor to another not in the sense of a transfer
that is
envisaged by the policy document. It just so happens at
Montclair Police Station that the detective is placed away
from the
premises of the police station. It could well have been the
case that the detectives would have been placed within
the same
premises. The locality therefore of the premises in my view
should not be seen to give a right to an employee which
he would want
to seek to protect, because then what happens when one day he wakes
up to find that there are new premises that have
been erected,
everybody is housed together and this is relevant to what is
happening in the country.
[13]
A lot of police stations have been improved, they have been
developed and all employees being put together. It
is something
that can physically happen at Montclair Police Station. One
would be then faced with the situation where the
detectives say, "We
do not want to go to a new office, we do not want to be together with
the rest of the police" and
rely on a decision such as this one,
if I were to accept what the applicant seeks to achieve and I do not
think that that will
be fair in the circumstances. It was just
opportunistic that the detective branch was placed differently.
They could
have been put within the same premises and in my view
therefore the fact that there are separate premises does not give
rise to
a right which the applicant would have basis to protect. In
my finding, the instruction given to him was not a transfer.
Therefore the policy relating to transfers did not have to be
applied.
[14]
As to whether or not the respondents intended to accommodate him or
wanted to take him back to the normal duties, I want to
refer to page
179. It is clear here and it is in writing that an attempt
would have been made to accommodate him. He
had no reason to
assume that when he went to the crime unit he would perform ordinary
duties. There was no reason for that,
because it was already in
writing on 13 April 2010. He had been accommodated before.
He had no reason to doubt that
the accommodation that is referred to
in this document was anything less than what had been afforded him
before.
[15]
In my view, the applicant has not shown that he has a right which
justifies him to be granted the relief that he seeks in these
proceedings. The case seemed to be made that the applicant feels he
is being punished by the movement to the Montclair Police Station
and
if that is the case, there is another alternative remedy. It is
found in
section 186(2)
of the
Labour Relations Act. He
was
supposed to refer an unfair labour practice dispute to a
corresponding Bargaining Council if he felt that his rights were
violated and there, there is another remedy that would be available
to him. The remedy that he seeks here is not therefore
the one
and the appropriate remedy available. I am alive to the fact
that he seeks an interim order pending the review of
the
proceedings.
[16]
The applicant asked that if he were successful a costs order should
be awarded in his favour. There is a continuing employment
relationship thus far. I have noted that the last report that
has been filed does not suggest that he should stop working.
It
is capable of a construction that he should continue to work because
it suggests towards the end of that report that it will
still strain
him as he has to report to work, to walk out or to go to work and
that his position might take a turn for the worse.
However, the
applicant appears to have been in a better position to know that this
was really not a transfer. He is not a
junior member of the
police. He is a warrant officer, he is a senior officer.
He prides himself of years of experience.
I know that he has
been acting out of legal advice, but he knows the environment where
he works and he has done some legal studies.
In my view
therefore, he was in a position to formulate a view that this really
could not have been a transfer as is envisaged
in the transfer policy
document.
[17]
I just think of a situation like this if it were to prevail every day
and that officers would want to rush to this court and
inundate it
with applications of this nature at the expense of a taxpayer, this
would be incorrect. It should be discouraged.
I have
already indicated he has an alternative remedy.
[18]
One other consideration I have had in my mind, I know that both
parties have addressed me and have pointed out, have conceded
that an
employer has a prerogative to dismiss an employee. One can
imagine each time any employer wants to discipline an
employee and
the employee feels that his employer is acting unlawfully and then he
rushes to court with applications of this nature,
what would happen
to this court. I do not think it would be able to cope with the
kind of work it is doing. I do not
think
Labour Relations Act
caters
for complaints of this kind of a nature.
[19]
Therefore in considering these aspects, the following order will
therefore issue:
1.
The application is dismissed.
2.
The applicant has to pay the costs thereof.
_______________
CELE
J
DATE
OF HEARING
:
10 SEPTEMBER
2010
DATE
OF JUDGMENT :
10 SEPTEMBER
2010
APPEARANCES
FOR
THE APPLICANT :
VIREN
SINGH of VIREN SINGH & CO
FOR
THE RESPONDENT :
Adv. J I HENRIQUES
Instructed
by
:
STATE ATTORNEY