About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 236
|
|
Beya v Dr Kenneth Kaunda District Municipality and Another (J 1686/11) [2011] ZALCJHB 236 (30 August 2011)
LABOUR COURT OF
SOUTH AFRICA
(HELD AT
BRAAMFONTEIN)
Case: J 1686/11
In the matter between:
BEYA ZELINZIMA ABRAM
...................................................................
Applicant
and
DR KENNETH KAUNDA DISTRICT
MUNICIPALITY
..............
First
Respondent
S. K. SEBOLAI (
N.
O.)
.........................................................
Second
Respondent
JUDGMENT
LAGRANGE, J:
Background
The applicant was employed by the
first respondent on 6 July 2006 as a secretary/receptionist to the
Single Whip of the district
municipality. From 11 December 2008 he
was employed as Coordinator: Office of the Chief Whip and from 3
August 2009 as Public
Participation Officer: Office of the Speaker
until the termination of his employment on 30 June 2011. His letter
of appointment
to the last position, like that of his previous
appointments, contained the following provision:
"
This appointment is subject
to the term of office of the Speaker. Should the Speaker vacate
office for whatever reason, your appointment
shall be automatically
terminated, unless the Municipal Manager at his and discretion
decide to retain the service of the employee.
"
On 18 January 2011, he was advised
that his contract of employment was amended with immediate effect
as a result of a settlement
agreement concluded under SALGBC case
number HQ 070502. Clause 2.4 of that agreement stated:
"
In respect of current fixed
term contracts concluded with non-section 57 employees, these
contracts will run for the agreed terms,
where after the employees
concerned or remain employed on the SALGBC terms and conditions of
employment and at the applicable
SALGBC grades and salary scales,
unless otherwise agreed in the division of the SALGBC, or unless
exemption is granted in terms
of clause 7 hereof
.”
In mid May 2011, the applicant was
issued with a letter dated 28 April 2011 in which he was told that
his contract of employment
would end on 31 May 2011. The reason
given for the termination of the contract was that:
"
This serves as an official
notice in terms of clause 6.1 of your contract and appointment later
that year fixed contract of employment
comes to its conclusion on 31
May 2011 as a result of the stipulations contained in clause 2.2 the
mentioned contract.
"
The letter further advised that his
contract would be extended on a month-to-month basis until further
notice. The applicant
says he does not ever recall signing the
contract to which the letter refers, and argues out that he had
been continuously
employed by the first respondent.. Although no
copy of the most recent contract is provided, a copy of a signed
contract was
attached to the first respondent’s answering
affidavit. That contract contains a clause 2.2 which does link the
term
of the contract to the terms of the councillor occupying the
position of the Single Whip.
On 15 June 2011, the applicant
received another letter extending his contract of employment until
the end of June 2011. That
letter also stated that the extension in
no way created expectations of permanent employment. Finally, on 23
June 2011 a further
letter was issued notifying the applicant of
the termination of his fixed term employment contract. This letter
referred to
the previous letters of 28 April and 31 May 2011. It
further stated:
"
1. In terms of clause 2.2 of
employment contract you were employed as Public Participation
Officer in office of the Speaker for
a fixed period of time which
period of employment endured concurrently with the term of office of
the Speaker of Councillor Mike
Khauoe within the Dr Kenneth Kaunda
District Municipality.
2. As you are aware, the term of
office of the Speaker came to an end on 18 May 2011. Due to this
fact, you were notified of the
termination of the employment
contract in writing, and provided with the required one month’s
notice (period 1 June until
30 June 2011).
3. This letter serves as a final
reminder that your employment contract would be terminated on 30
June 2011 referred to paragraph
3 above.
" (sic)
On 22 July 2011 an advertisement
appeared in the local newspaper advertising his position. The
closing date for applications
was 30 July 2011.
The applicant seeks to enforce what
he regard as a term and condition of his employment, namely the
provisions of section 2.4
of the Settlement Agreement in terms of
which he believed he was entitled to remain employed on the SALGBC
terms and conditions
of employment. He also claims that the
amendment of his contract, irrespective of the applicability of the
arbitration award,
resulted in his contract of employment becoming
"open ended". Somewhat confusingly, he claims that, on
the basis
of the three contracts of employment entered into between
himself and the first respondent, a legitimate expectation was
created
of the renewal of a fixed term contract and the court
should accept that such a fixed term contract existed. He further
claims
that the termination of the service was unlawful as "
the
terms of my conditions of employment should not be regarded as a
fixed term contract in the true sense.
" It is clear there
are some apparently contradictory contractual entitlements he
asserts, but for the reasons below it
is not necessary to unravel
these.
These are not the only rights on
which the applicant bases his claim for relief. Further on in his
affidavit, he also seeks
to rely on an alleged infringement of
aright to work and his right to human dignity caused by the
termination.
By way of explaining the timing of
this application, he claims that when he received the letters in
April and May, he and some
of his colleagues raised their concerns
with the Speaker during a staff meeting and he allegedly advised
them that he was attending
the matter and that they would be placed
in permanent positions to give effect to the arbitration award and
would receive an
appointment letter during August 2011. The Speaker
denies having informed the applicant and other employees as
alleged, and
points out that he would not have referred to the
settlement agreement as the applicant claims because he had no
knowledge
of its contents.
The applicant also says he
approached his manager, after receiving the termination letter of
23 June 2011, and was advised by
the latter that he was seeking
legal advice and would keep them updated. Even though he did not
hear from his manager, the
applicant says he was not too concerned
because of the previous assurance he had received from the Speaker.
In early August 2011, one of the
applicant’s colleagues apparently obtained some urgent relief
from this court based on
a similar claim to that of the applicant.
When he heard of this, the applicant felt he was being “made
a fool of”
by the respondent and it was time to take
immediate action. Accordingly, he held consultations with his
attorney on 16 August
2011. Following the consultation a letter of
demand was sent to the first respondent on 18 August 2011. The
applicant required
a written undertaking that the first respondent
would not replace the applicant pending determination of the
legality of the
termination of his contract.
The respondent district municipality
replied, disputing the unlawfulness of the applicant’s
termination and disputing
the applicability of the settlement
agreement to the applicant. The basis for disputing its
applicability was that it regarded
the applicant is "a
political appointee". The first respondent in its defence
portrays the applicant’s claim
as a claim of unfair dismissal
and consequently argues that the applicant should have made use of
the mechanisms provided in
the Labour Relations Act 66 of 1995
('the LRA'') to resolve it.
On a factual level, the municipality
disputes the authority of the erstwhile Municipal Manager to have
issued the letters to
individuals in the applicant’s position
purporting to make their employment permanent in line with the
settlement agreement.
The first respondent claims that the former
Municipal Manager did not have the necessary authority to extend
the terms without
being authorised to do so by the Municipal
Council. The municipality also claims to have been unaware of the
letters issued
by the erstwhile Municipal Manager shortly before
his suspension in January 2011.
It argues too that, since the
decision to create the positions was made by a Council resolution
which also stated that the contracts
of fixed and linked to the
tenure of the incumbent political head, the purported extension of
those contracts was unlawful
and
ultra vires
.
The applicant for his part disputes
this interpretation of the Council resolution and claims it merely
resolved that the existing
positions be filled as a matter of
urgency. However, it must be noted that the Council resolution of
12 April 2008 specifically
states that the contracts in question
should be "...
linked to the term of office of the Office
Bearers
". The applicant argued further that the Municipal
Manager's actions must be considered valid until such time as they
are
set aside as unlawful.
The employer also submits that the
settlement agreement only applied to people referred to in it
during 2006, and was intended
to cater for completely different
circumstances in which certain person’s employment was
changed to fixed term contracts
without any consultation or
agreement with them.
Applications for final relief
The applicant is seeking final
relief in this matter. It is well established that the principles
governing the grounds of final
relief on an urgent basis are that,
apart from satisfying the court that
the matter is brought with the necessary degree of urgency, the
applicant must demonstrate
an actual or potential infringement of a
clear right and the absence of a suitable alternative remedies.
1
In this application there are some
clear disputes of fact on the central issue of which contractual
arrangements covered the
applicant. There is also a plethora of
what appear to be conflicting contractual entitlements which the
applicant lays claim
to. My
prima
facie
view is that the
applicant would probably not succeed in establishing a clear right,
or the infringement of one,
on
the papers. Be that as it may, the matter turns on the question of
urgency in any event for the reasons set out below.
Urgency
The greatest difficulty I have with
the applicant’s claim relates to the issue of urgency. If he
believed that his contract
of employment had been amended to make
him a permanent employee in mid January 2011 in terms of the letter
from the former
Municipal Manager, then at the very least the
letter on 28th of April 2011 purporting to terminate his contract
should have
spurred him to action.
His claim that he approached the
Speaker at the time and was given reassuring undertakings is denied
by the respondent. Although
a confirmatory affidavit of the Speaker
attached to the first respondent's answering affidavit was not
signed, a signed version
dated 26 August 2011 was handed up in
court. Accordingly I must accept the first respondent's version in
this regard. Furthermore,
in any event, when the second letter was
received in May 2011, even if I accepted that the applicant had
approached the Speaker
in April, any reasonable person in his
position would have realised that despite the Speaker's
reassurances there was a serious
disjuncture between what the
Speaker was saying and what the Acting Municipal Manager was doing.
The letters of impending termination
were all issued by the Acting Municipal Manager, yet no direct
approach was made to him
to obtain clarity why he was issuing
letters which appeared to be at odds with the letter issued by his
predecessor in January
2011. Even when the final termination letter
was issued in June, this did not prompt a single enquiry on the
part of the applicant
to the originator of the letter. The
applicant merely spoke to his own manager, who was also in the same
position regarding
the imminent termination of his contract. The
fact that no approach was made to the incumbent Acting Municipal
Manager is hard
to understand, if the applicant believed that the
letter issued by his predecessor in January was valid and proper.
Similarly, there is no explanation
why the applicant did not revert back to the Speaker to obtain the
necessary re-assurance
that, despite the letter of 23 June, there
was no reason to doubt that he would obtain a permanent contract in
August. It is
difficult to accept that the applicant could have
continued to place such trust in those alleged assurances, even if
I accepted
that they had been made, given the regular
correspondence he was receiving from the Acting Municipal Manager
which indicated
quite the opposite of what he had supposedly been
told.
Thus, even if the applicant’s
allegations about his communications with the Speaker were correct,
it is implausible he
would not have seen the need to act earlier to
secure what he believed he was entitled to. The application was
only launched
on 22 August 2011, nearly 6 weeks after the
applicants termination of service had already been implemented,
whereas it was
clear from the letters of 28 April and 1 June 2011
that the first respondent's most senior executive officer was of
the view
that his contract of employment ended at the end of May
and that any subsequent employment was on a purely temporary
month-by-month
basis.
in the circumstances, I'm not
satisfied that the applicant acted promptly enough to protect the
rights he believed were being
infringed and he has approached the
court too late in the day to qualify for urgent relief, even if his
claim had any merit.
Order
In the circumstances -
The application is struck off the
roll for lack of urgency, and
The applicant is ordered to pay the
respondents’ costs.
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date of hearing: 26 August 2011
Date of judgment: 30 August 2011
Attendance:
For the Applicant: W P Scholtz of
Scholtz Attorneys
For the Respondent: J G Rautenbach
instructed by Cheadle, Thompson & Haysom
1
Setlogelo
v Setlogelo
1914 AD 221