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[2012] ZALCJHB 43
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South African Medical Association obo Meyer and Others v University of Limpopo (J825/11) [2012] ZALCJHB 43; (2012) 33 ILJ 2954 (LC) (17 May 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: J 825/11
In the matter between:
SOUTH AFRICAN MEDICAL ASSOCIATION
on behalf of
Dr E.D. MEYER – VAN DEN HEEVER
and
Dr S KHAN
Applicant
and
UNIVERSITY OF LIMPOPO
Respondent
Heard
:
20 April 2012
Delivered
:
17 May 2012
Summary:
Specific performance of employment contract –
maternity leave – unilateral variation.
JUDGMENT
STEENKAMP J
Introduction
The applicant, the South African Medical Association, represents two
of its members, Dr Ellenore Meyer-Van den Heever and Dr
Shahista
Khan. (I shall refer to them collectively as “the
applicants”). It is important for the purposes of this
case
that both doctors are women. They say they are contractually
entitled to 120 days’ paid maternity leave; and that
the
respondent, the University of Limpopo, has unilaterally amended that
entitlement by converting it to unpaid leave.
The applicants seek specific performance of their employment
contracts. They initially brought an urgent application. That
application was struck from the roll for lack of urgency on 2 June
2011. On 10 June 2011, the applicants filed an amended notice
of
motion seeking the following relief:
‘
Declaring that Dr Meyer-Van den Heever’s
conditions of service remain those set out in her employment
contract forming
Annexure NS1 to the founding affidavit,
incorporating the conditions of service forming Annexure NS3 to the
founding affidavit
("the conditions of service"), but
subject to any salary increments subsequent to the conclusion of
her employment
contract.
Declaring that Dr Khan's conditions of service remain those set out
in her employment contract forming Annexure NS 2 to the
founding
affidavit, incorporating the conditions of service, but subject to
any salary increments subsequent to the conclusion
of her
employment contract.
Declaring that the amendments purportedly effected to the contract
of employment of Dr Meyer-Van den Heever and Dr Khan by
the
circular forming Annexure "NS4" to the founding affidavit
and the respondent's "human resources policies
and procedures"
document referred to in the founding affidavit ("the circular
and the policy document") and/or
“LL9” to the
answering affidavit are unlawful, constitute a breach of contract,
invalid and of no legal effect.
Directing the respondent to pay to Dr Meyer-Van den Heever
maternity leave of 120 days on full salary in terms of clause F13
of the conditions of service where maternity leave is taken and
sick leave up to 120 calendar days in a three-year cycle on
full
pay in terms of clause 3.3 of the employment contract, provided
that she is sick and the conditions specified in her employment
contract and the conditions of service are satisfied.
Directing the respondent to pay to Dr Khan maternity leave of 120
days on full salary in terms of clause F13 of the conditions
of
service where maternity leave is taken and sick leave up to 120
calendar days in a three-year cycle on full pay in terms
of clause
3.3 of the employment contract, provided that she is sick and the
conditions specified in her employment contract
and the conditions
of service are satisfied.
Declaring that the respondent was and is contractually bound to
consult with Dr Meyer-Van den Heever and Dr Khan before amending
their contracts of employment.
Directing that the costs of the application be paid by the
respondent.
Granting the applicant further and/or alternative relief.’
Although both doctors have since left the University's employ, both
of them have gone on maternity leave and have had their children.
Therefore they persist with the monetary relief sought. I am
therefore satisfied that the application has not become moot.
Jurisdiction
The applicants ground their claim for specific performance in s
77(3) read with s 77A(e) of the Basic Conditions of Employment
Act
1
(BCEA).
Even though the applicants may have sought other relief or pursued
other remedies, this court has jurisdiction to entertain a
claim for
specific performance. In
Fatima Abrahams v Drake & Scull
Facilities Management SA (Pty) Ltd
2
I pointed out that jurisdiction is founded on the pleaded claim, and
not on some other claim that is not pleaded.
Background: the contractual provisions
Dr Meyer-van den Heever
Dr Meyer was employed by the University under a full-time fixed term
contract for a period of five years in the position of senior
lecturer. She started working for the University on 1 September
2010. Clause 2 of her contract of employment provides that:
“
Your
appointment is subject to –
the provisions of the Higher
Education Act, 1997 (Act 101 of 1997), the conditions of service
determined thereunder, the unemployment
insurance act, 1966 (Act city
of 1966), the regulations promulgated thereunder and present and
future amendments to the aforementioned
acts, conditions of service
and regulations.
Both the University of Limpopo
conditions of service and the staff code are available on request at
the Human Resources Department
on the day you commence duties which
obligate you to ascertain yourself [
sic
] with the contents
thereof.”
And clause 3 provides for –
“
120
calendar days sick leave in a three year cycle (medical certificate
must be provided).”
The University’s conditions of service further provided for
120 days’ maternity leave “with full pay”.
Dr Khan
Dr Khan was employed as a full-time senior lecturer on a three year
fixed term contract. Although she signed her contract of
employment
afresh in January 2011, the terms and conditions of employment were
agreed to in October 2010 and are embodied in
the contract.
Dr Khan’s letter of appointment drew her attention to the fact
that –
“
...all
appointments are subject to the articles contained in the conditions
of service of the University. Appointments are further
subject to
decisions lawfully taken by Council of the University on matters
pertaining to its employees.”
Those “conditions of service” were the same as those
pertaining to Dr Meyer, ie including the provisions of four
months’
(120 days’) paid maternity leave.
Amendments to the conditions of employment
On 10 December 2010, the University sent out a document entitled
“Information Circular: New Human Resources Policies.”
It
was not sent to Dr Khan. It was sent to Dr Meyer’s university
email address, but she was on leave at the time and only
received it
in January 2011.
The circular stated:
“
The
University will be implementing the following policies amongst others
in the new year with effect from 1 January 2011.
Retirement
Policy
Leave
Policy
Dependants
[
sic
] Study Benefits Policy
Working
Hours Policy
Subsistence
Allowance Policy
Education,
Training and Development Policy
Employee
Study Assistance Policy
Disciplinary
Policy
The Human Resources Department
is currently working on the full implementation of these and other
policies. There will be on-going
communication regarding all the
changes that will be effected as a result of the new policies.
Appendix A for details.”
Appendix A to the circular provided for four months’
unpaid
maternity leave for all “non-permanent” employees. It is
common cause that this incorporated academic personnel employed
on
fixed term contracts, such as the applicants.
The applicants did not agree to these amendments. They were being
prejudiced, as they were both pregnant at the time.
The university alleges that their consent was not required;
alternatively, that it was obtained, either through consultation
with a body known as the Joint Bargaining Forum or on the principle
of majoritarianism.
Legal questions
The legal questions that arise from these facts may be summarised as
follows:
Are the terms of employment contractually enforceable?
Did the University unilaterally change the terms of employment?
If so, was the University empowered to do it?
If not, did the University seek and obtain consensus?
Are the terms of employment contractually enforceable?
The applicants base their claim squarely on the provisions of their
employment contracts, read with the University’s conditions
of
service at the time; and the provisions of s 77 (3) of the BCEA.
The University conceded that maternity leave formed part of the
applicants' conditions of service, despite the fact that it is
referred to as a “policy”.
As I have stated above, and having had regard to the authorities
considered in
Abrahams v Drake & Scull
3
,
the University was not entitled to amend the applicants’
conditions of employment unilaterally. Those terms are contractually
enforceable. In
Drake & Scull
, I had regard to the
following
dictum
in
Wiltshire & others v University of
the North
4
that makes the position clear:
“
Section
151(2) of the Labour Relations Act establishes the Labour Court as a
superior court with the authority, inherent powers
and standing in
relation to matters under its jurisdiction, equal to that which a
court of a provincial division of the Supreme
Court has in relation
to the matters under its jurisdiction. This read with section 158(1)
of the Labour Relations Act establishes
that this Court has
jurisdiction to make an order of specific performance.”
Was there a unilateral variation?
It is clear from the facts that the University did unilaterally
amend the applicants’ conditions of employment relating
to
maternity leave (subject to the discussion on possible consent
through the Joint Bargaining Forum hereunder).
Was the university empowered to amend the conditions of service
unilaterally?
But, argued Mr
Hulley
, those conditions are subject to
s
34(3)
of the
Higher Education Act.
5
That
section provides that:
“
The
[university] council must determine the conditions of service,
disciplinary provisions, privileges and functions of the employees
of
the public higher education institution,
subject
to the applicable labour law.”
6
The argument is then, if I understood it correctly, that the
University was empowered to change the applicants’ conditions
of service, because there was no non-variation clause in the
contracts; and because the University did act in accordance with
“the applicable labour law”.
As will become more apparent in my further analysis of the arguments
raised on behalf of the University, I do not agree. The
University
pointed out, quite rightly, in its heads of argument that the BCEA
prescribes minimum periods of leave and attendant
benefits. That
takes its argument no further. The parties had contracted to extend
those benefits to 120 days’ paid maternity
leave; and the
University altered that benefit without the applicants’
consent. The fact that it is not in breach of the
BCEA is irrelevant
to the applicants’ case (and, therefore, the University’s
defence).
The alternative argument is that the University did comply with “the
applicable labour laws” by engaging its employees
in
collective bargaining before amending their conditions of
employment. I shall now consider that argument.
Did the university seek and obtain consensus?
The University’s alternative argument is that it did, in fact,
obtain consensus through a process of collective bargaining
with an
entity known as the Joint Bargaining Forum (JBF).
It is uncontested that the applicants did not nominate the
individuals on the JBF to represent them; in fact, their uncontested
evidence that they gave no mandate to anyone on that body to
represent them.
The University relied in its argument on a case arising on appeal
from the old Industrial Court,
Ramolesane & Another v Andres
Mentis & Another.
7
But in that case, the employees concerned were members of a trade
union; and it was correctly held that, based on the principle
of
majoritarianism, the trade union members were bound by agreements
reached by the union on their behalf.
In the case before me, Drs Meyer and Khan are members of a trade
union – SAMA – that represents them in these
proceedings.
That union was not part of the JBF and did not
participate in its deliberations. It did not consent to the
unilateral change
to the applicants’ conditions of employment,
nor to any of its other members’.
Of course, a majority union and an employer may conclude a
collective agreement that binds non-parties in terms of s 23(1)(d)
of the Labour Relations Act
8
- but only if those employees are identified in the agreement and it
expressly binds them. That did not happen in this case.
Conclusion
The applicants are entitled to the relief sought. The University
unilaterally varied their conditions of employment. It was not
entitled in law to do so. In terms of ss 77A(e) and 77 (3) of the
BCEA, the applicants are entitled to specific performance.
The applicants are also entitled to their costs.
Order
Neither Dr Meyer nor Dr Khan seeks relief in the form initially set
out in the notice of motion any longer, as they have both
left the
University. However, the relief sought is not moot, as they have
both taken three months’ (unpaid) maternity leave.
I therefore
grant the relief in the amended form argued for, in the following
terms:
It is declared that Dr Meyer-van den Heever's conditions of service
remained those set out in her employment contract forming
annexure
“NS1” to the founding affidavit, incorporating the
conditions of service forming annexure “NS3”
to the
founding affidavit (“the conditions of service”), but
subject to any salary increments subsequent to conclusion
of her
employment contract.
It is declared that Dr Khan's conditions of service remained those
set out in her employment contract forming annexure “NS2”
to the founding affidavit, incorporating the conditions of service,
but subject to any salary increments subsequent to conclusion
of
her employment contract.
It is declared that the amendments purportedly effected to the
contracts of employment of Dr Meyer-van den Heever and Dr Khan
by
the circular forming annexure "NS4" to the founding
affidavit and the respondent’s “Human Resources
and
Policies and Procedures” document referred to in the founding
affidavit, (“the circular and the policy document”)
and
“LL9” to the answering affidavit are invalid and of no
legal effect.
The respondent is ordered to pay to Dr Meyer-van den
Heever maternity leave of 3 months on full salary in terms of
clause F13 of the conditions of service plus interest thereupon
from the date of this judgement.
The respondent is ordered to pay to Dr Khan maternity leave of 3
months on full salary in terms of clause F13 of the conditions
of
service plus interest thereupon from the date of this judgment.
The respondent is ordered to pay the applicants’ costs.
_______________________
Steenkamp J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Adv F Boda
Instructed by
Eversheds.
RESPONDENT:
Adv G Hulley
Instructed by
Maserumule Inc.
1
Act
75 of 1997.
2
[2011]
ZALCCT 30 (11/11/11) paras [28] – [36], with reference to
SAMSA v McKenzie
(2010) 31
ILJ
529 (SCA);
[2010] 5
BLLR 488
(SCA).
3
Supra
paras [32] – [41].
4
[2006]
1 BLLR 82
(LC) para [64].
5
Act
101 of 1997.
6
His
underlining.
7
(1991)
12
ILJ
329 (LAC).
8
Act
66 of 1995.