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[2012] ZALCCT 27
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Kaylor v Minister of Public Service and Administration NO and Another (C 889/2011) [2012] ZALCCT 27; (2013) 34 ILJ 639 (LC) (25 July 2012)
Reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 889/2011
In the matter between:
GAYLE CHERYLYN KAYLOR
Applicant
and
MINISTER FOR PUBLIC SERVICE AND ADMINISTRATION N.O.
First Respondent
DIRECTOR-GENERAL OF PALAMA N.O.
Second Respondent
Heard
:
5 June 2012
Delivered
:
25 July 2012
Summary:
Legality review i.t.o. LRA s 158. Decision to abolish
employee’s post and to appoint her into another post without
consultation
unlawful.
JUDGMENT
STEENKAMP J
Introduction
This is a legality review in terms of s 158(1)(h) of the Labour
Relations Act.
1
The applicant, Ms Gayle Kaylor, claims that the decision to relocate
her to Pretoria and to appoint her to the position of Chief
Director: Quality Assurance should be reviewed and set aside.
Background facts
Ms Kaylor (“the employee”) is employed by the Public
Administration Leadership and Management Academy (PALAMA). PALAMA
is
a government department falling within the National Ministry for
Public Service and Administration, having its origin in s
4 of the
Public Service Act.
2
The Minister for the Public Service and Administration is cited as
the first respondent
nomine officio
; and the Director-General
of PALAMA as the second respondent
nomine officio
.
PALAMA has the statutory mandate for training in the public service.
It manages and offers training and development to public
servants at
national, provincial and local spheres of government.
The employee was employed by PALAMA on 1 July 2009 in the position
of Chief Director: Business Development (Provincial and Local
Government), based at its Cape Town office. The head office is in
Pretoria. She was appointed to and placed in the position of
Chief
Director: Quality Assurance in Pretoria on 8 July 2011 with
retrospective effect from 1 April 2011. It is this appointment
that
she wishes to have reviewed and set aside.
When she accepted the offer of employment, the employee wrote to
PALAMA’s Director: Human Resources and stated:
"It remains my
understanding that the position you are offering me is based in
Cape
Town
and that I'll be provided with suitable parking
facilities."
3
When she was interviewed for the post, the employee indicated to the
selection panel that, as a result of her personal circumstances,
she
could only be based in Cape Town. The circumstances related
primarily to the fact that she is the primary caregiver for her
sick
and failing father, who was 76 years old at the time of her
appointment and has a serious heart condition. The previous
director-general of PALAMA, Dr Mark Orkin, was the chairperson of
the interview panel. Dr Orkin stated unequivocally in a subsequent
statement that he gave the employee an explicit verbal undertaking
that she would be based in the Cape Town office. He viewed
that as a
clear and binding part of her contract of employment, although it
was not carried over into the written contract of
employment that
she signed. That contract was entered into between Dr Orkin,
representing the executive authority, and the employee.
It states
that:
“
The
employee shall serve the employer in the Academy at such place as may
from time to time be directed by the employer or any other
officer
duly authorised thereto in this respect.”
and:
“
The
employee may be required to perform the duties or to work at other
places that may reasonably be required by the employer."
The employee was based in Cape Town from the time of her
appointment, although she travelled throughout the country as and
when necessary, to fulfil her duties.
On 12 November 2010, the Director-General (Prof LS Mollo) issued a
directive to the employee to relocate to the PALAMA head office
in
Pretoria with effect from 1 February 2011, purportedly in terms of
section 7(3)(b) read with section 14 of the Public Service
Act.
On 23 November 2010 and 7 December 2010 respectively, the employee
made representations to the Director-General. She pointed
out that
she believed his decision to direct her to relocate was “not
reasonable nor was it arrived at in a procedurally
fair manner.”
She continued:
“
Aside
from the two meetings in which ‘relocation’ was raised,
there has been no proper consultation with me as to allow
me an
opportunity to make any meaningful representation to you on this very
important to the condition of employment at PALAMA.”
She also wrote:
“
Whilst
your directive on my relocation to Pretoria might arguably be lawful,
your decision that I do so by 1 February 2011 in my
view not rational
or reasonable and was not arrived at in a fair manner."
The director-general responded on 13 January 2011. He referred to
the contract of employment and section 14 of the Public Service
Act
and reiterated:
"You are therefore hereby
instructed to report and assume duty at this office in Pretoria with
effect from 1 February 2011.
Please be advised that failure to report
as instructed will be tantamount to insubordination and I shall be
left with no option
but to exercise my further rights."
On 20 January 2011, the employee again wrote to the
director-general. She reiterated her view that the directive was
unreasonable
and requested a proper consultation process. The
director-general responded in the following terms on 27 January
2011:
"After carefully
considering your representations, I wish to reiterate my directive
that you report for duty at the PALAMA
head office in Pretoria on 1
February 2011.
You are further advised that,
should you fail to report to the head office on 1 February 2011, I
will instruct HRM&D [
sic
] to take formal disciplinary
steps against you. This is in line with a notice that was
communicated to you in my correspondence
dated 13 January 2011, that
failure to do such will be viewed as insubordination and desertion
and PALAMA reserved its rights."
On 1 February 2011 the employee lodged a formal grievance in
accordance with the SMS Handbook for members of the senior
management
service in the public administration with the Minister.
4
Whilst the grievance was still pending, the director-general
announced a new organisational structure for PALAMA with effect
from
1 April 2011. In terms of the new structure, the employee’s
position of Chief Director: Business Development was abolished
and
she was instead appointed to the position of Chief Director: Quality
Assurance, based in Pretoria, with effect from 1 April
2011. She was
only formally appointed to that position (with retrospective effect)
on 8 July 2011.
On 18 April 2011 a junior functionary sent the employee an e-mail
attaching the Minister’s response to her grievance. The
Minister's decision was the following:
"The DG to have
consultation with the aggrieved to consider her personal
circumstances in giving this matter the attention
deserved.”
On 25 and 30 May 2011 the director-general met and consulted with
the employee in relation to the relocation directive and the
restructuring of PALAMA (which had already taken effect on 1 April
2011).
The director-general submitted his report on the consultation
process in relation to the relocation issue to the Minister on
28
June 2011. He indicated that “a window of opportunity still
exists for Ms Kaylor’s placement to be reconsidered
through
the correct process which will include the involvement of the
relevant stakeholders.”
By 4 August 2011 the employee had not received any response from the
director-general in relation to her various letters to him,
other
than an e-mail from one Pumla Nhleko of the Office of the
Director-General stating that “the DG requests that you
desist
from sending any correspondence pertaining to the matter to him”
pending resolution by the Minister.
She therefore wrote to the Minister on 4 August 2011 and requested
his response. By 16 August 2011 the Minister had still not
responded
to her grievance filed on 1 February 2011 or her subsequent letters,
other than the response of 18 April 2011 directing
the DG to consult
with her in connection with her relocation. She therefore lodged a
dispute with the General Public Service
Sectoral Bargaining Council,
alleging that the relocation directive as well as her appointment to
the new position of Chief Director:
Quality Assurance amounted to a
unilateral change to her terms and conditions of employment.
The Minister eventually responded on 16 September 2011, more than
seven months after the employee had lodged her grievance, and
after
the employee’s attorneys had written to him on 25 August 2011.
The Minister referred to the grievance of 1 February
2011 and simply
stated:
“
I have
received the report from the DG regarding the consultative meetings
he had with you regarding your grievance, and I am satisfied
that the
due process of consultation has been met.
“
Due
consideration taken of applicable circumstances on this matter I
conclude this matter in agreement with the DG’s original
directive that you relocate to PALAMA’s head office in
Pretoria.”
The Minister did not express any view on the decision of the
Director-General to place the employee in the position of Chief
Director: Quality Assurance with effect from 1 April 2011.
On 30 September 2011 the Director-General issued another directive
for the employee to relocate to Pretoria within 30 days, following
the Minister’s decision in relation to the grievance.
On 18 October 2011 the GPSSBC advised the employee that it did not
have jurisdiction to arbitrate over matters relating to unilateral
changes to terms and conditions of employment. On 19 October 2011
the employee successfully brought an urgent application in
this
court to stay the relocation directive pending the determination of
this application. She launched this application on 9
November 2011
and it was heard on 5 June 2012.
The relief sought
The applicant no longer seeks to have the first directive, ordering
her to relocate to Pretoria (“the relocation directive”)
reviewed and set aside. That directive – and the relief sought
– has effectively been rendered moot by the Director-General’s
second directive (“the placement directive”) that she
takes up the position as Chief Director: Quality Assurance
in
Pretoria. The post of Chief Director: Business Development was
unilaterally abolished with effect from 1 April 2011and the
DG no
longer seeks to relocate the applicant to Pretoria in order to carry
on with her duties in that post (to which she was
initially
appointed).
The applicant therefore persists in her application to have the
placement directive reviewed and set aside. Should she be
successful,
she seeks certain consequential relief, amounting to a
mandatory order that the DG engage in a full consultation process
with
her in order to identify suitable positions in Cape Town; and,
should that fail, to engage in a consultation process in terms of
s
189 of the LRA.
The legal framework
The employee locates the relief she seeks in s 158(1)(h) of the LRA.
That subsection provides that the Labour Court may –
“
review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in law.”
This court noted in
National Commissioner of South African Police
Service v Harri N.O.
5
:
“
In
Chirwa
v Transnet Ltd and others
6
and
Gcaba
v Minister of Safety and Security and others
7
,
the Constitutional Court decided that matters relating to the
employer-employee relationship, even in the public service, does
not
constitute administrative action for the purposes of PAJA. But that
is not the end of the matter. Those cases concerned, respectively,
a
dismissal and a decision not to appoint an employee in the public
sector. The case before me concerns the review of a decision
of the
state as an employer as contemplated in section 158 (1) (h) of the
LRA. That section provides that the Labour Court may
‘review
any decision taken or any act performed by the state in its capacity
as employer, on such grounds as are permissible
in law’ ".
Having considered the dicta of Skweyiya J and Langa CJ in
Chirwa
8
,
this court held in
Harri:
“
The
Constitutional Court has thus put it beyond dispute in
Chirwa
and
Gcaba
that the dismissal of a public service employee does not constitute
administrative action. Why, then, should the state as employer
be
able to review a decision by its own functionary in this case?
The distinction appears to me to
lie in the fact that, in this case, the state is acting
qua
employer; and the functionary is fulfilling his or her duties in
terms of legislation.”
Section 33 (1) of the Constitution
9
provides that everyone has the right to administrative action that
is lawful, reasonable and procedurally fair.
In an attempt to define administrative action, the Constitutional
Court in
President of the Republic of South Africa and others v
South African Rugby Football Union and others
10
held that:
"In section 33 the
adjective ‘administrative’ and not ‘executive’
is used to qualify ‘action’.
This suggests that the test
for determining whether conduct constitutes ‘administrative
action’ is not the question
whether the action concerned is
performed by a member of the executive arm of government. What
matters is not so much the functionary
as the function. The question
is whether the task itself is administrative or not.”
The court in
Harri
noted that this test may not be
determinative in the light of the
dicta
of the Constitutional
Court in
Chirwa
and
Gcaba
. But in
MEC for Finance,
KwaZulu-Natal & another v Dorkin NO & another
11
and in
Ntshangase v MEC for Finance, KwaZulu-Natal & another
12
the court held that the MEC exercises public power in the public
interest in terms of legislation. When the MEC appointed Dorkin
to
preside over a disciplinary hearing, it did so in its capacity as
the State. It followed that the MEC's action qualified as
administrative action.
As was noted in
Harri
, the effect of these decisions seems
anomalous. The dismissal of a public service employee does not
ordinarily constitute administrative
action; yet the decision of the
chairperson of a disciplinary hearing in the public service,
appointed in terms of legislation,
does. I am bound by the decisions
in
Dorkin
and
Ntshangase.
And in the case before me,
the applicant specifically challenges the decisions of the Minister
and the Director-General in terms
of s 158(1)(h) of the LRA. She
does not rely on PAJA; therefore, the question whether PAJA applies,
does not arise.
The applicant bases her grounds of review on the doctrine of
legality. This court recently confirmed in
POPCRU v Minister of
Correctional Services
13
that it has review jurisdiction in terms of s 158(1)(h) of the LRA
on the basis of the doctrine of legality. That doctrine implies
that
public officials may only exercise such powers and perform such
functions as are permissible and conferred upon them by
law. In
addition, not only must the exercise of such power be lawful, but it
must also not be arbitrary, unreasonable or irrational;
and it must
be procedurally fair.
14
Evaluation / Analysis
In order to be lawful and administratively fair, did the DG have a
duty to consult the employee before appointing her to the
position
of Chief Director: Quality Assurance and ordering her to relocate to
Pretoria? And did he act within his powers?
Audi alteram partem
In
Nxele v Chief Deputy Commissioner, Corporate Services,
Department of Correctional Services & Ors
15
the Labour Appeal Court accepted that the transfer of public
servants in terms of s 14 of the Public Service Act constituted
administrative action. In that context the LAC held that a public
servant must be informed that her transfer is being considered
and
she must be given reasons for the proposed transfer and an
opportunity to make representations before a final decision is
made.
In
Nxele,
the National Commissioner of Correctional Services
had taken a decision to transfer the employee before he had been
notified
of the contemplated transfer and before he had been given
an opportunity to make representations. That, the court held on
appeal,
was bad in law and rendered the transfer invalid and
unlawful. The LAC
16
held that the
audi alteram partem
rule applied to transfers
in the public service; and that the employer had to observe that
rule before it can take a decision
adversely affecting the employee.
As this court noted in
Mineworkers’ Union / Solidarity obo
McGregor v SA National Parks
17
,
having considered the employer’s decision to make a “policy
shift”
:
“
This
necessitated a change in the applicant’s terms and conditions
of employment. This the respondent was entitled to do,
provided
that it was preceded by consultation.”
18
That position appears to me to be unchanged by the decisions of the
Constitutional Court in
Chirwa
and
Gcaba.
19
In the present case, the Director-General did not consult the
employee before he issued the directive on 12 November 2010 for
her
to relocate to Pretoria. His belated attempt to consult, following
on the Minister’s instruction to do so, was in the
context of
a
fait accompli.
Nor was there any consultation with the
employee before the Director-General decided to abolish her position
of Chief Director:
Business Development and unilaterally decided to
appoint her to the position of Chief Director: Quality Assurance at
the PALAMA
head office in Pretoria. That much is common cause. In
both these instances the decision was at least procedurally unfair.
It is common cause that the DG’s decision to place the
employee in this position was announced at a meeting in Pretoria
on
30 March 2011. She only found out about it from a junior staff
member who attended the meeting. It is apparent from the
‘consultation report’ that the DG submitted to the
Minister, dated 28 June 2011, that there was no consultation with
the employee before he issued the directive placing her in the post
of Chief Director: Quality Assurance in Pretoria (and abolishing
the
post in which she had been appointed).
The DG also failed to comply with the guidelines relating to
restructuring issued by the Department of Public Service and
Administration
(DPSA). These guidelines required across-the-board
prior consultations with all potentially affected employees, whereas
the applicant
was only informed of her placement into a different
position and the abolition of her post after restructuring had
already taken
place.
Ultra vires
There is another reason why the placement directive is open to
review in terms of s 158(1)(h) of the LRA. That is that the
Director-General exceeded his powers.
In terms of s 3(1)(b) of the Public Service Act, the Minister is
responsible for establishing norms and standards relating to
the
organisational structures and establishments of departments and
other organisational and governance arrangements in the public
service. He must give effect to this subsection by making
regulations.
20
PALAMA was established in terms of s 4 of the Public Service Act as
a “training institution listed as a national department”.
In terms of s 4(2) –
“
The
management and administration of such institution shall be under the
control of the Minister.”
In terms of s 9 of the Public Service Act, “an executive
authority” may appoint any person in accordance with the
Act
in such manner and on such conditions as may be prescribed.
“Executive authority” is defined, in relation to
a
national department (such as PALAMA), as the Minister.
Section 42A(1)(a) of the Public Service Act does provide that the
Minister may delegate to the Director-General any power conferred
on
the Minister by the Act. But in the present case, the respondents
provided no proof of such delegation. There is no evidence
that the
previous delegation to employees in PALAMA’s predecessor, the
South African Management Development Institute,
also applied to or
was transferred to PALAMA.
Conclusion
The placement directive falls to be reviewed and set aside in terms
of section 158(1)(h) of the LRA and the principle of legality.
Firstly, the decision was made without any prior consultation with
the employee. It is not procedurally fair. Secondly, the
Director-General exceeded his powers.
Costs
The employee did not have the means of the State, funded by the
taxpayer, to enjoy the privilege of having senior and junior
counsel
in court to argue her case. However, her counsel was assisted by a
junior in the drafting of heads of argument. She asked
that she be
awarded the costs of both counsel to the extent that they were so
employed, as well as the costs of the urgent application
for an
interim interdict (which was opposed) under case number C 774/2011.
In law and fairness, and in terms of the provisions
of s 162 of the
LRA, there is no reason why the successful party in this case should
not be awarded those costs.
Order
For these reasons, I issue the following order:
The applicant’s appointment to the position of Chief
Director: Quality Assurance is reviewed and set aside.
The second respondent is ordered to engage in a full consultation
process with the applicant (as envisaged by the DPSA guidelines)
within one month of this judgment with regard to suitable
alternative positions either in PALAMA or in another department in
Cape Town.
Insofar as a suitable alternative position may be available in
another department, the second respondent is directed to do
all
things necessary to engage the applicant, the Minister and/or the
head of the relevant department with regard to a transfer
of the
applicant to that department.
Should no suitable alternative position be available, the second
respondent is directed to engage in a consultation process
in
accordance with section 189 of the Labour Relations Act with the
applicant.
The respondents are ordered to pay the applicant’s costs,
including the costs of two counsel where so engaged, and including
the costs of the urgent application under case number C 774/2011,
jointly and severally, the one paying, the other to be absolved.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
ML Sher
Instructed by Bowman
Gilfillan, Cape Town (E Abrahams).
RESPONDENTS:
BR Tokota SC (with him
M Gwala)
Instructed by the State
Attorney, Pretoria.
1
Act
66 of 1995 (the LRA).
2
Proclamation
103 of 1994, as amended.
3
Bold
in original.
4
Minister
Richard Baloyi at the time.
5
(2011)
32
ILJ
1175 (LC) paras [16] – [39].
6
2006
(4) SA 367
(CC).
7
(2010)
31
ILJ
296 (CC).
8
supra
,
at para [73].
9
Constitution
of the Republic of South Africa, 1996.
10
2000
(1) SA 1
(CC) at para [141] (my emphasis).
11
[2008]
6 BLLR 540
(LAC).
12
2010
(3) SA 210
(SCA).
13
Police
& Prisons Civil Rights Union v Minister of Correctional Services
& Another
(2011) 32
ILJ
2541 (LC).
14
Fedsure
Life Assurance & Ors v Greater Johannesburg Transitional
Metropolitan Council & Ors
[1998] ZACC 17
;
1999 (1) SA 374
(CC) paras [56] –
[59];
Pharmaceutical Manufacturers’ Association of SA &
Ano: In re Ex parte President of the RSA & Ors
[2000] ZACC 1
;
2000 (2) SA
674
(CC) para [50];
Booysen v Minister of Safety & Security
and Ors
[2012] ZALCCT 2 para [31].
15
(2006)
27
ILJ
2127 (LC); (2008) 29
ILJ
2708 (LAC).
16
Per
Zondo JP at paras [61] and [69].
17
(2006)
27
ILJ
818 (LC) para [38].
18
My
emphasis.
19
Supra
.
20
Public
Service Act s 3(2).