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[2015] ZALCJHB 136
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Independent Municipal And Allied Trade Union and Another v Ekurhuleni Metropolitan Municipality and Another (J 683/15) [2015] ZALCJHB 136 (28 April 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
In
JOHANNESBURG
Case
no: J 683/15
DATE:
28 APRIL 2015
Of
Interest to Other Judges
In
the matter between:
Independent
Municipal And Allied Trade
Union
..........................................................
First
Applicant
EMPLOYEES
LISTED IN ANNEXURE
1
...............................................................
Second
Applicant
And
EKURHULENI
METROPOLITAN
MUNICIPALITY
............................................
First
Respondent
KHAYA
NGEMA
(N.O.)
...........................................................................................
Second
Respondent
Heard:
21 April 2015
Delivered:
28 April 2015
Summary:
(Urgent – lack of urgency – applicants waiting until
foreseen event already passed – no reason to wait
until it did
– applicants delayed approximately two months after they should
have launched application)
Judgment
Introduction
[1]
This is an urgent application for final relief launched on 13 April
2015. It first came before Prinsloo AJ, and was stood down
until 21
April 2015. The applicants seeks an order declaring the termination
of the fixed term employment contracts of 19 of its
members invalid
and reinstating those contracts. In the course of argument, the
applicants proposed that they should at least be
given interim relief
pending the outcome of the dispute referred to the SALGBC on 24 March
2015, though they had given no warning
of this as an alternative form
of relief in the notice of motion.
[2]
There was some dispute whether all nineteen of the applicants had
been equally affected. On or about 18 March, three applicants
had
received letters notifying them of the termination of their
“temporary appointment/fixed term appointment”. However,
in view of my decision, it is not necessary to determine this.
Existence
of a clear right
[3]
On 21 February 2006, IMATU and SAMWU
entered into a settlement agreement with SALGA concerning the
appointment of various persons
on fixed term contracts as if they
were covered by section 57 of the Systems Act 32 of 2000
.
Two provisions of that agreement are relevant for present purposes,
namely:
“
2.1.
The respondent’s members
will not
-
…
2.1.1
offer employment to and/or appoint or place persons on fixed term
contract
of employment
without having agreed with Applicants
what happened to the relevant persons upon the expiry of the fixed
term contracts
; or…
…
2.4
In respect of
current
fixed term contracts concluded with
non-Section 57 employees,
these contracts will run for their
agreed terms
,
whereafter the employees concerned will remain
employed
on the SAL GBC terms and conditions of employment and
the applicable SALGBC grades and salary scales, unless otherwise
agreed division
of the SALGA be seen, or a unless exemption is
granted in terms of clause 7 hereof.”
(emphasis
added)
[4]
The settlement agreement was made an
arbitration award. The applicants claimed in their founding affidavit
that there is an appeal
pending before the LAC to review and set
aside the arbitration award and contend that the award is binding
pending the outcome
of the appeal. Accordingly, any terminations
affected contrary to the provisions of clause 2.4 of the award are in
breach thereof.
The respondents pointed out that the arbitration
award was in fact rescinded in January 2008, a fact not mentioned by
the applicants.
They further state that, the appeal pending before
the LAC is an appeal against the refusal of the Labour Court to set
aside the
settlement agreement. In the applicants’ heads of
argument they too state that the pending appeal is against a decision
by
Van Niekerk J, which dismissed an application for a declaratory
order that the settlement agreement was not binding. I note in
passing that no apology was made by the applicants for misleading the
Court in the founding affidavit about the true nature of the
dispute
before Van Niekerk J.
[5]
Confronted with the difficulty of an award
which appears to have been set aside on rescission ruling, the
applicants then sought
to argue that their case was equally firmly
grounded on the settlement agreement itself. In the founding
affidavit, the settlement
agreement, as such, was not pleaded as an
alternative basis for the relief sought. The applicants placed sole
reliance on the enforcement
of the settlement agreement as an
arbitration award. This alternative basis for the applicants’
claim is essentially a cause
of action which was not pleaded in the
founding affidavit and the respondents have applied for the
paragraphs setting out this
claim in the replying affidavit to be
struck out.
[6]
In
reply, the applicants also sought to argue that the rescission ruling
applied only to the City of Cape Town which had successfully
rescinded the award based on an obiter comments made by the
Honourable Justice Basson, in her judgement in
Independent
Municipal & Allied Workers Union & others v City of Tshwane
Metropolitan Municipality & others
[1]
before the rescission application had been determined. However, there
was no evidence that since the award was rescinded that any
party
sought to set aside the rescission ruling.
[7]
From the aforegoing, it would appear that the arbitration award
remains rescinded but the settlement agreement is undisturbed
pending
outcome of the appeal. Thus, if the applicants were permitted to rely
on the settlement agreement itself, they could argue
that the binding
nature of the award establishes the rights they wish to enforce.
[8]
Assuming for the moment that the provisions
of clause 2.4 and 2.1.1 of the agreement are enforceable, would that
afford rights to
the applicants? The applicants maintain that the
effect of the two clauses is that, fixed term contracts relating to
non-section
57 employees were to be phased out and on the termination
of the applicants’ fixed term contracts, as extended until 31
March
2015, they ought to have been retained in employment on the
applicable SALGBC scales.
[9]
However, it is not apparent from the
founding papers when the applicants first commenced employment on
fixed term contracts. Consequently,
it is impossible to determine if
any of the applicants were employed at the time of the settlement
agreement on 22 February 2007
or whether that they were employed on
fixed term contracts thereafter. This is important because it would
appear from the wording
of clause 2.4 that the phasing in of fixed
term employees into permanent employment was specifically concerned
with employees who
were currently on fixed term contracts at the time
of the settlement agreement. Clause 2.1.1 seems to have been intended
to prevent
the future use of fixed term contracts for non-section 57
employees. If any of the applicants were on fixed term contracts at
the
time of the settlement agreement in 2007, it is a mystery why
they would have not been made permanent employees within a few years.
On the other hand, if they were engaged on new fixed term contracts
after that date, it is not explained why the applicants did
not
challenge their fixed term appointments earlier. This brings me to
the question of urgency.
Urgency
[10]
The applicants contend that in terms of
clause 2.4 of the settlement agreement they were entitled on the
expiry of their contracts
to remain employed on SALGBC terms and
conditions. During 2014 the second respondent underwent an
institutional review process.
In July 2014, the municipality extended
the fixed term contracts of the applicants and other employees until
the end of December
2014 and thereafter extended them again until the
end of March 2015. The applicants contend that neither of these fixed
term appointments
was in compliance with the settlement agreement. In
any event when it learnt of the first respondent’s intention in
December
2014 to extend some of the contracts to the end of March
2015 while a “recruitment process” was finalised during
that
period. IMATU challenged the need for these employees to apply
for the very positions they occupied when their appointment should
simply be made permanent.
[11]
The respondents claimed that the
organisational review process was only finalised in March 2015 and
that the individual applicants
all knew that they had been appointed
on a fixed term basis. The respondents also point out that when IMATU
requested the extension
of its members’ contracts in its letter
of 26 November 2014, it did not make any mention of the arbitration
award as the
basis for its request but simply appealed on the basis
that they needed to remain in employment until the institutional
review
process was finalised. Similarly, in none of IMATU’s
subsequent correspondence in January and February did it make
reference
to the arbitration award or, for that matter, to the
settlement agreement.
[12]
The number of the applicants’
justification on urgency is that they claim the termination of their
employment could not have
been foreseen until the municipality
refused to agree to the sixth undertaking which they sought on 24
March 2015 to the effect
that their contracts would not be terminated
pending the resolution of a new dispute referred to the SALGBC. That
dispute concerns
whether or not the respondents had unfairly
appointed the applicants on fixed term contracts instead of employing
them on a permanent
basis. The respondents claim that the applicants
already knew in December 2014 that the contracts of the applicants
would only
be extended until the end of March 2015. They argue that
the letter from IMATU 24 March 2015 calling upon them to extend the
applicants’
fixed term contracts pending the outcome of the
dispute referred to the SALGBC, was simply a device to create
urgency. The applicants
retort that it was only when the respondents
indicated that the applicants on fixed term contracts expiring at the
end of March
2015 would not be allowed to remain in their positions
as per clause 2.4 of the settlement agreement that the question of
urgency
arose.
[13]
What is clear from the interaction between
the union and the municipality is that it was only when the union
sought the undertaking
on 24 March 2015 that the fixed term contracts
would be extended, that it expressly raised the issue that they
should have been
permanently appointed in the first place. There is
no evidence that this was raised in December 2014, when it ought to
have been
patently obvious that the respondent was not intending to
prolong the applicants’ appointment on fixed term contracts
beyond
the finalisation of the restructuring. The applicants’
explanation that the urgency only arose when the undertaking was not
given is hard to understand: it begs the question why the undertaking
was only sought when the termination date of the fixed term
contract
was confirmed. If the applicants were of the view that they were
entitled to permanent employment in terms of the provisions
of clause
2.4, it is inexplicable why they waited until the final letter of
termination. If one has regard to IMATU’s letter
of 26 November
2014 it makes no mention of the applicants’ claim that they
ought to be permanently employed. Rather, the
letter focuses on the
extension of the contracts until the finalisation of the
institutional review process.
[14]
It is only on 28 January 2015 that IMATU
for the first time raises the contention that the recruitment process
which led to the
appointment of the employees on extended fixed term
contracts should have been one that “…led to permanent
appointments”.
That letter motivated the retention of fixed
term contract appointees who occupied positions on the structure.
When a response
was not forthcoming on 6 February 2015, the matter
was referred to the SALGBC.
[15]
In light of the above, it appears to me
that at the very latest, this application ought to have been launched
in mid-February this
year and not
after
the expiry of the extension of the contract periods at the end of
March. As mentioned above there is also no explanation why the
applicants had not sought in any event to assert their rights to be
employed on a permanent basis pursuant to clause 2.1.1.
[16]
The matter only became ‘urgent’
because the applicants left a challenge based on the award or the
settlement agreement
so late, not because the non-continuation of
their contracts could have come as a surprise. In the circumstances I
am not satisfied
that the applicants have demonstrated that they have
brought this application timeously and accordingly it must fail on
this basis
Order
[17]
The application is struck off the roll for
lack of urgency with costs.
R
LAGRANGE
Judge
of the Labour Court
Appearance
For
the Applicants: T Ngcukaitobi and R Tulk
Instructed
by:Ndumiso Voyi Inc.
For
the Respondents: C De Heus of Du Plessis, Heus & Van Wyk
[1]
(2008)
29
ILJ
171
(LC) at 175,para[13].