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[2015] ZALCJHB 163
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Nyambeni v Vhembe District Municipality (J1013/15) [2015] ZALCJHB 163 (29 May 2015)
THE
LABOUR COURT OF SOUTH AFRICA
,
JOHANNESBURG
JUDGMENT
Not reportable
Case no: J 1013/15
In
the matter between:
TODANI
NYAMBEMI
Applicant
and
VHEMBE
DISTRICT MUNICIPALITY
Respondent
Heard:
28 May 2015
Delivered:
29 May 2015
Summary:
(Urgent application to enforce a settlement agreement made into an
arbitration award – court lacking
jurisdiction to grant relief
sought)
JUDGMENT
LAGRANGE,
J
Background
[1] This is an urgent
application for final relief to enforce a settlement agreement in
respect of the individual applicant. The
applicant was employed on 28
April 2010 on a five year fixed year contract as a Senior Manager:
Human Resources. This was pursuant
to a resolution adopted by the
respondent municipality on 3 April 2008 (Resolution 11 of 2008) to
the effect that all posts on
Level 2 should be filled by contract
appointments.
[2] The applicant
claims that the resolution and her appointment on a fixed term basis
contravene the provisions of a settlement
agreement which was made an
arbitration award on 22 February 2006. It is not necessary to
describe the dispute which led to the
settlement agreement in any
detail, save to say that the dispute concerned a practice adopted by
certain municipalities of appointing
senior staff other than managers
directly accountable to municipal managers on fixed term contracts as
if they were subject to
section 57 (3) and (6) of the Municipal
Systems Act. The agreement did not find favour with a number of
municipalities belonging
to the employers association SALGA, which
concluded the settlement agreement, but the agreement has remained in
force and its conclusion
into an arbitration award has not being set
aside.
[3] The provisions of
the agreement relied on by the applicant in particular are the
following:
“
2.1
The respondent’s members will not:-
...
2.1.4
Extend the application of section 57 (3) and (6) of the systems act
to employees other than managers directly accountable
to the
municipal managers, IT managers who are employed on the post level
directly below that of the municipal manager, regardless
of their
post titles or responsibilities.
...
2.1.6
Offer employment to and/or appoint or place persons on fixed term
contracts of employment without having agreed with the applicant’s
what would happen to the relevant persons upon the expiry of the
fixed term contracts; or...”
Urgency
[4] The applicant
contends it was only in mid-2014 that she became aware of her
appointment on a fixed term contract and that the
2008 resolution
appeared to be contrary to the terms of the settlement agreement. She
did not take any legal action at that point
to challenge the terms of
her appointment because there were moves afoot initiated by the
Corporate Services Department to bring
the conditions of service of
the applicant and other similarly placed senior managers in line with
the her newly acquired understanding
of her entitlement to permanent
employment based on the settlement agreement. This initiative
culminated in a recommendation to
the Mayoral committee from the
municipal manager on 23 February 2015 that, inter-alia, the previous
resolution of 2008 should be
rescinded and that all the persons
appointed on fixed term contracts in Level 2 positions in terms of
that resolution should be
appointed permanently.
[5] I accept that
there was a reasonable prospect that the applicant’s claim
might have been resolved if these internal processes
had led to the
point they appeared to be moving towards. Even when the applicant was
reminded on 11 March 2015 in a letter issued
by the acting municipal
manager that her contract was due to end on 31 May 2015, the same
letter pointed out that the termination
of her employment and a
variation of her conditions of employment was still contingent on the
outcome of a decision by the Council.
It was only on 29 April 2015
that a memorandum of advice prepared for the Mayoral committee
recommended that the fixed term contracts
of the affected managers
should be allowed to expire and a job evaluation of the posts at
Level 2 should be conducted. The applicant
was advised that the
Council had in fact adopted the latest recommendation sometime after
6 May 2015 when she specifically enquired
about the outcome of the
Council meeting.
[6] While there may be
some cause for complaint that the applicant did not launch this
application sooner than she did after hearing
the somewhat unexpected
outcome of the council meeting, in view of all the positive
indications from the respondent that the matter
would be resolved in
her favour until she learnt of the outcome earlier this month, I do
not think she can be blamed for not acting
in 2014, which seems to be
the respondent’s main complaint on urgency.
Application
to compel the respondent to rescind Resolution 11 of 2008
[7]
The basis for this claim is not well
articulated in the applicant’s founding papers. It is unclear
if it is based on the direct
enforcement of the settlement agreement
or on an alleged breach of s 71(3) of the Local Government: Municipal
Systems Act 32 of
2000 (‘the Systems Act’). If it is the
former then the court lacks jurisdiction to deal with it for the same
reasons
cited below. If it is the latter then this was not properly
pleaded as a breach of a statutory obligation or that the respondent
had acted
ultra vires
the Systems Act.
Jurisdiction
to enforce the award in respect of the applicant’s employment
status
[8] The settlement
agreement which was made an arbitration award is also a collective
agreement, notwithstanding that the dispute
originated in a dispute
of right. The settlement agreement was not made an order of court in
terms of section 158 (1) (c) of the
Labour Relations Act 66 of 1995
(‘the LRA’), but the applicant has asked the court to
give effect to the terms of the
agreement in so far as they might
apply to herself, by ordering the respondent to appoint her on a
permanent basis as a way of
remedying the alleged breach of the
provisions of the agreement. The applicant also seeks an order
compelling the local authority
to rescind resolution 11 of 2008 as
she claims it was taken in contravention of the settlement agreement.
[9] Ordinarily, a
party wishing to enforce an arbitration award will have the award
made an order of court. The court may then in
the exercise of its
power to enforce its own orders compel a party on pain of contempt to
comply therewith, if the order is not
one sounding in money, but is
one
ad factum praestandum
,. In this instance, the court is
being asked to enforce the award directly on the authority of the
arbitration award itself. The
applicant’s representative could
not point the court to any provision in the LRA in which such
authority of the court could
be sourced.
[10]
In the
absence of the award being made an order of court, the applicant is
not without a remedy. It is common cause that the settlement
agreement is also a collective agreement. The parties are essentially
at odds over the enforcement of that collective agreement
which has
also been confirmed as a binding arbitration award on the parties to
it and their members in the unreported decision
of this court in
City
of Johannesburg and Others v Independent Municipal and Allied Trade
Union and Others
(J 1232/06) [2013] ZALCJHB 51 (12 April 2013)
.
In that matter employer parties to the agreement tried unsuccessfully
to set aside the award on the basis that the settlement
agreement
itself was not binding on them.
[1]
[11]
The LAC has
recently also identified the Labour Court’s lack of
jurisdiction when acting under
s 77(3)
of the
Basic Conditions of
Employment Act, 75 of 1997
to enforce individual contractual rights
accruing to employees from a collective agreement.
[2]
This means that this court cannot entertain the applicant’s
claim as an enforcement of an individual contractual entitlement
arising from the settlement agreement.
[12] In the
circumstances, I must agree with the respondent that the court has no
jurisdiction to consider the claim.
Costs
[13]
The jurisdictional issues were only raised
in argument and were not readily apparent in the answering affidavit.
The applicant was
reasonably led to believe the respondent was likely
to amend her employment status in line with a legal opinion obtained
by the
respondent. I do not think that the applicant proceeded
recklessly in launching this application or persisting with it.
Consequently,
it would be inappropriate in my view for the applicant
to pay the respondent’s costs.
Order
[14]
In light of the reasons given above, the
application is dismissed.
[15]
No order is made as to costs.
_____________________
R LAGRANGE, J
Judge of the Labour
Court
[1]
At
para [1].
[2]
Ekhurhuleni
Metropolitan Municipality v SAMWU obo members
[2015]
1 BLLR 34
(LAC
)
at 44, para [30].