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[2015] ZALCJHB 351
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Phiri v City of Johannesburg and Another (J982/2013) [2015] ZALCJHB 351 (16 October 2015)
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J 982/2013
Not Reportable
In the matter between
THULANI OSCAR
PHIRI
Applicant
and
CITY OF
JOHANNESBURG
First Respondent
THE JOHANNESBURG METROPOLITAN
POLICE
DEPARTMENT
Second Respondent
Heard:
07 July 2015
Delivered: 16 October 2015
Summary: Whether the Applicant was entitled to payment of
shortfall salary in terms of section 77(3) alternatively sec 77(1) of
Basic Conditions of Employment Act (“BCEA”). Further
whether the applicant should be paid double salaries for four months.
Whether the Memorandum of Agreement properly construed applies to the
dispute.
JUDGMENT
PHALA, AJ
Introduction
[1]
The Applicant brought an application in terms of Section 77(3) and
Section 4 of The
Basic Conditions of Employment Act
[1]
(“the
BCEA”), alternatively, Section 77(1) of the same Act read with
Rule 7 of the Labour Court Rules.
[2] The Applicant seeks the
following relief;
·
Declaring
that the Respondent paid the Applicant a shortfall in his salary from
July 2008 to date or at least for a period of 56
months in the sum of
at least R135 128. 00 plus interest.
·
Declaring
that the Respondents failed to pay the applicant double salaries for
four (4) Decembers in the amount of at least R9 652.00
plus interest.
·
Declaring
that the Applicant is entitled to be placed on median level
retrospectively from the 1 July 2008 and adjust his salary
accordingly in terms of the MOA concluded by and between the City and
SAMWU.
·
Declaring
that the Respondents to pay the Applicant the shortfall in his salary
or at least R135 128.00 being the amount that the
Respondents short
paid the applicant for a period of 56 months.
·
Directing
the Respondents to pay the applicant a sum of R9 652.00 being the
amount that the Respondents failed to pay the Applicant
double
salaries for four (4) months.
Background facts
[3] The Applicant was
employed by the Respondents and in particular the Second Respondent
Metropolitan Police Department with effect from the 01 July 2002.
According to the Applicant, he was appointed as a permanent employee
on that date.
[4] The Applicant earned a
gross monthly salary of R1 987.50 (One Thousand Nine Hundred
and
Eighty Seven Rand and Fifty Cents) per month.
[5] On or about 28 June
2008, the First Respondent, City of Johannesburg Metropolitan
Municipality (“the city”) and the South African Municipal
Workers Union entered into a Memorandum of Agreement (“MOA”).
[6] The First Respondent’s
Metropolitan Police Department implemented the clauses
of the MOA
quoted herein above with effect from 1 July 2008.
[7]
Prior to the implementation of the clauses of the MOA
,
the Applicant was earning a gross salary of R9 489 (Nine Thousand
Four Hundred and Eighty Nine Rand) per month.
[8] There are a number of
dispute of facts regarding the implementation of the MOA.
[9] According to the
Applicant, the following clauses of the MOA entered into by SAMWU
and
the City are relevant for the purposes of this application.
[10] Paragraph 1.3 provides as follows:
‘
Employees
who have been in the service of the employer at JMPD for a period of
six years to twelve years shall be placed on the
median range of the
salary scale.
[2]
[11] Paragraph 6 provides as follows.
‘
Therefore,
the parties recognize that they both need to obtain mandates to
conclude this agreement between them, as such this agreement
will
only be signed once both parties have solicited mandates from the
respective constituencies and that its application will
be with
effect from the 01 July 2008.
3
[12] Although the First and Second
Respondents agree that the two paragraphs above are relevant,
however, for the sake of completeness, clause 2 of Memorandum of
Agreement (“the Agreement”) should also be included
which
provides that:;
‘
The
parties agree that the provisions of clauses 1.3.1 and 1.3.2 of this
agreement (the Memorandum of Agreement) shall apply once
off only to
permanent members of staff employed by JMPD, and shall not serve as a
precedent nor can it be used against any of the
parties in any future
disputes, engagements and/or negotiations.’
[13] The Applicant claimed that, as of
the 1 July 2008, he had been in the service of the Johannesburg
Metropolitan Police Department for six years. In support of the
assertion, the applicant submitted that payslip which shows the
date
of engagement as the 1 July 2002.
4
[14]
The First Respondent disputed that as of the 1 July 2008
,
the Applicant had been with the Second Respondent for (6) six years.
The Applicant was initially engaged as a trainee Metro Police
Officer, which training period endured for six months from 1 July
2002 to 31 December 2002. Therefore, the Applicant was only a
trainee
for the said period and not employed on the permanent staff
establishment of the Second Respondent. The prospects of the
Applicant’s future employment with the Second respondent
depended on the Applicant’s successful completion of training,
failing which the Second Respondent would not have appointed the
Applicant as a Metro Police Officer. During that period, the
Applicant was receiving a stipend from the Second Respondent. He
continued on that basis up until he was employed as a permanent
employee on 01 January 2003.
[15]
The Applicant submitted that after the implementation of the MOA, in
August 2008, his salary
was not adjusted and he was also not placed
on the median level with the rest of his colleagues (whom had been
employed on the
same day/time as he was). The First Respondent now
sought to amend his date of employment unilaterally to indicate that
he was
employed only on the 01 January 2003instead of July 2002.
[3]
[16] The First and Second Respondents
admitted that the Applicant’s salary was not adjusted
in terms
of the Agreement and none of the two Respondents had a duty to do so.
The First Respondent also denied that the date of
employment was
amended unilaterally. The Applicant was initially appointed as a
trainee and not as a permanent employee.
[17]
In reply, the Applicant stated that it may be correct that he was
engaged as a trainee on the
01 July 2002 and was only appointed as a
permanent employee on 01 January 2003, however
,
the other employees employed at the same time as the Applicant
received the bonus/increase despite the fact that they were on the
same training.
[18]
The Applicant also attached the results of a number of employees that
he apparently trained with
and who were receiving the bonus/ salary
in terms of the agreement. These were T.E Ledwaba, S Lwana, M
Malefane, H R Mogotsi and
S.T Mphela.
[4]
[19] The Applicant also attached the a
copy of the payslip of S Lwana which shows that this employee
has
received the bonus/increase in terms of the Agreement and is now
receiving R11 902. 00, as basic salary. The figure was used
in the
founding papers to calculate what is owed to him.
Applicable
Law
[20] Section 4 of the BCEA Inclusion of
provisions in contracts of employment;
‘
A
basic condition of employment constitutes a term of any contract of
employment except to the extent that-
(a)
any other law provides a term that is more favourable to the
employee;
(b)
the basic condition of employment has been replaced, varied, or
excluded in accordance
with the provisions of this Act;
(c)
a term of the contract of employment is more favourable to the
employee than the basic
condition of employment.
’
[21] Section 77(3) reads as follows
‘
The
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract.’
[22] Section 77(1) state:
‘
Subject
to the Constitution and the jurisdiction of the Labour Appeal Court,
and except where this Act provides otherwise, the Labour
Court has
exclusive jurisdiction in respect of all matters in terms of this
Act.’
[23] Although it is not readily
apparent from the papers, the application was couched primarily in
terms of prayers based on section 77(3) of the BCEA and in that way,
they have been repositioned as contractual rather than statutory
claim pursuant to section 4 read with section 77(3) of the BCEA.
[24]
In
Fourie
v Standford Driving School and Others
,
[5]
Van
Niekerk J stated:
‘
That
issue aside for the moment, the question that arises in each of the
applications before me is whether the BCEA entitles an
aggrieved
party to enforce the provisions of the Act as contractual terms, and
to rely on the concurrent jurisdiction that this
court enjoys under s
77 of the BCEA to enforce them. The starting point is s 4 of the Act
which provides with some exceptions,
that a basic condition of
employment constitutes a term of any contract of employment. A ‘basic
condition of employment’
is defined in s 1 to mean a provision
of this Act or sectoral determination that stipulates a minimum term
or condition of employment.In
Baartmanand
Another t/a KhayaIebhubesi v De Lange and Another
(2009) 30 ILJ 2701 (LC) Todd, AJ expressed his reservations about
whether it could be said that an obligation under the BCEA to
furnish
certificates, information regarding remuneration and the like could
be said to constitute basic conditions of employment
(at
paragraph38of the judgment). For the purposes of these proceedings, I
am prepared to accept that they may be enforced as contractual
terms.
I deal with these issues below in the context of the prayers for
costs on a punitive scale that accompanies virtually every
application.’
Submissions
[25] The Applicant argued that the
application was seeking either compliance with the Memorandum
of
Agreement and/or payment of unpaid moneys/salaries in terms of the
same or equal treatment of the Applicant in respect of his
salary
with that of his colleagues who were employed at the same time he
was.
[26] The Memorandum of Agreement was
implemented on the 01 July 2008 and it was submitted on behalf
of the
Applicant that at the time he had been in the service/employ of the
Respondent for 6 years and it should be common cause.
[27] It is disputed that as to whether
or not the Applicant was a permanent employee at such stage
1 July
2002-01 January 2003.
[28] The Applicant is contending that
he was a permanent employee at such stage (1 July 2002) whereas
the
Respondents are contending that he was a trainee at such stage and
had to undergo training for a period of six (6)months.
[29]
The Applicant contended that it really does not matter whether or not
the Applicant was only
a trainee as at 1 July 2002, the point is that
his colleagues who were employed at the exact same time as him as
being on 1 July
2002 were also put on the median level and their and
their salaries
,
accordingly
,
put on the relevant salary scale.
[30] It was argued strenuously that
while two (2) clauses contains the word “permanent member”-
this relates to the date of the MOA only. ThattheApplicant must be a
permanent member as at the date of the MOA coming into operation.
When the MOA came into operation the Applicant was a permanent
employee.
[31] To argue that, as the Respondents
do, that the Applicant must be prejudiced in that he only
became a
permanent member in January 2003 and, therefore, the MOA is not
applicable to him is nonsensical.
[32] Clause 1.3.1 sets out that any
‘employee who have been in the service of the employer
at JMPD
for a period of six years to twelve years shall be placed on the
median range of the salary scale’.
[33] It was further argued that the
Courts have repeatedly set out that where there is a dispute
over the
meaning of a word/phrase/clause in a document that the simple /plain
/literal/ clear or ordinary meaning of the word/
phrase/ clause be
used.
[34]
According to the Applicant, the clauses set out above are easily
interpretable to mean that the
employee is meant to be six (6) years
in employ of the Second Respondent and that the MOA is only
applicable to permanent employee,
that is employees that are
permanent employees as at the time it comes into effect. To repeat
,
there is no mention that the employee must have six (6) years of
service
as a permanent employee but that he be an employee for six(6) years.
[35]
In support of the assertion above
,
the Applicant referred to the case of
National
Credit Regulator v Opperman and Others
[6]
Whe
re
the Constitutional Court set out that the Court must look to the
simple and/or plausible meaning of the words to give effect
to the
clause and avoid interpretations which make the legislation
unworkable or unconstitutional when interpreting a clause of
legislation.
The
Applicant argued that the same principles are applicable in this
case.
[36] There was no mention that the term
or word “service” as set out in clause 1.3.1
is
restricted to only that period that the employee was a permanent
employee/member.
[37] The Applicant supplied
documentation proving his case to the Court. The Respondents have
supplied
no documentation in support of their case. It has no proof
of its case and merely relies on the MOA.
[38] The Respondents fail to explain
the change in the date of employment in the pay slips and it
failed
to explain why the Applicant’s colleagues who were similarly
employed to have been placed on the median salary level.
[39]
The Respondents submitted that the Applicant alleged in his founding
affidavit that he was permanently
employed from the 01 July 2002 and
in support of the allegation
,
he attached a salary slip.
[40] However, in his replying affidavit
the Applicant conceded that he was only employed on a permanent
basis
on the 01 January 2003. The two statements given under oath were
contradictory in a material sense. There was no attempt
by the
Applicant to explain the discrepancy.
[41] The Respondents argued that the
Applicant asserted that the requirement of permanency was irrelevant
because others who were also not permanent during 2002 benefited from
the Memorandum of Agreement. The Applicant failed to adduce
sufficient evidence to support the baseless assertion.
[42]
However, paragraph 7 of the founding affidavit the Applicant
emphasised permanency. Upon realizing
that the argument was unlikely
to succeed
,
the Applicant changed the argument in his replying affidavit.
[43] The applicant does not seem to
know what his case is. Initially, it was that there was no compliance
with the provisions of Memorandum of Agreement signed on the 28 June
2008.
[44] It appears that his case is now
premised on unfair discrimination based on the fact that some
of his
colleagues who were employed at the same time were treated better
than him because they received the benefit of the MOA.
[45] Even if the Applicant sought to
rely on unfair discrimination, he still had to make out a case
in
that regard but he has failed to do so. The Applicant tried to make
out a new case of his colleagues in the replying affidavit
[46]
The Respondents implored the Honourable Court to strike out all the
irrelevant provisions in
the replying affidavit or alternatively to
afford the Respondents the opportunity to respond properly to the
allegations made in
the replying affidavit by granting them the
opportunity to do so.
Analysis
[47]
In
Poseidon
Ships Agencies (Pty) v African Coaling and Exporting Co (Durban)
(Pty) Ltd and Another
,
[7]
the
Court upheld the principle that the Applicant in motion proceedings
has to make out his case in the founding affidavit and was
not
permitted to supplement it in the replying affidavit unless done due
to special circumstances.
[48]
In
Body
Corporate, Shaftesbury Sectional Title Scheme v Rippert’s
Estate and Others;
[8]
after
confirming the general rule applicable in motion proceedings, held
that the rule was not absolute and that the Court has a
discretion to
permit new material in the replying affidavit.
[49] The Applicant further argued that
the Second Respondent treated his colleagues differently in
that to
the extent that they were all employed around the same time and under
the same circumstances, they were placed on the median
level and paid
accordingly.
[50]
The founding affidavit did not give comprehensive details of the
so-called differential treatment.
However
,
the Applicant’s replying affidavit introduced new evidence and
also described the payments as salaries/ bonus.
[51] The Respondents argued that the
Honourable Court should strike out new submissions in the replying
affidavit or alternatively grant them the opportunity to respond
properly to the new submissions.
[52] Although the rule against raising
new material for the first time in the replying affidavit
was not
rigid and inflexible, I was not presented with special circumstances
such as whether the Applicant was aware of these issues
at the time
of deposing to the founding affidavit.
[53]
In the present instance, I am not persuaded that there is a basis
upon which I should exercise
my discretion in favour of allowing the
new evidence introduced by the Applicant in the replying affidavit.
I
,
therefore
,
decided the matter without the new evidence in the replying
affidavit.
[54] The claim of the Applicant
is based on the Memorandum of Agreement entered into by the
South
African Municipal Workers Union and The City of Johannesburg
Metropolitan Municipality (“The First Respondent”)
[55] Although the parties did not
present any evidence or make submissions on the background and
what
led to the conclusion of the agreement, the preamble is instructive.
[56]
The preamble reads
;
:
;-Whereas
the City of Johannesburg Metropolitan Municipality is an employer,
and whereas the members of SAMWU raised a number of
concerns on
behalf of their members employed at the Johannesburg Metro Police
Department (JMPD), in order to resolve the current
impasse, parties
record their agreement herein
.
[57]
Para 1 state;
In
relation to the payment of
minimum
salaries to Metro Police Officers (MPOs), the
p
arties
agree that:
’
57.1
Newly appointed Trainees will attend a course at the Academy for the
period of 6 months in order to conclude
theoretical aspects and will
receive a stipend of R2000 per month.
57.2
Upon completion of the 6 months theoretical training, a Trainee MPO
will be placed as a trainee for
further period of 6 months, during
which period he/she will be paid an amount of R4 200 per month.
57.3
upon successful completion of both theoretical and practical
training, the MPO will be appointed on
the permanent structure of
JMPD and be paid the applicable minimum salary.
57.4 in
principle, the employer commits that none of its employees will be
paid below the minimum salary
of the grade applicable to the position
57.5
Employees who have been in the service of the employer at JMPD for a
period of six years to twelve
years shall be placed on the median
range of the salary scale.
57.6
Employees who have been in the service of the employer at JMPD for
more than twelve years shall be
paid at the maximum salary of the
salary scale.
57.7 The
parties agree that the provisions of clauses 1.3.1 and 1.3.2 of this
agreement shall apply once
off only to permanent members of staff
employed by JMPD, and shall not serve as a precedent nor can it be
used against any of the
parties in any future disputes, engagements
and or negotiations.
57.8 The
parties agree that this Agreement shall supersede any other
agreements relating to the issues contained
herein.
57.9
Members of SAMWU shall return to work with immediate effect and
failure to adhere to this provision
will render this agreement null
and void.
57.10 The parties
recognize that Council operates within a legislated environment and
that SAMWU operates within its
constitution.
57.11 Therefore the
parties recognise that they both need to obtain mandates to conclude
this agreement between them,
as such this agreement will only be
signed once the parties have solicited mandates from their respective
constituencies and that
its application will be with effect from 01
July 2008.
57.12 No party may
embark on an industrial action or lockout resulting from a dispute
relating to the application and
interpretation of this agreement.
57.13
Any party may make this agreement an order of court.’
[9]
[58]
I specifically asked the attorney for the Applicant Mr Goldberg
whether his client was a member
of SAMWU and after taking
instructions
,
he confirmed that indeed the client was a member of SAMWU.
[59] The Memorandum of Agreement was
concluded after members of SAMWU embarked on industrial action
and
this is apparent from paragraph 4 which reads ‘members of SAMWU
shall return to work with immediate effect and failure
to adhere to
this provision will render this agreement null and void.’
[60]
According to paragraph 2
,
the provisions of clauses 1.3.1 and 1.3.2 shall apply once off to
permanent members of staff employed by JMPD, and shall not serve
as a
precedent nor can it be used against any of the parties in any future
disputes, engagements and or negotiations.
[61] The MOA is not a classical case of
good drafting. Although the first part of paragraph 2 refers
to
permanent member of the JMPD, the second part states the agreement
could not be used against any of the parties in “any
future
disputes”.
[62] It is common cause that there were
only two parties to the agreement, The City of Johannesburg
Metropolitan Municipality and the South African Municipal Workers
Union. If none of the parties were allowed to use the agreement
as a
precedent nor in any future disputes, was the Applicant, a member of
SAMWU precluded from doing the same?
[63] In terms of paragraph 8 of the
Agreement ‘any party may make this agreement an order of
court’.
[64] There was no indication in the
papers the Applicant enlisted the assistance of SAMWU when it
became
clear that he will not be included the when MOA was implemented in
2008.
[65]
There was clearly one avenue available to the Applicant as a member
of SAMWU as envisaged by
paragraph 8 of the Agreement. By invoking
the latter paragraph
,
through his representatives (SAMWU) Applicant would have acted within
the parameters of the MOA.
[66]
The merit in making an agreement an order of the Court was to cut out
the necessity for instituting
action and to enable the Applicant to
proceed direct to execution. Moreover
,
it is questionable whether the Applicant had the right to act on the
Agreement without the involvement of SAMWU. However
,
if I am wrong I go on to deal with the merits of the application.
[67] The Applicant argued that he was
entitled to be placed on the median level retrospectively to
the 1
July 2008 and have his salary adjusted accordingly, because at the
time of the conclusion of the agreement he had been in
the service of
the Second Respondent for six years.
[68] Furthermore any reference to
permanent staff relates to the date of the MOA only. That is; one
be
a permanent member as at the date of the MOA coming into operation.
[69] The Applicant relied on paragraph
1.3.1 of the MOA but whether in error or by design ignored
paragraph
2 which states that para 1.3.1 will apply only to permanent members
of staff employed by the JMPD. Paragraph 1.3.1 cannot
be read in
isolation and must be read and interpreted with other clauses of the
Agreement in particular paragraph 2.
[70] The submission that permanent
employee only relates to the date of the signing of the MOA is
inaccurate. For an employee to fall within the ambit of the
Agreement, one had to be permanent and be six years with the company.
[71] The Applicant was alive to this
fact as a result he specifically made the following submission
in the
founding affidavit;
“
I was
employed by the Respondents and in particular as a Metropolitan
Police Officer with effect from 01 July 2002. As proof of
this I
attach a salary slip which sets out this as my date of employment
marked as ANNEXURE “A”. I was appointed as
a permanent
employee on such date (my emphasis)
[72] The MOA makes a deliberate
distinction between a Trainee Metro Police Officer and Metro Police
Officer. Upon completion of the both the theoretical and practical
training the MPO “will be appointed on the permanent structure
of JMPD and be paid the applicable minimum salary”.
[73] Although the MOA was only
concluded in July 2008, there was no evidence led that the situation
was different in July 2002. The applicant alleged that upon his
employment, he was earning a gross salary of R1 987.50 (One Thousand
Nine Hundred and Eighty Seven Rand and Fifty Cents) per month.
[74] It is clear from the language of
the MOA the trainees were not paid a salary but a stipend.
The
Applicant’s legal representative conceded that indeed the
R1987.50 was not the minimum salary of Metro Police Officer
in July
2002. Therefore, it is safe to conclude that the amount was a stipend
which is consistent with the MOA albeit the amounts
have since
changed over the years.
[75] The Applicant, however,
effectively abandoned the initial submission and argued that
permanence
was inconsequential. It was sufficient that the he had
been in the service of the Second Respondent for six years. I have
already
pointed out the limitations of this argument.
[76] It is therefore my finding that
the Applicant failed to make out a case that he was indeed entitled
to payment as envisaged by section 77(3) of the Basic Conditions of
Employment Act 75 of 1997 as amended.
[77]
It is an established principle that costs should follow the result
,
but I exercise my discretion against ordering the Applicant to pay
costs because he had a
bona
fide
belief that there was a legal basis for approaching the Court and
seeking a remedy.
[78] In the circumstances, I make the
following order
1. The application is
dismissed.
2.
There is no order as to costs.
____________________
Phala, A J
Acting Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr A L Goldberg (Attorney)
First and Second Respondents:
Advocate
Mashabane
Instructed by:
Mncedisi Ndlovu & Sedumedi Attorneys
1Act
75 of 1997
2Seepage
25 of the paginated bundle
4See
page 26 of the paginated bundle
6See
page 61 of the paginated bundle
[5]
(2011)
32
ILJ
914 (LC)
at
para 7
[6]
2013
(2) BLLR 170 (CC).
[7]
1980
(1) SA 313
D at 315H-316A.
[8]
2003
(5) SA 1
(C)
at6D-F
[9]
See
pp 22-24 of the paginated bundle.