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[2015] ZALCJHB 414
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Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: jR 2498/13
In the matter
between:
MICHELINE PRETORIUS
Applicant
and
G4S SECURE SOLUTIONS (SA) (PTY) LTD
First Respondent
THEMBA HLATSWAYO
Second Respondent
CCMA
Third Respondent
Heard
:
29 October 2015
Delivered
:
24 November 2015
Summary:
Review – ULP – demotion – LRA s
186(2)(a).
JUDGMENT
STEENKAMP J
Introduction
[1]
The applicant, Ms Michelene Pretorius, was
employed as a security officer by G4S at the Rand Refinery site. She
earned R12 000 per
month. As a result of her alleged negligence G4S
redeployed her to another site, resulting in a reduction of her
monthly salary
to R 3 872. She referred an unfair labour practice
claim to the CCMA. The arbitrator (the second respondent) found that
the actions
of G4S did not fall within the meaning of unfair labour
practice. He dismissed her claim. She seeks to review that finding.
Background facts
[2]
The employee was a
“grade A” security officer.
[1]
The first respondent, G4S, placed her at the site of Rand Refinery.
G4S paid her R 12 000 per month. Her contract of employment
stated:
“
The
employee’s basic salary specifically for Rand Refinery shall be
R 12 000, 00.”
And, in an
addendum:
“
It
is specifically recorded that the parties agree that:
Pretorius
has been employed to a specific site namely Rand Refinery in the
capacity of grade A security officer.
For
the duration of the period that Pretorius remains at Rand Refinery in
the capacity of grade A security officer she will and
a fixed gross
monthly salary of R 12000, 00.
This
is only applicable for the period Pretorius works in the capacity of
grade A at Rand Refinery and falls away immediately should
Pretorius
be posted to any other G4S client service contract for any reason
whatsoever including but not limited to those listed
below that:
·
the client request [
sic
]
that the employee be transferred from the site for any reason
whatsoever;
·
in the event of G4S losing the
service contract;
·
a reduction of the manpower
requirements at Rand Refinery;
·
a transfer to another site in
accordance with company policies and procedures.
All
other conditions of employment as set out in your contract of
employment shall remain in force and fully binding on both you
and
the company.”
[3]
The employee allegedly lost a set of keys.
It is also alleged that she falsely claimed that she had handed the
keys over to another
security officer. Rand Refinery demanded that
she be removed from its site. G4S redeployed to another site and
issued her with
a final written warning valid for six months. As a
result of her redeployment, she no longer earned R12 000 per month
but reverted
to the minimum grade A salary prescribed in the sectoral
determination of the private security sector which was almost two
thirds
less, viz R 3 872.
[4]
The employee referred an unfair labour
practice dispute to the CCMA. It was conciliated but remained
unresolved. She referred it
for arbitration. The “primary
issue” was reflected as: “s 186(2)(a) - unfair conduct –
promotion/demotion/probation/training/benefits”.
The award
[5]
The arbitrator initially correctly
identified the dispute as relating to an unfair labour practice. He
briefly summarised the evidence
of the respective parties. He then
phrased the question before him thus:
“
Foremost,
let me deal with whether or not the act of removal of the applicant
from Rand Refinery site falls within the meaning of
unfair labour
practice.”
[6]
Although the arbitrator
noted that he had been referred by the employee’s attorney to
the Labour Appeal Court judgement in
Apollo
Tyres
[2]
,
he did not discuss the question whether the employee had acquired a
benefit as envisaged in s 186(2)(a) of the LRA
[3]
any further, other than blithely stating his disagreement with higher
authority:
“
I
do not share the idea that the Labour Appeal Court ruled that the
term benefit will necessarily include remuneration. The Labour
Appeal
Court had, on the contrary, drawn a distinct basis on which benefit
will be interpreted to be over and above the normal
remuneration.”
[7]
The arbitrator also did not consider
whether the reduction in salary amounted to a demotion.
[8]
Instead, the arbitrator accepted that the
employer has a prerogative to deployed employees on different sites
based on its operational
requirements (although it was common cause
that the employee had been removed due to her alleged misconduct). He
further found
that the employee was advised why she was being
removed; that “the removal from site was inextricably linked to
the adjustment
of salary”; and that “there was therefore
no need for the [company] to engage the applicant in terms of a
formal enquiry.”
On the basis of the employer’s
prerogative, he then simply found that its actions “do not
therefore fall within the
meaning of unfair labour practice as
envisaged by section 186(2)(a) of the LRA.”
[9]
After expressing his disagreement with the
finding of the LAC in
Apollo Tyres
,
the arbitrator concluded:
“
Given
the submissions made before me, I conclude on a balance of
probabilities that the respondent’s actions do not fall within
the meaning of unfair labour practice.”
Review grounds
[10]
Mr
Roets
argued that the conclusion of the arbitrator was so unreasonable that
no other arbitrator could have come to the same conclusion.
The main
thrust of his argument concentrated on the question of demotion,
although, as I understood it, he did not abandon the
question of
whether the employee had been deprived of a benefit, thus
constituting an unfair labour practice.
Evaluation / Analysis
[11]
It may seem at first
blush that the arbitrator’s ruling is a jurisdictional one, and
that the reasonableness test does not
apply on review. As the LAC
reiterated in
Apollo
Tyres
[4]
:
“
The
court
a quo
however found that the second respondent’s ruling that the
scheme was a benefit that falls within the purview of section
186 (2)
(a) of the Labour Relations Act 66 of 1995 (the Act) is a decision
that fell within the band of reasonableness. The court
a
quo
further said
that the ‘debate about which of the decisions of this court is
(sic) correct or is to be preferred on what constitutes
benefits as
is embarked upon by the applicant belongs to an appeal and not a
review’. In my view, the
court
a quo
misinterpreted the appellant’s argument. The argument was that
the CCMA does not have jurisdiction to adjudicate the dispute
because
the scheme is not a benefit as contemplated in Section 186 (2) (a) of
the Act. The question is therefore not whether the
second respondent
acted reasonably or reached a conclusion that a reasonable
commissioner could not reach but whether his finding
is wrong or
right. Put differently the enquiry ought to be whether the second
respondent was correct in ruling that the CCMA had
jurisdiction to
adjudicate the dispute. See
City
of Cape Town v SAMWU obo Jacobs and Others
.
[5]
[12]
But in this case, the
commissioner correctly assumed that he had to decide whether or not
G4S had committed an unfair labour practice.
Although he decided that
it had not, that conclusion was not a jurisdictional one, but a
conclusion on the merits (whether right
or wrong). The test on review
remains, therefore, the reasonableness test set out in
Sidumo
[6]
and subsequent
authorities.
Unfair labour practice: LRA s 186(1) (a)
Section 186
(2) (a) of the Act reads as follows:
‘
Unfair
labour practice means any unfair act or omission that arises between
an employer and an employee involving-
Unfair
conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason
relating
to probation) or training of an employee or relating to the provision
of benefits to an employee;’
Demotion?
[13]
Mr
Roets
argued that the arbitrator never considered whether the redeployment
of the employee from Rand Refinery amounted to a demotion.
There is
merit in that argument.
[14]
It is common cause that
the employee’s salariy was reduced by two thirds as a result of
her redeployment. A reduction in salary
can be a demotion, although
it does not always necessarily follow. And even without a reduction
in salary, a transfer may in itself
constitute a demotion.
[7]
Yet the commissioner never even considered this possibility. Instead,
he simply assumed that it was the employer’s prerogative
to
redeploy her at the insistence of Rand Refinery.
[15]
Similar contracts
relating to the dismissal – as opposed to the redeployment –
of employees at the insistence of a client
have been held to be
invalid by this court. In
Mahlamu
v CCMA
[8]
Van Niekerk J held:
“
In
short: a contractual device that renders a termination of a contract
of employment to be something other than a dismissal, with
the result
that the employee is denied the right to challenge the fairness
thereof in terms of section 188 of the LRA, is precisely
the mischief
that section 5 of the Act prohibits. Secondly, a contractual term to
this effect does not fall within the exclusion
in section 5(4),
because contracting out of the right not to be unfairly dismissed is
not permitted by the Act.
This
is not to say that there is a ‘dismissal’ for the
purposes of s 186(1) of the LRA in those cases where the end
of an
agreed fixed term is defined by the occurrence of a particular event…
Although
neither party referred to the decision, Boda AJ recently held that
any clause in a contract of employment that allows a
labour broker’s
client to undermine the right not to be unfairly dismissed is against
public policy. The facts of that case
are distinguishable, since it
did not concern a situation where the respondent’s client no
longer required the employee’s
services for economic reasons.
However, the principle that was recognised and applied by Boda AJ is
consistent with the principle
applied in the present instance, and I
associate myself with his reasoning.
It
follows that by finding that the applicant’s contract had
terminated automatically when Bombela advised the third respondent
that the applicant’s services were no longer required, the
commissioner committed a material error of law. His award therefore
stands to be reviewed and set aside (see
Stocks Civil Engineering
(Pty) Ltd v Rip NO & another
[2002] 3 BLLR 189
(LAC)), and
substituted by a ruling to the effect that the termination of the
applicant’s employment constituted a dismissal
for the purposes
of the LRA.”
[16]
In my view, similar considerations apply to
this case. The commissioner simply accepted the “employer’s
prerogative”
to redeploy the employee at the insistence of Rand
Refinery, without considering whether it amounted to a demotion. In
so doing,
he misconceived the nature of the enquiry.
Benefit?
[17]
As I mentioned above,
the arbitrator disregarded the authority of the LAC in
Apollo
Tyres.
In so doing,
he committed a gross irregularity that directly influenced his
resultant conclusion. G4S argued that the extra amount
it paid to the
employee while she was placed at Rand Refinery was an allowance. That
an allowance can be seen as a benefit in the
context of s 186(2)(a)
of the LRA should be clear in the light of
Apollo
Tyres.
I shall
refer to the pertinent parts of that judgment:
[9]
“
[25]
The distinction that the courts sought to draw between salaries or
wages as remuneration and benefits is not laudable but artificial
and
unsustainable. The definition of remuneration in the Act is wide
enough to include wages, salaries and most, if not all extras
or
benefits. Remuneration is defined as:-
‘
Remuneration
means any payment in money or in kind made or owing to any person in
return for that person working for any other person,
including the
State, and remunerate has a corresponding meaning.’
“
[36]
In
GS4 [sic] Security Services (SA)
(Pty) Ltd v NASGAWU and Others
, an
unreported judgment of this Court which was delivered on 26 November
2009, after the
Department of Justice v
CCMA and Others
matter, the approach
set out in
Hospersa
was unconditionally accepted. The Court quoted paragraphs 9 and
10 of
Hospersa
and
concluded as follows:
‘
My
understanding of what Mogoeng AJA is inter alia saying is that, in
order for respondents to bring a successful claim under item
2(1)(b)
of Schedule 7 they have to show that they have a right arising ex
contractu or ex lege. It is only then that having established
the
right, that the commissioner would have jurisdiction to entertain the
dispute as a dispute of right.’
[37]
It is unfortunate that the Court in
GS4 Security Services
did
not consider what was said in both the majority and minority
judgments in the
Department of Justice v CCMA
matter. In both
judgments it is categorically stated that item 2(1)(b) creates a
right not to be treated unfairly in relation to
promotion, demotion,
disciplinary action short of dismissal, training and the provision of
benefits.
“
[41]
Mr
Pretorius
argued that the majority was guilty of circular reasoning. I
disagree. It is also clear from the reasoning in the majority and
minority judgment and the judgment of
Scheepers
that the unfair labour practice
dispensation creates rights and that an employee has an
ex
lege
right created by section 186
(2)(a) not to be treated unfairly in relation to promotion, demotion,
training and the provision of
benefits.
[42]
Section 23(1) of the Constitution provides that: ‘everyone has
the right to fair labour practices’. It has been
said that our
Constitution is unique in constitutionalising the right to fair
labour practices and that the concept is incapable
of precise
definition. It was further stated that:
‘
The
concept of fair labour practice must be given content by the
legislature and thereafter left to garner meaning, in the first
instance, from the decisions of the specialist tribunals including
the Labour Appeal Court and the Labour Court. These courts and
tribunals are responsible for overseeing the interpretation and
application of the LRA, a statute which was enacted to give effect
to
section 23(1).’
[45]
The Labour Court pointed out that there are many employer and
employee rights and obligations that exist in many employee benefit
schemes. In many instances employers enjoy a range of discretionary
powers in terms of their policies and rules. The Labour Court
further
pointed out that section 186 (2) (a) is the legislature’s way
of regulating employer conduct by super imposing a
duty of fairness
irrespective whether that duty exists expressly or implicitly in the
contractual provisions that establishes the
benefit. The court
continued and stated that the existence of an employer’s
discretion does not by itself deprive the CCMA
of jurisdiction to
scrutinize employer conduct in terms of the provisions of the
section. It concluded that the provision was introduced
primarily to
permit scrutiny of employer discretion in the context of employee
benefits. I agree with this conclusion.
[46]
I also agree, with qualification, with the Labour Court’s
conclusion that there are at least two instances of employer
conduct
relating to the provision of benefits that may be subjected to
scrutiny by the CCMA under its unfair labour practice jurisdiction.
The first is where the employer fails to comply with a contractual
obligation that it has towards an employee. The second is where
the
employer exercises a discretion that it enjoys under the contractual
terms of the scheme conferring the benefit.”
[18]
In the light of these
dicta, the arbitrator should have applied his mind to the question
whether the extra payment or allowance
coupled to the placement at
Rand Refinery constituted a benefit in terms of s 186(2)(a); and
whether its deprivation amounted to
an unfair labour practice. It
should also be noted that in the earlier case of
MITUSA
v Transnet Ltd
[10]
the LAC [per Zondo JP] held that a dispute of right is not excluded
from the ambit of an unfair labour practice.
Conclusion
[19]
The CCMA has jurisdiction over unfair
labour practice claims referred to it in terms of s 186(2)(a). That
is the claim that the
employee referred to it. The arbitrator failed
to deal with the question whether her redeployment amounted to a
demotion or the
deprivation of a benefit. He misconceived the nature
of the enquiry before him. That led to an unreasonable result.
[20]
The result is that the award must be
reviewed and set aside. However, this Court is not in a position to
substitute it. It should
be remitted to the CCMA for another
commissioner to hear evidence and argument on these aspects, and to
decide whether G4S had
committed an unfair labour practice; and if
so, what the appropriate sanction would be.
[21]
That has the result that the dispute has
not come to an end. In those circumstances, taking into account the
principles of law and
fairness, I do not consider a costs award to be
appropriate.
Order
[22]
I therefore make the following order:
22.1
The arbitration award of 11 November 2013
under case number GAJB 12834-13 is reviewed and set aside.
22.2
The unfair labour practice dispute is
remitted to the CCMA for a new arbitration before a commissioner
other than the second respondent.
22.3
There is no order as to costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
J
C M Roets of Roets & Du Plessis.
FIRST
RESPONDENT:
W
J Hutchinson
Instructed
by Moodie & Robertson.
[1]
Subsequent to this dispute, she was dismissed for operational
requirements. That dismissal does not form part of this application.
[2]
Apparently a reference to
Apollo Tyres SA
(Pty) Ltd v CCMA
[2013] 5 BLLR 434
(LAC);
(2013) 34
ILJ
1120
(LAC), although the arbitrator did not provide any citation.
[3]
Labour Relations Act 66 of 1995
.
[4]
Supra
para [17].
[5]
[2009] 9 BLLR 882
(LAC) at
paragraph 28.
[6]
Sidumo v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097 (CC).
[7]
Cf
Nxele v Chief Deputy Commissioner,
Corporate Services, Department of Correctional Services
[2008]
12 BLLR 1179
(LAC) para [88] (per Zondo JP);
SAPS
v Salukazana
[2010] 7 BLLR 764
(LC); (2010)
31
ILJ
2465 (LC).
[8]
(2011) 32
ILJ
1122
(LC) paras [22] – [25]. See also
SATAWU
obo Dube v Fidelity Supercare Cleaning Services Group (Pty) Ltd
[2015] ZALCJHB 129.
[9]
Paragraph numbers as in the original.
[10]
(2002) 23
ILJ
2213
(LAC).