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[2015] ZALCPE 50
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Xako v Nelson Mandela Bay Municipality (P304/13) [2015] ZALCPE 50; [2015] 12 BLLR 1276 (LC) (1 October 2015)
OF
SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P 304/13
In
the matter between
NONTLANTLA
XAKO
Applicant
and
NELSON
MANDELA BAY
MUNICIPALITY
Respondent
Heard:
23 October 2014
Delivered:
1 October 2015
Summary:
A declaratory order which will allow the respondent to appoint an
employee contrary to its recruitment policy and practices
may not be
granted.
JUDGMENT
LALLIE
J
Introduction
[1]
The applicant approached this Court for an order declaring her
appointment by the respondent to the position of Head of Caucus
Services in the office of the Chief Whip to be a permanent
appointment with effect from 1 February 2010, (“Mr
Nolutshungu”)the
date of her appointment. She further seeks the
respondent to pay her the full value of her remuneration and other
related benefits
and entitlements due to her as a level 17 employee
from the same date and to continue paying her all the benefits she is
entitled
to as a permanent employee.
Material
facts
[2]
While working for the Makana Municipality, the applicant was
approached and offered the position of Head of Caucus Services
in the
office of the Chief Whip at the respondent. The respondent’s
Executive Director: Corporate Services, Mr Nolutshungu
(“Nolutshungu”) forwarded the applicant a letter of
appointment dated 11 January 2010. The applicant accepted the
appointment on 12 January 2010 by appending her signature to the
acceptance of appointment form attached to her letter of appointment.
The salient terms of the letter of appointment are that the applicant
was appointed to the position of Head of Caucus Services
in the
office of the Chief Whip in grade 0017, her rate of remuneration, the
date of her appointment, 1 February 2010, she would
be on probation
for six months and she was entitled to certain benefits. The
applicant duly assumed duty on 1 February 2010, however,
on 18
February 2010 the applicant was issued with a memorandum of agreement
which stipulated that she was employed on a fixed term
contract with
effect from 1 February 2010 for as long as the then current Chief
Whip remained in office.
[3]
In a letter dated 18 February 2010, the applicant registered her
dissatisfaction with the contents of the memorandum of agreement
with
Nolutshungu and expressed her refusal to sign the document. The
applicant pursued the matter in further correspondence. Nolutshungu
informed Councillor Terblanche of the respondent municipality, in a
letter dated 17 September 2010, that the applicant had been
employed
on a fixed term contract running from 1 February 2010 to 31 January
2011. On 30 June 2011, the Acting Municipal Manager
directed a
memorandum to the Executive Director: Corporate Services confirming
that the applicant’s contract of employment
be extended, on the
same terms and conditions, on a month-to-month basis. He however,
withdrew the memorandum on the same day.
[4]
On 13 October 2011, the applicant referred a dispute regarding the
unilateral change to the terms and conditions of her contract
of
employment to the South African Local Government Bargaining Council
(“the bargaining council”). The dispute was
scheduled for
conciliation on 6 December 2011 on which date a certificate of the
non-resolution of the dispute was issued and the
applicant advised to
pursue the dispute at the Labour Court. The applicant, however,
decided to launch the application at hand
in which she seeks a
declaratory order that she is a permanent employee of the respondent
in terms of her letter of appointment
and therefore entitled to all
the benefits stipulated in her letter of appointment which other
employees on her grade are entitled
to.
Special
plea
[5]
In the answering affidavit attested to by the respondent’s
Legal Adviser: Labour Law, Ms James, the respondent denied
the
validity of the applicant’s claim. The respondent raised a
special plea that this Court lacks jurisdiction to entertain
the
present application because the relief claimed by the applicant is
for the conferment of benefits as contemplated in
section 186
(2) (a)
of the
Labour Relations Act 66 of 1995
as amended (“the LRA”)
and therefore falls outside the jurisdiction of this Court. The
applicant should have referred
it to conciliation in terms of
section
191
(1) (a) of the LRA and after a failed conciliation, to
arbitration in terms of
section 191
(5) (a) (iv) of the same Act. The
respondent further sought to rely on
section 157
(5) of the LRA which
provides that the Labour Court lacks jurisdiction over disputes which
may be referred for arbitration in terms
of the LRA.
[6]
The applicant denied that the relief she is seeking is primarily for
the conferment of benefits. She submitted that she is entitled
to
approach this Court in terms of section 77 (3) of the Basic
Conditions of Employment Act 75 of 1997 (“the BCEA”)
to
enforce the contract of employment which is in existence between the
parties. Having considered the respondent’s argument
that this
matter is an unfair labour practice and not a contractual claim and
the authorities the respondent sought to rely on,
I am of the view
that the present matter is distinguishable in that the declaratory
order is a precursor to the conferment of benefits.
The decision
therefore that the applicant is entitled to the benefits she is
seeking flows from the declarator. The parties are
in dispute as to
which contract of employment is binding between them. They initially
signed the letter of appointment, later the
respondent submitted that
the applicant was employed on a political role playing post whose
duration coincided with the term of
the Chief Whip she was employed
to assist. Both the CCMA and bargaining councils lack jurisdiction to
issue declaratory orders
as it resides in the Labour Court. Further,
jurisdiction is determined by the manner in which the applicant has
pleaded his or
her case. In this regard see
Gcaba
v Minister for Safety and Security and Others
[1]
.
The manner in which the applicant has pleaded her case places it
within the jurisdiction of this Court as she has based it on
section
77 of the BCEA. The special plea can therefore not succeed.
Merits
[7]
It is common cause that on 12 January 2010, the applicant signed a
letter accepting her appointment to the position of Head
of Caucus
Services in the office of the Chief Whip (the impugned position) on
the terms contained therein with effect from 1 February
2010. In
terms of the letter, she became a permanent employee of the
respondent and entitled to benefits which other permanent
employees
in grade 17 are entitled to. In addition to the letter of
appointment, the applicant sought to rely on further letters
in
asserting her right of permanent employment. The first is a letter
dated 2 August 2013 written by Mr Ndoyana (“Ndoyana”),
the Acting Executive Director: Corporate Services, in which she
confirmed the applicant’s permanent appointment in terms
of her
letter of appointment dated 11 January 2010. The second is a
memorandum dated 3 March 2014, addressed to Ndoyana by Dr
Chabula-Nxiweni, the Acting City Manager instructing the former to
release, with immediate effect, the applicant’s benefits
retrospectively to 11 January 2010. The memorandum is based on the
letter of 2 August 2013 and the applicant’s letter of
appointment.
[8]
Denying that the applicant was a permanent employee who was entitled
to benefits, the respondent submitted that the letter of
appointment
was issued in error which the respondent sought to rectify by
requiring the applicant to sign, on 18 February 2010,
a memorandum of
agreement, which for purposes of this matter, provides that the
applicant was employed on a fixed term contract
which commenced on 1
February 2010 and continued for as long as the then current Chief
Whip remained in office. It further provides
that the applicant was
entitled to neither annual bonus nor fringe benefits. The applicant
refused to sign the memorandum of agreement.
The respondent further
submitted that the letter dated 2 August 2013 which was subsequently
withdrawn and the memorandum of 3 March
2014 were issued in error
which flowed from the misunderstanding created by the letter of
appointment. The applicant’s appointment
in a political
position was in contravention of section 66 (3) of the Municipal
Systems Act 32 of 2000 (“the MSA”)
and therefore null and
void.
[9]
The respondent submitted that all the letters appointing and
confirming the permanent appointment of the applicant were
bona
fide
mistakes and do not sustain the applicant’s claim. In
amplification of this argument, the respondent submitted that the
impugned position has always been a political position. It
sought to rely on the following letter written by Mr Nolutshungu
on 3
November 2009:
“
PROCESS OF
FILLING POLITICAL ROLE PLAYING POSTS
I hereby confirm that we had a meeting
on the 3
rd
of November 2009 at 08h00 am, wherein you
requested me to provide written advice on the matter setting out
political processes
to be followed in effecting appointments.
Positions that are filled in terms of
the normal Recruitment Selection and Retention Policy provisions,
require that a position
be advertised first.
In contrast, the political process
(even though not set out in a policy framework) requires that the
following be done:
·
that
the position be approved and funding be provided for it, and
·
that
the Municipal Manager approves the political process and recommends
to the Executive Mayor for such action (as outlined
below) to be
undertaken; and
·
in
the event that prospective candidates have already been identified or
are already in service, the resolution should cleary provide
for the
absorbtion into the staff establishment in line with the specific
positions to be filled, or if the latter exists
some form of
condonation of such employment be made; and
·
that
the resolution should clearly state the period and terms of
employment (with effect from when to when) and in this case for
the
term of office of the political office bearer concerned, noting that
such employment falls into the category of contract employment
with
no benefits; and
·
that
upon the signing of this approval, Corporate Services will give
immediate effect to such employment in terms of set administrative
measures.”
[10]
The letter highlights the differences between filling posts through
the recruitment policy and the process of appointing employees
to
political role playing posts. Employees appointed in terms of
the latter procedure are on fixed terms contracts and have
no
benefits. The Organisational Establishment Policy (the policy) was
approved on 10 November 2010, codifies the procedure for
appointing
employees to political positions. It submitted that the policy
regulate the practice which has always been followed
in filling
political positions.
[11]
A mere three weeks after the applicant had taken up employment the
error was brought to her attention and an attempt made to
rectify it.
Contrary to the respondent’s argument that a negative inference
should be drawn from the applicant’s conduct
of approaching
Ndoyana and the Dr Chabula-Nxiweni to have her position confirmed as
permanent, the applicant’s conduct is
consistent with her
efforts to have her permanence confirmed from the day the respondent
required her to sign the fixed term contract.
Rather than exploiting
the ignorance of the true facts, she was pursuing her fight to assert
her rights as envisaged in her letter
of appointment.
[12]
What the respondent considers to be errors originates from the
applicant’s letter of appointment which was issued by
Nolutshungu in breach of the respondent’s appointment
practices. He is the author of the letter of 3 November 2009
in
which he explained the process of filling political positions.
In doing so he contrasts it with the procedure of filing
positions in
terms of the normal recruitment policy. He deemed it necessary
to mention the requirement that positions to
be filled through the
recruitment policy need to be advertised. He further pointed
out that in contrast, employees appointed
to political posts are
appointed on fixed term contracts with no benefits. Only two
months after explaining the differences
between the two procedures he
flouts them by appointing the applicant in a manner that is a hybrid
between them. He handpicked
her. He could only do so in
terms of the procedure for filling political positions but offered
her terms and conditions which
are a preserve of employees appointed
in terms of the recruitment policy which required that the post be
advertised. He spared
her the competition and the risk of not
being appointed which comes with being appointed through the
recruitment policy but rewarded
with permanence and benefits.
Having handpicked her and protected her from the risk he offered her
permanent employment and
benefits not due to employees who enjoy the
privilege of being handpicked. I am not convinced that
Nolutshungu issued the
letter of appointment in error in the absence
of his affidavit explaining his conduct. His breach of the
appointment practice
and recruitment policy was an act of
irregularity. Ndoyana’s explanation is that he confirmed the
applicant’s permanent
appointment in error based on the letter
of appointment. Although Dr Chabula-Nxiweni filed no
confirmatory affidavit the
most plausible inference that can be drawn
from her conduct is that she order the release of benefits to the
applicant in error
having been influenced by her letter of
appointment and Ndoyana’s letter.
[13]
The applicant argued that the moment she accepted the offer encased
in the letter of appointment it became a binding contract
whose terms
the respondent could not unilaterally change. This matter is
distinguishable from the decision in
Woolworths
(Pty) v Whitehead,
[2]
Wyeth
SA (Pty) Ltd v Manqele & Others
[3]
and
Jack
v Director-General Department of Environmental Affairs
[4]
which the applicant sought to rely on as it involves government
officials acting in breach of recruitment policies and practices.
[14]
I have considered the authority the applicant sought to rely on which
is not based on employment including the decision in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[5]
which deal with unlawful administrative acts. When the
government acts as an employer its conduct does not constitute
administrative
action. In this regard see
Gcaba
v Minister of Safety and Security & Others (supra).
The Constitutional Court in
Khumalo
v MEC for Education
[6]
did not find that contracts of employment entered into by government
officials acting in breach of policies and practices valid.
[15]
None of the omissions by the respondent’s officials can
sanitize Nolutshungu’s irregular conduct in issuing the
letter
of appointment. The respondent’s submission that the
Organisation Establishment Policy which was approved on
10 November
2010 codified a practice which had always been applied in filling
political positions was not challenged. Nolutshungu
knew that
the applicant could either be appointed in terms of the recruitment
policy or in terms of the practice for filling political
positions.
When he followed neither procedure in issuing the letter of
appointment, he caused the respondent to act irregularly
and beyond
its authority. The principle of estoppel can therefore not be
relied upon to remedy his actions. In this
regard see
City
of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd
[7]
.
This court may not grant an order which would allow the respondent to
appoint an employee contrary to the respondent’s recruitment
policies and practices. This application can therefore not succeed.
[16]
Section 162 of the LRA provides that a costs order may be granted
according to the requirements of the law and fairness. The
applicant
may not be out of pocket as a result of the respondent’s
irregular conduct. The respondent’s conduct
justifies a
costs order in favour of the applicant.
[17]
In the premises the following order is made:
17.1
The special plea is dismissed.
17.2
The application is dismissed.
17.3
The respondent pay the applicant’s costs.
_______________________________
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For the
Applicant:
Advocate
Voltsos
Instructed
by:
Kaplan Blumberg Attorneys
For the
Respondent:
Advocate Grogan
Instructed
by:
Gray Moodliar Attorneys
[1]
[2009] 12 BLLR 1145 (CC).
[2]
[2002] 6 BLLR 640 (LAC)
[3]
[2003] 7 BLLR 734 (LC)
[4]
[2003] 1 BLLR 28 (LC)
[5]
[2004] 3All SA 1 (SCA)
[6]
2014 (5) SA 579
[7]
(2008)
(3) (SA) 1.