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[2015] ZALCD 64
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South African Municipal Workers Union obo Mthembu v Ndwendwe Local Municipality and Others (D430/15) [2015] ZALCD 64 (22 May 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
Not
Reportable
Case no: D430/15
In
the matter between:
SOUTH
AFRICAN MUNICIPAL
WORKERS
UNION
Obo
NOMASONTO LINA
MTHEMBU
Applicant
and
NDWEDWE
LOCAL MUNICIPALITY
First
Respondent
THEMBEKA
CIBANE N O
Second Respondent
SOUTH
AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
S’THEMBILE
MNGADI
Fourth Respondent
Heard:
22 May 2015
Delivered:
22 May 2015
Summary:
Urgent application. Application granted
JUDGMENT
1.
GUSH J
2.
In this
matter the applicant applies as a matter of urgency for an order
inter alia, that the applicant be reinstated to the position
to which
she had been appointed following an interview process conducted by
the first respondent.
3.
The
applicant had applied to the first respondent for an advertised
position and was shortlisted interviewed. During the interview
process there had been a disruption but despite this at the
conclusion of the interview process the applicant was formally
appointed
to the position of communications and special projects
manager by the first respondent.
4.
The
applicant duly took up the position and proceeded to render services
in accordance therewith.
5.
Unbeknown
to the applicant the first respondent received a complaint or
grievance from one of the unsuccessful and disgruntled applicants.
This dispute was referred to the third respondent.
6.
At no stage
was the referral of the dispute referred to the applicant nor was she
cited in the referral. The matter proceeded to
the Bargaining Council
where somewhat surprisingly the respondent and the complainant
reached a settlement agreement which was
to the effect that the
recruitment process was declared null and void and was to start
afresh. The 1st respondent in addition agreed
that it would complete
the recruitment process within 2 months and finalise the appointment
by 11 June 2015.
7.
Pursuant to
this agreement reached on 10 March 2015 the 2nd respondent advised
the applicant on 30 March 2015 that her appointment
was nullified and
that she was to revert to her former position. The applicant
requested the 2nd respondent to give others decision
in writing and
to provide with a copy of the so-called settlement agreement.
8.
The 2nd
respondent wrote to the applicant on the same day advising the
applicant :
Kindly
be advised that there was a grievance hearing of the South African
local government bargaining Council on 10 March 2015.
The outcome was
as follows:
·
that your
point is null and void in that proper recruitment policy was not
followed
·
the Ndwedwe
municipality was therefore ordered to start the recruitment process
from scratch within 30 days of the settlement of
the dispute for
purposes of fully adhering to the recruitment process as per the
Ndwedwe municipality policy
·
the process
of filling a post be finalised within 2 months from the 10
th
day of April 2015. Therefore shall be finalised on about 10 June 2015
We
therefore inform you to revert back to your old position as a public
participation officer, all benefits and salary thereof would
be that
of the public participation officer.
You
are further informed that 31 March 2015 is your last day as a manager
communication. You are required to resume your duties
is a public
participation officer as of 1 April 2015.
Kindly
take further notice that such post be readvertised and you are at
liberty to apply for the said post.
9.
Apart from
anything else the 2
nd
respondent did not attach a copy of the settlement agreement nor
advise the applicant of the fact that the matter was settled between
the 1
st
2
nd
and 4
th
respondents.
10.
The
applicant responded to the 2
nd
respondent’s letter again requesting a copy of the “order
or settlement” and pointing out that she was neither
party to
the matter nor given an opportunity to respond to the grievance. The
applicant in addition pointed out that she was entitled
to be advised
of the grievance, entitled to respond to the grievance and requested
clarity as to whether her employment was being
terminated or whether
she was being demoted.
11.
The 2
nd
respondent replied simply recording that she was unable to explain
why the applicant had not been party to the proceedings and
blamed
the 4
th
respondent for not notifying her.
12.
It is
difficult to comprehend quite what the applicant was thinking when
they entered into a settlement agreement knowing that the
consequence
of the agreement would be to effectively remove the applicant from
position to which had been appointed and at the
same time being
acutely aware of the fact that she was not party to the proceedings.
13.
The
applicant referred a dispute to the 3
rd
respondent and endeavored to resolve the impasse with the 1
st
respondent.
14.
The dispute
referred to the 3
rd
respondent was enrolled for conciliation on 7 May 2015. Despite this
being an opportunity for the 1
st
respondent resolve the matter the 1
st
respondents response to the notice of set down was to advise the 3
rd
respondent that it would not be represented at the conciliation “due
to its complexity which confirms that it will not be
resolved on the
conciliation level”.
15.
The
applicant, following the 1
st
respondent’s non-participation in the conciliation wrote to the
respondent, setting quite clearly what the basis of her complaint
was
that without her being party to any of the proceedings she had been
improperly removed from her position by virtue of a so-called
settlement agreement to which she was not a party in respect of a
dispute or grievance to which she had not been joined despite
interest in the matter and pointing out that she was to be demoted
and prejudiced as a result thereof.
16.
It is so
that the applicant dealt with this matter in the first or second week
of May and this matter now appears before this Court
on 22 May.
Whilst the respondent complains of a lack of urgency the applicant
pursuant available remedy to the point where
she was left with no
remedy other than to approach the court. I am satisfied in the
circumstances that this matter is urgent.
17.
Insofar as
the applicant is applying for an interdict, the applicant needs to
establish a right. There could be no clearer
right than the
applicant’s right to remain in the position to which she had
been appointed in circumstances where the employer
seeks to remove
her as a consequence of a settlement to which she was not a party nor
in respect of a grievance or dispute which
had serious implications
for her rights but to which she was not joined.
18.
The basic
and fundamental principle in this matter is that the applicant as an
affected party should have been cited or joined in
the dispute.
19.
The failure
by the 4
th
respondent to join the applicant in the grievance or dispute should
immediately have rung alarm bells in the mind of the first
respondent
who should have immediately addressed the issue and at least have
remedied this.
20.
That the
appointment may at some stage in the future be set aside is not the
concern of the Court at this stage.
21.
As far as
the absence of another remedy is concerned the applicant had no
choice but to proceed with this matter particularly given
the
attitude of the 1
st
respondent.
22.
The issue
facing the Court is one not only regarding lawfulness of the 1
st
respondent’s attempt to remove the applicant from the position
to which she was properly appointed appointment, but also
one of
fairness.
23.
Having
given the 1
st
respondent an opportunity to resolve the matter by availing herself
of the remedy via the referral to the 3
rd
respondent the 1
st
respondents spurning of this opportunity is sufficient justification
for concluding that this Court is the appropriate forum in
which to
deal with the lawfulness of the actions of the first respondent.
24.
The
respondent has prejudiced the applicant by removing her from the
position to which she was properly appointed and have ceased
to pay
the applicant her the salary to which she is entitled in that
position.
25.
I have no
doubt, given the respondents attitude towards the applicant’s
predicament, having removed her from her position,
that there is a
reasonable apprehension of irreparable harm on her part.
26.
As an
example, I refer to the affidavit put up in response to the
applicant’s application by the first respondent.
Amazingly at paragraph 22 thereof, the respondent says the following:
27.
“
We
dispute that there is anything wrong done by the first respondent in
relation to how it has been handling the movement of Ms
Mthembu.
It was necessary for it to do what it did”.
28.
In addition
the respondent in its answering affidavit avers that the applicant
must prove that she was not wrongly appointed, that
she knows that
she was wrongly appointed. And that the reason she has launched this
application is that she has now realised that
the selection process
was not conducted fairly, that she may not be successful and she is
trying to escape the procedurally selection
process by approaching
this Court.
29.
What is
absolutely crystal clear from the first respondent answering
affidavit that it has no comprehension whatsoever of the necessity
of
ensuring the applicant was party to the proceedings leading up to the
settlement agreement. This is clearly evidenced by the
suggestion the
1
st
respondent did nothing wrong in having appointed the applicant to the
position and then removing her in a settlement agreement
with a third
party, without reference to the applicant herself. It is difficult to
comprehend the basis upon which the 1
st
respondent avers that the applicant is simply seeking some sort of
advantage in the knowledge she was improperly appointed.
30.
As far as a
balance of convenience is concerned it is clear that the interview
panel was satisfied that the applicant could perform
the functions
required by the position and in the interim while this matter is
finally is unraveled and resolved, there is no detriment
to the
respondent should the applicant be reinstated in the position.
31.
In
the circumstances I make the following order as set out in paragraphs
1, 3, 4 and 8 of the Notice of Motion (as amended) Viz:
a.
the
application is declared to be one of urgency and dispensing with the
provisions of the rules of this court relating to the time
limits and
manner of service;
b.
the
first respondent is ordered to place the applicant in the position to
which she was appointed, namely communications and special
projects
manager pending the outcome of an arbitration under case number KPD
121401;
c.
the first
respondent is ordered to pay the applicant the commensurate
remuneration for the position of communications and special
projects
manager, together with all the benefits and allowances, pending the
outcome of the arbitration under case number KPD 121401;
d.
That the
1
st
respondent is ordered to pay the costs of this application.
D H Gush
Judge of the
Labour Court of South
Africa
DURBAN
APPEARANCES:
FOR
THE APPLICANT:
R Kissun
Shepstone & Wylie
FOR
THE RESPONDENT:
Z Luthuli
A P Shangase Attorneys