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[2015] ZALCD 63
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Putini v South African Local Government Bargaining Council and Others (D1164/12) [2015] ZALCD 63 (15 October 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
Not Reportable
CASE
NO: D 1164/12
In the
matter between:
ADVOCATE
MEYER THABO PUTINI
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING
COUNCIL
1st Respondent
PROFESSOR
KARTHY GOVENDER
N.O.
2
nd
Respondent
EDUMBE
MUNICIPALITY
3
rd
Respondent
Heard:
23 July 2014
Delivered:
15 October 2015
Summary
judgment:
JUDGMENT
FARRELL
AJ
BACKGROUND
1.
This matter was set down as an
opposed review application in the Labour Court, Durban on 3 July
2014. Having read the arbitration
award, the record and
transcript of the arbitration proceedings in the South African Local
Government Bargaining Council before
Commissioner Professor Karthy
Govender and heard argument by the Applicant and Third Respondent’s
legal representatives,
the review application was dismissed with
costs.
2.
The reasons for dismissing the
review application and making an award with costs on the party and
party scale, are simply provided.
REASONS
3.
The Applicant had been employed
as a Municipal Manager of the Third Respondent in terms of a fixed
term contract of employment for
a three (3) year period ending 31
December 2011.
4.
From the record of the
proceedings before the Bargaining Council and the award of the Second
Respondent at that arbitration, that
there were allegations of
serious misconduct against the Applicant in respect of which the
Applicant was never found guilty but
that the Third Respondent,
Edumbe Municipality, the Applicant’s employer alleged that the
Applicant’s contract of employment
terminated prior to 31
December 2011 by mutual agreement. The pre-arbitration minute
for the arbitration before the Bargaining
Council required that the
Commissioner decide the following issues: -
“
1.
Was the termination of the employment contract by agreement?
2.
If not, was the termination for a fair reason and in accordance with
a fair procedure?
3.
If not, is the Applicant entitled to relief (compensation and legal
costs) he
is seeking?
4.
If so, what is the
quantum of his compensation?”
5.
It follows that as the
Commissioner found, the contract of employment terminated by
agreement and that it was therefore not necessary
to determine the
other three (3) issues recorded in the pre-arbitration minute.
6.
The arbitrator found that the
termination of the contract of employment was by agreement and it is
that finding which the Applicant
seeks to review and set aside.
The question before the arbitrator was simply if there was no
dismissal the Bargaining Council
would not have jurisdiction to
arbitrate the dispute. The arbitrator of the Bargaining Council
made a particularly detailed
and thorough award and it is this award
which the Applicant seeks to review and set aside. The
Applicant’s review application
hinged on the following specific
arguments: -
6.1
that there
was no verbal agreement terminating the contract of employment;
6.2
the
non-variation clause in his contract of employment is applicable; and
6.3
the
“improper expansion of the dispute”.
WAS
THERE AN AGREEMENT TERMINATING THE CONTRACT OF EMPLOYMENT?
7.
The arbitrator after a thorough
consideration of the evidence before him in making a number of
adverse findings in regard to the
Applicant’s evidence finds
that in fact there was an agreement terminating the Applicant’s
fixed term contract of employment
prematurely. In fact, the
finding of the arbitrator is that the agreement finalised on 24
August 2011 was complied with by
the Edumbe Municipality and that the
Applicant was paid out for the “full remainder of his contract
from the public purse
and has enjoyed other privileges such as access
to the premises that he occupied”. The Applicant was not
required to
provide any services to the Edumbe Municipality.
8.
As the duration of the fixed
term contract had come to an end and the Applicant had been paid for
the full duration of the contract,
he could not seek reinstatement
but was in fact seeking “maximum compensation plus legal
costs”. The Applicant
is in fact seeking something beyond
what his contract of employment entitled him to. Irrespective
of whether there was an
agreement or not to terminate the contract of
employment prematurely the Applicant was in fact remunerated for the
entire contractual
period.
9.
In the circumstances whether or
not there was an agreement to terminate the contract prematurely the
Applicant was paid for the
full duration of the contract and the
current contract had come to an end simply by an infliction of the
entire three (3) year
period of the original agreement. On that
basis alone there can be no dismissal.
THE
APPLICABILITY OF THE NON-VARIATION CLAUSE
10.
Again, the Commissioner at the
Bargaining Council hearing the arbitration dealt with this aspect of
the Applicant’s case in
detail considering the legal arguments
and the cases referred to by both parties.
11.
In coming to his decision on
the issue of the non-variation clause the Commissioner placed
reliance on the Judgment in
Nyandeni
Local Municipality v Hlazo
[1]
In applying the Judgment in
the
Nyandeni Local
Municipality
case, the
arbitrator cannot be said to have acted unreasonably.
IMPROPER
EXPANSION OF THE DISPUTE/ARBITRATOR HAS NO JUDICIAL POWER
12.
There is no basis on which the
Applicant can place reliance on such allegations. Mr Crampton
was correct when he states: -
“
It
is common cause that the Second Respondent was required to determine:
“the validity or effect of the verbal agreement in
view of the
non-variation clause in the contract of employment”.
13.
As Mr Crampton states in his
Heads of Argument at paragraph 12.3: -
“
12.3
It
must, therefore, follow that Second Respondent was required to
determine whether, in the circumstances, the non-variation clause
could, as a matter of public policy, be enforced.”
14.
In the circumstances, there is
no basis on which to review and set aside the award of the Second
Respondent.
15.
Having read the transcript of
the proceedings before the Bargaining Council and the award of the
arbitrator there is certainly a
case to be made out that this review
application is vexatious and frivolous. There were serious
allegations of misconduct
against the Applicant, which were never
proved and his conduct through the arbitration proceedings was
certainly not beyond reproach.
The Applicant was also paid a
considerable sum of money by Edumbe Municipality, a municipality
under severe financial strain at
the time.
16.
Application for Review
dismissed.
17.
The Applicant is to pay the
Third Respondent’s costs on an party and party scale.
_______________________
D
M FARRELL
Acting
Judge
Appearances
:
For the
Applicant :
S B Mgaga from
Garlicke and Bousfield Inc
For the
Respondent :
Adv D P Crampton instructed by PKX Attorneys
[1]
2012 (4) SA 261
(ECM)
.