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[2017] ZALCJHB 10
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Duffy v City of Matlosana and Others (J2852/16) [2017] ZALCJHB 10 (19 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Of
interest to other judges
C
ase
no: J 2852/16
In
the matter between:
JACOBUS
PETRUS DUFFY
Applicant
and
CITY OF
MATLOSANA
LOCAL
MUNICIPALITY
First Respondent
T S R NKHUMISE
N.O.
(ACTING
MUNICIPAL MANAGER)
Second
Respondent
Heard
:
13 December 2016
Delivered
:
19 January 2017
Summary:
Urgent application. Reinstatement of municipal
employee on previous post level pending final determination of
applicable post level
on review. Struck for lack of urgency.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Mr Duffy, is a traffic officer in Klerksdorp. He has
applied to review the decision of his employer, the Municipality,
and
its municipal manager that he should return to his previous post
level after he had been seconded to the position of “VIP
Protector / Driver” for the mayor at post level 6. The post
level to which he had to return, being level 9, attracts a lower
salary. He has brought an urgent application to restore him to post
level 9 pending the review application. He does so in terms
of s
77(3) of the Basic Conditions of Employment
Act
[1]
as the dispute concerns his contract of employment.
Background
facts
[2]
Much
of the background is common cause; but where it differs, the factual
disputes needs to be resolved in accordance with the rule
in
Plascon-
Evans
.
[2]
[3]
Duffy was employed as a traffic officer
grade III in August 1995. This post is evaluated at level 9 and
attracts a commensurate
salary. In 2006 he was seconded as a “VIP
protector/driver” for the mayor. He initially remained at post
level 9. In
June 2009 his post level was adjusted to level 6, which
attracted a higher salary.
[4]
In June 2011 the then acting municipal
manager, Mr SG Mabuda, notified Duffy that his secondment had come to
an end. The municipality
explains in its answering affidavit that the
reason for this was that the secondment was in terms of a fixed term
contract which
would “automatically terminate on the date the
current incumbent of the position of the executive mayor vacates his
office
for any reasons whatsoever after which the employee will
return to the position of traffic officer grade 1 to 3 on the salary
scale
and level of a traffic officer grade 1 to 3 at that point in
time.”
[5]
In the notice, dated 2 June 2011, Mr Mabuda
says:
“
kindly
be informed that your secondment as VIP protector/driver (post level
VI) which was linked to the term of office of the executive
mayor has
ended, in that the period of service of the executive mayor has
lapsed.
Further
note that you have to revert back to your position of Traffic Officer
Grade III at the Traffic Division of the Directorate
Municipal and
Social Services.”
[6]
Duffy says he thought that his transfer was
permanent; the municipality disputes that. Although it could not find
the fixed term
contract of employment with Duffy upon which it
relies, it says that it was similar to that of a Mr Behr, whose
contract it attached
to the answering affidavit.
[7]
Duffy raised a grievance. On 6 July 2011
Mabuda sent him a new notice, temporarily placing him at the office
of the mayor as a VIP
protector “with effect from 1 July 2011
until 30 August 2011 or until the position is fold (whatever
eventuality occurs first).
Mabuda further stated:
“
Please
note that your placement to assist in the above mention office is on
the same salary level you currently hold and the same
conditions of
service in the Public Safety Division.
Please
note that you are to revert back to your original position as a
traffic officer upon termination date of this placement.”
[8]
Duffy returned to the traffic department
only on 25 June 2013. His salary was not adjusted from post level 6
to level 9. The municipality
says that was an oversight and it is
taking steps to recover the overpayment.
[9]
On
22 September 2016 (in a letter dated 19 September 2016) Mabuda wrote
to Duffy yet again. Under the heading, “
ADJUSTMENT
OF YOUR LEVEL AND SALARY
”,
he said:
[3]
“
1.
We record that you were seconded as a VIP protector/driver to the
office of the executive mayor by resolution MM 175/2009.
2.
In 2006, Council resolved by MM 151/2006, paragraph (0) reads ‘That
permanent employees appointed on contract in political
offices will
as far as possible be redeployed after termination of their contracts
to positions not less favourable than the permanent
position vacated
before contractual appointment’.
3.
The information at our disposal by all indications proves that you
fall within the category of paragraph (0) of the resolution.
4.
We note that in 2011, you lodged a grievance to the acting municipal
manager seeking to be redeployed to traffic department on
post level
06. Your grievance was dismissed by the acting municipal manager: Mr
Strydom and there are no indications that the decisions
was
challenged.
5.
On 19 August 2013, the then Deputy Director: Office of the Mayor.
Informed the Acting Deputy Director HR and LR by letter that
you be
redeployed to traffic department as traffic officer post level 09 and
that your salary be adjusted accordingly.
6.
We have since established that regardless of the efforts made by
Human Resource Management to place you at appropriate post level
09,
your salary was never adjusted.
7.
This letter serves to inform you that with effect from 1 October
2016, your salary will be adjusted accordingly in line with
the
Council organogram. You will henceforth receive salary and benefits
applicable to post level 09.’
[10]
The applicant brought a prior urgent
application before Lagrange J on 8 November 2016. An order was
granted by agreement in these
terms:
“
1.
That the first respondent withdraws its letter dated 19 September
2016, adjusting the applicant’s salary level.
2.
The balance of the applicant’s salary for the month of October
2016 is to be paid in full on post level 6, on or before
30 November
2016.
3.
The first respondent is ordered to pay the costs associated with the
urgent application brought under case number J2522/16.”
[11]
On 29 November 2016 the new acting
municipal manager, T S R Nkhumise (the second respondent) wrote to
Duffy again. He informed Duffy
that, with effect from 1 December
2016, “your salary and benefits will be adjusted accordingly in
line with Council organogram
from post level 6 to post level 9 as per
the resolution mentioned above.”
The
relief sought
[12]
The applicant seeks relief in two parts. In
Part B of his notice of motion he seeks to review and set aside the
decision of the
acting municipal manager adjusting his post level and
remuneration from post level 6 to post level 9 with effect from
December
2016. In part A – which forms the basis of this urgent
application – he initially sought an order declaring the
adjustment
to be unlawful, null and void, and to be set aside. At the
hearing of the application, though, Mr
Scholtz
confined the interim relief sought to the following alternative:
‘
1.
Directing that part B of this application be finally determined on an
urgent basis on a date and time to be determined by this
court and in
a manner in which this court deems fit; and
2.
The first respondent is to reinstate the applicant on a post level 6
and remunerate him accordingly with effect from 1 December
2016,
pending the final determination of this matter as referred to in
prayer 1 above;
3.
Directing the respondents’ attorneys to provide the applicant’s
attorneys with the full record in relation to the
second respondent’s
decision which resulted in the adjustment of the applicant’s
post level and remuneration within
10 days of this order being
granted.”
Evaluation
/ Analysis
[13]
The alternative relief sought is of an
interim nature. In order to succeed, therefore, he must satisfy the
requirements for an interim
interdict. But first, Ms
Nkhutha
,
for the respondents, took issue with urgency.
Urgency
[14]
The applicant says that he acted swiftly
upon being advised of his rights and immediately after becoming aware
of the implementation
of the acting municipal manager’s
decision. He became aware of the decision on 29 November 2016. He
consulted with his attorneys
the next day. They wrote to the
municipality on the same day, demanding that he be reinstated to post
level 6. The municipality
did not respond. The application was
launched on 6 December 2016.
[15]
It is indeed so that the applicant and his
attorneys acted with alacrity. But the question remains whether he is
entitled to urgent
relief. The relief he seeks is of an interim
nature. That is because he has an alternative remedy in due course –
being the
application for review addressed in part B of his
application. The harm he suffers in the interim, if any, is not
irreparable.
It is of a financial nature. He owns approximately R8000
less per month on post level 9 as compared to post level 6. Should he
be successful in his application in due course, the discrepancy will
be corrected. Should be unsuccessful, neither party will suffer
any
harm. The balance of convenience lies with the municipality. If the
applicant is unsuccessful in due course, it would be difficult
for
the municipality to recover the overpayment; should he be successful,
he will be reimbursed retrospectively.
[16]
Ms
Nkhutha
referred in her argument to
Masiye
v MEC for Education: Mpumalanga
[4]
where Molahlehi J held that it is trite that an application brought
on an urgent basis should fail if the applicant fails to show
that
there is no satisfactory remedy available that addresses his or her
dispute. Similar considerations apply in this case. The
applicant has
an alternative satisfactory remedy. He has already lodged an
application for review.
Conclusion
[17]
In the circumstances, I agree that the
application is not urgent.
[18]
With regard to costs, I do not consider it
appropriate in law or fairness to make a costs award at this stage.
There is an ongoing
employment relationship between the parties.
There is also an ongoing dispute between them. A costs order may well
be appropriate
in the judgement on review in due course, but not at
this stage.
Order
The
application is removed from the roll for lack of urgency.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
W
P Schöltz (attorney).
FIRST RESPONDENT:
Ms P Nkhutha
Instructed by
Katake Attorneys, Oberholzer.
[1]
Act 75 of 1997.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A).
[3]
Grammar as in original.
[4]
[2013]
ZALCJHB 1 para [19].