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[2017] ZALCJHB 351
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Mangcu v City of Johannesburg (J1038/16) [2017] ZALCJHB 351; [2017] 10 BLLR 1055 (LC) (22 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
Reportable
Case
no: J 1038/16
PHELISA
MANGCU Applicant
and
CITY
OF
JOHANNESBURG
Respondent
Heard:
8 February 2017
Delivered:
22 February 2017
Summary: Application to declare
reduction of salary unlawful. Salary was
reduced as a
result of an arbitration award that ordered the demotion
of the Applicant. No merit in the application.
JUDGMENT
PRINSLOO.
J
Background
facts
[1]
In May 2006 the Applicant was employed by the Johannesburg Tourism
Company (JTC) as a general manager: tourism development.
The JTC was
a company owned and controlled by Respondent, which entity later
merged into the Respondent's department of public
liaison, and the
JTC no longer exists.
[2]
On 11 January 2012 the Applicant was appointed as the acting chief
executive officer (CEO) of the JTC and the acting stint was
to
subsist until the aforesaid merger took place. On 1 August 2013 the
Applicant was placed as director of tourism in the Respondent's
department of group communication and tourism.
[3]
On 13 September 2013 the Applicant was charged with various acts of
misconduct, which charges relate to contravention
of the supply chain management policy during her acting stint as CEO
of the JTC. The Respondent proceeded with a pre-dismissal
arbitration process and on 11 December 2015 the
arbitrator rendered his award wherein he found the Applicant guilty
on all the charges and recommended a sanction of demotion to the
position of deputy director with effect from 1 January 2016.
[4]
The Respondent subsequently implemented the arbitrator's
recommendation and without the Applicant's consent reduced her salary
to the salary of a deputy director.
[5]
The Applicant filed a review application that is pending under case
number JR 119/16.
Jurisdiction
[6]
In addition to the pending review application, the Applicant
approached this Court und r case number J1038/16. The relief sought
by the Applicant
in casu
is an order declaring the conduct of
the Respondent in reducing her salary from that of director to deputy
director to be unlawful
and that the Respondent be ordered to restore
her salary to the level of director and to pay her the difference
between the remuneration
she received as
from February 2016 and the remuneration she
was lawfully entitled to receive,
that is the difference between what
she would have been paid as a director and what she was indeed paid
as a deputy director.
[7]
In
her founding affidavit the Applicant stated that this Court has
jurisdiction to adjudicate this matter by virtue
of sections 77(3) and 77A of the
Basic Conditions of Employment Act
[1]
(BCEA) read with section 158(1) of the Labour Relations Act
[2]
(LRA).
[8]
The Labour Court derives its jurisdiction from section 157(1) and (2)
of the LRA and its powers from section 158.
[9]
In
Moropane
v Gilbeys Distillers and Vinters (Pty) Ltd
[3]
the Court held
that
"I
must accordingly turn to the question whether this court has
jurisdiction to entertain the present application.
This
question is intimately intertwined with the question whether the
applicant has a right to have the court intervene and come
to his
assistance at this stage. I might, at the outset state that if the
court has the jurisdiction it would have the power to
grant an
appropriate remedy. ..... . But because it has a power
does. not me m that it has jurisdiction. This proposition
is
sometimes overlooked.
[10]
In
Natal
Sharks Board v SA Commercial Catering and Allied Workers
Union
[4]
the Court held that powers and jurisdiction are separate concepts
that should not be
confused.
[11]
Section 158(1) does not give this Court jurisdiction, but gives it
powers insofar as the Court has jurisdiction arising
from the
provisions of section 157 of the LRA. Section 157(
_
1)
gives the Labour Court exclusive jurisdiction in respect of
all matters that are to be determined by this Court in terms
of the LRA or any other law. Section 157(2) gives the Labour Court
jurisdiction in respect of any alleged
or
threatened
violation of any fundamental right entrenched in Chapter 2 of the
Constitution
and
arising
from
employment
and
labour
relations
and
any
dispute over the constitutionality of any executive or administrative
act or conduct or any threatened executive or administrative
act or
conduct by the State in its capacity as an employer.
[12]
In
casu
the Applicant approached this
Court in terms of the provisions of section 77(3) and 77A of the BCEA
read with section 158(1) of
the LRA.
[13]
Jurisdiction to adjudicate this application is vested by virtue of
the provisions of section 77(3) of the BCEA. This Court
has
jurisdiction to determine any matter concerning a contract of
employment and to make any order it has the power to make in
terms of
section 77A(e) of the BCEA or in terms of section 158(1) of the LRA.
[14]
This application is thus premised on a contract of employment and the
Applicant
has
to make out a case that would be sustainable in terms of section
77(3) of the BCEA.
The
merits of this application
[15]
The Respondent levelled six charges of misconduct against the
Applicant and as already alluded to, an arbitrator
conducted an
enquiry into the allegations against the Applicant as provided for in
section 188A of the LRA.
[16]
On 9 December 2015 an arbitration award was issued wherein the
arbitrator found that the Applicant was indeed guilty of all
six
charges and that her conduct constituted gross negligence which was
akin to a gross dereliction of her duties as the acting
CEO of the
JTC. The arbitrator considered the factors he was
enjoined to consider in, determining an appropriate sanction
and
after considering the relevant circumstances, the arbitrator imposed
demotion as an appropriate sanction In terms of Clause
14A of the
Code of Conduct for Municipal Staff Members. The Applicant was to be
demoted to the position of deputy director with
effect from 1 January
2016.
[17]
The Respondent implemented the recommendation and demoted the
Applicant accordingly.
[18]
In casu
the Applicant seeks for the demotion to be declared
unlawful and for the Respondent to be ordered to restore her salary
on the level
of director. The Applicant's case is that the demotion
is unlawful as it is in contravention of section 34 of the BCEA.
[19]
The Applicant however has to make out a case as provided for in
section 77(3) of the BCEA for a matter concerning a contract
of
employment. Notwithstanding the fact that the Applicant elected to
approach this Court in terms of section 77(3) of the BCEA,
she failed
to make a single allegation to lay the foundation for a case in terms
of section 77(3) of the BCEA. One would look in
vain for any averment
setting out a case concerning the Applicant's contract of employment.
[20]
It is trite that an applicant must set out its case in the founding
affidavit and must stand or fall by his or her founding
affidavit. In
my view the Applicant must fall by her founding affidavit as she
dismally failed to make the necessary averments
to sustain her case
in terms of section 77(3) of the 8CEA.
[21]
That should be the end of the matter and the Applicant's failure to
make out a case, justifies the dismissal of her application.
[22]
In her replying affidavit the Applicant however describes the 'gist
of the dispute' between her and the Respondent as the interpretation
of Clause 14A of the
Code
of Conduct for Municipal Staff Members and Clause 12 of the
Disciplinary Regulations for Senior Managers. This description
of the
'gist' of the dispute is indicative of the fact that the Applicant
has no hesitation to make statements without any consideration
of the
case that she referred to this Court. Her case is based on section
77(3) of the BCEA and nowhere does section 77(3) of the
BCEA provide
for the interpretation of clauses in a code of conduct or
disciplinary regulations. The-Applicant makes statements
that are all
over the place and certainly not supporting the case she elected to
refer to Court. In any
event
this Court does not have jurisdiction to
deal with the interpretation
dispute, as et out by the Applicant on the papers before
Court.
[23]
Although not specifically pleaded and insofar as this Court has
jurisdiction to deal with all matters in terms of the BCEA,
I will
consider the Applicant's case that the reduction in her salary is
unlawful as it does not comply with section 34
of
the BCEA.
[24]
Section 34(1) of the BCEA provides that an employer may not make any
deduction from an employee's remuneration unless the employee
agreed
in writing to the deduction or if the deduction is required or
permitted in terms of a law, collective agreement, court
order or
arbitration award.
[25]
In the arbitration award issued on 09 December 2015 the arbitrator
recommended the Applicant's demotion to the level of deputy
director
in terms of Clause 14A of the Code of Conduct for Municipal Staff
Members as a sanction short of dismissal.
[26]
In her founding affidavit the Applicant stated that although the
arbitration ward recommended a demotion to the level of deputy
director it did not mention anything about the reduction of salary.
Her view is that the wording of he award is not open to any
other
interpretation except that the arbitrator considered Clause 14A of
the Code of Conduct for Municipal Staff Members and found
demotion to
the position of deputy director as appropriate and nothing was said
about the reduction of salary therefore the deduction
is unlawful.
[27]
The Applicant's case is that the demotion is in contravention of
section 34 of the BCEA, more specifically because the deduction
is
not permitted by an arbitration award. This is so because the
arbitrator did not specifically state that the Applicant's demotion
to the position of deputy director will be with reduction
of
her salary. The reduct1on of salary is a distinct disciplinary step
in terms of
Clause
14A of the Code of Conduct for Municipal Staff Members and Clause
12
of the Disciplinary Regulations for Senior Managers, which step the
arbitration award did hot permit.
[28]
The Applicant seeks an order restoring her salary level to that
of director, the position she held prior to the demotion.
[29]
The Applicant is effectively suggesting that the arbitrator's
recommendation that she be demoted to the level of deputy director
excluded the consequence that her remuneration would be adjusted to
the position of deputy director. This is absurd in the view
of the
reality that she was demoted as a sanction short of dismissal and the
Applicant now occupies a lower position with reduced
responsibilities
and functions, yet the Applicant maintains that her salary should
have remained that of a director because the
arbitrator did not
specifically state that her salary should be reduced. The Applicant
submitted that a demotion does not automatically
entail a reduction
in salary.
[30]
The Applicant's view is illogical and misdirected if not
opportunistic.
[31]
The
Industrial Court has held as far back as 1992 that demotion is not a
word which has some special meaning in
labour
law. It bears its ordinary meaning, namely to 'reduce to a lower rank
or category'
[5]
. The converse of
demotion is promotion. Demotion in
the
ordinary
sense means a reduction or diminution of importance, responsibility,
status
and
salary.
[32]
In casu
the arbitrator recommended that the Applicant be
demoted to the rank of deputy director. Having its ordinary
meaning it cannot
mean anything else
but
that the Applicant's rank of director should be reduced to a lower
rank of deputy director. The reduction of her salary _to
the lower
rank
of
deputy director follows. A reduction in her
remuneration is a direct and natural consequence of
the
Applicant's demotion.
[33]
Demotion to the rank of deputy director means that the Applicant will
perform the duties associated with the· said
rank and
will be remunerated according to the salary band applicable to deputy
directors.
[34]
The Applicant was demoted as a result of an arbitration award and the
reduction
of
her salary followed from that. The Applicant failed to show that the
reduction of her salary1s unlawful and in contravention
of section 34
of the BCEA.
Costs
[35]
Costs should be considered against the requirements of the law and
fairness.
[36]
The requirement of law has been interpreted to mean that the costs
would follow the result.
[37]
In considering fairness, the conduct of the parties should be taken
into account and mala
tides,
unreasonableness and
frivolousness are factors justifying the imposition of a costs order.
[38]
In
Public Servants
Association of SA on behalf of Khan v Tsabadi NO and
others
[6]
it was emphasized that:
"......
unless there are sound reasons which dictate a different approach, it
is fair that the successful party should be awarded
her costs. The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings."
[39]
In her founding affidavit the Applicant sought punitive costs
and in argument before Court, Mr Sithole for the Applicant
argued
that each party should pay its own costs.
[40]
Mr Beckenstrater for the Respondent argued that cost should follow
the result. I can see no reason to disagree.
[41]
The Respondent was compelled to engage in litigation and oppose an
application that had no merit from the onset. The Applicant
came to
Court without merit and with no consideration of the fact that she
approached the Court in terms of section 77(3) of the
BCEA but made
averments that did not support the case she referred, causing the
Respondent to incur legal costs and for that the
Respondent is
entitled to costs.
[42]
A cost order is a method of ensuring that decisions to litigate in
this Court are taken with due consideration of the law and
the
prospects of success.
[43]
I see no reason to deviate from the ordinary rule that costs should
follow the result.
[44]
In the premises I make the following order:
Order:
1.
The application is dismissed with costs.
____________________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Advocate E Sithole
Instructed
by:
Mafanya Attorneys
For
the Respondent:
Mr C Beckenstrater
of Moodie & Robertson Attorneys
[1]
Act 75 of 1997.
[2]
Act 66 of 1995.
[3]
1998 19 ILJ 635 (LC).
[4]
1997 18 ILJ 1324 (LC).
[5]
Ndlela
v
SA
Stevedores
Ltd
(1992)
13 ILJ 663 (IC).
[6]
2012 33 ILJ 2117 (LC).