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[2017] ZALCJHB 469
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City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union obo Matsheka and Others (JR214/2016) [2017] ZALCJHB 469 (14 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 214/2016
In
the matter between:
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Applicant
and
SOUTH
AFRICAN MUNICIPAL
WORKERS
UNION OBO MATSHEKA.
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
MAPALO
TSATSIMPE
Third Respondent
Heard:
21 July 2017
Delivered:
14 December 2017
JUDGMENT
SEDILE
AJ
Background
Summary
[1]
The application is to review and set aside an arbitration award (the
award) granted by the Third Respondent under case number
HQ071518
held on 16 November 2015.
[2]
The third respondent is the employee and currently employed as an
Organisational Development Consultant within a sub-directorate
of the
Applicant called Organisational Development (OD).
[3]
The employee referred a dispute on 10 July 2015 to the South African
Local Government Bargaining Council, National Division
(Central /
National). The nature of the dispute was described, in the
referral form requesting conciliation, as interpretation
/
application of collective agreement in that it is a refusal by the
employer, Director OD to implement a grievance outcome.
[4]
The same manner of description of the dispute was repeated in the
referral for arbitration. The decision sought was that
the
Applicant should be ordered to implement the outcome of the
grievance.
[5]
The matter was not resolved at conciliation and was ultimately
referred to arbitration which took place on 16 November 2015.
[6]
The arbitrator characterised the issue to be decided as being whether
the Applicant failed to comply with the recommendations
made by the
Chairperson in the employee’s grievance hearing.
[7]
The arbitrator correctly found that a Main Collective Agreement (MCA)
was entered into between the South African Local Government
Association (SALGA) on behalf of its members and labour, and that the
Applicant as a municipality operates in terms of the Municipal
Systems Act
[1]
(The Act) and is
a member of SALGA and as such bound by the MCA.
[8]
The evidence led, and which the arbitrator found, was that the
employee launched a grievance in June / July 2014 and that a
step 1
of the grievance hearing took place. The outcome did not
satisfy her.
[9]
The chairperson of the grievance hearing concluded that the employee
acted in the position of OD for two years without being
remunerated
accordingly and that she was not given the tools like other employees
occupying the same position.
[10]
The evidence before the arbitrator was that the grievance chairperson
recommended that the employee should be formally appointed
in the
position of OD: Consultant and be remunerated accordingly and that
she be provided with the tools of trade like other employees
occupying a position similar to hers.
[11]
In her analysis of the submissions, the arbitrator found that the
Applicant has complied with the recommendation that the employee
should be formally appointed in the position of OD: Consultant and be
paid accordingly. However, the Applicant has not given her
the tools
of trade (3G Card and cellular phone) as recommended and had also not
paid her the locomotive allowance.
ANALYSIS
OF THE GRIEVANCE PROCEDURE
[12]
The MCA, on which the arbitrator relied, provides for grievance
procedure. The grievance is a condition of service and such
as, the
employer and employee are bound to follow the procedure contained
therein.
[13]
Step 1 of the procedure is that an aggrieved employee should lodge a
grievance in writing with his or her immediate superior
setting out
the complaint and desired outcome. The immediate superior must
endeavor to resolve the outcome and inform the employee
in writing
thereof.
[14]
Step 2 applies if the employee is not satisfied with the step
1outcome. In that event and within 10 days of the outcome in
step 1,
the employee may refer the grievance to the head of the department if
it has not been resolved to the satisfaction of the
aggrieved
employee. In step 2, the head of department must arrange a meeting
and hold discussions with the affected parties in
an attempt to
achieve a resolution. The employee must be informed in writing of the
outcome.
[15]
In terms of the grievance procedure if the employee is still not
satisfied with the outcome, the employee may, within 10 days
of the
outcome of step 2, escalate the grievance to step 3 where it is dealt
with by the Municipal Manager The Municipal Manager
shall hold a
meeting with the employee and other relevant persons to obtain
details of the grievance as well as proposals on a
resolution of the
issue. The Municipal Manager must inform the employee in writing of
the outcome.
[16]
The arbitrator found that the grievance was escalated to step 2 by
the employee and that employee did not escalate the grievance
further
to the City Manager as prescribed in Step 3 of the grievance
procedure.
Grounds
of review
[17]
The Second Respondent lacked jurisdiction to adjudicate the dispute
and that the ruling be reviewed and be set aside.
Analysis
/ evaluation
[18]
It is evident that the employee followed steps 1 and 2 of the
grievance procedure but not step 3 and that the outcome of step
2 was
a recommendation in favour of the employee and the employer did not
accept
[19]
Therefore the dispute remained unresolved and the employee had to
refer the grievance to the Municipal Manager in terms of
3 of the
grievance procedure.
[20]
The employee decided to ignore step 3 and referred the grievance to
the bargaining council. The MCA which the representative
trade union
of the employee is a party is certainly binding on all the parties
and should have been followed by the employee.
[21]
The Second and Third Respondents were obliged and bound to apply the
provisions of the MCA and which they failed to adhere
to. The Third
Respondent is obliged to exhaust all the processes as prescribed by
the MCA before any dispute can be adjudicated
by the Second
Respondent.
Order
[1]
The award granted by the Third Respondent under case number HQ:071518
dated the 25 November 2015 is
reviewed and set aside.
[2]
The Second Respondent lacked jurisdiction to adjudicate the dispute.
[3]
The First Respondent to follow step 3 with Municipal Manager.
[4]
There is no order as to costs order.
P.
Sedile
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants:
Advocate. Nalane
Instructed
by:
SGV Atttorneys
For
the Respondents: Attorney
J. Gwebu
Instructed
by:
MGM INC
[1]
Act 32 of 2000.