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[2017] ZALCCT 63
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Ngobeni v Commission for Gender Equality (C685/16) [2017] ZALCCT 63 (29 November 2017)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 685/16
In
the matter between:
Sandile
NGOBENI
Applicant
and
COMMISSION
FOR GENDER EQUALITY
Respondent
Heard
:
20 November 2017
Delivered:
29 November 2017
SUMMARY:
LRA s 64(4) – individual employee
alleging unilateral change to terms and conditions of employment.
Employee does not rely
on specific performance or breach of
employment contract in terms of s 77(3) of BCEA. Labour Court lacking
jurisdiction.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This case deals, once again, with the vexed question of the remedy –
if any – available to an individual employee
faced with an
alleged unilateral change to terms and conditions of employment.
Background
facts
[2]
The
applicant, Mr Sandile Ngobeni, was employed by the respondent, the
Commission for Gender Equality.
[1]
He was employed as an “assistant director: policy and
research”, initially in Braamfontein; but his contract of
employment
stipulated:
“
You
may be required to carry out duties assigned to you at such other
locations as the commission may determine and shall, if so
required,
be expected to travel to destinations designated by the commission in
order to attend to your duties. You may also be
required to relocate
to different premises, subject to consultation in this regard, and
cannot unreasonably refuse such a transfer
if based on operational
requirements of the commission.”
[3]
The employee’s initial employment was not confirmed after a
probationary period. He appealed. The appeal panel recommended
that
he be reinstated into his position as senior researcher. In January
2016 the parties agreed that, due to operational requirements,
he
would relocate to the parliamentary office in Cape Town to continue
his duties as a senior researcher on the same terms and
conditions of
employment. (His wife had also relocated to Cape Town).
[4]
The employee – whose wife had, in the interim, returned to
Gauteng – now contends that the Commission has unilaterally
changed his terms and conditions of employment. His main complaint is
that his duties now include legal research and the drafting
of
legislative submissions to parliament. But in a meeting held with him
in September 2015 to discuss the relocation, he had indicated
his
satisfaction with the explanation that the drafting was research
based; and that other employees such as Ms Lisa Vetten and
Mr Sam
Waterhouse are researchers by profession but often write legislative
submissions to parliament.
[5]
The
applicant referred a dispute to the CCMA in terms of s 64 of the
Labour Relations Act
[2]
. On 10
October 2016 the CCMA issued a certificate of outcome, indicating
that the dispute “concerning s 64(4) – unilateral
change
to terms and conditions of employment” -- remained unresolved.
The Commissioner ticked the box indicating that it
should be referred
to this Court.
[6]
The employee did so. In his statement of claim, he described the
legal issues that arise as follows:
“
Section
64(4) – unilateral change to terms and conditions of employment
and unfair labour practice with regard to employer
entity and the
employee”.
[7]
After pleadings had closed, the matter was set down for hearing on 20
November 2017. On 21 August 2017 I issued a directive
in the
following terms,
mero motu
:
“
The
parties must address the Court on jurisdiction at the commencement of
the hearing.”
[8]
At the commencement of the hearing, neither party did so. Mr Ngobeni
was no longer represented by his erstwhile attorney; and
although he
had received the directive and he indicated from the bar that he had
been receiving advice from an attorney at Legal
Aid SA, he had not
prepared any submissions. And the Commission’s counsel
indicated that, inexplicably, his attorney had
not received the
directive. In those circumstances, everyone was agreed that I would
hear the evidence; and that the parties would
address me on
jurisdiction as well as the merits at the end of the trial.
[9]
Mr Ngobeni testified, was cross examined, replied, and closed his
case. The Commission closed its case without leading any evidence.
The parties addressed the Court in argument after the lunch
adjournment.
Jurisdiction
[10]
Section 64(4) of the LRA reads:
“
Any
employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a council
or the Commission in terms of subsection (a) may, in the referral,
and for the period referred to in subsection (1)(a) –
(a)
require the employer not to implement unilaterally the change to the
term and condition of employment; or
(b)
if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions
of
employment that applied before the change.”
[11]
The problem with this provision is that it acts as a holding
operation to restore the
status quo ante
; the normal remedy if
the employer does not comply, is for a trade union to strike. But
what is an individual employee to do?
[12]
This Court
commented on this conundrum in
Du
Randt v Ultramat.
[3]
In that case, conciliation having failed, the employee sought the
following relief by way of application:
“
1.
Directing the respondents to reinstate his terms and conditions in
full;
2.
Directing the respondents to pay him all amounts due to him in terms
of those conditions of employment; and
3.
An interdict preventing the respondents from further unilaterally
amending his terms and conditions of employment.”
[13]
The Court
noted:
[4]
“
The
difficulty that the employee faced when conciliation failed, is that
the relief envisaged for employees and trade unions in
those
circumstances is strike action. Counsel for both parties appeared to
be
ad
idem
that a single employee cannot strike, but neither of them could cite
any authority for that proposition. Yet such authority does
exist. In
Schoeman
v Samsung Electronics SA (Pty) Ltd
[5]
Landman J held that an
individual employee cannot strike. And I agree with the view of the
learned authors in
Labour
Law through the Cases
[6]
that the contrary view expressed in
Co-operative
Worker Association v Petroleum Oil & Gas Co-operative of SA
[7]
is not consistent with the
characterisation of “strike” as “concerted”
action.
In
these circumstances, a single employee would normally still have the
remedy of specific performance available to him. But in
this case,
the employee – advised and assisted by his attorneys –
clearly nailed his colours to the mast of an unfair
labour practice
in terms of s 186(1)(a) of the LRA. He asserted that he had been
demoted. Given that assertion, he has an alternative
remedy, i.e. to
refer an unfair labour practice dispute to the CCMA in terms of s
191(1)(a) of the LRA. He has not exhausted that
alternative remedy.”
[14]
The Court
did come to the assistance of a similarly situated employee in
Abrahams
v Drake & Scull Facilities Management (SA) (Pty) Ltd.
[8]
In that
case, this Court held that it had jurisdiction to grant an order for
specific performance in the face of a unilateral change
to the
employee’s terms and conditions of employment. The order was
granted in terms of s 77(3) of the Basic Conditions of
Employment
Act.
[9]
[15]
In this
case, the employee’s claim is squarely based on s 64(4) of the
LRA. And, as the Constitutional Court held in
Gcaba
,
jurisdiction must be determined on the basis of the pleadings.
[10]
[16]
Mr
Ngobeni’s case is on all fours with that of the applicants in
NUM obo
Maponya v Eskom.
[11]
In that case, Van Niekerk J commented:
[12]
“
To
the extent that Adv Malan, who appeared on behalf of the applicants,
submitted that the court is empowered to make orders for
specific
performance (which is, in effect, the order that the applicants
seek), the court’s powers should not be confused
with its
jurisdiction. As I have indicated, there is no provision in the LRA
(but for s 64(4)) that confers jurisdiction on the
court to
adjudicate a dispute about an alleged unilateral change terms and
condition employment.
To
the extent that it was submitted that the dispute referred for
adjudication is a matter that concerns contract of employment
and
that the court therefore has jurisdiction in terms of s 77(3) of the
BCEA, that is not the case that has been referred nor
is the claim
made in the pleadings one for specific performance consequent on any
breach of contract by the respondent. Even if
the applicants were to
be afforded some latitude (on the basis that this court traditionally
takes a more tolerant view of imprecision
in pleading), it should be
recalled that s 77(3) does no more than confirm this court concurrent
jurisdiction with the civil courts
to hear and determine a matter
concerning a contract of employment. The test is whether the
applicants’ statement of case
would pass muster in a civil
court in a claim for breach of contract. The answer, having regard to
the terms in which the statement
of case is drafted, is manifestly
not. The answer, having regard to the terms in which the statement of
case is drafted, is manifestly
not. Adv Malan referred me to a recent
decision by this court in
Abrahams v Drake & Scull Facilities
Management (SA) (Pty) Ltd
(2012) 33
ILJ
1093 (LC) where
the court held that it had jurisdiction to grant an order for
specific performance in the face of a unilateral variation
to a
contract of employment. That case can be distinguished on the basis
that it concerned an opposed application referred to oral
evidence.
It was not, as the present case, a referral made in terms of rule
six, in circumstances where the dispute referred to
the CCMA and the
subject of conciliation, on the applicants’ own version, was
cast in terms of a unilateral change the terms
and conditions of
employment. In Abrams, the applicant alleged unilateral change to
conditions of employment and sought specific
performance in the form
of the reinstatement of the status quo. The court held than that the
applicant’s failure to refer
specifically to s 77(3) did not
deprive the court of jurisdiction to hear the matter in terms of that
section or to grant an order
in terms of s77(3).”
[17]
The same considerations apply in this case. The referral dismissed
for lack of jurisdiction.
Conclusion
[18]
The Court does not have jurisdiction over the applicant’s
pleaded claim.
[19]
With regard to costs, I take into account that both parties asked for
costs to follow the result; and that the court had alerted
the
applicant
mero motu
to the issue of jurisdiction two months
before the case was to be heard.
Order
The
referral is dismissed with costs.
_______________________
A
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In person.
RESPONDENT:
K Tstatsawane
Instructed
by
Gildenhuys
Malatji.
[1]
Ironically,
all of its legal representatives were male.
[2]
Act
66 of 1995 (the LRA).
[3]
Du
Randt v Ultramat South Africa (Pty) Ltd
[2013]
6 BLLR 573
(LC); (2013) 34
ILJ
2228 (LC).
[4]
Paras
27-28.
[5]
[1997] 10 BLLR 1364
(LC) at 1367.
[6]
Du Toit et al,
Labour
Law through the Cases
(LexisNexis) Issue 18 at LRA 9-25.
[7]
[2007] 1 BLLR 55
(LC) para [23].
[8]
(2012)
33
ILJ
1093 (LC).
[9]
Act
75 of 1997 (BCEA).
[10]
Gcaba
v Minister for Safety & Security
[2009]
12 BLLR 1145
(CC) par 75.
[11]
NUM
obo Maponya & Ors v Eskom Holdings SOC Ltd (Kusile Power
Station)
(JS
1018/12, 12 November 2014).
[12]
Paras
13-14.