About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 254
|
|
IMATU obo Members v City of Tshwane Metropolitan Municipality (J2769/2016) [2018] ZALCJHB 254 (3 May 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
JOHANNESBURG
CASE
NO
: J2769/2016
DATE
:
2018-05-03
In
the matter between
IMATU
obo
MEMBERS
Applicant
and
CITY
OF TSHHWANE METROPOLITAN MUNICIPALITY
Respondent
J
U D G M E N T
STEENKAMP,
J
: This is an application
to make a variation ruling of the South African Local Government
Bargaining Council an order
of court. It is brought in terms of
Section 158(1)(c) of the Labour Relations Act.
The
brief history to the matter is that the applicant, IMATU, referred a
dispute to the South African Local Government Bargaining
Council
asking that the employer’s unfair conduct relating to benefits
by unilaterally terminating a longstanding practice
or right of
granting employees special leave for the closure of the municipal
offices during the festive season be declared an
unfair labour
practice.
Conciliation
failed. The union referred the dispute to arbitration and the union
was successful at arbitration. The relief
that the union sought
at arbitration was “reinstatement of special leave during
festive season.”
The
arbitrator, TM Graham, found in favour of the union and declared that
the City had committed an unfair labour practice.
He or she
then ordered the City “not to interrupt the applicant’s
members’ existing leave rights and credits”.
The
union felt that this ancillary leave did not specify in detail what
the City was required to do and it brought an application
to vary the
award. That application was unopposed.
Mr
Graham granted the variation ruling on 26 September 2016 and made the
following ruling,
“
1.
That the respondent (City of Tshwane Metropolitan Municipality)
be
directed to reinstate the applicant’s members’ special
leave days during the festive period.
2.
That the employees be credited with the leave days that were
deducted
during the festive season during 2014 and 2015 respectively.
3.
The respondent is directed to communicate its implementation
of this
ruling to the applicant’s members within 14 days of receipt of
this ruling and no later than 15
th
of October 2016.”
The
third part of the order is not relevant to this application and is
not disputed. It also appears from the City’s answering
papers
in this application and conceded by IMATU that the City has complied
with the order in 6.2 i.e. that it has credited the
employees with
the leave days that were deducted in 2014 and 2015. However, the
union says that the City has not complied with
the ruling in 6.1,
namely that the City was directed to reinstate the special leave days
during the festive period.
The
City says in its answering affidavit that the reason for that is that
the City’s offices now remain open during the festive
season
and are not closed. That however does not detract from the
plain wording of the ruling. The ruling is quite
simply that
the City must reinstate the applicant’s members’ special
leave days during the festive period. That
ruling stands and
the City has not taken it on review.
Mr
Seshoka,
who appeared for the City this morning, had nothing to add as he
conceded that he had not prepared argument as he simply assumed
that
the matter would be postponed because the City’s initial
counsel of choice inexplicably was not available this morning,
even
though the matter had been set down for hearing 10 months ago with
both the City’s counsel in attendance.
Only
after Mr
De Beer
had started arguing did Mr Seshoka hand up a set of heads of
argument, unsigned but apparently prepared by the City’s junior
counsel, M Gwala.
It
appears that the City intended to argue that the leave days have been
credited to the employees and special leave was restored
for 2014 and
2015. Therefore, Mr
Gwala
says -- and I take his heads into account even though he is not
appearing and he did not file the heads in time -- he argues that
the
arbitration award has been complied with. But that is clearly not
so. Only the second part of the arbitration award has
been
complied with and not the first part compelling the City to reinstate
the IMATU members’ special leave. In those
circumstances
the union has made out a case for the relief it seeks.
With
regard to costs I take into account that IMATU represents itself and
has not incurred any legal costs. A costs order is not
appropriate in
those circumstances.
I
order that the variation ruling dated 26 September 2016 by South
African Local Government Bargaining Council under case number
PMD111415 is made an order of court.
---------------------------
STEENKAMP
J
APPEARANCES
APPLICANT:
S T Seshoka
Instructed by
Malebye Motaung Mthembu Inc.
RESPONDENT:
P de Beer of IMATU.