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 257
|
|
Halim v Department of Cooperative Governance & Traditional Affairs of South Africa and Another (JS1085/12) [2018] ZALCJHB 257 (15 August 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
no: JS 1085/12
In
the matter between:
RAIJA
HALIM
Applicant
and
DEPARTMENT
OF COOPERATIVE
GOVERNANCE
& TRADITIONAL
AFFAIRS
OF SOUTH
AFRICA
First
Respondent
MINISTER
FOR COOPERATIVE
GOVERNANCE
& TRADITIONAL
AFFAIRS
OF SOUTH
AFRICA
Second
Respondent
Heard
:
16-17 October 2017
Delivered
:
15 August 2018
Summary:
(Claim for alleged underpayment arising from oral agreement to
remunerate the applicant at a rate in excess
of existing salary scale
maximum and contrary to written contracts of employment–
existence of supervening oral agreement
not proven – authority
of Minister to approve a higher remuneration package not proven)
JUDGMENT
LAGRANGE
J
Background
[1]
In September 2009 the applicant, Ms R Halim (Halim), successfully
applied for the job of a Project Coordinator in the employment
of the
second respondent (‘the ministry’). She considered the
salary offered as insufficient because it was less than
what she was
earning currently at the South African Broadcasting Corporation (‘the
SABC’) she requested a salary that
would be an improvement on
that. In short, her case was that an oral agreement was reached that
she would be paid R 516, 138. 00
per annum, exclusive of cell phone
and travel allowances. After she was employed, the written offer was
reduced to R 489, 183.
00 per annum (or R 40,765.25 per month). Halim
agreed that this amount included a so-called role-play allowance, and
that if the
role-play allowance was excluded, her gross remuneration
was R 445, 803. 00.
[2]
According to Halim, the discrepancy between what she claimed had been
agreed and what was confirmed in writing led to discussions
and a
further oral agreement was concluded that at the end of her probation
period, she would be paid the difference between the
reduced offer
and what she was originally offered. At the end of her probation, she
entered into a fixed term contract, although
her salary was not
adjusted in terms of the agreements she claimed had been reached with
the ministry. Halim pursued her claim
to rectify the salary in terms
of the oral agreements, without success, and ultimately referred her
claim to court. The amount
Halim is claiming is R180, 763.75, which
is the difference between what she received and what she believed she
ought to have been
paid for the period October 2009 to March 2012.
[3]
The respondents initially raised a special plea of prescription, but
this was abandoned during the course of the trial. Although
the
respondents ultimately did not dispute that an oral offer was made to
Halim, they contend that the Minister had no authority
to authorise
payment of the salary at the level claimed by Halim. Accordingly, any
such oral agreement to the contrary was invalid,
inter alia,
because it would have entailed the Minister exceeding his powers
under the Public Service Regulations.
[4]
Alternatively, if the oral agreement was not invalid, the respondents
dispute the terms of such an oral agreement. In particular,
it was
emphasised in the respondents’ opening statement at the trial
that, they dispute that the basic remuneration package
Halim claimed
had been agreed upon in an email dated 18 September 2009 was in fact
R 489, 183.00. They contend that the all-inclusive
remuneration
package was in fact R 445, 803.00 and that she was nevertheless paid
an additional role-playing allowance of R 43,
380. 00 which was not
part of her general remuneration package, and that this was
implemented with effect from 5 October 2009.
[5]
The applicant testified on her own behalf and also called Ms P
Ezeolisa (‘Ezeolisa’), the former Chief of staff
of the
Ministry as a witness. The respondents called Ms L Bothma (‘Bothma’)
and Mr J Hector (‘Hector’),
Deputy Director: Appointments
and Service Benefits, both employed in the Department, as witnesses.
Common cause facts and
material evidence
Common cause facts
[6]
In terms of the pre-trial minute and facts accepted as common cause
by the respondent, the following was common cause:
6.1 On 17 August 2009 a
one-year contract post with the possibility of an extension was
advertised by the first respondent for a
Project Coordinator at
salary level 11 with an all-inclusive remuneration package of R 344,
052 per annum.
6.2 After being
interviewed on 20 August 2009, Halim was recommended as the most
suitable candidate for the post. Two other candidates
were also
interviewed.
6.3 On 2 September 2009
the minister approved the submission to appoint her to the advertised
post.
6.4 On 10 September 2009
a submission was made by the Department to the office of the Minister
that a “buy offer” be
made to the applicant to “counter
against” the remuneration she received from the S ABC.
6.5 At the time, her
remuneration package at the SABC was R 388, 306.00 per annum.
6.6 Halim accepted the
‘buy offer’ of R 405,276.00 all-inclusive remuneration
being the maximum notch of salary level
11. In addition, she accepted
a retrospective salary adjustment of 10% in accordance with the
increase awarded in the public service
effective on 1 July 2009,
bringing the annual inclusive value of her remuneration to R 445,
803.00. This was approximately a third
more than what she earned at
the SABC. Halim claimed that, at that the time the buy offer was
made, she did not understand that
the salary of R 405,000 was the
maximum notch on salary level 11.
6.7 Botha confirmed that
the ‘buy offer’ had to be approved by the Minister who
had the necessary delegated authority,
after all other management
levels had recommended the proposal. According to Botha, the Minister
had authority to approve an appointment
at a higher notch but beyond
that Halim would have had to be appointed to a higher post. Botha
herself could not have signed off
on a package beyond the maximum
notch on level 11 for the existing post because she had to operate on
strict guidelines in such
matters.
6.8 On 27 September 2010,
after her probation was completed, the applicant entered into a fixed
term contract of employment running
from 5 October 2010 to 31 October
2012, and linked to the term of office of the Minister. The contract
document provided
inter alia
:
6.8.1
that it was entered into between the government, as represented by
the Minister’s Special Adviser, Mr Nhlakanipho Nkontwana
(‘Nkontwana’), and Halim;
6.8.2
that she would serve in the ministry, and
6.8.3
that her all-inclusive remuneration on assuming duties would be on
the maximum notch of salary level 11, would be R 445,803.00
per
annum.
6.9 Sometime in June
2011, Halim lodged a grievance concerning issues of a salary
adjustment, unilateral change to terms and conditions
of her service
and the alleged breach of her contract of employment. The critical
passage in the letter containing her grievance,
reads:
On the assumption of
duty,
it
was agreed
with the then CoS
[1]
and the
HR Manager (Ms Liesel Botha)
that
after my probationary period (1 year) the department would look at an
increase in my salary
(an explanation given at the time was that the requested offer
suggested by the Special Adviser was not in line with the salary
level or policy, but after the probationary period it would enable
them to give the said increased with the renewal of my contract).
Despite the general appreciation of my work and the said agreement, I
have not received any salary increment to date other than
the annual
public service salary increment, yet petrol has gone up several times
in 2010 and this would include all other living
expenses. I travel
daily to and from Johannesburg and this is quite taxing on my pocket,
yet my dedication to my office and the
ministry drives my motivation
to be here.
I was hired for my
ability and experience in Administrative/Office Management/Project
Coordination, and, I believe that I have fulfilled
this role and
certain expectations in the department in the last 18 months.
I
also believe that an increase in my salary based on the above
information be considered
. Notwithstanding the fact that I am
aware that party work should not be mentioned, the reality is that I
do a lot about and cannot
claim petrol or overtime for same.
(emphasis added)
6.10 On 9 February 2012,
Halim received a very belated letter from the Nkontwana to the effect
that the grievance had been referred
to the Executive Manager: Human
Capital Management for a response.
The narrative emerging
from the evidence
[7]
Halim maintained that after she was advised that she was the
successful candidate she liaised with Eziolisa and was made an
offer
of a remuneration package of R 516, 000.00 per annum, exclusive of a
cell phone allowance, transport and other items. When
she received
the email from Eziolisa confirming that she should start work on 1
September 2009, she understood it would be on the
basis agreed with
Eziolisa. Botha testified that the initial recommendation following
the interviews was to employ Halim at the
minimum salary scale for
the job level which was level 11, being the rank of a Deputy
Director. The Minister signed off on the
initial recommendation.
[8]
Botha also testified that, after Halim had requested that the initial
offer be improved they had checked that the offer was
less than what
she was earning at the SABC, and she was advised that they could
offer her the maximum scale on the salary level
11. These scales
apply throughout the public service. Halim was placed on the 12
th
notch of level 11. As mentioned, Halim claimed she was unaware that
this was the maximum salary at salary level 11.
[9]
On 16 September 2009, by which stage Halim had actually commenced
working in the ministry, and was still trying to sort out
her notice
arrangements with the SABC, she queried the salary package as it had
been conveyed to her by Botha. She did so in the
following terms,
which she conveyed to Hector in an email:
I am still confused with
the salary per annum. Liesel gave me the breakdown as follows:
R 405 276 + 10% increase
that was given to all staff in July 09? + R 3615 x 12 other
allowance and the total per annum would
be R 489 183.60. I will
then receive a cell phone allowance at this level of approximately R
1000 – R 1500.
This is perplexing
because the first amount mentioned to me by Petronella
[2]
was R 472 758 per annum + R 3615 x 12 other allowance totalling
R 516 138.00.
I am not sure why this
letter of appointment is now reflecting R 405 276 and also does
not stipulate things like other allowance,
cell phone, housing et
cetera. I would also appreciate if you can include a starting date as
per my earlier email sent to you.
I really am sorry to
sound ungrateful, but I really need to get this right so that I do
not disadvantage myself in any way.
[10]
Hector responded the same day stating:
I have taken concerns and
discuss the matter with Liesel. She has confirmed that she discussed
the following with you:
all-inclusive package R
405 276 (Maximum of the salary scale) plus
R 40 527.60 (10% increase
which will be affected from 1 July 2009. Not implemented yet, waiting
for dpsa)
R 3165.00 x 12 = R
43 380
As will be noted, the
total cost of package to employer will be approximately R 489 183.60
per annum.
As explained to you via
Liesel the 10% will be implemented as soon as the public service
salary system has been updated with the
1 July 2009 general salary
adjustment.
The above does not
include the benefits you will qualify for in terms of cell phone
costs and subsistence and travel when you travel
for official
purposes, since the above package is an all-inclusive package, you do
not qualify for additional benefits such as
housing, medical aid and
thirteenth cheque. The Chief of Staff Ms Petronella Ezeolisa will be
able to provide you with more information.
…
[11]
Hector confirmed that a second letter confirming the ‘buy
offer’ of R 489, 183.60 was issued to Halim after
getting
submissions from the Minister. Halim claimed that the offer of a
package of R 516, 138.00 had been made to her telephonically
by
Eziolisa. After she queried the written offer of R 489 183.60,
Eziolisa explained that there were budget constraints. In her
testimony, Eziolisa confirmed that Halim had agreed to come in at a
package of R 489 183.60 but claimed that had been reduced because
of
budgetary constraints, though the Minister agreed that after her
probation the difference would be back paid, and she conveyed
this to
Halim and to the HR department. However, Botha said she was unaware
of such agreement, and she could only process approved
packages. She
did concede she had seen Halim’s email of 16 September 2009, in
which she mentioned the oral offer made by
Eziolisa of R516, 138.00,
but noted that Hector’s replying email only confirmed the offer
of R 489 183. It should be
mentioned that this figure included
the public service increase and an allowance of R3, 615.00 per month,
which sometimes seem
to have been referred to as the ‘role-playing’
allowance.
[12]
On 18 September 2009, Halim sent an email to the Nkontwana setting
out the different offers and the packages mentioned in the
two
contracts she received. In that email, she confirmed that she spoke
to Eziolisa telephonically on 17 September and Eziolisa
had confirmed
the first offer. Halim concluded her email by saying “I sent
her an SMS in respect of the 1st offer and she
said she will get back
to me.” In the email Halim described the first offer in the
following terms:
1
st
offer from
Petronella - R 472 758 per annum + R 3615 allowance per month and a
choice of medical aids.
[13]
On the same day, Eziolisa had responded in emphatic terms, and
copied her response to Botha and Nkontwana:
Please note the
following:
In our first discussions,
I indicated that we would certainly beat your current package. We
then had discussions with HR and a decision
was taken to advertise
the post at the correct entry level. We did so. After the interviews,
we submitted a by-offer [
sic
] to accommodate our commitment
to’ beat’ your current projected package. This has been
done. The total package offered
is R 489 183 (your projected
package was R 383 306)
This excludes the cell
phone and 3G card allowances which are R 2800 and R280 per month.
For official trips, you
are able to claim for fuel/milage.
Medical aid-as part of
MMS, you’re able to structure your package to include medical
aid.
If you have any other
questions, please email so that I can respond.
Within
an hour of receiving the clarification from Eziolisa, Halim sent an
email in reply in which she stated that she “accept(ed)
the
offer
as is
” (emphasis added). Under re-examination
Halim sought to qualify this acceptance by pointing out that
immediately after that,
she stated in the same e-mail of 18
September: “Once I am there I am sure we can work out the finer
details of the medical
aid and so on”. Eziolisa confirmed that
what was set out in her own email above was exactly what was offered
and what the
Minister had agreed to, but mentioned that it
excluded
the role-play allowance even though the offer was recorded as an
“all-inclusive” one. When it was put to her that the
figure of R 489 183.00 included the roll-playing allowance, she
said that, as far as she could remember the allowance was
additional
to that amount and Botha never contradicted the Minister on this.
[14]
Halim claims that her understanding was that, the monthly allowance
of R 3 615.00 which ‘was given to people working
in the
ministry’ should not have been included in the R 489 183
sum. However, she agreed under cross-examination that
this amount
which was the role-playing allowance (of R3, 615.00 per month) did
form part of this amount. In passing, it is noted
that if the
‘role-playing allowance’ was added this would have raised
the overall remuneration package to approximately
R 532, 560.00.
Later in her testimony Halim reverted to the version that the
allowance was a package paid to everyone in the ministry.
Eziolisa
reaffirmed this interpretation of the allowance saying that all staff
in the ministry received it because they were on
contract and did not
qualify for the same benefits as departmental staff.
[15]
Halim said she believed that when her probation ended she would move
up to the R 516, 138.00 package. Nonetheless, she signed
the fixed
term contract in September 2010 stipulating a total remuneration
package of R 445,803.00 per annum. She claimed she did
so because she
needed the income and the job, but claimed that she explained that it
did not conform with what was agreed in 2009
and she had understood
that there would be a reversion to what was promised then. Under
cross-examination, when it was pointed
out to her that clause 6.5 of
the contract contains a comprehensive variation clause, she said she
signed the contract in good
faith notwithstanding the fact that she
did not agree with the remuneration package stipulated. With
hindsight she would have varied
the written contract. The variation
clause in her contract reads:
6.5 Variation
6.5.1 The Contract
constitutes the whole of the agreement between the parties to this
Contract relating to the subject matter of
the Contract, and save as
otherwise provided, no amendment, alteration, addition or variation
of any right, term or condition of
this Contract will be of any force
or effect unless reduced to writing and signed by the parties to this
Contract.
6.5.2 The parties agree
that there are no other conditions, warranties or representations,
whether oral or written and whether expressed
or implied or
otherwise, save those contained in this Contract, the Act the
Regulations and other relevant legislation.
[16]
She claims she took steps to rectify matters by speaking to Eziolisa,
Botha, Hector, Mr T van Staden (‘Van Staden’)
in the
Human Resources Department, the Director-General, Mr E Afrika, and
Nkontwana. Her efforts ultimately yielded some fruit
in the form of
an extraordinary letter written by the Honourable late Minister, Mr S
Shiceka himself, dated 29 October 2010 in
which he stated:
Dear Ms Halim
RE: REQUEST FOR SALARY
ADJUSTMENT
I, Minister Sicelo
Shiceka, MP confirmed that I approved your salary on 15 September
2009 on the scale of R 489 183 per annum, excluding
cell phone
allowance and any other incentives for persons employed in the
ministry. It must be noted that this offer was made after
discussions
with the Chief of Staff at the time, Ms Hector. The initial salary
offered to you could not be met due to budget constraints
in that
specific financial year (2009). It was agreed that the offer be made
to you for R 489 183 per annum and that your salary
be increased to
the next notch after the compulsory one (1) year probationary period.
After signing the second
contract, I requested my Special Adviser, Mr Nhlakanipho Nkontwana to
address your appeal to revisit your
salary as per the negotiations in
October 2009. I am surprised that this matter is still outstanding. I
will request that this
matter be resolved urgently and that the
Department honours its agreement with yourself. This should be
effective from 1 October
2010, and should include any/all increases
effected.
[17]
Eziolisa confirmed that this letter set out the terms on which Halim
had been employed. According to her, the Minister appointed
all staff
in the ministry and the ministry relied on the HR department for
guidance which ought to have advised the ministry if
the Minister had
done anything irregular. They were in constant contact with the HR
department and they were all fully aware of
what had been offered by
the Minister. She could not say that the letter had definitely been
sent to the HR department but all
staff correspondence should have
been kept in an HR file. Botha could not say the Ministers’
letter was not in Halim’s
HR file.
[18]
Somewhat ambiguously, Eziolisa agreed that the offer could not exceed
the maximum level, but insisted that the offer to Halim
was R 489 183
plus the role playing allowance. When it was put to her that Botha
would testify that she was not aware of any agreement
made that would
bring Halim’s salary up to R 516,138. 00, Eziolisa suggested
that there was an email where Botha had agreed
to this. Botha
confirmed that the offer could not have exceeded the maximum of level
11. If an offer was made in excess of that,
it would have been
difficult for the Director General of the Department to implement it.
The Minister’s letter did not conform
to the framework for
approving packages. He had a discretion to vary the package but
within the public service scales. Hector agreed
that this was the
limit on what the Minister could do. However Botha mentioned that the
cell phone arrangements was not a matter
the HR department had any
say over.
[19]
According to Halim, nothing came of the Minister’s letter and
the next intervention was by Nkontwana who convened a meeting
with
Botha and Van Staden. It seems this meeting took place on 10 May 2011
and at that meeting, Halim gave her version of events,
which Botha
confirmed. Nevertheless, this intervention also did not result in any
progress. Botha agreed there had been a discussion
about adjusting
Halim’s salary but no agreement was reached. In August 2011,
Halim wrote an email to Eziolisa apparently
asking her to confirm
Halim’s version of the 2009 offer, to which Eziolisa replied:
I have checked your
breakdown and you are correct. I am not understanding what the issue
is. Liesel and James from HR need to bring
your file for verification
of these FACTS. We had agreed that since we could not match your
previous cost to company salary the
decision was made by myself in
constant collaboration with HR that after a year we would do an
increase to the R489 package that
was the first offer. It must be
noted that you did not need to accept the lesser offer but you took
into consideration that your
competencies were required in the
ministry….
By
that stage Eziolisa had left the ministry.
[20]
By August 2011, Halim was pursuing her long-standing grievance with
the new Chief of staff, Ms N T Moyo (‘Moyo’).
From Moyo’s
email correspondence it is apparent that she knew nothing of the
previous history of the matter. Eziolisa confirmed
that Moyo had no
knowledge of the negotiations that had taken place. In one of her own
emails to Moyo, Halim claimed that Botha
had previously confirmed in
numerous meetings that the department had reneged on the agreement
made with her.
[21]
Finally, in February 2012, Halim communicated with the Acting
Director General, Ms KC Mketi (‘Mketi’). She reiterated
her frustration with the lack of progress on her complaint. Mketi
responded in a comprehensive manner on 1 March 2012, in which
she
recorded the following,
inter-alia:
2 …
c. The Minister
subsequently approved your appointment for a one-year contract with
an all-inclusive remuneration package of R 344
052 per annum (Minimum
notch of salary level 11).
d. A letter dated 3
September 2009 informing you of your successful application was
emailed to you on 4 September 2009.
e. Upon receipt of the
letter, you informed Mr J Hector that the salary offered to you was
less than your current salary package
of which were requested to
submit proof of your salary package at the SABC.
f. Upon receipt of your
package at the SA BC, you indicated that your guaranteed Total Cost
Company amounted to R 383 306 per annum,
excluding your cell phone
allowance of 6372 and an average petrol claim of R 1 500 per annum
[
sic
] , which added up to R 391 178 per annum.
g. Based on your above
documentation, a second submission was forwarded to the Minister for
consideration of a “Buy Offer”.
Based on the approval of
the Minister, you were subsequently offered an all-inclusive
remuneration package of R 405 276 per annum
(Maximum notch of Salary
Leve l 11) on 14 September 2009. You were informed by E-mail of the
adjustment of your salary by a letter
and an amended contract. In an
E-mail sent to the Department, you indicated that you accepted the
appointment offer “as is”.
h. You assumed duty on 5
October 2009, after which your all-inclusive remuneration package was
adjusted to R 445 803 per annum due
to a general salary adjustment of
10% effective from 1 July 2009, which notification the Department
received after your letter
offering you an all-inclusive remuneration
package of R 405 276 per annum was mailed to you.
i. Approval was granted
on 24 August 2010 for the extension of your contract appointment for
the duration of the Special Adviser’s
term after which an
appointment letter contract was signed on 20 September 2010 retaining
your salary notch.
3. Since you are on the
maximum of salary 11 and progression to salary 12 is not an option in
terms of paragraph 3.6.3.2 of PSCBC
Resolution No 3 of 2009, a
further salary increase is not possible within the legislative
framework. It can be confirmed that you
have however received the
annual general salary adjustments.
4. Please also refer to
the attached salary scales confirming that the scales offered to you
were in line with the approval granted
by the Minister and not the
10
th
notch of salary level 12 as indicated in paragraph 4
of your letter.
The last mentioned
reference was a reference to the following statement in Halim’s
letter to the acting DG:
It should also be further
noted that I have been further prejudiced that I was told that my
salary level was a level 11, but when
one goes back to all the DPSA
“translations key addendum 2 of 2009 et cetera” even the
salary of R 445 581 was the
10
th
notch of level 12.
Halim testified that the
acting DG’s letter was the first time that the Department
referred to the PSCBC resolution as a limiting
factor on what she
could be paid. Under cross-examination, Eziolisa denied that Halim
was employed on the same salary scale as
other public service staff
and maintained that she was employed subject to the provisions of the
Ministerial Handbook because she
was employed in the Ministry, but
this document was not introduced in evidence before the court nor
were any of its provisions
canvassed with witnesses in the course of
giving evidence.
[22] From a document
issued by Eziolisa in October 2009, it appears that the ministry
sought approval for issuing of 9 cell phones
under contracts,
including one for Halim. The caller limit was set at R 2,800 for
Halim. In May 2010, Halim complained that her
cost to company package
had included a cell phone allowance of R 2,800 but she had accepted
the cell phone provided by the Ministry
thinking it would be “simpler
to use rather than having to pay an enormous bill on my own cell
phone contract”. She
expressed her regret that she had agreed
to do so because her cell phone bill never reached the call limit of
2800 and accordingly
she had done herself “an injustice”
in not simply insisting on being paid the cell phone allowance.
However, under
cross-examination, she agreed that the cell phone was
not paid as an allowance.
Evaluation
[23]
The first and fundamental question is whether the alleged oral
agreement was the contractual basis on which Halim was engaged.
[24]
There is no dispute that Halim asked the Ministry to improve on its
original offer based on the minimum notch of salary level
11 , which
amounted to R 344 052.00 per annum because this was less than
the package she was receiving from her existing
employer of
approximately R 388,000 per annum.
[25]
Whatever discussions took place between E1 and the applicant about
total package the Ministry was offering, the communications
between
E1 and Halim on 18 September 2009 are crucial because they record the
written understanding between the two of them that
was concluded
after Halim queried the final package. Whatever E1 subsequently
claimed in her oral testimony, she was unequivocal
in recording her
understanding of what had been offered and Halim, unqualifiedly
accepted E1’s the offer as described by
E1 ‘as is’.
As set out above, E1 articulated the offer thus:
“…
The total
package offered is R 489 183 (your projected package was R 383 306)
This excludes the cell
phone and 3G card allowances which are R 2800 and R280 per month.
For official trips, you
are able to claim for fuel/milage.
Medical aid-as part of
MMS, you’re able to structure your package to include medical
aid.”
[26]
Later , E1 claimed that as far as she could recall the role playing
allowance of R 3615-00 was not part of the ‘total
package
offered’ and Halim initially claimed it was additional to
the R 489 183.00 amount. Importantly, Halim conceded
under cross
examination that the roll-playing allowance was included in that sum.
It is also overwhelmingly the more plausible
interpretation because,
if one takes the basic remuneration package the Ministry claims was
agreed to, amounting to R 445, 803.00
(the highest notch (notch 12)
on salary level 11) and add to that the total annual figure for the
role playing allowance of R 43 380.00
(based on R 3, 615 per
month) one arrives at an annual figure of R 489 183.00. Thus, it is
virtually a certainty that the latter
figure included the role
playing allowance.
[27]
As to any other allowances, the only one that might have been paid as
part of remuneration were the cell phone and 3G allowances,
but
everything points to those ‘allowances’ as items of
expenditure for which reimbursement could be obtained and not
that
they were items which were received as part of monthly remuneration.
Halim acknowledged that much in her own complaint
that she was never
able to recover the full value of the allowance because her cell
phone expenses were less than the maximum permitted,
and she also
conceded that under cross examination.
[28]
It is true that Halim kept trying to revive her earlier expectations
of what she believed she was offered, but she cannot simply
ignore
what she did actually accept. When she was asked why she accepted the
terms described by E1 ‘as is’ she seemed
to think it was
sufficient just to say that she needed the job. The impression
one gets from her evidence is that she placed
more store on alleged
personal assurances of salary improvements than the written terms of
her appointment.
[29]
Did the
Minister’s letter change the situation? The critical
question in this regard is, whatever the Minister’s
intention
and understanding of the situation might have been, was he able to
simply authorise payment of Halim at a package beyond
the maximum
notch of the salary level she was on? Halim had asserted that
employees employed in the Ministry were employed under
the provisions
of the Ministerial Handbook and therefore fell outside the parameters
of the provisions governing remuneration of
other public servants
governed by the Public Service Act of 1994.
[3]
However, at no stage did E1 or Halim refer to portions of the
Handbook which might be construed as conferring such power
on the
Minister.
[30]
Moreover, every version of the remuneration package in dispute
between the parties was determined with reference to the Public
Service wage scales, increases and allowances. The only exception to
this was the R 3615-00 role playing allowance, which it appears
was
paid to public service employees like Halim, who were working in the
ministry and whose terms of employment were linked to
that of the
Minister and therefore somewhat unpredictable, unlike other public
servants on fixed term or indefinite contracts of
employment
unaffected by new political appointments.
[31]
In the circumstances, I am not satisfied that Halim has established
that the Minister, as the executive authority of the ministry
had the
power to engage her on terms and conditions different to those
contained in the successive contracts of employment she
signed.
Further, apart from the fact that all those contracts contained very
clear non-variation clauses, it must be mentioned
in this regard that
they all stipulated that her employment was governed by the Public
Service Act and Public Service Regulations.
[32]
In conclusion, the applicant has failed to establish, on a balance of
probabilities, the existence of a binding oral agreement
which
supersedes the written contracts she entered into and she was not
underpaid any amount due to her in terms of her contract
of
employment.
Costs
[33]
I would be inclined to award costs against the applicant, but as the
respondents appear to accept that the claim was instituted
bona
fide
and do not press for an adverse cost award, I decline to do
so.
Order
[34]
The applicant’s claim is dismissed.
[35]
No order is made as to costs.
_______________________
R
Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
S
Jackson instructed by Finger Phukubje Inc.
RESPONDENTS:
F
M M Snyman instructed by the State Attorney, Pretoria
[1]
Ezeolisa.
[2]
Ezeolisa
[3]
Proc 103 in GG 15791 of 3 June 1994