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[2019] ZALCJHB 120
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Gaarekwebore v Minister of Health and Others (JR2208/16) [2019] ZALCJHB 120 (29 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: JR 2208 / 16
In
the matter between:
ABRAHM GAAREKWE
BORE
Applicant
and
THE MINISTER OF
HEALTH First
Respondent
THE DEPARTMENT OF
HEALTH, GAUTENG Second
Respondent
THE HEAD OF THE
DEPARTMENT OF HEALTH,
GAUTENG Third
Respondent
THE DEPARTMENT OF
PUBLIC SERVICE AND
ADMINISTRATION,
GAUTENG Fourth
Respondent
THE HEAD OF THE
DEPARTMENT OF PUBLIC
SERVICE AND
ADMINISTRATION, GAUTENG Fifth
Respondent
Heard
:
15 November 2018
Delivered
:
29 May 2019
Summary: Application –
declaratory relief – application intended to bypass prescribed
dispute resolution processes under
the LRA – application not
competent – obliged to have referred matter to arbitration
Jurisdiction –
real issue in dispute about interpretation and application of
collective agreement – constitutes issue
in dispute that must
be arbitrated by bargaining council – court having no
jurisdiction to entertain dispute
Jurisdiction –
allegation of incorrect reinstatement – would be a dispute
concerning possible unfair labour practice
– also a dispute
where arbitration at bargaining council is prescribed – court
having no jurisdiction to entertain
dispute
Doctrine of election –
employee failing to challenge reinstatement as being allegedly
incorrect – acquiesced in position
appointed to for a number of
years – cannot now seek to challenge appointment where never
challenged before – cannot
blow hot and cold
Application – no
legitimate basis for application established by applicant –
application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
In
this instance, the applicant has brought an application seeking
declaratory relief. It is not entire clear as to the basis upon
which
the applicant seeks this relief, since the notice of motion and
founding affidavit makes no reference to the empowering provision
in
the Labour Relations Act (‘LRA’)
[1]
relied upon. However what is at least clear is that the applicant
does not seek to review and set aside any determination or decision
of any of the respondents. I can only surmise it must be an
application in terms of section 158(1)(a)(iv) of the LRA.
[2]
The relief sought by the applicant is an
order to the effect that he be translated into an occupation specific
occupation, and that
his remuneration be adjusted accordingly, with
effect from 1 July 2007. The applicant relies on Resolution 3 of 2007
issued in
the Public Health and Social Development Sectoral
Bargaining Council (‘PHSDSBC’) in support of his case in
this regard.
[3]
The actual employer of the applicant is the
Gauteng Department of Health (the second respondent). However, and
for the purposes
of the judgment, and in order to encompass all the
various functionaries cited by the applicant, I will refer to all the
respondents
jointly as ‘the department’.
[4]
The application is opposed by the
department. The primary defence raised by the department is one based
on a lack of jurisdiction
of this Court to entertain the application.
According to the department, the actual nature of the issue in
dispute raised by the
applicant concerns the interpretation and
application of a collective agreement, which it contends is an issue
that must be resolved
by way of arbitration in terms of the dispute
resolution mechanists prescribed by the LRA, and should not be
referred to this Court
for determination as a Court of first
instance.
[5]
The application came before me for argument
on 15 November 2018. The applicant was unrepresented at the hearing,
but wished to proceed
with his matter without representation.
Argument was concluded, and I reserved judgment. I will now proceed
to determine the applicant’s
application, starting with a short
summary of the relevant background facts.
The
relevant background
[6]
The applicant commenced employment with the
department in 1989 as a professional nurse. The applicant progressed
up the ranks, and
in March 2001 was appointed to the position of
Deputy Director: Nursing at the Tembisa Regional Hospital.
[7]
The applicant was dismissed by the
department on 26 June 2006 for alleged misconduct. He then pursued an
unfair dismissal dispute
to the PHSDSBC. The dispute ultimately came
before arbitrator Mthethwa at the PHSDSBC for arbitration over a
number of days in
February, March, April and May 2007. Arbitrator
Mthethwa, pursuant to the arbitration proceedings, issued an
arbitration award
dated 6 June 2007, in which he found that the
dismissal of the applicant by the department was unfair. Of relevance
to the current
matter, the relief afforded by arbitrator Mthethwa to
the applicant included that the department had to reinstate the
applicant
into what the arbitrator described as ‘
any
other suitable position
’ with the
same terms and conditions of employment as the position he was in
prior to dismissal. It was also directed that
the department may
deploy him to any other hospital other than Tembisa.
[8]
On 12 July 2007, the department gave effect
to this arbitration award. It informed the applicant in writing that
he was reinstated
in the position of Deputy Director: Nursing
Administration, with duty resumption date of 1 July 2007, on the same
conditions of
employment and in the same region. However, the
applicant was not allocated to a specific hospital, and was deployed
to the central
(head) office. The applicant never challenged this
reinstatement on this basis, and took up the position, where he
remained throughout.
[9]
In 2007, the department and the various
representative trade unions, represented in the PHSDSBC, concluded a
collective agreement
which sought to regulate the remuneration
structure and career progression system for nurses. This collective
agreement became
known as the ‘
Occupational
Specific Dispensation for Nurses
’
(‘OSD”), and was formally adopted in the PHSDSBC as
Resolution 3 of 2007, on 10 September 2007. The effective
date of the
application of the OSD was agreed to be 1 July 2007.
[10]
The occupation of Deputy Director: Nursing
was an occupation affected by the OSD, described as ‘
Deputy
Manager: Nursing (level 1 & 2 Hospitals)
’
in annexure “A” to the OSD. Annexures “B” and
“C” to the OSD then set out how this position
is to be
translated. However, it was undisputed that these provisions were
only applied to this occupation where the incumbent
was stationed in
a particular hospital, and for this reason was not applied to the
applicant, but the applicant contended that
this dispensation did
apply to him.
[11]
In the founding affidavit, the applicant
records the following: ‘
Of
importance to me is the interpretation of the Resolution insofar as
it concerns employees employed at Central (Head) Office
’.
The reason for this statement by the applicant is that the department
considered head office employees as being administrative
and managing
employees, and not employees responsible for actual nursing in public
hospitals, and for that reason decided the OSD
would not apply to
these employees. The applicant disagreed, contending that it did
apply to him, for two reasons. First, he contended
that he was still
a registered professional nurse. Second, he contended that had the
department not, as he called it, ‘
incorrectly
reinstated
’ him in July 2007, he
would have been in the actual occupation contemplated by the OSD
referred to above.
[12]
The issue of whether the OSD would apply to
employees in the qualifying categories stationed at the department’s
head office
was dealt with in subsequent proceedings in the PHSDSBC
in 2009, unrelated to the current dispute. It was in fact a dispute
about
the interpretation of the OSD pursued by the unions. The
dispute was resolved by way of a further collective (settlement)
agreement
concluded in the PHSDSBC on 7 August 2009, in which
agreement it was recorded that the OSD would also apply to nurses at
head office,
but only where registration with the South Africa
National Health Council was an inherent requirement of the position
occupied
by the nurse at head office. All employees were then
informed by the department, in writing, in a memorandum dated 25
August 2009,
of the implementation of this agreement.
[13]
It may be added that according to the
department, the applicant occupied the position of Deputy Director:
Administration, which
later changed title to Middle Manager:
Administration. This was an occupation (position) in the department
not forming part of
the OSD, and was regulated by Resolution 3 of
2009, which is an entirely different dispensation. The records of the
department
relating to the employment of the applicant following his
reinstatement in July 2007 reflects throughout that he in fact
occupied
the position of Deputy Director: Administration.
[14]
Therefore, and even following the further
collective agreement of 7 August 2009, the department did not apply
to OSD to the applicant.
The applicant did nothing about this, until
2011, when he made enquiries with the department about this. In a
letter dated 18 April
2011, the applicant was informed that the OSD
did not apply to him, because his duties were management and
co-ordination related,
and he did not perform duties aligned to
nursing
per se
.
Despite having been so informed, the applicant left matters there,
and there is no indication that he took any steps at the time
to
challenge what he had been clearly informed.
[15]
Only on 19 April 2016, some five years
later, the applicant then lodged a grievance with the department in
which he took issue with
the position he was appointed in. But
significantly, this grievance did not refer to the interpretation and
then application of
the OSD to him. Instead, in the grievance, the
applicant contended that he had been demoted. It does appear that
this ‘demotion’
was based on the contention that he had
been incorrectly reinstated in 2007. In short, the applicant
complained that because he
was incorrectly reinstated in 2007, he was
demoted. In answer to this grievance, in a memorandum dated 11 May
2016, the department
declined to entertain the grievance, stating
that it was brought out of time. The applicant was informed he was
free to pursue
the matter elsewhere.
[16]
The applicant then brought the current
application on 18 October 2016. Due to the jurisdictional issue
raised by the department,
it must be dealt with first, before the
merits of the applicant’s application can be entertained.
The
issue of jurisdiction
[17]
As touched on above, the department’s
jurisdictional objection was that the actual issue in dispute
concerns the interpretation
or application of a collective agreement
that needs to be dealt with by way of arbitration in the PHSDSBC.
According to the department,
and as such, this Court would have no
jurisdiction to entertain the same.
[18]
It
is always the duty of this Court to determine the true or real nature
of the dispute it is called on to decide.
[2]
The reason why this is important is because the LRA allocates
different kinds of disputes to different dispute resolution fora
for
determination, all based on the nature of the dispute.
[3]
It is by now trite that if the issue in dispute is one that must be
resolved by way of arbitration under the LRA, this Court simply
has
no jurisdiction to entertain same as a Court of first instance,
[4]
and the dispute resolution process prescribed by the LRA must have
primacy.
[5]
[19]
As
a point of departure, jurisdiction is determined on the basis of the
case as pleaded by the litigant.
[6]
However even this would be subject to the duty, despite what has been
pleaded, to ascertain the true or real nature of the dispute
as it
emerges from the pleadings as a whole, no matter how it is labelled
when pleaded.
[7]
In
Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members
[8]
it was held:
‘
It
is trite that the jurisdiction of the Labour Court (and the CCMA or a
council) to entertain a matter is determined from the pleadings
in
the matter. It is also an established principle that in application
proceedings, the affidavits constitute the pleadings and
the
evidence. While the issues between parties generally emerge from the
pleadings, it may not be readily possible to determine
what the true
nature of those issues are, or what the true nature of the dispute
is, because of the manner in which the pleadings
are drafted.
Therefore, the true nature of the dispute is to be determined from an
analysis of the facts and not from the parties'
characterisation of
the dispute.
’
[20]
The
matter
in
casu
is a case in point. The first crisp question to answer for the
applicant to succeed in his application is whether the applicant’s
case that he remains registered with the South Africa National Health
Council as a professional nurse makes the OSD applicable
to him is a
scenario contemplated by the OSD. And as such, is this not a dispute
that in reality calls for the interpretation and
application of a
collective agreement (the OSD). If that is so, then section 24(1) of
the LRA would indeed find application.
[9]
Section 24(1) reads:
‘
Every
collective agreement excluding an agency shop agreement concluded in
terms of section 25 or a closed shop agreement concluded
in terms of
section 26 or a settlement agreement contemplated in either section
142A or 158 (1) (c), must provide for a procedure
to resolve any
dispute about the interpretation or application of the collective
agreement. The procedure must first require the
parties to attempt to
resolve the dispute through conciliation and, if the dispute remains
unresolved, to resolve it through arbitration.
’
[21]
But there is a second aspect to this case.
The applicant has said that he was incorrectly reinstated in 2007. Or
as he succinctly
described it in his grievance in 2016 – he was
demoted by way of the reinstatement. It is clear from the founding
affidavit
that the gist of the applicant’s case in this respect
is that he was placed in a lesser position than the one he occupied
when he was reinstated by arbitrator Mthehtwa. If this is the issue,
then section 186(2)(a) of the LRA would be applicable, which
reads:
‘’
Unfair
labour practice’ means any unfair act or omission that arises
between an employer and an employee involving —
(a)
unfair
conduct by the employer relating to the promotion, demotion,
probation or training of an employee or relating to the
provision of
benefits to an employee.'
[22]
In
sum, if the real issue in dispute concerns the interpretation and
application of the OSD, the LRA prescribes that such dispute
must be
resolved by way of arbitration under the auspices, in this case, of
the bargaining council (PHSDSBC).
[10]
If the real issue in dispute is an unfair labour practice, then it
must also be resolved by way of arbitration under the auspices
of the
PHSDSBC, being the applicable bargaining council with
jurisdiction.
[11]
It is not
for this Court to entertain any of these disputes, as this Court
would simply not have jurisdiction to do so.
[12]
[23]
Considering
the above, I must find substance in the department’s
jurisdictional objection. First, there can be little doubt
that the
applicant’s contention that his continued registration as a
professional nurse makes the OSD applicable to him,
would concern an
issue that calls for the interpretation of the OSD. The applicant in
fact says this in so many words in his own
answering affidavit, which
I have quoted above, putting the issue really beyond doubt.
[13]
Further, the OSD is undoubtedly a collective agreement.
[14]
In simple terms, the issue in dispute raised by the applicant as it
emerges from the pleadings leaves me with no doubt that deciding
this
dispute will necessarily involve an interpretation of the OSD and a
determination whether it applies to the applicant.
[24]
I fail to understand why the applicant chose to
pursue his dispute about the interpretation and application of the
OSD, to this
Court, in the manner that he did. There is ample
precedent to have steered the applicant in the right direction,
considering the
fact that disputes relating to the interpretation of
the OSD has been the subject matter of several judgments of this
Court and
the Labour Appeal Court (LAC), and from which judgments it
surely must have been clear that the issue required the
interpretation
and application of the OSD which needed to be done by
way of arbitration.
[25]
I
wish to make specific reference to three judgments of the LAC in this
regard. First in
Western
Cape Department of Health v Van Wyk and Others
[15]
the
Court accepted that the OSD was a collective agreement which an
arbitrator had the power to interpret. In
Van
Wyk supra
,
the issue was whether the employees were employed in a ‘
speciality
unit
’
as contemplated by the OSD, which would entitle them to
translation.
[16]
The
clear similarity to the case of the applicant is immediately
apparent. The Court in
Van
Wyk supra
held:
[17]
‘
In
interpreting the collective agreement the arbitrator is required to
consider the aim, purpose and all the terms of the collective
agreement. Furthermore, the arbitrator is enjoined to bear in mind
that a collective agreement is not like an ordinary contract.
Since
the arbitrator derives his/her powers from the Act he/she must at all
times take into account the primary objects of the
Act. The primary
objects of the Act are better served by an approach that is practical
to the interpretation and application of
such agreements, namely, to
promote the effective, fair and speedy resolution of labour disputes.
6
In
addition, it is expected of the arbitrator to adopt an interpretation
and application that is fair to the parties.’
[26]
My
second reference is to
Democratic
Nursing Organisation of SA on behalf of Du Toit and Another v Western
Cape Department of Health and Others
[18]
.
This case concerned a nurse that contended that she had been
incorrectly translated in terms of the OSD, and the very issue raised
was that
she was fulfilling the duties of Deputy Manager: Nursing, but instead
was translated to the position of Assistant Manager: Nursing.
[19]
Once again, this was a dispute that was subjected to arbitration. The
Court concluded:
[20]
‘…
Returning
to the present dispute, the words employed in the OSD agreement read
together with the translation tables compels interpretative
work …
’
[27]
Finally,
I refer to
Department
of Correctional Services (Western Cape) v Democratic Nursing
Organisation of South Africa and Others
[21]
which concerned a
n
employee that was employed in the position of Head of Department:
Healthcare Services at the Obiqua Correctional Centre, where
her
duties were of a managerial nature and included administration,
supervision and primary healthcare tasks. When the OSD was
implemented, her duties remained the same and her case was that the
Obiqua Correctional Centre was a primary health centre and
a
speciality unit entitling her to be translated under OSD. In this
case as well, the Court accepted that the dispute was one concerning
the interpretation and application of the OSD, which was dealt with
at arbitration.
[22]
[28]
Cases
where this Court was called on to consider matters relating to the
interpretation and application of the OSD in the context
of review
applications, where litigants sought to challenge arbitration awards
in the bargaining council in this regard, include
Public
Servants Association on behalf of
Traut
v Department of Correctional Services (Western Cape) and Others
[23]
,
Democratic
Nursing Organisation of South Africa obo Fadana v Public Health and
Social Development Sectoral Bargaining Council and
Others
[24]
,
Minister
of Correctional Services v Public Health and Social Development
Sectoral Bargaining Council and Others
[25]
,
and
PAWUSA
obo Skosana and Others v Public Health and Social Development
Sectoral Bargaining Council and Others
[26]
.
All this should have guided the applicant, who was legally
represented when the application was brought, which forum to go to
as
the proper point of departure in pursuing his case. One can do little
better than to quote from what the Court said in
Department
of the Premier, Western Cape v Plaatjies No and Others
[27]
,
where the Court dealt with translation under Resolution 1 of 2008 (a
comparable resolution at another public service bargaining
council):
‘
In
the present case, the Dickinson respondents formulated the main claim
before the bargaining council as one concerning the application
of
Resolution 1 of 2008, although it was somewhat imprecisely formulated
in their statement of claim. If that was the true nature
of the
dispute, the bargaining council had jurisdiction to consider it in
terms of s 24 of the LRA. …’
[29]
Now
once it is determined that the dispute should have been referred to
the PHSDSBC for arbitration, that must be the end of the
case for the
applicant as far as the jurisdiction of this Court to hear his matter
is concerned. In
Public
Servants Association of SA on behalf of de Bruyn v Minister of Safety
and Security and Another
[28]
the Court dealt with a resolution under the
PSCBC,
and held:
‘
Therefore,
the court a quo … correctly proceeded to consider whether the
LRA required the kind of dispute which existed between
the appellant
and the respondent to be resolved through arbitration. The court
concluded that leave, including incapacity leave
and temporary
incapacity leave at the respondent's organization, is governed by the
provisions of Resolution 5 of 2001 of the PSCBC,
which is a binding
collective bargaining agreement. This means that the dispute between
the parties was required to be submitted
to arbitration as it
concerned the application and/or interpretation of the provisions of
the PSCBC resolution.’
The
Court concluded:
[29]
‘
It
follows therefore that where an employee, such as De Bruyn, is
dissatisfied
with a decision by the employer with regard to the issue of leave of
absence, as is the case in casu, his remedy lies
in the provisions of
the resolution. It follows that the appellant is confined to its
remedy in terms of s 24 of the LRA …
‘
[30]
Following
on, and in
Ekurhuleni
Metropolitan Municipality supra
the Court said the following:
[30]
‘
If
the main issue in the 'pleadings' is about the interpretation and
application of the clauses in the main agreement, …
then it
must, in terms of s 24 of the LRA, be resolved, first, by
conciliation, failing that, by arbitration, in accordance with
the
provisions of the main agreement, alternatively, by the CCMA by means
of conciliation, failing that, by means of arbitration
…
’
Having
so found, the Court then concluded:
[31]
‘
The
real dispute between the parties was indeed about the interpretation
and application of the main agreement, in particular clause
2.5.6
thereof. In terms of s 24 of the LRA it was not within the power of
the court a quo to hear and determine such a dispute
between the
parties. That power resided in the body contemplated in the main
agreement, if there was indeed a procedure provided
as contemplated
in s 24(1) of the LRA …
’
[31]
In my view, and clearly appreciating the
merit of the jurisdictional objection pertinently raised by the
department in the answering
affidavit, the applicant completely
changes tack on reply. On reply, the applicant contends that the
dispute does not concern the
interpretation of the OSD. Needless to
say, this directly contradicts what is said in the founding
affidavit. But despite that
unexplained contradiction, the applicant
on reply says that the matter concerns the enforcement of the OSD as
contemplated by section
142A(1), which means that section 24(1) does
not apply. For the reasons to follow, I however consider that this
change of tack
is equally doomed to fail.
[32]
It
must be immediately said that it is not permissible for the applicant
to make out a new case on reply, which the applicant is
in fact
doing.
[32]
In
Betlane
v Shelly Court CC
[33]
the Court said:
‘
It
is trite that one ought to stand or fall by one's notice of motion
and the averments made in one's founding affidavit.
A case
cannot be made out in the replying affidavit for the first time. …
’
Nowhere
in the founding affidavit or the notice of motion does the applicant
contend that this a case of enforcement. There is no
reference to, or
reliance on, section 142A. It cannot be raised for the first time on
reply.
[34]
[33]
In any event, considering section 142A(1),
the OSD itself (resolution 3 of 2007) is not a settlement agreement
and the settlement
agreement of 7 August 2009 that was made an
arbitration award in terms of section 142A(1) of the LRA does not
specifically apply
to the applicant, his circumstances, his position,
and the facts relating to his appointment, reinstatement and the
like.
[34]
But
what must be fatal to this new argument of the applicant has to be
that even if it can be said that the applicant seeks enforcement
of
the OSD, this enforcement is impossible without first interpreting
and applying the OSD. The kind of dispute raised by the applicant
in
this application, even if one calls it enforcement, has been dealt
with in the judgments referred to above as one necessitating
the
interpretation and application of the OSD first. It follows that it
is simply not an enforcement dispute, for the simple reason
that
enforcement is not possible without first considering whether the OSD
is indeed applicable to the applicant. In
SA
Post Office Ltd v Communication Workers Union on behalf of Permanent
Part-Time Employees
[35]
the Court held:
‘
In
this matter it is evident that the parties disagree about the meaning
of the contents of the settlement agreement. The respondent
states
that the agreement needs to be interpreted. In such circumstances,
because the parties themselves disagree as to what was
intended by
the agreement, so much so that both parties agree that third party
intervention is necessary to give a proper interpretation
as to what
were the terms of the agreement, the application does not even 'get
off the starting blocks'. The Labour Court cannot
in such
circumstances make the agreement an order of court, because there is
a dispute about what was agreed, and it would serve
no purpose, other
than to exacerbate the interpretational issue, if such an agreement
were to be made an order of court. An order
that is unclear and
ambiguous is open to dispute and that defeats the very purpose for
making it a court order in the first place.
Such an order would not
be enforceable or executable.’
[35]
I thus conclude that insofar as the
applicant seeks relief founded on the interpretation, and then
application, of the OSD, where
it comes to his position as Deputy
Director: Nursing Administration which he actually occupied
throughout, it is a dispute that
he was compelled to have referred to
the PHSDSBC for conciliation, and then if the matter remained
unresolved, to arbitration at
the same bargaining council. He was not
entitled to approach this Court directly, whether in terms of section
158(1) of the LRA,
or otherwise. He was compelled to have followed
the prescribed dispute resolution process. It follows that this Court
has no jurisdiction
to entertain his case in this regard.
[36]
Next,
the issue of the alleged ‘incorrect’ reinstatement of the
applicant must be considered. This is of course an issue
that does
not specifically relate to the OSD and its interpretation or
application. It really concerns a dispute as to whether
the
department has complied with the arbitration award of commissioner
Mthethwa when reinstating him. It is noteworthy that the
applicant
never sought to enforce the arbitration award. He not once, from 2007
up to 2016, contended that the department did not
comply with the
arbitration award or sought to pursue a dispute in this regard. If he
believed the department did not comply with
the award because of the
manner that it sought to reinstate him, he was of course free to
pursue enforcement proceedings under
either sections 143 or 158(1)(c)
of the LRA, followed by contempt proceedings in this Court if still
not resolved to his satisfaction.
However, he acquiesced to the
manner in which the department reinstated him. He took up the
appointment without protest and remained
working in that capacity. He
simply cannot then, close on nine years later, take issue with it
because it is now considered by
him to be suitable to do so. As
said in
Pitelli
v
Everton
Gardens Projects CC
:
[36]
‘…
A
litigant cannot expect to blow hot and cold depending upon which is
most advantageous at the time …
’
[37]
The
point in this regard can be best illustrated this way. Reinstatement
means, in the context of it being awarded to an employee
in an
arbitration award as a result of an unfair dismissal dispute, the
restoration of the
status
quo ante
,
which is a restoration as if the dismissal never happened.
[37]
It follows that the original contract of employment of the employee
is restored. Thus, and if the employee is not reinstated
on this
basis, but appointed in a position which is something else, it would
be a breach of the contract of employment. This places
the employee
before an election, being either to approbate and accept this changed
appointment, or reprobate and challenge it,
seeking enforcement of
his original contract of employment using the mechanisms provided by
the LRA in this regard.
[38]
As said in
Pretorius
v Rustenburg Local Municipality and Others:
[39]
‘
The
law of contract recognizes that in certain circumstances a
contracting party may be put to an election either to approbate (ie
to affirm the continued existence of the contract) or to reprobate
(ie to cancel or terminate the contract). A contracting party
is
bound by such an election, whether evinced expressly or by conduct,
and cannot go back on it once made. He cannot, it has been
put, act
inconsistently or
blow hot and
cold
.’
[38]
The
election contemplated above can be exercised expressly, or tacitly.
In this case, and considering that the applicant was unilaterally
appointed by the department into the position of Deputy Director:
Nursing Administration in July 2007, the ‘election’
in
this case would be established by whether the applicant acquiesced in
it by way of conduct. Acquiescence by conduct entails,
as said in
National
Union of Metalworkers of SA and Others v Fast Freeze
[40]
:
‘…
(c)
Acquiescence
by conduct requires an overt act by such party, ie conduct which
conveys outwardly to the other party his attitude
towards the
judgment.
(d)
The
overt act must be consistent with an intention to abide by the
judgment, and inconsistent with an intention to appeal against
such
judgment.
(e)
The
test is objective. It is the outward manifestation of such party's
attitude in relation to the judgment that must be looked
at, not his
subjective state of mind or intention. …’
[39]
In
my view, the applicant elected to live with what he had where it came
to the position into which he was reinstated in July 2007.
He was
specifically informed in writing what that position was, and the
employment records at the department were adjusted accordingly
to
reflect this, however he did nothing to contradict this. He did a
volte face some nine years later, with the view to claiming
a
difference in salary for that entire period. That is simply not
permissible.
[41]
[40]
I
believe that the applicant was clearly alive to the aforesaid
challenge faced by his considering any belated challenge of his
reinstatement. As a result, he sought to in effect resurrect this
dispute by bringing a grievance in 2016, in which he then said
he was
demoted by way of the manner in which the department effected his
reinstatement. Without even going into the merits or competence
of
this approach, or whether the argument is sustainable on the facts,
this case, as it is pleaded, in any event equally falls
outside the
jurisdiction of this Court to consider and determine. The reason for
this is simply that it would be a dispute concerning
an unfair labour
practice, in terms of the definition in section 186(2)(a) quoted
above. An unfair labour practice dispute must
be pursued by way of
arbitration to the PHSDSBC, and this Court has no jurisdiction to
entertain the same. As held in
Gcani
v Minister of Justice and Correctional Services and Others
[42]
:
‘
Therefore,
and as a general proposition, where a public service employee has
been dismissed, or complains about other conduct of
his or her
employer that would be an unfair labour practice, a review
application in terms of s 158(1)
(h)
by such employee challenging such conduct by the employer, is simply
not competent. These disputes must be pursued and then decided
in
terms of the arbitration or adjudication dispute-resolution
mechanisms under chapter VIII of the LRA.
[41]
In the circumstances, the applicant’s
case that his incorrect reinstatement constitutes a demotion, being
his case in this
regard as pleaded, places this issue in dispute
outside the jurisdiction of this Court. The applicant is compelled to
have pursued
this dispute to the PHSDSBC for conciliation, and then
to arbitration (if it remained unresolved).
Conclusion
[42]
Accordingly, the department’s
jurisdictional objection must be upheld. The applicant’s
application in this instance
concerns issues in dispute that must be
resolved in terms of the provisions of sections 24 and/or
191(5)(a)(iv) of the LRA, both
of which provisions prescribe
arbitration as the ultimate dispute resolution mechanism. It was not
competent for the applicant
to have approached this Court as he did,
considering that this Court has no jurisdiction to decide these
issues in dispute as a
Court of first instance. The applicant’s
application must therefore fail for want of jurisdiction of the
Labour Court to
entertain his application.
[43]
Considering this conclusion I have come to,
is it simply not necessary to consider the merits of the applicant’s
application,
and I shall refrain from expressing any views in this
regard.
[44]
In
the replying affidavit, the applicant has asked, in the event of this
Court finding that it had no jurisdiction to entertain
the matter, to
apply the provisions of section 158(2)
[43]
of the LRA, and refer this matter to arbitration at the PHSDSBC. In
terms of this provision, where it becomes apparent that the
issue in
dispute should have been referred to arbitration, the Labour Court
has the power to stay the litigation proceedings and
order that the
dispute be referred to arbitration.
[44]
The Labour Court is however not obliged to stay the proceedings and
still has a discretion to decide whether to do so, as
is evident from
the word ‘
may
’
in Section 158(2).
[45]
[45]
In this instance, I am unconvinced to exercise my discretion
in favour of the applicant and decide to stay the proceedings and
refer
the dispute to arbitration at the PHSDSBC as required. As
touched on above, there is ample precedent informing the applicant as
to the correct manner in which he had to pursue is dispute. He was
also legally assisted when his application was brought. He
nonetheless deliberately bypassed all the prescribed dispute
resolution provisions and came to this Court directly. Only when
confronted
with a jurisdictional objection, did the applicant, almost
as an afterthought, sought to then ask that the matter be referred to
arbitration by this Court. I say an afterthought, because the
applicant on reply first tried to make out a case that this Court
has
jurisdiction because the dispute is an enforcement dispute. I shall
therefore not stay the current matter and refer it to arbitration.
[46]
This then only leaves the issue of costs.
In terms of the provisions of section 162(1) of the LRA, I have a
wide discretion where
it comes to the issue of costs. In exercising
this discretion, I am compelled to give consideration to a number of
issues in the
way the applicant pursued this application. I must
consider that there was ample guidance and precedent to inform the
applicant
what he needed to do in order to pursue his case. I also
consider that the applicant did nothing for years, and then sought to
engage the respondent demanding a substantial amount in what he
alleged was remuneration due for this entire period. It is also
my
view that the applicant was opportunistic and designed his case of
the ‘incorrect reinstatement’ demotion in 2016
to
overcome what would clearly have been a close on impossible task to
challenge this state of affairs some nine years after it
happened.
The applicant’s application was always ill conceived. This is
also evident from the manner in which the applicant
sought to change
tack on reply.
[47]
I
am mindful that there
is
still an ongoing employment relationship between the parties, and of
the pronouncements of the
Constitutional
Court with regard to costs in employment disputes as expressed
in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[46]
.
However, the judgment in
Zungu
supra
cannot serve as some or other blanket immunization from costs orders.
There would always be circumstances in which a judicial exercise
of
the discretion, where it comes to costs, justifies costs being
awarded, and in my view, the matter
in
casu
is one of these.
[48]
Overall considered, I believe that this is
an instance where, in exercising my discretion, a costs order against
the applicant is
justified, and I shall therefore make an order that
the applicant pay the costs of the application.
[49]
In the premises, I make the following
order:
Order
1.
The applicant’s application is
dismissed for want of jurisdiction of the Labour Court.
2.
The applicant is ordered to pay the
respondents’ costs.
_____________________
S Snyman
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant: In
person
For the Respondents:
Advocate B Ford
Instructed by: MNS
Attorneys
[1]
Act 66 of 1995 (as amended).
[2]
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
(
2003)
24
ILJ
305 (CC)
at
para
52
;
CUSA
v Tao Ying Metal Industries and Others
(2008)
29
ILJ
2461 (CC)
at
para
66
;
Coin
Security Group (Pty) Ltd v Adams and Others
(2000)
21
ILJ
925 (LAC) at para 16;
Aucamp
v SA Revenue Service
(2014) 35 ILJ 1217 (LC) at para 18;
Mpele
v Municipal Council of the Lesedi Local Municipality and Others
(2019) 40 ILJ 572 (LC) at para 45.
[3]
See
National
Union of Metalworkers of SA and Others v Driveline Technologies
(Pty) Ltd and Another
(
2000)
21
ILJ
142 (LAC)
at
paras
38-39
;
MTN
(Pty) Ltd v Pragraj and Another (2)
2002)
23
ILJ
299 (LAC)
at
para
15
;
[4]
See section 157(5) of the LRA.
[5]
See
Chirwa
v Transnet Ltd and Others
(2008)
29
ILJ
73 (CC)
at
para
41
;
Gcaba
v Minister for Safety and Security and Others
(2010)
31
ILJ
296 (CC)
at
para
56;
Public
Servants Association of SA on behalf of de Bruyn v Minister of
Safety and Security and Another
(2012)
33 ILJ 1822 (LAC)
at paras 26 – 27.
[6]
Gcaba
(
supra
)
at para
75;
Mbatha v University of Zululand
(2014)
35
ILJ
349 (CC)
at
para
157
;
Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members
(2015)
36
ILJ
624 (LAC)
at
para
21
;
Moodley
v Department of National Treasury and Others
(2017)
38
ILJ
1098 (LAC)
at
para
37
;
[7]
Zungu
v Premier, Province of KwaZulu-Natal and Another
(2017)
38
ILJ
1644 (LAC)
at
para
18
;
Mohlomi
v Ventersdorp/Tlokwe Municipality and Another
(2018) 39 ILJ 1096 (LC) at para 42.
[8]
(2015)
36 ILJ 624 (LAC) at para 21.
[9]
Clause 6 of the OSD provides that any dispute about the
interpretation or application of the OSD shall be dealt with by way
of the dispute resolution processes of the PHSDSBC.
[10]
See section 24(1) of the LRA, as read with clause 6 of the OSD.
[11]
See section 191(1) as read with section 191(5)(a)(iv) of the LRA.
[12]
See
Aucamp
(
supra
)
at paras 32 – 33.
[13]
Compare
Public
Servants Association on behalf of Strauss and Others v Minister of
Public Works No and Others
(2013)
34 ILJ 2929 (LC) at para 12.
[14]
Department
of Correctional Services (Western Cape) v Democratic Nursing
Organisation of South Africa and Others
(CA7/13)
[2014] ZALAC 76
(18 December 2014) at para 19.
[15]
(2014)
35 ILJ 3078 (LAC) at para 21.
[16]
See para 16 of the judgment.
[17]
Id at para 22.
[18]
(2016)
37 ILJ 1819 (LAC).
[19]
See para 25 of the judgment.
[20]
Id at para 34.
[21]
(CA7/13)
[2014] ZALAC 76
(18 December 2014) at para 8.
[22]
See para 17 of the judgment.
[23]
(2015)
36 ILJ 1911 (LC).
[24]
(C1011/2010)
[2014] ZALCCT 22 (20 May 2014).
[25]
(C121/2010)
[2011] ZALCCT 77 (27 August 2011).
[26]
[2011]
11 BLLR 1079 (LC).
[27]
(2013)
34 ILJ 2876 (LC) at para 38.
[28]
(2012)
33 ILJ 1822 (LAC) at para 32.
[29]
Id at para 34. See also
Farre
v Minister of Defence and Others
(2017)
38 ILJ 174 (LC) at para 17.
[30]
Id at para 23
[31]
Id at para 29.
[32]
See
Van
der Merwe and Another v Taylor NO and Others
2008
(1) SA 1
(CC)
para 122;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC)
para 150;
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008
(5) SA 339
(SCA)
paras 29 – 30;
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another
[2007] ZASCA 143
;
2008
(2) SA 448
(SCA);
Director
of Hospital Services v Mistry
1979
(1) SA 626
(A)
at 636A – B.
[33]
2011
(1) SA 388
(CC) para 29.
[34]
Jonsson
Workwear
(Pty) Ltd v Williamson and Another
(2014)
35 ILJ 712 (LC) at para 20.
[35]
(2014)
35 ILJ 455 (LAC) at para 23.
[36]
[2010]
4 All SA 357
(SCA) at para 34.
[37]
See
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
(2008)
29
ILJ
2507 (CC)
at
para 36;
Themba
v Mintroad Sawmills (Pty) Ltd
(2015) 36 ILJ 1355 (LC) at para 22.
[38]
Sections
143 or 158(1)(c) of the LRA, followed by contempt proceedings.
[39]
(2008)
29
ILJ
1113 (LAC)
at
para
41
.
See also
Septoo
v City of Johannesburg
(2018) 39 ILJ 580 (LAC) at para 19;
Hlatshwayo
v Mare & Deas
1912
AD 242
;
Universal
Product Network (Pty) Ltd v Mabaso and Others
(2006)
27
ILJ
991 (LAC)
at
para
46
;
Mohlomi (
supra
)
at para 78.
[40]
(1992)
13
ILJ
963 (LAC)
at
973F–974C. See also
Balasana
v Motor Bargaining Council and Others
(2011)
32 ILJ 297 (LC) at para 11;
Mdhluli
v Commission for Conciliation, Mediation and Arbitration and Others
(2018) 39 ILJ 1614 (LC) at paras 14 – 15;
SA
Municipal Workers Union and Another v Emalahleni Local Municipality
and Others
(2011) 32 ILJ 2196 (LC) at para 19.
[41]
See
Equity
Aviation
(
supra
)
at para 54. Also compare
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) and Others
(2015)
36 ILJ 232 (LC) at para 46;
BMW
(SA) (Pty) Ltd v National Union of Metalworkers of SA and Another
(2019) 40 ILJ 305 (LAC) at paras 41 – 43
[42]
(2019)
40 ILJ 358 (LC) at para 28.
Aucamp
(
supra
)
at para 32. Also compare
Mathibeli
v Minister of Labour
(2015) 36 ILJ 1215 (LAC) at paras 17 – 18.
[43]
Section 158(2) reads: ‘
If
at any stage after a dispute has been referred to the Labour Court,
it becomes apparent that the dispute ought to have been
referred to
arbitration, the Court may- (a) stay the proceedings and refer the
dispute to arbitration …
’.
In terms of section 158(3)(b), ‘
arbitration
’
for the purposes of section 158(2) includes arbitration under the
auspices of an accredited bargaining council, or, in
terms of
section 158(3)(e), arbitration where
the
dispute is about the interpretation or application of a collective
agreement.
[44]
Wardlaw
v Supreme Mouldings (Pty) Ltd
(2007)
28
ILJ
1042 (LAC)
para
24 ;
Pienaar
v Stellenbosch University and Another
(2012)
33 ILJ 2445 (LC) at para 22 – 23 ;
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and Others
(2010) 31 ILJ 371 (LC) at para 15;
Vorster
v Rednave Enterprises CC t/a Cash Converters Queenswood
(2009) 30 ILJ 407 (LC) at pars 24 – 25.
[45]
Aucamp
(
supra
)
at para 46.
[46]
(2018)
39 ILJ 523 (CC) at para 25.