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[2019] ZALCJHB 290
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IMATU obo Nathan v Polokwane Local Municipality (J846/2017) [2019] ZALCJHB 290; (2020) 41 ILJ 937 (LC) (18 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: J846/2017
In
the matter between
IMATU
obo J NATHAN
Applicant
And
POLOKWANE
LOCAL MUNICIPALITY
Respondent
Heard:
11 July
2019
Delivered:
18 October 2019
JUDGMENT
LAUBSCHER,
AJ
[1]
This
is an application in terms of section 158(1)(c) of the Labour
Relations Act
[1]
(LRA) to make a
settlement agreement an order of this Court.
[2]
The applicant is the Independent Municipal and
Allied Trade Union (IMATU) and it acts in these proceedings on behalf
of its member,
Mr Jeremy Nathan. The respondent is the Polokwane
Local Municipality (the Municipality).
[3]
At the hearing of this matter, the applicant was represented by Mr De
Beer, an IMATU official. The Municipality did not enter an
appearance.
The
application for condonation
[4]
Before considering the merits of the application, the Municipality’s
application for condonation of the late filing of its answering
affidavit must be determined.
[5]
The applicant’s notice of motion and founding affidavit, both
dated
31 May 2017, were filed in this Court on 6 June 2017.
[6]
On the same
day, the Municipality filed its notice of intention to oppose. In
terms of Rule 7(4)(b) of the Rules for the Conduct
of Proceedings in
this Court,
[2]
the Municipality
was required to deliver its answering affidavit within 10 days of
receipt of the applicant’s application,
i.e. by no later than
21 June 2017. This was not done.
[7]
On 25 August 2017, the applicant addressed a letter to the
Municipality
in terms of which it was recorded that the answering
affidavit had not yet been received. It informed the Municipality
that if
an answering affidavit was not received by 31 August 2017,
the applicant would proceed to set the matter down on the un-opposed
roll.
[8]
On 21 September 2017, the Municipality served its answering affidavit
on the applicant. The answering affidavit, dated 9 September 2017,
was deposed to by Mr Dikgape Herskovits Makobe (Mr Makobe), the
municipal manager at the time. The answering affidavit was only filed
in this Court on 6 December 2017.
[9]
In
accordance with Clause 11.4.2 of the Practice Manual of this
Court,
[3]
the applicant objected
to the late filing of the Municipality’s answering affidavit
and informed the Municipality that it
was required to apply for
condonation of the late filing of the answering affidavit. This
notice of objection was signed on 22
September 2017 and was filed in
this Court on 4 October 2017.
[10]
On 25
January 2018, the applicant filed its replying affidavit. This is
outside of the prescribed period of five court days from
the date on
which the answering affidavit is delivered.
[4]
The Municipality did not file a notice of objection in respect of the
late filing of the replying affidavit, and hence there was
no need
for an application for condonation for the late filing of the
replying affidavit.
[5]
[11]
On 14 February 2018, the Municipality filed its application for
condonation of the late
filing of its answering affidavit. The court
stamp on the notice of motion and founding affidavit respectively
reflects the date
of 15 February 2017. I assume that this is wrong,
and must be 15 February 2018.
[12]
The application for condonation is opposed.
[13]
Rule 12(3) of the Rules empowers the court
to condone non-compliance with any period prescribed by the Rules on
good cause shown.
[14]
What
constitutes good cause is set out in
Melane
v Santam Co Ltd
[6]
as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that this Court has a discretion, to be exercised judicially
upon
a consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus of all
the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are
not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s
interest in
finality must not be overlooked.”
[15]
The
Constitutional Court has developed this test and has ruled that in
determining an application for condonation, what must be
considered
is whether or not it is in the interests of justice that condonation
be granted.
[7]
In doing so,
various factors must be taken into account. The Constitutional Court
held as follows in
Grootboom
v National Prosecuting Authority and another:
[8]
“
[T]he
standard for considering an application for condonation is the
interests of justice. However, the concept “interests
of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the nature
of
the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and other litigants;
the
reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended appeal; and prospects
of
success. It is crucial to reiterate that both
Brummer
and
Van
Wyk
emphasise that the ultimate
determination of what is in the interests of justice must reflect due
regard to all the relevant factors
but it is not necessarily limited
to those mentioned above. The particular circumstances of each case
will determine which of these
factors are relevant.
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it
to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default.”
[16]
Writing
for the minority, Zondo J held as follows:
[9]
“
In
this Court, the test for determining whether condonation should be
granted or refused is the interests of justice. If it is in
the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so, it
will not be
granted. The factors that are taken into account in that inquiry
include: (a) the length of the delay; (b) the explanation
of, or
cause for, the delay; (c) the prospects of success of the party
seeking condonation; (d) the importance of the issues that
the matter
raises; (e) the prejudice to the other party or parties; and (f) the
effect of the delay on the administration of justice.
Although the
existence of the prospects of success in favour of the party seeking
condonation is not decisive, it is an important
factor in favour of
granting condonation.
The
interests of justice must be determined with reference to all
relevant factors. However, some factors may justifiably be left
out
of consideration in certain circumstances. For example, where the
delay is unacceptably excessive and there is no explanation
for the
delay, there may be no need to consider prospects of success. If the
period of delay is short and there is an unsatisfactory
explanation
but there are reasonable prospects of success, condonation should be
granted. However, despite the presence of reasonable
prospects of
success, condonation may be refused where the delay is excessive, the
explanation non-existent and granting condonation
would prejudice the
other party. As a general proposition the various factors are not
individually decisive but should all be taken
into account to arrive
at a conclusion as to what is in the interests of justice.”
[10]
[17]
This
principle was confirmed by this Court in
Mashishi
v Mdladla and Others
:
[11]
“
This
court is required to exercise a discretion, having regard to the
extent of the delay, the explanation proffered for that delay,
the
applicant’s prospects of success, and the relative prejudice to
the parties that would be occasioned by the application
being granted
or refused.
In
this court, that formulation, which has its roots in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A), has long been qualified by the rule that where
there is an inordinate delay that is not satisfactorily explained,
the applicant’s
prospects of success are immaterial.”
[12]
And
“
This
principle was recently affirmed in
Colett
v Commission for Conciliation, Mediation and Arbitration
[2014] 6 BLLR 523
(LAC), a unanimous judgment of the LAC, Musi AJA
held as follows:
There are overwhelming
precedents in this court, the Supreme Court of Appeal and the
Constitutional Court for the proposition that
where there is a
flagrant or gross failure to comply with the rules of court
condonation may be refused without considering prospects
of success.
In
NUM v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at para 10, it was pointed out that considering whether good
cause has been shown the well-known approach adopted in
Melane v
Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 523 C-D …
should be followed, but:
‘
There
is a further principle which is applied and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without good prospects, no matter how
good the explanation for delay, an application for condonation
should
be refused.’
The
submission that the court
a
quo
had to consider the prospects of success irrespective of the
unsatisfactory and unacceptable explanation for the gross and
flagrant
disregard of the rules is without merit.”
[13]
[18]
Disregard
for the Rules of this Court severely impacts on the expeditious
resolution of disputes. The Constitutional Court, in
Grootboom
,
accordingly reiterated its displeasure with parties’ failure to
observe court rules, often with very flimsy explanations,
or with no
explanation at all.
[14]
[19]
In
NUMSA
obo N Bunu and Others v Aveng Africa Limited
,
[15]
this Court held that an application for condonation must accompany
the process which is filed out of time. Where this is not done,
there
is a need for two explanations, namely the explanation for the late
filing of the process concerned and the explanation for
filing the
condonation application at a later stage, and thus out of time.
[20]
I now turn to the facts.
[21]
The
answering affidavit had to be served on the applicant by 21 June
2017. It was served on 21 September 2017. This is a delay of
65 court
days, more than six times outside the prescribed period. The
answering affidavit was only filed in this Court on 6 December
2017,
thus a delay of 128 court days. These delays are inordinate and
grossly excessive.
[16]
[22]
The explanation for the delay is that the
Municipality’
s legal representatives
had to research and satisfy themselves regarding “the
consistency in the respondent’s adherence
to the main agreement
in past grievance cases” and regrettably this took longer than
anticipated.
[23]
I am of the view that this is an extremely
weak explanation. This matter concerns a grievance that was lodged
regarding the grading
of Mr Nathan’s position and his
consequent alleged unequal pay. The grievance was lodged in
accordance with the grievance
procedure contained in the main
collective agreement by which the parties are bound. No detail is
provided as to what had to be
researched about the consistency in the
Municipality’
s adherence to this
agreement.
[24]
The second delay pertains to the late
filing of the condonation application. As stated above, the
Municipality
was required to file this
application together with its answering affidavit. This was not done.
The condonation application was
only delivered on 15 February 2018,
thus five months from the date of the answering affidavit, and four
months after the applicant
delivered its notice of objection. This
too, is an unacceptable delay.
[25]
The
Municipality
has
given no explanation for this delay.
[26]
In the circumstances, I am of the view that
there has been an inordinate delay with no satisfactory explanation,
and under normal
circumstances, the application for condonation
should be refused.
[27]
I do not, however, believe that it is in
the interests of justice to do so.
[28]
The applicant’s case is that a
settlement agreement was concluded when the acting municipal manager,
Mr Lubbe, recorded the
following, which was signed by both parties on
24 January 2017:
“
I
agree that the practice is not fair and that all Superintendents must
be on the same level which is level 6 per Polokwane Municipality
therefore Mr Nathan have to be placed on post level 6 with immediate
effect.” (sic)
[29]
The issue is whether this is a settlement
agreement for purposes of sections 158(1)(c) and 158(1A) of the LRA.
[30]
The answering affidavit and the replying
affidavit introduce important additional facts that may have a
bearing on the determination
of the main application. If condonation
were to be refused, this Court would be precluded from considering
these facts. In short,
these facts are as follows:
30.1 Mr
Leshilo, acting manager Legal Services at the Municipality,
apparently considered and resolved Mr Nathan’s
grievance.
30.2
On 24 May 2017, Mr Makobe “rescinded” Mr Lubbe’s
decision by way of a letter to IMATU.
[31]
The
Municipality
argues
that it has good prospects of success because in agreeing with Mr
Nathan’s grievance, Mr Lubbe sought to overturn an
earlier
ruling in respect of the same grievance. This earlier “ruling”
is Mr Leshilo’s outcome referred to above.
If it is true that
Mr Leshilo’s “ruling” applied, then Mr Lubbe’s
agreement referred to above would be
of no force and effect, and
there would be no agreement to be made an order of court. A proper
assessment in this regard is only
possible if due regard is had to
the answering affidavit as well as the replying affidavit.
[32]
Second, the Municipality argues that the
dispute ought to have been referred to the South African Local
Government Bargaining Council
(SALGA) because it concerns an alleged
unfair labour practice. This is, however, not so. The question before
this Court is whether
the decision reached by Mr Lubbe and signed by
both parties amounted to a settlement agreement or not. Again, it is
only possible
to assess whether Mr Lubbe’s “agreement”
resolved the controversy in law, or whether Mr Leshilo’s did,
or whether Mr Lubbe’s agreement was lawfully rescinded by way
of Mr Makobe’s letter of 24 May 2017, by considering all
the
relevant facts as set out in the various affidavits.
[33]
For completeness’ sake I point out
that the
Municipality
further argues that
the applicant’s application is premature because the matter has
not been referred to conciliation. There
is, however, no requirement
for a referral to conciliation in circumstances where a party seeks
an order for a settlement agreement
to be made an order of court, and
this contention is accordingly without merit.
[34]
The nature of the application is another
factor that is relevant in determining the question as to whether
condonation should be
granted. This is an application for an order to
make a settlement agreement an order of court. The agreement
concerned is not a
typical settlement agreement. It is contained in
the
pro forma
grievance form of the Municipality, which was later sought to be
rescinded. It therefore raises important issues of principle as
to
whether this amounts to a settlement agreement for purposes of
section 158(1A) of the LRA.
[35]
I need to reiterate the Court’s
displeasure with the Municipality’s flagrant disregard for the
prescribed time periods
without an adequate explanation. This is
exacerbated by the fact that neither the Municipality nor its
attorneys of record entered
an appearance when the matter was heard.
It is, however, only because of the unique circumstances of this case
that the late filing
of the answering affidavit is condoned. Both the
answering affidavit and the replying affidavit are therefore properly
before this
Court.
The main application
[36]
Mr Nathan is employed as Superintendent in
the Swimming Pool Section of the Sports and Recreation Business Unit
at the Municipality.
[37]
On 19 September 2016, Mr Nathan lodged a
grievance in the following terms:
“
As
part of the swimming pool section within the Sport and Recreation SBU
I feel aggrieved by the conclusion of being positioned
in an
irregular manor as to the other superintendents in Polokwane
Municipality. I have noticed that my post level is not appeared
to be
of a standardise grading as to other employees of the same job title.
I feel that this kind of unfair labour practice is
unreasonable on
basis of equality”. (sic)
[38]
The outcome he sought was:
“
To
rectify the grading of post levels of superintendents and to allocate
me on the appropriate level as other superintendents are
on. I appeal
to Polokwane Municipality to be treated with fairness and integrity
as other employee’s of the same job title”.
(sic)
[39]
The grievance was lodged in terms of the
Grievance Procedure contained in the Main Collective Agreement,
2015-2020 concluded in
SALGA.
[40]
The
grievance form reflects that Mr Nathan’s immediate supervisor
was not available to comment on the grievance, as he was
on
leave.
[17]
[41]
The grievance accordingly proceeded to step
two in terms of the Grievance Procedure and was considered by Mr
Mphihlela, the Manager:
Sport and Recreation. Mr Mphihlela recorded
on 10 October 2016 that the grievance raised an issue of
organizational structure and
development and referred it to the
“business responsible for structure development”, as
Human Resource development
would be more relevant to respond to the
issue raised.
[42]
Mr Mphihlela, Mr Nathan, and Mr Frans
Thantsha (Mr Thantsha), the IMATU shop steward who represented Mr
Nathan in the grievance,
signed the relevant page of the grievance
form on 10 October 2016.
[43]
It
appears from the grievance form that Mr Leshilo, the Acting Manager
Legal Services, was thereupon instructed to chair the grievance
hearing within ten days.
[18]
[44]
A
hearing took place before Mr Leshilo on 10 November 2016. In summary,
Mr Leshilo recorded that Mr Nathan felt that he was being
discriminated against because his position was not graded at the same
level as other superintendents in the Municipality, and that
this
amounted to an unfair labour practice. Ms Rasebotje argued on behalf
of the Municipality that Mr Nathan’s desired outcome,
namely to
upgrade his post from level 10 to level 6, could be entertained only
once the evaluation report was made available, and
that the
Municipality was not responsible for grading and/or evaluation of
positions.
[19]
[45]
Mr
Leshilo concluded that Mr Nathan’s grievance amounted to an
unfair labour practice and that the grievance procedure could
not be
used to address a dispute of this nature.
[20]
[46]
Mr Leshilo’s outcome was, however,
not recorded on the grievance form, it was not signed, and it was not
communicated to Mr
Nathan.
[47]
On 24 January 2017, the matter came before
Mr Lubbe, the acting municipal manager at the time. As set out above,
Mr Lubbe recorded
the results of the grievance investigation and the
“decision of municipal manager or nominee” as follows:
“
I
agree that the practice is not fair and that all Superintendents must
be on the same level which is level 6 per Polokwane Municipality
therefore Mr Nathan have to be placed on post level 6 with immediate
effect.” (sic)
[48]
This was signed by Mr Lubbe and Mr
Thantsha, the IMATU shop steward, who represented Mr Nathan.
[49]
On
6 March 2017, Mr De Bruyn, the IMATU Regional Manager, addressed a
letter to Mr Lubbe in terms of which it was recorded that
despite the
agreement that was reached, the Municipality had “failed to
implement the terms and conditions of the settlement
agreement”.
The Municipality was informed that should the agreement not be
implemented by 15 March 2017, IMATU would have
no other option but to
bring an application to make the agreement an order of court.
[21]
[50]
It
appears that a meeting took place between Mr Makobe and Mr Thantsha
on 10 May 2017, and on 24 May 2017, Mr Makobe addressed a
letter to
Mr Thantsha.
[22]
Mr Makobe
explained as follows:
50.1
Mr Nathan was employed as Superintendent in the Sports and Recreation
Business Unit in May 2015. His post was advertised on post level 6.
He accepted appointment at post level 6. (I pause to note that
this
must be incorrect. Mr Nathan had complained that he was employed on
post level 10 and that he ought to be employed on post
level 6 as the
other superintendents at the Municipality.)
50.2
The Municipality has various positions of superintendent in various
business
units. The requirements in terms of the required
qualifications and the scope of work differ fundamentally among these
positions.
50.3
The Local Government Municipal Systems Act
[23]
,
(the Systems Act) provides for the organisation of the administration
of a municipality.
50.4
Section 66 of the Systems Act empowers the municipal manager to:
a.
Develop a staff establishment for the
municipality and submit it to the municipal council for approval;
b.
Provide a job description for each post on
the staff establishment;
c.
Attach to those posts the remuneration and
other conditions of service as may be determined in accordance with
any applicable labour
legislation; and
d.
Establish a process or mechanism to
regularly evaluate the staff establishment and, if necessary, review
the staff establishment
and the remuneration and conditions of
service.
50.5
The Municipality approved an organogram in 2002 and another one in
2012.
The position of Superintendent for swimming pools is at level
10. The Senior Superintendent is at level 8.
[51]
Mr Makobe went on to state that “the
ill-informed decision of the acting municipal manager Mr Lubbe is
therefore rescinded
and cannot be implemented”. This was
because:
51.1
Mr Lubbe failed to take into account that the position of
Superintendent Swimming Pools as per the Municipality’s
staff
establishment is at post level 10 and that of Senior Superintendent
is at post level 8.
51.2
The appointment of staff must be executed within the policy framework
of the approved organizational structure.
Mr Lubbe’s decision
was in violation of sections 51 and 66 of the Systems Act.
51.3
Mr Lubbe did not take into account the requirements and nature of job
descriptions of superintendents
in the different business units.
51.4
Mr Lubbe failed to consider that by placing Mr Nathan at job level 6,
he would be two job levels higher
than his immediate superior.
51.5
Mr Lubbe did not take into account the fact that he does not have the
sole discretion to change or
alter job levels.
51.6
Mr Nathan applied for the position at post level 10 and he was
appointed as such.
[52]
The applicant thereupon instituted the
present proceedings.
[53]
Section 158(1)(c) of the LRA provides that
this Court may make a settlement agreement an order of court if
certain requirements
are met. These requirements are set out in
section 158(1A), namely, there should be a) a written agreement, b)
in settlement of
a dispute, c) that a party has the right to refer to
arbitration or to the Labour Court, but d) excluding disputes
contemplated
in sections 22(4), 74(4) or 75(7) of the LRA. Sections
22(4), 74(4) and 75(7) of the LRA deal with organizational rights
disputes,
disputes in essential services, and disputes in maintenance
services respectively. The applicant’s dispute does not concern
any of these categories of dispute.
[54]
In
Fleet
Africa (Pty) Ltd v Nijs
,
[24]
the Labour Appeal Court (LAC) held that in order to be a settlement
agreement for purposes of section 158(1)(c), it should comply,
first,
with the common-law requirements of a valid contract, and second with
the statutory requirements set out in section 158(1A).
[55]
The
LAC in
Fleet
Africa
referred with approval to its decision in
Universal
Church of the Kingdom of God v Myeni and Others
,
[25]
where the common law requirements were summarized as follows:
“
It
is settled law that the intention of the parties in any agreement –
express or tacit – is determined from the language
used by the
parties in the agreement or from their conduct in relation thereto.
Further, not every agreement constitutes a contract.
For a valid
contract to exist, each party needs to have a serious and deliberate
intention to contract or to be legally bound by
the agreement, the
animus contrahendi
.
The parties must also be
ad idem
(or have a meeting of minds) as to the terms of the agreement.
Obviously, absent the
animus contrahendi
between the parties or from either of them, no contractual
obligations can be said to exist and be capable of legal
enforcement.”
[56]
The statutory requirements are that the
agreement a) must be in writing, b) must settle a dispute and c) this
dispute must be one
which a party has the right to refer to
arbitration or the Labour Court (excluding organizational rights,
essential services and
maintenance services disputes). The
requirement is not that the dispute has been referred to arbitration
or the Labour Court –
simply that the nature of the dispute is
one which a party could refer to arbitration or to the Labour Court.
[57]
The Municipality does not contend that the
statutory requirements are not met. It attacks the “agreement”
on the basis
that Mr Lubbe could not conclude the agreement because
it concerned an “unfair labour practice” and thus fell
outside
the scope of the Grievance Procedure, that Mr Leshilo had
dealt with the grievance and that Mr Leshilo’s outcome was
final
and binding. It contends that if Mr Nathan was dissatisfied
with this outcome, he ought to have referred the dispute to the
bargaining
council.
[58]
The applicant does not dispute that Mr
Leshilo considered the matter. It is, however, disputed that the
grievance was finalized
at this stage of the process.
[59]
On a balance of probabilities, the
applicant’s contention must be correct. First, Mr Leshilo’s
outcome was not signed
and there is no evidence that it was
communicated to the applicant. Second, Mr Leshilo did not sign the
grievance form at step
3. Third, there would have been no need for Mr
Lubbe to consider the merits of the grievance in January 2017 if Mr
Leshilo had
concluded the process. He would simply have referred the
applicant back to Mr Leshilo’s outcome. Fourth, there would
have
been no need for Mr Makobe to “rescind” Mr Lubbe’s
decision if Mr Leshilo’s outcome concluded the process.
Notably, nowhere in the letter from Mr Makobe to IMATU on 24 May 2017
is it stated that Mr Lubbe’s decision was of no force
or effect
because Mr Leshilo had finalized the matter; rather, Mr Lubbe’s
decision is framed as having been “ill-informed”
because
Mr Lubbe failed to consider the scope of the different superintendent
roles, and for this reason it had to be “rescinded”.
[60]
In the circumstances, Mr Leshilo’s
“outcome” was of no force or effect.
[61]
The next question is whether Mr Lubbe’s
recordal on 24 January 2017 amounted to an “agreement”
under the common
law, and if so, what the effect was of Mr Makobe’s
letter of 24 May 2017.
[62]
In order to have created a valid contract,
there must have been an offer and an unequivocal, unconditional
acceptance of the offer.
As set out in
Fleet
Africa
, the parties should have been
ad
idem
regarding the terms of their
agreement, and they should have intended to be legally bound by their
agreement.
[63]
The
objective of the Grievance Procedure is to “resolve problems as
quickly and as close to their source as possible and to
deal with
conflict through procedural and
consensual
means”.
[26]
If the
problem is resolved, that is the end of the matter and the parties
proceed accordingly. They are entitled to hold the other
to the
outcome, and to insist that the other acts in accordance with the
manner in which the problem is resolved. If the problem
is not
resolved, it is recorded as such and the aggrieved party may proceed
to the next step in the Grievance Procedure. The Procedure
states
that, if ultimately, the matter cannot be resolved by way of
consensus, the aggrieved party may refer the grievance to the
council
for adjudication, provided such a dispute is declared and the party
is entitled in law to declare such a dispute.
[64]
The Grievance Procedure does not
distinguish between categories of workplace problems that may be
dealt with. Importantly, it does
not exclude unfair labour practice,
unfair discrimination or harassment complaints, and there is
accordingly no merit in the contention
that Mr Nathan’s unequal
pay complaint could not be the subject of a grievance on this basis.
[65]
I do not agree that the nature of the
grievance was an unfair labour practice complaint. But, in any event,
whatever the nature
or source of the grievance, it could have been
sought to be resolved by way of the Grievance Procedure. The nature
or source of
the complaint would become relevant only if it could not
be resolved by consensus. In such circumstances, the applicant’s
course of action, i.e. whether the matter could be referred to the
bargaining council or not, would depend on the nature of the
dispute
as a dispute of right or a dispute concerning a matter of mutual
interest. There was, however, no reason why the parties
could not
explore the resolution of the applicant’s problem by way of the
Grievance Procedure. The Municipality’s contentions
in this
regard are accordingly without merit.
[66]
The problem which the applicant identified
was the fact that Mr Nathan’s position was not graded similarly
to those of other
superintendents in the Municipality, and it was
contended that this was unreasonable on the basis of equality. The
desired solution
was to rectify the grading and to adjust Mr Nathan’s
position accordingly. This was the offer.
[67]
In the outcome at Step 3, Mr Lubbe agreed
that the practice was not fair, that all superintendents had to be on
the same level,
and that Mr Nathan had to be placed on post level 6
with immediate effect. This was the acceptance.
[68]
The acceptance was unconditional and
unequivocal. There was no suggestion that the matter had to be
referred to some other body,
such as the Municipal Council or an
evaluation board, for final approval. It was signed by both parties.
It resolved the problem
and thus met the objective of the Grievance
Procedure. In the circumstances, an agreement came into force on
which Mr Nathan was
entitled to rely.
[69]
It is noteworthy that the Municipality has
not pleaded the invalidity of the agreement on the basis that Mr
Lubbe, in his capacity
as acting municipal manager at the time, was
not properly authorized or empowered to make the decision. It attacks
Mr Lubbe’s
decision on the basis that Mr Leshilo’s
outcome had to stand, that the nature of the grievance concerned was
an unfair labour
practice which was beyond the reach of the Grievance
Procedure, and that the applicant had to refer the matter to the
bargaining
council. As set out above, these contentions are without
merit.
[70]
This brings me to Mr Makobe’s letter
“rescinding” Mr Lubbe’s agreement.
[71]
Properly construed, Mr Makobe’s
letter is not a “rescission” but constitutes a
repudiation of the agreement that
was reached on 24 January 2017.
[72]
Rescission
(or cancellation) of a contract is an extraordinary remedy that is
available in limited circumstances. A party to a contract
may rescind
(or cancel) it if the other party is in breach of the contract, and
if time is of the essence.
[27]
This is not the case here – the Municipality did not seek to
cancel the agreement in response to a breach by the applicant.
Rather, it expressed an unequivocal intention no longer to be bound
by the contract.
[73]
A
repudiation does not dissolve the contract. It grants the innocent
party two options, namely to either accept the breach and sue
for
damages, or to hold the repudiator to the contract. If the innocent
party rejects the repudiation and holds the repudiator
to the
contract, the contract and the obligations created by it remain
intact.
[28]
[74]
In response to the breach by the
Municipality, the applicant could thus either have accepted the
breach, cancelled the agreement
and sued for damages; or it could
have chosen to hold the Municipality to the agreement and require
specific performance. The applicant’s
conduct in bringing this
application clearly indicates the latter.
[75]
In the circumstances, the agreement reached
on 24 January 2017 complied with the common law requirements of a
valid contract, and
I now turn to the statutory requirements to make
a settlement agreement an order of this Court.
[76]
The agreement reached between the parties
on 24 January 2017 complies with the statutory requirements of a
settlement agreement:
76.1
The agreement is in writing and signed by both parties, namely Mr
Lubbe, the acting municipal manager of
the Municipality at the time,
and Mr Thantsha of IMATU.
76.2
It has as its genesis a dispute, namely unhappiness, a controversy,
or, in the words of the Grievance Procedure,
a grievance or a
problem, regarding the level at which Mr Nathan’s position is
graded vis-à-vis other superintendents,
and thus the level at
which he is remunerated vis-à-vis other superintendents.
76.3
It resolved or settled the dispute. Mr Lubbe agreed that the
“practice is not fair” and that
Mr Nathan’s post
had to be “placed on post level 6 with immediate effect”.
76.4
The nature of the dispute is one that may be referred to arbitration
or the Labour Court. The language used
in the original formulation of
the dispute is that “this kind of unfair labour practice is
unreasonable on basis of equality”.
This is not an eloquent
categorization as an unfair discrimination dispute, but the reference
to the “basis of equality”
strongly suggests that this is
what the dispute is about. The categorization of the dispute as an
unfair discrimination dispute
is further evident from the unsigned
“outcome” by Mr Leshilo. Also in argument before me, it
was emphasised that Mr
Nathan’s complaint is that he is being
unfairly discriminated against, ostensibly on an arbitrary ground,
for purposes of
section 6(4) of the Employment Equity Act
[29]
.
[77]
As emphasised in
Fleet
Africa
, section 158(1A) does not
require that a dispute should have been referred to a council/the
CCMA or the Labour Court.
[78]
In addition, it is not a requirement for
the dispute to have strong prospects of success; all that is required
is that it should
be a dispute that the party would be entitled to
refer to arbitration or the Labour Court. An unfair discrimination
dispute would
be such a dispute, as would an unfair dismissal dispute
and an unfair labour practice dispute. A dispute concerning a matter
of
mutual interest would fall outside of the scope of section 158(1A)
and agreements settling such disputes would therefore not be
capable
of being made an order of court in terms of sections 158(1)(c) and
158(1A) of the LRA. This is because they are not disputes
in respect
of which a right exists to refer them to arbitration or the Labour
Court.
[79]
If
the applicant had simply complained about the level at which Mr
Nathan’s post was graded without a comparison to other
similar
positions, the position may well have been that the dispute concerned
a matter of mutual interest.
[30]
In such circumstances, Mr Nathan would simply have demanded an
increase in pay without there being an existing enforceable right
to
such increase.
[80]
In this case, I am, however, satisfied that
the true nature of the dispute is an equal treatment dispute for
purposes of section
6(4) of the Employment Equity Act. In essence, Mr
Nathan complains that his post is the same, or similar or of equal
value to those
of other superintendents at the Municipality and that
this unequal treatment offends the principle of equality and thus
amounts
to unfair discrimination.
[81]
It may be so that the questions in this
inquiry were not properly considered. These questions include whether
the positions are
in fact the same, similar or of equal value; and if
so, whether Mr Nathan was treated differently because of one of the
grounds
listed in section 6(1) of the Employment Equity Act, or on
the basis of another arbitrary ground, thus a ground affecting his
human
dignity in a comparably serious manner.
[82]
The fact is, however, that Mr Lubbe
“agreed” and on the face of it resolved the dispute by
recording in writing that
the manner in which Mr Nathan was treated
was “not fair” and that Mr Nathan had “to be placed
on post level 6
with immediate effect”.
[83]
In the circumstances, an agreement was
concluded, and it complies with the principles set out in section
158(1A) of the LRA.
[84]
In the result, the following order is made:
Order
1. The respondent’s
late delivery of the answering affidavit is condoned.
2.
The settlement agreement concluded on 24
January 2017 is made an order of this Court.
3.
There
is no order as to costs.
____________________
T. Laubscher
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr
P De Beer (IMATU)
For
the Respondent: No
appearance
[1]
Act
66 of 1995.
[2]
The
Labour Court Rules / the Rules.
[3]
April
2013.
[4]
Rule
7(5)(a) of the Labour Court Rules.
[5]
Par
11.4.2 of the Practice Manual.
[6]
1962
(4) SA 531 (A).
[7]
See:
Grootboom
v National Prosecuting Authority and another
2014
(2) SA 68
(CC) at para 22;
Steenkamp
and others v Edcon Limited
(2019) 40 ILJ 1731 (CC) at para 36. See also the decision of this
Court in
POPCRU
obo Malekane v Safety and Security Bargaining Council & others
[2017] ZALCJHB 221 at par 14.
[8]
2014
(2) SA 68
(CC) at para 22 and 23.
[9]
Ibid
at para 50 and 51.
[10]
Footnotes
omitted.
[11]
(2018)
39 ILJ 1607 (LC).
[12]
Ibid
at para 7 and 8.
[13]
Id
fn 23 at para 9.
[14]
Id
fn 2 at para 33-34.
[15]
Case
Number JS228/2014 of 22 April 2016, at para 26.
[16]
In
Bunu
(fn 15), the delay was 44 days, which was regarded as excessive.
[17]
Bundle
page 14.
[18]
Bundle
page 13.
[19]
Bundle
page 32.
[20]
Bundle
page 33
[21]
Bundle
page 17.
[22]
Bundle
page 51-54.
[23]
Act
32 of 2000.
[24]
(2017)
38 1059 (LAC) at para 20.
[25]
(2015)
36 ILJ 2832 (LAC) at para 44.
[26]
Bundle
page 10. (Emphasis added).
[27]
Hutchison
et al “
The
Law of Contract in South Africa
”,
2
nd
Ed, p286.
[28]
De
Wet & Van Wyk “Kontraktereg & Handelsreg” Vyfde
Uitgawe, p170.
[29]
Act
55 of 1995.
[30]
See
for example
Minister
of Labour v Mathibeli and Others
(2013)
34 ILJ 1548 (LAC).