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[2019] ZALCCT 29
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POPCRU obo Thebe v Department of Transport, Safety and Liason (C510/17) [2019] ZALCCT 29 (11 October 2019)
IN THE LABOUR COURT OF SOUTH
AFRICA, CAPE TOWN
Not
Reportable
Case no: C510/17
In the matter between:
POPCRU obo TSHEPO MAXWELL
THEBE Applicant
and
DEPARTMENT OF TRANSPORT,
SAFETY
AND LIASON
Respondent
Date
heard: 31 July 2019
Delivered:
11 October 2019
JUDGMENT
RABKIN-NAICKER, J
[1] This is an
opposed application to make an arbitration award an order of court.
The award made on the
23 August 2015 under case number GPBC 2706/2014
reads as follows:
“
AWARD
[27] The
respondent is ordered to reinstate the applicant to his former
position he held prior to
this dismissal by no later than 01
st
October 2015.
[28] The
respondent is also ordered to pay the applicant back pay amounting to
R94, 503.97 (ninety
four thousand, five hundred and three rand,
ninety seven cents only) calculated at R8 591. 27 per month
multiplied by eleven
months.
[29] The
above amount must be paid into the applicant’s bank account
known to the respondent
by no later than 30 September 2015.
[30]
There is no order as to costs.”
[2]
It is common cause that the monetary compensation has not been paid
by the respondent.
The deponent to the answering affidavit, a
Mr. L.E.L. Wolfe who was acting Head of Department at the material
time avers,
inter alia, as follows:
“
During my
tenure as Acting Head of Department, there was a directive by the
then Honourable MEC Bartlett to look into all disputes
and cases
involving the Department with a view to amicably resolving them. I
identified the Applicant’s matter to be amongst
those referred
to by the then Honourable MEC Bartlett and I tabled it for
discussions and deliberations.
I instigated
discussions with the Applicant. I invited the Applicant to settlement
negotiations in an attempt to resolve the matter.
I cautioned him of
the fact that his reinstatement is on contract basis and will
terminate due to effluxtion of time. As a result,
I proposed to the
Applicant that instead of paying him the amount as stipulated in the
Arbitration award, in the alternative the
Department shall absorb him
permanently as Administrative Officer Level (7) on lieu of paying
R94 503. 97 (ninety four thousand,
five hundred and three rand,
ninety seven cents) calculated at R8 591.27 (eight thousand five
hundred and ninety one rand,
twenty seven cents) per month multiplied
by 11 months, in terms of the arbitration award.)”
[3]
The basis for opposing the application to make the award an order of
court is that
the applicant employee (Thebe), accepted the ‘offer’
and was then “elevated/ promoted” from Administrative
Clerk on Level 5, a contract position to Administrative Officer on
level 7 on a permanent basis as from the 1 September 2015. What
is
telling in the answering affidavit is the following averment:
“
The basis
for elevating the Applicant from level five (5) to level (7) is that
all Administration Officers who are field workers
at Regional Office
are appointed on level (7).”
[4]
The answering papers further aver that Thebe was appointed at level 7
as part of a
policy to appoint affected contract employees in
permanent positions in accordance with the provisions as set out in
the Labour
Relations Amendment Act 2014. There is also a Progress
Report annexed to the answering affidavit dated September 15 2015
prepared
by Mr Wolfe for the MEC: Transport and Liason which records
inter alia that:
“
Mr Thebe was
reinstated and permanently appointed as per agreement between him and
the Department.”
[5]
In his replying affidavit, Thebe denies any meeting with Wolfe to
discuss a settlement
of his dispute. He further avers that he was on
level 2 not level 5 before he was permanently appointed and annexes a
salary advice
indicating same. The advice reflects that his gross
salary at level 2 was R8991.27. This would amount to annual
remuneration in
the region of R107 895,24. His gross salary
reflected in his letter of appointment dated the 1 September 2015 is
R196 278
per annum. In other words, the salary increase that
Thebe received was in the region of R88 384.00 on appointment to
a level
7 position as a permanent employee.
[6]
A further averment by Thebe in reply is that it is highly improbable
he would have
entered into a settlement agreement: “having been
made aware that I was going to be employed permanently”. He
refers
to his knowledge of same by attaching a document dated August
11 2015. A table contained in the document, (which seeks
approval
for this policy) reflects that Thebe had been employed for
more than 5 years. He was one of ten employees listed in the
document.
His permanent appointment was effected as from the 1
September 2015.
[7]
The arbitration award ordered reinstatement of Thebe to his former
position. This
on Thebe’s own version was a level 2 position.
What happened in fact was that he was appointed to a level 7 position
on an
explicitly permanent basis with a substantially higher salary
and was not paid the back pay owing to him. That back pay amounted
to
some six thousand more than his gross salary increase on his
appointment to level 7.
[8]
In my view, the factual position reflected in the paragraph above is
consonant with
an agreement of settlement having been made as averred
in the answering papers. The agreement, given Thebe’s own
version
regarding his previous grade 2 level, was clearly beneficial
to him. I cannot adjudge whether Wolfe was aware that Thebe was on
a
Grade 2 and was mistaken in averring that he was on a Grade 5, thus
incorrectly setting out the terms of the settlement agreement.
However, applying the principles of Plascon Evans to this application
for final relief, I accept on the respondent’s version
that
there was a settlement agreement in the wake of the arbitration
award. I further take note that de facto its terms benefited
Thebe.
[9] In all the
above circumstances, I decline to make the said award an order of
Court on the basis that
it has been superseded by a settlement
agreement. I order as follows, noting that neither party has been
covered in glory given
the manner in which this matter was pleaded.
Order
The application is
dismissed with no order as to costs
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant: CM de Bruyn and Partners
Respondent: State Attorney Kimberley