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[2020] ZALCJHB 27
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Independent Municipal and Allied Trade Union and Others v City of Tshwane Metropolitain Municipality and Another (J1028/14) [2020] ZALCJHB 27 (6 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: J1028/14
In the matter between:
THE INDEPENDENT
MUNICIPAL AND
ALLIED
TRADE
UNION First
Applicant
JL
FOURIE
Second
Applicant
EM
MABATSI Third
Applicant
C
OLIVIER Fourth
Applicant
IM
LEWIS Fifth
Applicant
and
CITY
OF TSHWANE METROPOLITAIN MUNICIPALITY First
Respondent
THE SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING
COUNCIL Second
Respondent
Date
heard: 15 November 2019
Delivered:
6 February 2020
JUDGMENT
RABKIN-NAICKER, J
[1]
This is a point
in limine
arising from a pre-trial minute
signed by the parties. The first respondent contends that the dispute
between the parties is a dispute
of interest and that this Court does
not have jurisdiction to hear the matter. The point
in limine
arises subsequent to the amendment of the statement of case and
answer thereto.
[2]
Crisply put, it is the applicant’s case that once a decision
was taken by the
Municipality to implement the Migration Collective
Agreement (Migration CA), which contained a migration and placement
policy,
the individual applicants had a right to be progressed to the
top notch of their salary scale. The legal effect of such a decision,
they contend, is that the terms of their contracts were amended to
increase the remuneration that they were entitled to. On this
basis
they submit that this Court has jurisdiction to hear their claim
under the provisions of section 77(3) of the Basic Conditions
of
Employment Act
[1]
(BCEA).
[3]
It is submitted on behalf of the applicants that they do not rely on
the Migration
CA
per se
, but rather a decision that was taken
later, to give effect to the Migration CA, in respect of the
applicants.
[4]
On 25 May 2005, the acting general manager: human resources of the
Municipality, informed
the individual applicants in writing, after
they had objected to their placement as administration officers to
the Appeal Committee
in terms of the Migration CA, that they had been
placed as financial officers “contractual to incumbent”
and that the
finance department amended its organizational structure
to accommodate the position.
[5]
A further grievance laid by them in 2012 complained that although
they had been finally
placed in the finance department as financial
officers, they were not progressed to the top notch of the salary
scale which applied
to the position.
[6]
It is the Municipality’s case that the applicants’
amended statement of
claim attempts to circumvent the jurisdictional
difficulty which was presented by their initial reliance on the terms
of the Collective
agreement: Migration, which required the
application and interpretation of the Collective Agreement in order
to ascertain the rights
of the applicants regarding their claim or
salary progression.
[7]
The Municipality further points out that the applicants failed to
attach their contracts
of employment to the papers or the ‘conditions
of service document’. The latter, it points out, is also a
Collective
Agreement. It is also pointed out that the salary notch
progression is based on annual merit increment assessment in any
event.
The following paragraphs in the amended statement of response
bear recording:
“
10.
The difficulty facing the Applicants case as set out in the amended
statement of claim is that, the primary source
documents dealing with
the progression of salary notches is the Migration CA and the CA:
conditions of service, however as they
pose a jurisdictional
conundrum for the Applicants, they resorted to ulilise unrelated
documents and facts in a piecemeal fashion
in an attempt to
substantiate their claim.
11.
Without the Migration CA and the CA conditions of service, the
Applicants cannot sustain a cause of action
for the relief they seek.
12. For
the purposes of completion, the CA: Conditions of service…….,
specifically clause 9.4. with
the heading Salary Increments provides
as follows under Clause 9.4.1:
12.1
An employee’s salary may be increased by at least one notch on
the anniversary date after a performance appraisal
had been conducted
in terms of the First Respondent’s approved system and if the
results indicate that the employee complied
with the standards
required.”
[8]
This Court can determine the issue of jurisdiction
mero motu
or on application. The Municipality argues that this is in fact an
interest dispute and what the applicants in fact seek are higher
salaries. Their case could also be characterized as an unfair labour
practice dispute regarding the failure to effect notch increases
which the Municipality states is a discretionary power. What the
dispute is not, as the applicants’ assert, is one in terms
of
section 77(3) of the BCEA. No terms of the contracts of employment
are referred to in the amended statement of claim, and as
pointed out
above, reference to the conditions of service are to a collective
agreement.
[9]
Section 77 of the BCEA is one of the other laws referred to in
section 157(1), which
confers jurisdiction on the Labour Court to
determine certain issues arising under that Act. The pertinent
provision for the purposes
of this matter s 77(3), which states:
‘
77
Jurisdiction of Labour Court …
(3)
The Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of
employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract
.’
(Emphasis
added.)
[10]
Section 77A sets out the powers of the Labour Court to make orders
and provides that:
‘
[T]he
Labour Court may make any appropriate order, including an order—
…
(e)
making a determination that it considers reasonable on any matter
concerning a contract
of employment in terms of section 77(3), which
determination may include an order for specific performance, an award
of damages
or an award of compensation.’
[11]
In the matter of
National
Union of Metalworkers of SA and Others v Micromega (Pty) Ltd
[2]
LeGrange J considered the Labour Appeal Court (LAC) authority on the
interpretation of section 77(3) and stated:
“
[15]
The leading case on interpreting what is meant by the phrase ‘a
matter concerning a contract of employment’ in
s 77(3) of the
BCEA is
Rand Water v Stoop &
Another
. In that case, the LAC found
that an employer’s counterclaim for fraud arising from an
alleged breach of an employee’s
contractual obligation to act
in good faith could be entertained simultaneously with a claim for
unfair dismissal. Importantly,
the LAC held that in that case, the
appellant employer’s ‘counterclaims are pleaded as
arising out of and related to
the contract of employment that existed
between the appellant and the respondents’.
The LAC, amongst other
findings stated:
‘
[21]
Generally the Labour Court and this court have held that if an issue
in dispute relates to; is linked to; or connected with
an employment
contract then the Labour Court does have jurisdiction in terms of s
77(3) of the BCEA to entertain such a dispute.
…
[30] … The word
“concerning” while conveying a cause and effect does not
convey a meaning that some causes and
effects are acceptable and
others not or that there has to be a direct or indirect link between
the contract of employment and
the claim.’
[16] The court also held
(at para 39) that:
‘
I
am satisfied that s 77(3) read with s 77A(e) favours an
interpretation bringing within its ambit the type of claim instituted
by the appellant in this matter as:
39.1
The word “concurrent” in s 77(3) places the Labour Court
in exactly the same position as
the High Court with the same powers
and authority in relation to matters concerning a contract of
employment.
39.2
The last part of s 77(3) provides the Labour Court with jurisdiction
irrespective of whether any basic
condition of employment constitutes
a term of the employment contract. This demonstrates that the Labour
Court has jurisdiction
over any claim as long as it involves a
contract of employment.
39.3
The words “concerning a contract of employment” mean
about or in connection with an employment
contract. The pleaded claim
clearly falls within this categorization.
39.4
The words “any matter” in s 77(3) are broad and the
literal interpretation does not limit
the claims, in relation to a
contract of employment, to a specific category. Damages, both liquid
and illiquid, are included.’
[12]
In addition to considering the above, the following dictum in the
Micromega
[3]
judgment is relevant:
“
[17]
What is important to notice in all of the above is that the issue in
dispute must in some way be linked causally, whether directly
or
indirectly, to an employment contract….”
[13]
In the Court’s view the true issue in dispute in this matter is
the failure of the first respondent
to increase the salary notches of
the applicants over time which would have resulted in increases to
their remuneration. The applicants’
pleadings do not rely on
clauses of their individual employment contracts and further do not
allege breach of those contracts.
The “legal Issues”
pleaded are as follows:
“
13.1
The issue whether the second to fifth applicants obtained legal
rights in terms of the aforementioned
Standard Conditions of Service,
the second to fifth applicants’ Standard Condition of Service,
contracts of employment; the
first respondent’s staff policy,
and the aforementioned resolution adopted by the council of the first
respondent and had
obtained the right to be progressed to the top
notch of the first respondent’s salary grade D1;
13.2
Whether the first respondent has a duty to comply with the
aforementioned right of
the second to fifth applicants; and
13.3
Whether the above honourable court has the power to direct the first
respondent to
remunerate the second to fifth applicants on the top
notch of their applicable salary scale, to wit D1”.
[14]
I find that the claim does not relate to a contract of employment for
the purposes of section 77(3)
of the BCEA for the reasons set out
above. In my view, it would not be entertained in a civil court as a
contractual claim. This
Court does not have jurisdiction to entertain
the matter.
[15] The
first respondent has submitted that given this referral was
frivolous, a cost order should be made. However
given the ongoing
relationship between the parties, I decline to make such an order. My
order is as follows:
Order
1.
The referral is dismissed for want of
jurisdiction.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Rudolf Kuhn Attorney
First
Respondent: Gildenhuys Maaltji Attorneys
[1]
Act
75 of 1997.
[2]
(2018)
39 ILJ 2048 (LC).
[3]
Supra
n 2.