About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 221
|
|
City of Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR 316/18) [2020] ZALCJHB 221 (15 May 2020)
The
Labour Court of South Africa, JOHANNESBURG
Not Reportable
case
no:
JR
316/18
In
the matter between:
CITY OF EKURHULENI
METROPOLITAN
MUNICIPALITY
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
MATEE
TDK N.
O
Second Respondent
IMATU
OBO JOSEPH MACHETE
Third Respondent
Heard
:
12 May 2020
Delivered
:
15 May 2020 (This judgment was handed down electronically by
emailing a copy to the parties. The 15
th
May
2020 is deemed to be the date of delivery of this judgment).
Summary:
Due to Covid19 lockdown, this application was
decided without oral hearing and the parties agreed to this
arrangement. Review –
alleged unfair labour practice – no
unfair labour practice committed. Held: (1) Condonation granted. (2)
Award reviewed and
set aside and replaced with an order of this
Court. (3) No order as to costs.
Judgment
MOSHOANA,
J
Introduction
[1]
This is a review application in terms of
which the City of Ekurhuleni Metropolitan Municipality (CEMM) seeks
to review and set aside
an arbitration award issued by Panellist
David Matee (Matee). In terms of the award Matee found that the CEMM
has committed an
unfair labour practice in relation to provision of
benefits against Joseph Mashao Machete (Machete). Matee ordered the
CEMM to
pay Machete remuneration on salary level T16 effective 1 July
2010 as per a letter dated 12 November 2010. He directed the parties
to discuss the figures as no figures were presented during
arbitration. The amount arrived at must be paid to Machete on 30
January
2018. He ordered the CEMM to pay the wasted cost for the
alleged unfair and unreasonable delay caused in the arbitration.
Aggrieved
by the award the CEMM launched the present application
outside the prescribed time period. The application stands opposed.
Background
facts
[2]
In the year 1997, Machete was employed by
the CEMM as a Deputy Director in the CEMM Police Department (EMPD).
He was appointed at
salary grade X08. During the year 2009/2010, the
CEMM embarked upon a job evaluation exercise. The outcome of that
exercise was
that positions were upgraded, salary scales and titles
of positions were changed. In respect of Machete, his title was to
change
from a Deputy Director to a Senior Manager. His salary grade
was to change from X08 to T16. At grade X08, Machete’s salary
was R272 088.00 per annum. At the new T16 grade, his salary was
set as R312 540.00 per annum.
[3]
The outcomes of the job evaluation exercise
were presented to the council of the CEMM through a report prepared
by the Human Resources
Management and Development (HRMD) department.
On 01 June 2010, the council resolved to approve the report of HRMD.
On 12 November
2010, a letter was addressed to Machete by the
Executive Director (ED) of HRMD advising him of the job evaluation
results in respect
of his position. The letter advised Machete of his
rights to appeal should he be unhappy with the results. Further, the
letter
advised him that the implementation would be done in terms of
the Wage Curve Collective Agreement (WCCA). He was further advised
that the CEMM may also appeal the results. In addition, he was
advised of possible errors in the results, which the CEMM reserved
the right to rectify.
[4]
As advised, Machete lodged an appeal
against the results. The appeal was an indication that Machete does
not accept the results.
Owing to that implementation did not happen.
The appeal was governed by the Task Job Evaluation Agreement (TJEA).
The appeals authority
was not put in place, as a result the appeal
could not be entertained by the bargaining council.
[5]
In the meanwhile, the trade Unions declared
disputes around the WCCA. Such culminated in a litigation in the
Labour Court, which
litigation saw the upholding of the WCCA by the
Labour Court, which upholding was overturned on appeal by the Labour
Appeal Court.
Leave to appeal was refused by the Constitutional
Court. Besides the litigation process, the parties engaged each other
at the
national bargaining level. The issue in dispute was the
implementation date of the WCCA. The unions contended that the date
was
1 July 2010 for the implementation of the new salary scale. On
the other hand, South African Local Government Association (SALGA),
an organisation representing the CEMM, contended that no
implementation date was agreed upon. Later on the date of 1 July 2011
was unilaterally introduced and unaware of that change, on 21 April
2010, a collective agreement was signed. On becoming aware
of the
unilateral amendment, the trade unions approached this Court to
obtain a declaratory order. The outcome of such a litigation
was
spelled out above. Given the stalemate, the implementation in
terms of the WCCA could not happen.
[6]
As a results on 26 February 2016, IMATU on
behalf of Machete referred a dispute to the bargaining council
alleging an unfair labour
practice. Machete summarised the dispute
thus:
‘
Employer
has unfairly failed and/or
refused to
pay benefits due to employee in accordance with job evaluation
results.’
[7]
After conciliation failed to resolve the
dispute, Machete and his trade union requested that the dispute be
resolved through arbitration.
Matee was appointed to resolve the
dispute. He resolved the dispute in favour of Machete. Aggrieved
thereby, the applicant launched
the present application.
Evaluation
The
issue of condonation
[8]
The review application was launched on or
about 23 February 2018. The impugned award was issued on 13 December
2017. The deponent
to the founding affidavit in support of the review
application, Mr Xolani Prince Nciza, the Divisional Head: Employee
Relations,
testified that he does not recall as to when was the
arbitration award served onto the CEMM. However, when it came to his
attention
he took the necessary steps to have it impugned. On the
assumption that the award was served on the CEMM on 13 December 2017,
the
prescribed six weeks period expired on or about 17 January 2018.
The application having been filed on 23 February 2018, it means
that
the period of delay is about four weeks and couple of days. Generally
where the delay is minimal, the explanation of the delay
need not be
strong. In this matter the explanation provided is vague in that the
deponent does not know precisely when the award
was served on the
CEMM, he does not take the Court into his confidence and provide a
date on which the award came to his attention.
Again he does not take
the Court into his confidence by providing a date on which he was
able to discuss the matter with his Head
of Department.
[9]
As it is trite that applications of this
nature are decided by weighing factors and no one factor is decisive.
I consider the explanation
provided to be bereft of the necessary
details and accordingly unacceptable. However, I take a view that
this poor explanation
is compensated by strong prospects of success.
Thus, it would be in the interest of justice to condone the late
filing of this
application. One aspect to clear. In the notice of
motion, the applicant did not specifically pray for condonation.
Instead it
had the catch-all phrase of further or alternative relief.
The principle is that if the evidence presented justify a relief, a
Court should grant such a relief. In the founding affidavit a case
for the relief of condonation was made.
Grounds
of review
[10]
The applicant contends that Matee had
prejudged the dispute before hearing evidence. He failed to apply his
mind to the merits in
an independent fashion as his mind was already
polluted by the award made in another matter. He misconstrued the
dispute to be
arbitrated by him. The true dispute was about the
failure to implement the job evaluation results. With reference to
the body of
the award, the applicant pointed to the vacillation by
Matee on the exact issue to be decided by him which demonstrated lack
of
appreciation of the nature of the dispute. Above all, the
applicant contends that the award is not one that a reasonable
decision
could make due consideration being accorded to all the
evidentiary material placed before Matee.
Evaluation
of the merits of review
[11]
The
head and tail of this dispute lies in the letter of 12 November 2010.
It is apparent that Matee mistook this letter to be a
contractual
basis to pay Machete an increased salary. It is not. With reference
to the Labour Appeal Court (LAC) judgment of
Apollo
Tyres SA v CCMA and others
[1]
,
he mistook the claim of Machete to be one relating to benefits. A
claim for a higher salary is not a claim relating to provision
of
benefits. Had Matee carefully considered the contents of the letter
of 12 November 2010, he would have emerged with the following
critical facts:
11.1
That the letter serves as a feedback of the
job evaluation results of 11 September 2009 – The heading of
the letter says it
all.
11.2
That Machete had an option to appeal the
outcome – the evidence revealed that Machete indeed appealed.
11.3
That, most importantly, the implementation
of the results would be implemented in terms of the WCCA.
11.4
Lastly that the CEMM reserved the right to
rectify possible errors.
[12]
Clearly, even if
Apollo,
supra
may be applied, which in the
Court’s view is not applicable, the letter does not give rise
to a contractual right nor a legitimate
expectation. An expectation,
if any, was thwarted by Machete’s conduct in launching an
appeal. Logically, the launching of
an appeal is a clear indication
of the rejection of the results. Having rejected the results, such an
act is an antithesis of a
legitimate expectation to the salary
increment, assuming for now that it is a benefit proper. Nonetheless,
even if Machete had
not appealed, as it appears that there is subtle
dispute around that issue, the fact that the WCA was not finalised
suggests that
there is no complete right to the proceeds of the job
evaluation exercise.
[13]
I
am in agreement with the applicant that Matee misconstrued the true
nature of the enquiry. A commissioner who misconstrues the
true
nature of an enquiry quintessentially arbitrates a wrong dispute –
a misconduct on his or her part.
[2]
It remains the duty of a commissioner to determine the true nature of
a dispute. In truth, Machete’s dispute is not about
provisions
of benefits – an unfair labour practice – it is a dispute
about a claim for an increase of a salary. Effectively,
Matee lacked
the necessary jurisdiction to arbitrate such a dispute. An award
issued without a necessary jurisdiction is a
brutum
fulmen
.
[14]
Where
a commissioner commits an error which has the effect of distorting
the outcome, his or her award is axiomatically not one
that a
reasonable decision maker would arrive at and thus reviewable in
law.
[3]
Having not identified
the true dispute it can hardly be said that Matee dealt with the
principal issue with all the parties being
afforded a fair
opportunity.
[4]
In the
final analysis, the award issued by Matee falls way outside the
bounds of reasonableness and cannot stand. Another
misgiving this
Court has with the award is the direction that the parties must
discuss as figures were not presented at arbitration.
This is a
classic case of abdication of duties. Bargaining Councils exist to
resolve disputes and not throw the warring parties
into a further
quagmire, particularly out of an arbitration process. This is also a
reviewable irregularity.
[15]
For all the above reasons, the review
application must succeed. The award is not one that a reasonable
decision maker would reach
and it is incapable of any justification
in law. It is unnecessary to consider other remaining grounds of
appeal.
[16]
In the result the following order is made:
Order
1.
The late filing of the review application
is condoned.
2.
The award issued by Matee dated 13 December
2017 under case number GPD 021617 is hereby reviewed and set aside.
It is replaced with
an order that Machete was not subjected to an
unfair labour practice in related to the provision of benefits.
3.
There is no order as to costs.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
No
appearances.
[1]
[2013]
34 ILJ 1120 (LAC).
[2]
See:
Masoga
and another v Pick n Pay Retailers and another
[2019] 12 BLLR 1311
(LAC) para 37.
[3]
[3]
See
:
Head of Department of Education v Mofokeng and others
[2015]
1 BLLR 50
(LAC).
[4]
See:
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(2014)
35 ILJ 943 (LAC).