IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO J661/02
In the matter between:
AHMED MOONDA Applicant
and
THE CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY
Respondent
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JUDGMENT
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JAMMY AJ
1. In terms of a contract concluded by him with the Respondent on 7 August
2001, the Applicant in this matter was appointed, and still holds the
position of, “Regional Director: Region 1 & 2, as contemplated by Section
56 of the Systems Act” (the Local Government: Municipal Systems Act 32
of 2000).
2. On 17 January 2002, he received a letter from the Acting City Manager,
City of Johannesburg, the relevant terms of which are the following:
“ RE: SUSPENSION WITH FULL PAY
You are hereby suspended with immediate effect in terms of clause 9.16.1
of the Conditions of Service as approved by Bargaining Council.
Your terms of suspension are that you may not partake in any Council
activity and enter any Council premises without my direct approval.
You are instructed to have no contact with any Council employee and to
direct any inquiry you may have to the Office of the City manager, whether
personally or through your union. You are furthermore instructed to make
your contact details available to the investigating officer in the case, being
Mr P Steyn of Internal Audit Services”.
3. On receipt of that letter, the Applicant consulted his attorneys by whom a
letter was addressed to the Acting City Manager in which, inter alia , the
following was stated:
“We note that the letter fails to mention any reason for either the
suspension or of a duration thereof.
The letter suggests that the purpose of the suspension is to facilitate the
investigation by your Internal Audit Services of certain charges that you
contemplate proffering against our client.
In this regard our client has reason to believe that Internal Audit Services
has already completed its report, which we presume will form the basis of
the investigation in question …
Our client also has every intention of giving his full cooperation towards
bringing the entire matter to a speedy conclusion.
To this end we will appreciate your furnishing us with a copy of the internal
report in question and also to be given an indication of the likely date(s)
upon which a disciplinary hearing will take place with a view to enabling
our client to properly brief us and in preparing his defence to any charges
that may be levelled against him”.
4. That letter elicited an immediate reply. The investigation against their
client was still “under way”, the attorneys were told, and the report
requested had not been completed. In terms of the Conditions of Service,
the City can suspend an employee on full pay if it is deemed to be in its
interests and that is what had occurred. To provide a date of inquiry would
preempt the outcome of the investigation and in any event the employee
in any such inquiry was not entitled to legal representation and “may only
be represented by either an official or a union representative of which he is
a member”. On that basis no further correspondence with the attorneys
would be entered into.
5. The Applicant’s attorneys were undeterred and after a further exchange of
correspondence, eventually wrote to the City Manager on 4 February
2002, acknowledging the receipt, in response to their request therefor, of
their client’s contract of employment and drawing attention to the fact that
that contract “expressly provides that any and all disputes of whatsoever
nature, and more specifically disputes relating to, inter alia , the
interpretation and performance thereunder shall be determined by
arbitration. The disciplinary action route that the Council embarked upon
is clearly out of line with the terms of the contract in question”. Clause
9.16.1 of the Conditions of Service were not applicable either to him or to
“the situation in hand” and had “no substance in fact or in law and in fact
rendered his purported suspension ineffectual and unlawful”. If the
suspension was not immediately lifted, application would be made for
urgent interim relief. It is that application which is now brought before this
court as a matter of alleged urgency.
6. That alleged urgency was challenged by the Respondent but in the light of
the fact that the position of each of the parties has been fully pleaded and
comprehensively argued by their respective legal representatives, I
expressed the view, which was accepted, that the application, in the
interests of all concerned, should be determined on its merits.
7. The Applicant seeks from this court an order in the following terms:
“2 Declaring that –
2.1 the disciplinary action initiated by the Respondent against the
Applicant in suspending him and any intended disciplinary action
consequent upon such suspension are governed by and overridden by the
provisions of the Applicant’s fixed term contract of employment dated 8
August 2001 (“the Contract”), more particularly by clause 18 thereof;
2.2 that the disciplinary action referred to in paragraph 2.1 above constitutes a
dispute which is subject to arbitration in terms of clause 18 of the Contract;
2.3 alternatively to paragraph 2 above, an order compelling the Respondent to
stay the disciplinary action referred to above and ordering the Respondent
to declare a dispute in terms of clause 18 of the Contract in the event that
the Respondent wishes to have the subject matter of the said disciplinary
action resolved and adjudicated upon”.
8. The relevant subsection of clause 18 of the Applicant’s contract of
employment is in the following terms:
“18.1 Any and all disputes of whatsoever nature and however arising
concerning this contract and without prejudice to the generality of the
foregoing, whether such disputes relate to its validity, its interpretation, the
performance of it, its rectification or any other matter, shall be finally
determined by arbitration”.
9. It is common cause that at all times material to the issues in this matter,
the Applicant was, and remains, a member of the South African Municipal
Workers Union (“SAMWU”). It is further not in dispute that, together with
the Independent Municipal and Allied Trade Union, SAMWU was a party to
a collective agreement entered into with the Greater Johannesburg
Transitional Metropolitan Council and the Metropolitan Local Councils.
Chapter 9 of that collective agreement deals with discipline and sets out in
detail, the disciplinary procedures to be followed by a Council in
appropriate circumstances. Simply stated, those procedures involve the
establishment of a disciplinary enquiry, the form and manner of the
process, rights of appeal where applicable and so forth.
10. The issue before this court presents itself, perhaps deceptively, as a
relatively simple one. Which of the two agreements takes precedence
over the other? Is the Respondent entitled, in terms of the collective
agreement, to pursue its course of interim suspension and eventual
internal disciplinary enquiry against the Applicant as provided for therein,
or is it obliged to refer what the Applicant classifies as a dispute falling
within the ambit of clause 18 of his employment contract, to arbitration?
11. In the course of argument by the Applicant’s counsel in favour of the latter
of these two alternatives, it was submitted that the employment contract,
having been concluded on 7 August 2001 must take precedence over the
earlier collective agreement, which was concluded on 10 June 1999. My
attention was properly drawn to Section 23(3) of the Labour Relations Act
1995 which provides that –
“Where applicable, a collective agreement varies any contract of
employment between an employee and employer who are both bound by
the collective agreement”
The circumstances in which that provision would apply however, it was
argued, are limited. Reference was made to –
Brassey: Commentary on the Labour Relations Act: at A3:41,
where, dealing with the issue of precedence and the problems inherent in
that concept, the author says this:
“A viamedia is to say that collective agreements take precedence when,
properly construed, they evince an intention that they should take
precedence over employment contracts; otherwise they take precedence
only when the terms they set are more favourable than the individual
contracts. This, however, is to stretch the language close to breaking
point”.
The language there referred to is that of Section 199 of the Labour
Relations Act which defines specific circumstances in which an
employment contract, whether concluded before or after the coming into
operation of any applicable collective agreement, may not disregard or
waive the provisions of such agreement.
12. Of further relevance, it was submitted, is clause 1.4 of the collective
agreement which reads as follows:
“1.4 Nothing in these conditions contained shall prevent the Council from
concluding a contract of employment with any person containing
conditions supplementary to or in conflict with his conditions provided that:
(a) these conditions shall be binding on such person to the extent that they
are not in conflict with the terms of such contract; and
(b) according to a procedure agreed to with labour”.
13. The clear intention to be drawn from that provision, it was argued, is that to
the extent to which the terms of an employment contract are in conflict with
those of a collective agreement, the former would take precedence over
the latter.
14. The Applicant’s counsel then embarked upon a comprehensive analysis of
whether the charges against the Applicant in fact related to his contract of
employment and emphasised, in doing so, the provisions of clause 18.2 of
that contract which, as I have already indicated, provides for the reference
to arbitration of “any and all disputes of whatsoever nature and however
arising concerning this contract …” That analysis, to my mind however,
begs the essential question and that is whether, in the particular
circumstances of this matter, any incidence of conflict or question of
precedence exists and is of relevance. There could be no doubt that the
charges which the Respondent has indicated that the Applicant will face, if
the ongoing investigation indicates that course of action, will involve
allegations of serious misconduct, prima facie falling squarely within the
ambit of the provisions of chapter 9 of the collective agreement and, all
other things being equal, entitling the Respondent to pursue the
disciplinary procedures there defined. The question of whether or not the
conduct complained of is also encompassed by the Applicant’s contract of
employment and his duties and functions there prescribed, does not
constitute an issue which this court is required to determine. I agree
entirely with the submission that the only question for resolution in the
context of this application, is whether the Respondent is precluded from
pursuing that course of action by any provision of the Applicant’s
employment contract.
15. There is, in my opinion, a basic reason why it is not so precluded, and that
is that, leaving aside any question of precedence of either of the
agreements over the other, no dispute falling within the ambit of clause
agreements over the other, no dispute falling within the ambit of clause
18.2 of the employment contract has as yet arisen. No charges have been
formulated against the Applicant and this will not occur, as the Respondent
has pertinently pointed out, until the investigation currently in progress has
been completed. At that stage, if so indicated, the Applicant will be called
upon to answer those charges in a disciplinary hearing in terms of the
Conditions of Service defined in the collective agreement. A dispute falling
within the ambit of clause 18 of the contract of employment will only arise if
the result of that disciplinary enquiry is adverse to the Applicant and he
contests it. That is the stage at which a reference to arbitration as
provided for in that clause, might ensue. There is no argument at this time
regarding the validity, interpretation, performance, rectification of or any
other matter concerning the employment contract. In short, the invocation
by the Applicant of the provisions of clause 18.1 of that contract is
premature and cannot be permitted on an anticipatory basis. There is no
ambiguity in its terms which, quite simply, are of no application at the
present stage of the contest.
16. The Applicant has misconstrued the meaning and import of section 18 of
his employment contract but that misconstruction does not in itself
constitute an arbitrable dispute. He cannot feed upon it to create one
when none, at this stage, exists.
17. No submissions have been made and no reasons appear to me to exist as
to why, conventionally, an order for costs should not follow the result in a
matter of this nature and the order that I accordingly make is the following;
17.1 the application is dismissed;
17.2 the Applicant is to pay the Respondent’s costs.
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B M JAMMY
Acting Judge of the Labour Court
1 March 2002
Representation:
For the Applicant:
Adv H van R Woudstra S.C instructed by Louw Pienaar Attorneys
For the Respondent
:
Mr Robin Carr: Bowman Gilfillan Inc.