IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
REPORTABLE CASE NO. JR1026/2003
In the matter between:-
L.M.B. THABANE Applicant
and
THE GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL First Respond e nt
COMMISSIONER J.B. MTHEMBU
(in his capacity as the Presiding Officer
in Case No. PSGA 1201) Second Respond e nt
DEPARTMENT OF SAFETY, SECURITY &
LIAISON (FS) Third Respond e nt
J U D G M E N T
CORAM FARBER AJ:
This is an application to review and set aside an award of the second respondent,
in an arbitration held under the auspices of the first respondent, in which
arbitration the second respondent held that he lacked jurisdiction to determine the
merits of the dispute between the applicant and the third respondent. On this
score, the second respondent determined that the applicant had been dismissed
for what he described as "operational requirements", and that in consequence
only this Court had jurisdiction in the matter.
The factual matrix against which the propriety of this decision falls to be assessed
may be detailed as follows:-
IN THE LABOUR COURT OF SOUTH AFRICA
On 21 June 1999, and prior to the conclusion of the written agreem ent to which
reference will presently be made, the applicant met with the then Member
of the Executive Council for Safety and Security of the Free State (the
M.E.C.) and its then Head of Department. Under consideration was the
engagem ent of the applicant in what has been described as a "role playing
position" ... "on a contract basis". It was on that occasion explained to the
applicant that her engage m ent would endure for a period of five years, but
that in the event of the M.E.C.'s services being terminated prior thereto, she
would be redeployed in an "equivalent" position within the Department for
the surviving duration of that term.
Following thereon, and on 8 July 1999, the applicant and the third respondent
concluded a written agreement, in terms of which the third respondent
engaged the services of the applicant as an "administrative secretary" for a
period of five years at a commencing annual salary of R130 878,00.
Despite the "fixed term" of five years, clause 9(a) of the written agreem ent
afforded to both parties the right to terminate it "at any time during the
currency thereof on giving three months' notice in writing to the other
party".
Pursuant to the conclusion of this agreement, the applicant was deployed in the
IN THE LABOUR COURT OF SOUTH AFRICA
office of the M.E.C. She held a level 12 post which, by July 2001, yielded
to her an annual salary of approximately R200 000,00.
On 27 June 2001, and in consequence of a "cabinet reshuffle", the M.E.C. lost
office and was replaced.
The applicant was advised that the position which she then held would be filled
by a person who would be appointed by the M.E.C.'s successor, but that
she, and others who were also to be replaced, were to be redeployed in the
Department in equivalent positions for the remaining duration of their
respective contracts. This was, of course, entirely consonant with the
promise which had previously been made to her.
On 10 July 2001 the applicant was advised that she was to assume duty as an
executive assistant to the head of the Department of Finance. This post
carried a level 8 grading with a commencing annual salary of R83 379,00.
The applicant's qualifications, so it seems, did not permit her appointment
to a more highly graded post.
Given the fact that the applicant had previously held a grade 12 post and that her
then annual salary was approximately R200 000,00, she declined to accept
the position which had been offered to her.
IN THE LABOUR COURT OF SOUTH AFRICA
The consequence was somewhat predictable, as on 13 July 2001 the applicant
was, pursuant to clause 9(a) of the written agreem ent, furnished with three
months notice of the Department's intention to terminate it, such to take
effect on 15 October 2001.
The applicant was subsequently freed of the obligation to tender her services
during the currency of the notice period.
Aggrieved by the manner in which she had been treated, the applicant referred
the matter to the first respondent for conciliation. She complained of an
unfair labour practice, and a substantively and procedurally unfair
dismissal. On this score she, in her written application to refer the matter,
stated that the reasons for her dismissal were "unknown". She, however, in
an accompanying affidavit, detailed the facts and circumstances which had
given rise thereto.
The dispute was not resolved and was submitted to the second respondent for
arbitration.
At the outset of the proceedings, the third respondent contended that the applicant
had been dismissed for operational requirements, as contemplated in Section 189
of the Labour Relations Act, No. 66 of 1995, and that consequently the dispute
was not arbitrable, but fell to be determined by this Court. The applicant
IN THE LABOUR COURT OF SOUTH AFRICA
contended otherwise, asserting, inter alia, that she had not been dismissed for
operational reasons.
The second respondent, after analysing the conflicting assertions of the parties,
dealt with the point in issue thus:-
"Both Section 12A(3) of the Public Service Act and Chapter 14(1)(a)(i) of the
Ministerial Handbook are clear that all political appointees are appointed for the
term of office of the executing authority. If the latter goes so do they.
In this case the Respondent could not keep the Applicant within the Department
in the same or equivalent post as the Applicant lacked the necessary
qualifications.
The Respondent instead offered the Applicant an alternative lower post as
opposed to retrenchment, which the Applicant declined.
In the circumstances the Respondent was left with no option but to terminate
the Applicant's services by giving her three months' notice as provided by her
contract of service. The Applicant had become redundant and the termination
of her services had to take effect based on operational requirements.
In Wanda and Other v Toyota SA Marketing (2003) 2 BLLR 234 (LAC) the Court
rejected the argument that retrenchment was unfair because the appellants had
been dismissed without proper consultation between their union and the
respondent over the reasons for staff reductions. The Court further held that
the employees are not permitted to rely on the absence of consultations with
them if they have rejected adequate alternative positions like the Applicant in
this case.
On the issue of costs I have not been persuaded by either party why costs
should be granted either way.
The forum that the Applicant should approach is the Labour Court which is
bestowed with the jurisdiction to adjudicate dismissals based on operational
requirements."
Section 12A of the Public Service Act, 1994 (Proclamation No. 103 of 1994)
IN THE LABOUR COURT OF SOUTH AFRICA
reads as follows:-
"12A. Appointment of persons on grounds of policy considerations.-
(1) Subject to the provisions of this section, an executing authority may appoint
one or more persons under a special contract, whether in a full-time or part- time
capacity -
(a)to advise the executing authority on the exercise or performance of the
executing authority's powers and duties;
(b)to advise the executing authority on the development of policy that will
promote the relevant department's objectives; or
(c)to perform such other tasks as may be appropriate in respect of the exercise
or performance of the executing authority's powers and duties.
(2) The maximum number of persons that may be appointed by an
executing authority under this section and the upper limits of the remuneration
and other conditions of service of such persons shall be determined by the
Cabinet in the national sphere of government.
(3) The special contract contemplated in subsection (1) shall include any
term and condition agreed upon between the relevant executing authority and
the person concerned, including -
(a)the contractual period, which period shall not exceed the term of office of the
executing authority;
(b)the particular duties for which the person concerned is appointed; and
(c)the remuneration and other conditions of service of the person concerned."
"Executing authority" is defined in Section 1 thereof to mean ....
"in relation to -
(a)the Office of the President, means the President acting on his or her own;
(b)the Office of the Deputy President, means the Deputy President;
(c)a department or organisational component within a Cabinet portfolio, means
IN THE LABOUR COURT OF SOUTH AFRICA
the Minister responsible for such portfolio;
(d)the Office of the Commission, means the Chairperson of the Commission;
(e)the Office of a Premier of a province, means the Premier of that province
acting on his or her own; and
(f)a provincial department within an Executive Council portfolio, means the
member of such Executive Council responsible for such portfolio."
The applicant was not appointed by the then M.E.C. for any of the purposes
referred to in Section 12A. The appointment was made by the third respondent,
albeit that it was represented by its then M.E.C. in so doing. The services which
were required to be rendered thereunder related to that of an administrative
secretary who might be deployed "at such places as may from time to time be
directed by the employer" 1 "or any other officer duly authorised thereto in this
respect". Ex facie the written agreement, the applicant was not appointed to serve
the then M.E.C., although that consequence might well have been envisaged at
the time of the conclusion thereof. Additionally, the agreem ent lacks the
qualities of a "special contract", as contemplated in Section 12A(1), as read with
Section 12A(3). Thus, its term was fixed for a period of five years and was not
limited to the term of office of the then M.E.C. He may have held office for a
lesser or even a longer period.
The Ministerial Handbook was not produced during the course of the hearing
before the second respondent. Nor was it produced during the course of the
hearing before me. I have not the slightest notion as to what it may contain.
More importantly, the Handbook, according to the applicant, was not in existence
at the time of the conclusion of the written agreem ent. This fact has been baldly
IN THE LABOUR COURT OF SOUTH AFRICA
denied by the third respondent. It has, however, omitted all reference as to when
it was published. I would have thought that the deponent to the third respondent's
answering affidavit who, on probability, must have had full
1This was a clear reference to the Department.
knowledge of the matter, would have dealt with this feature in some authoritative
detail had the Handbook in fact been published at the relevant time. Given this
omission, his bland denial on behalf of the third respondent does not in my
judgment raise a genuine dispute of fact. I consequently accept the Applicant's
assertion that the Handbook had not been published at the relevant time.
There is moreover nothing to suggest that even if it had been in issue at the time,
the applicant's written agreement fell to be regulated by the contents thereof. 2
The agreement and the discussions which preceded it eschew all reference
thereto.
In the result, I am unable to subscribe to the second respondent's finding that
Section 12A(3) and the Handbook governed the contract between the applicant
and the third respondent. It follows that I am unable to subscribe to the view that
the applicant's position became redundant or that her retrenchment was required
for economic, technological, structural or similar needs. [Vide: Sections 188(1)
(a)(ii), 189, 213 and Schedule 8 Item 12 of the Act.]
2There is no incorporation thereof in the written agreement by reference. Its status is moreover
simply not known.
IN THE LABOUR COURT OF SOUTH AFRICA
In short, the second respondent's findings were not rational in relation to the facts
which were placed before him.
Additionally, the second respondent, in arriving at his conclusion, ignored the
provisions of Section 191(5)(a)(iii) of the Act.
This subsection reads as follows:-
"(5) If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council or the Commission
received the referral and the dispute remains unresolved -
(a)the council or the Commission must arbitrate the dispute at the request of the
employee if -
(i)..........
(ii)..........
(iii)the employee does not know the reason for dismissal; 3 or
(iv).........."
3Brassey, in his commentary on the Labour Relations Act, Volume Three, at A8 : 58A, has,
inter alia, the following comment on the subsection:-
"the employee does not know the reason - This paragraph uses the language of fact, not
allegation. We are, as a result, forced to ask what is truly required: must the
employee actually lack the knowledge, or is it enough that he alleges that he lacks
it? The latter, it is suggested, must be what the legislature intended. Having
closed the door on jurisdictional squabbling in the first two cases, the legislature
had no reason to reopen it for the third, which is conceptually indistinguishable."
As previously indicated, the applicant, when referring the matter, stated that she
did not know the reason for her dismissal. On this ground alone, the second
respondent was obliged to consider and determine the merits of the dispute.
The review must succeed.
Costs ought in my judgment to follow the event.
IN THE LABOUR COURT OF SOUTH AFRICA
In the result, an order in the following terms will issue:-
A.The decision of the second respondent is set aside.
B.The matter is remitted to the first respondent for the merits of the dispute
between the applicant and the third respondent to be determined by an
arbitrator appointed by it.
C.Such appointee shall be a person other than the second respondent.
D.The costs of the application are to be paid by the third respondent.
G FARBER
ACTING JUDGE OF THE
LABOUR COURT
DATE OF HEARING:
12 NOVEMBER 2004
DATE OF JUDGMENT:
01 FEBRUARY 2005
MR M KHANG ADV S E MOTLOUNG
IN THE LABOUR COURT OF SOUTH AFRICA
Applicant's Attorney Third Respond e nt's Counsel
c/o MAPITSE & KHANGInstructed by:
3rd Floor President BuildingOffice of the State Attorney
119 St Andrew's Street 11th Floor, Fedsure Building
BLOEMFONTEIN49 Maintland Street
Tel: (051)430- 2987BLOEMFONTEIN
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