SALGA KZN Case Law
SALGA KZN CASE LAW
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Table of Contents
Foreword by the Chairperson of SALGA Cllr Ndobe...... 4
Executive Summary...... 5
Section A: Interpretation or Application...... 5
Interpretation and application of collective agreement (arbitration)...... 5
Section B: Jurisdictional Rulings...... 11
Jurisdictional Rulings...... 11
Section C: Rescission Rulings...... 47
Section D: Unfair Dismissals...... 49
Section E: Unfair Labour Practice...... 68
Section F: Unilateral Changes to Terms and Conditions of Employment...... 87
Section G: Organisational Rights...... 88
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Foreword
Every incidence of irregular or inappropriate appointment, or every case of glaring low human resource and financial capacity, harms the image of local government and government as a home. When citizens are subjected to unskilled of overworked officials as a result of high turnover and vacancy rates; this casts a dark shadow over the state of our democracy. Every society is governed on the basis of an implicit trust between the citizens and its government. Lack of effective performance management; ineffective leadership and maladministration leads to an erosion of social cohesion and trust.
Conciliation and Arbitration proceedings are dispute resolution avenues available to municipalities. However, section 135 of the Labour Relations Act provides that disputes must go to conciliation where an attempt will be made to resolve them. Unfortunately, the current context of labour relations within local government is categorized by the positional bargaining as opposed to mutual interest bargaining that leads to adverserialism.
SALGA, as an employer body and as per SALGA conference resolutions, has committed to championing mutual interest bargaining in local government.
The number of disputes referred to the SALGBC for conciliation and arbitration is extremely high and every effort should be made at municipal level to reduce the disputes. The highest number of disputes are related to Unfair Dismissals and Unfair Labour Practices.
It is the aspiration of the current SALGA leadership in KZN that a journal, which outlines cases dealt with, will create a community of practice in the sector. Eventually a body of knowledge will emerge and this will place every member of SALGA in a better position to deal with labour issues. Ultimately, when parties better deal with labour issues there will be a restoration of the implicit trust citizen give to government.
CLLR Mluleki Ndobe
CHAIRPERSON: SALGA KZN
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Executive Summary
This journal is compiled by Chetna Soni and Mandla Shange Advisors HR/LR/CB from the South African Local Government Association (SALGA) for municipalities in terms of case law that impacts on local government, specifically the municipalities. The journal is to be a reference point for to assist municipalities during representation at arbitrations or conciliations.
This cases summarised include High Court and Labour Court judgments and arbitration awards that highlight the implications for Local Government.
The journal is divided into eight (8):
The journal is divided into seven sections:
A. Interpretation and Application;
B. Jurisdictional Rulings;
C. Placement
D. Rescission Rulings;
E. Unfair Dismissals; and
F. Unfair labour practices
G. Unilateral changes to terms and Conditions of Employment
H. Organisational Rights
Section A: Interpretation and Application Interpretation and Application disputes are referred to either the National or KwaZulu-Natal Provincial Division or Division of the South African Local Government Bargaining Council (SALGBC) when there is a dispute about the interpretation or application of a collective agreement.
There is no time frame to refer these disputes to the SALGBC. It must be noted that council policies concluded at the municipalities are not collective agreements. The SALGBC will lack jurisdiction to hear matters pertaining to the interpretation and application of policies.
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CASE 1: T. Mabika & N. Ntuli vs uMkhanyakude District Municipality: Interpretation and Application of KZN Collective Agreement, leave encashment. Case Number: KPD11405 Facts:
The Applicants accrued leave in excess of forty eight (48) days permissible in the main collective agreement and requested that they be allowed to encash the leave as they could not take the leave due to operational requirements. They argued that suspension and being on stress leave is classified in terms of the main collective agreement “as operational requirements” that prevented them from taking the leave and thus allowed them to encash the leave. The Respondent never refused or turned down a request from Applicants to take leave when they made application for such leave. Ruling:
Clause 3.1.5 provides that “any leave in excess of forty-eight (48) days may be encashed should an employee be unable to take such leave, despite applying for such leave as a result of the employer’s operational requirements. If despite afforded an opportunity to take leave, an employee fails, refuses or neglects to take leave, such remaining leave due to him during this period, shall fall away.” Both the applicants also conceded that they had not made any application for leave which had been refused. The applicants misconstrued the definition of “operational requirements,” as per the Labour Relations Act and were of the erroneous view that their suspension, leave due to illness and failure to take leave during the acting period constituted an operational requirement. As per the Labour Relations Act, “operational requirements mean requirements based on the economic, technological, structural or similar needs of an employer.” The circumstances relied upon by the applicants do not constitute operational requirements. The interpretation sought by the applicants was rejected and the application was dismissed. Lessons:
The interpretation and application of any clause in any agreement should not be in read isolation but read within the full context of an agreement. Where employees are suspended or have taken sick leave they will not generally be able to claim that they could not take the leave due to their absence at work. They will have to show that they applied to take leave and that such was turned down by employer.
CASE 2: Msunduzi Local Municipality vs IMATU, SAMWU & others: Interpretation and Application of KZN Conditions of Service clause 5 and 13 – Case Number KPD081304 Facts
The applicant referred interpretation and application of paragraph 5 and 13 the Divisional Collective Agreement (DCA) relating to existing conditions of service and emergency work. The applicants argued that ordinary hours of work in respect of the employment contracts are forty-five (45) hours per week and that the ordinary hours of work are to be worked in accordance with schedule attached to the Municipal Collective Agreement. IMATU stated that the variation is a valid agreement that overrides the collective agreements as it explains in detail the working conditions of the fire fighters. Payment was effected in terms of the Variation Agreement and not in terms of the Salary and Wage Collective Agreement. IMATU sought a fresh variation/averaging agreement. SAMWU contended that the fire fighters have a right to be remunerated at the hourly rate of remuneration for the hours they are required to work in terms of the new regime and further that when the fire fighters are required to work in any one week, more than forty five (45) hours then such excess hours worked constitutes overtime and should be remunerated accordingly. They
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sought an order declaring that the shift system is inconsistent with clause 13.3 of the DCA and the shift system be replaced. Ruling
The DCA is fraught with numerous contradictions and more particularly in respect of clauses 5 and 13. The commissioner was unable to determine whether the variation/averaging agreement fell away when the DCA was implemented or not. The Commissioner ruled that that the parties must return to the negotiating table in order to resolve these contradictions. Lessons:
The Collective agreement is contradictory. In drafting these agreements, parties must take cognizance of the disputes that may arise from the interpretation and application of the collective agreement.
CASE 3: SAMWU obo N Mzobe and Another vs Vulamehlo Local Municipality – Interpretation and Application of the Disciplinary Procedure and Code Collective Agreement - clause 14.6 and 14.7 Case Number HQ041601 Facts
The applicants referred a dispute relating to interpretation and application of clauses 14.6 and 14.7 of the 2010 Disciplinary Procedure and Code Collective Agreement in that their suspension exceeded three months and was without full pay. The respondent raised a point in limine that the SALGBC lacks jurisdiction as the Disciplinary Procedure and Code Collective Agreement was declared null and void by the Labour Court. Ruling:
The Labour Court judgment per Rabin-Naicker J held that the 2010 Code was not validly concluded and was therefore null and void. (City of Cape Town v Independent Municipal and Allied Trade Union and others (C884/2014) [2015] ZALCCT 58 (17 September 2015). Leave to appeal was granted but never lodged. The SALGBC lacks necessary jurisdiction to determine the dispute as the Disciplinary Procedure and Code Collective Agreement had been declared null and void. It was of no force and effect at the time the dispute was referred. Lessons:
Municipalities should ensure that when they suspend employees a proper process is followed and employees are not to be suspended for protracted long period. Employees cannot be suspended without pay as it’s deemed to be a punitive measure.
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CASE 4: IMATU obo P.H Earle vs Umzinyathi Local Municipality: Interpretation and Application of Salary and Wage Collective Agreement Clause 6.6. Case Number HQ071511 Facts
The applicant was transferred from UThukela (Pty) Ltd to Umzinyathi District Municipality. He argued that his housing and locomotion allowances which by virtue of their link to the salary in terms of Clause 6.6 of the Salary and Wage Collective Agreement ought to have increased at the same rate as the salary increase when he joined the respondent. The respondent argued that the locomotion allowance is regulated by the Umzinyathi District Municipality’s Subsistence and Travelling Policy. The housing allowance was regulated by the Main Collective Agreement and was not a linked benefit. The locomotion and housing allowances do not qualify to be linked to the salary increases as they are standard amounts regulated by policy. The housing allowance increases depends on negotiations. The respondent is bound by the Main Collective agreement. Ruling:
Clause 6.6 of the Salary and Wage Collective Agreement states that, “any benefit or condition of service that ordinarily increases by virtue of its link to the increase of salary of an employee, shall increase by the same rate as the salary increases in each financial year, subject to the special provisions relating to the medical schemes as set out in clause 8 is applicable in this matter.” The applicant received a locomotion and housing benefit that was not increased by the Respondent from 2013 to 2015 in terms of the salary and wage agreement that stipulated in terms of clause 6.6 of the agreement that that any benefits linked to the salary increase will be increased with the same percentage as the salary increase. Once it was established that the employee qualified for the housing and locomotion allowance and that these are benefits then the respondent was obliged to increase these benefits with the same percentage as the salary increases. The respondent was ordered to pay the difference or the short fall between the rate of the current benefits and the salary increases effected for the 2013/2014 and 2015 financial years. Lessons:
The fact that the employee was employed on a total remuneration package that made provision for a housing and locomotion allowance did not exclude these benefits to be increased once it was established that these were indeed benefits referred to in the salary and wage agreement. If you want to argue that for example the transport allowance is not a benefit then evidence would have to be led to clearly show that this allowance will generally remain static for a period of time once the allowance is granted.
CASE 5: IMATU obo Y Maharaj vs Ethekwini Municipality: Interpretation and application of Salary and Wage Collective agreement, Clause 6.6. Case Number: HQ051515 Facts
The applicant referred a dispute and requested that a non-pensionable allowance of R 11 933-00 per month that has not increased since 2005 in terms of a special contract with the employer that it be increased with the same percentage as the salary and wage increases in terms of Clause 6.6 of the salary agreement. The respondent however argued that the special contract clearly regulated how increases will be effected and what will be covered in terms of clause 6.6 as benefits linked to the salary increases. The non-pensionable allowance was excluded and the applicant in terms of the special contract received a total cash package that is flexible inclusive of the following: basic salary, 13th cheque, housing subsidy, telephone allowance, entertainment and locomotion allowance. The employee could restructure his package and decide not to take some of the benefits listed above and that will result in a higher locomotion allowance.
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Ruling:
The Commissioner referred to clauses 6.6 of the Salary and Wage Collective agreement and clause 4.2 of the parties’ special contract. The amount of R 11 933-00 remained static for more than 10 years. The locomotion allowance which is covered by the provisions of clause 6.6 increases with the review of annual salary in terms of clause 4.3 of the Special contract and the applicant receives these increases. It is evident that the annual non pensionable locomotion allowance of R 11 933-00 does not form part of the benefits listed in clause 4.2 and it is probable that it was meant by the parties to be a stand-alone allowance. The R 11 933-00 which is listed in clause 4.1.1 was not contemplated by the parties as locomotion allowance that would ORDINARILY increase by virtue of its link to the increase of the salary of the employee simply because it is not linked to the salary. Even if it was linked to the salary, prescription would apply. The application is dismissed. Lessons:
When contracts are entered into with employees and where they are employed on a total remuneration package it is important to clearly indicate what will be regarded as benefits that is linked to the salary and wage agreement in terms of clause 6.6 of the salary agreement. This case also clearly indicate that the claim would have prescribed as it originated in 2005. The contrary judgement in this regard is Constitutional Court: Judgment: CCT 232-15 Sizwe Myathaza v Johannesburg Metropolitan Bus Services where the labour court ruled labour disputes does not prescribe.
CASE 6: Nobuhle Penelope Sithole v uMngeni Local Municipality – Interpretation and Application of KZN Conditions of Service – clause 12 Overtime. Case Number: KPD081619 Facts
The parties in this specific case agreed that the facts were not in dispute and that the applicant was entitled to overtime pay from January 2013 to September 2016 and that the amount for overtime worked as from 1 October 2016 to 18 January 2017 be calculated by the finance department at the municipality. Ruling:
Overtime is regulated as per Section 10 of the BCEA and the conditions of service collective agreement. As the parties agreed that the applicant was entitled to overtime, the respondent was ordered to pay the applicant the sum of R 100 491-002 in respect overtime. The respondent is further directed to calculate and pay the overtime from 1 October 2016 to 18 January 2017. Lessons:
Matters should not be referred to arbitration where the parties are in agreement in terms of the facts .These should be finalised at municipal level. However in this specific case the matter should have been argued due to the financial implications to the municipality and the possibility that the matter had to be referred to the department of labour. The approval of the overtime by the Municipal Manager or his authorised representative could also have had an impact on the payment where the overtime was not approved prior to employee working the overtime.
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CASE 7: SAMWU v Jozini Local Municipality: Interpretation and Application of Policy. Case Number: KPD071703 Facts
The applicant union claimed that respondent contravened its recruitment and selection policy. They maintained that the recruitment and selection policy was a collective agreement which required interpretation. The respondent raised two jurisdictional points – firstly that the referral form was defective in terms of the SALGBC rules as the referral form did not include a list of employees that were part of the dispute. Secondly, the document referred was a policy and not a collective agreement. In terms of Section 213 of the LRA, a collective agreement is a written agreement concerning the terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions on one hand and on the other had one or more employers’ organisations. The union argued the policy was a collective agreement reached at the local level. The SALGBC dealt with similar matters wherein the employer had contravened a policy and the matter was arbitrated. The union conceded that there was an error in failing to attach a list of the affected employees to the referral form. The respondent argued the policy was approved by Council and not the local labour forum. Ruling
The SALGBC lacks jurisdiction as the referral form was defective and the document referred to was a policy and not a collective agreement. The policy was not signed by the unions and the employer/employer organisation. Lessons:
It should be noted that policies concluded at the municipalities are not collective agreements. A collective agreement is a written agreement concerning the terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions on one hand and on the other hand one or more employers’ organisations. When there are more than one applicant to the dispute, all applicants must be listed in the additional referral form if not then the referral is defective.
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Section B: Jurisdictional Rulings Jurisdictional Rulings are issued when a party to the dispute raises a preliminary point that the South African Local Government Bargaining Council (SALGBC) or the Commission for Conciliation and Arbitration (CCMA) lacks jurisdiction to hear the matters.
Jurisdiction can be raised at the conciliation or arbitration proceedings. However it must be raised preferably at the conciliation proceedings.
The SALGBC lacks jurisdiction to hear disputes relating to:
1. Automatically unfair dismissals
2. Salaries;
3. Over time;
4. Deductions;
5. Placements
6. Unfair Discrimination; and
7. Unilateral changes to terms and conditions of employment.
Jurisdiction is also raised when one party questions the authority of the other party’s representative to represent that party (either the union or the applicant) at the proceedings.
Jurisdiction is further raised if the applicant party has failed to refer the dispute within the specified time period and has not filed an application for condonation for the late filing of the referral. Jurisdictional Rulings
CASE 1: T.P Ngcungame & J.J Gcaba vs Hibiscus Coast Local Municipality: Unfair Labour Practice: Section 186 (2) (a). Case Number: KPD101418 Facts:
The applicants referred an unfair labour practice dispute regarding non promotion. The respondent argued the Labour Court is the appropriate body to declare the appointment process null and void and set it aside. The arbitrator can only deal with the fairness of the appointment of the appointee or the interview process. He cited Tswengwa v Knysna Municipality and Another [2015] 8 BLLR 857 (LC). The Council didn’t have jurisdiction to determine the validity of the appointment or interview process and cannot set it aside. The applicants submitted that the dispute referred to the council to consider is whether the respondents committed an unfair labour practice when it appointed a candidate that did not meet the minimum requirements of the advertised position and whether the appointment should be set aside and the interview to commence de novo. In terms of Section 193 (4) of the LRA an arbitrator may determine any unfair labour practice dispute referred to the arbitrator on terms he/she deems reasonable which may be ordering reinstatement, re-employment or compensation. The Tswengwa case deals with Council’s lack of jurisdiction to declare the dismissals null and void. The case at hand is not an unfair dismissal dispute but an unfair labour practice dispute.
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Ruling:
In terms of Section 193 (4) of the LRA an arbitrator may determine any unfair labour practice dispute referred to the arbitrator on terms he/she deems reasonable which may be ordering reinstatement, re-employment or compensation. The courts have further held that the arbitrator has jurisdiction to set aside the appointment of a successful candidate provided he is joined as a respondent. This is supported by KwaZulu Natal Department of transport v GPSSBC & others. The issue in dispute must first be decided upon before any such order/remedy is decided. The Tswengwa case cited by the respondent pertains to an application for review of an arbitration award and considers whether arbitrators have the power to declare disciplinary proceedings null and void in terms of 6.3 of the Disciplinary Procedure and Code Collective Agreement. The case is irrelevant to the issue at hand. The Council therefore has jurisdiction to arbitrate the matter. Lessons:
Clearly the issue was the fairness of the appointment. The municipality should be wary about raising frivolous points in limine that could lead to costs being awarded against them. In such matters, the municipality should be able to defend its decision.
CASE 2: M R Dlamini vs Ingwe Local Municipality: Non Compliance with Disciplinary Procedure and Code Collective Agreement, Clause 6.3. Case Number: KPD071509 Facts:
The applicant raised a point in limine challenging the jurisdiction of the Council to arbitrate the dispute. The applicant was dismissed for charges related to misconduct based on the disciplinary procedure and code collective agreement. The disciplinary process was initiated outside the 90 day period prescribed in terms of the old Collective Agreement. In terms of schedule 8 to the LRA, there was no indication in the charge whether there was any contravention of the rule or not. He referred to the charges and lack of information provided. The respondent stated the applicant pleaded guilty to charges 4 and 5 and therefore he understood the charge. Clause 6.3 of the Collective Agreement has been complied with. The charges were of serious nature and that 6.3 should be dismissed as the incident took place in 2014 and the respondent became aware in 2015. Clause 6.2 should be read in conjunction with 6.3. The charges are in line with Annexure A of the Collective Agreement and the LRA. The arbitrator will determine whether the dismissal was procedurally and substantively unfair. Ruling
Highveld District Council vs CCMA and others (2003) 24 ILJ 517 (LAC), held that: “…the fact that an agreed procedure was not followed does not itself mean that the procedure actually followed was unfair. Tsengwa v Knysna Municipality and Another [2015] 8 BLLLR 857 (LAC), held that arbitrators do not have power to declare disciplinary proceedings null and void with regard to clause 6.3 of the Disciplinary Procedure and Code Collective Agreement. An applicant who may feel aggrieved by the employer’s failure to abide by a time limit is not derived from a remedy to address this procedural lapse and is fully entitled to lead evidence at the ensuing arbitration to show that he has been prejudiced or disadvantaged as a result; and is entitled to some measure of compensation as result of procedural fairness. The arbitrator cannot determine the validity of a charge as an arbitrator is empowered to determine whether a dismissal is procedurally and substantively unfair. The arbitrator would have to look at the merits which will be determined at arbitration. The Applicant’s point in limine was dismissed and the Council does have jurisdiction to arbitrate the matter.
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Lessons:
The municipality should properly formulate the charges with all information which must be in line with the disciplinary procedure and code collective agreement. If the applicant raises clause 6.3 as a jurisdictional issue, then the municipality should argue that this is part of the procedural fairness of the matter and will be argued on merits at the arbitration. Further 6.3 should not be read in isolation. Annexure B of the collective agreement should be referred to.
CASE 3: ZB Nxumalo vs Abaqulusi Local Municipality: Who is an Employee? Case Number: KPD051513 Facts:
The matter referred related to a non-appointment. The respondent raised a point that the applicant was not an employee of Abaqulusi Local Municipality and was an employee of Zululand District Municipality. She applied for the post at Abaqulusi Local Municipality and was interviewed but not appointed. The Local Municipality was completely separate entity to the District Municipality as they had separate budgets, separate payrolls, separate organograms and her substantive post did not exist at the local municipality. In terms of an unfair labour practice, there must be an act or omission between an employer and employee. Reference was made to Department of Justice v CCMA and others, (2004) 13 LAC. The applicant argued that the Council had jurisdiction to arbitrate the matter as the Applicant was an employee of the District Municipality. Abaqulusi Municipality was the local municipality in the Zululand district. The Applicant was from the District Municipality which made her an employee of the Local Municipality. The Local Municipality is a component of the District Municipality and they co-exist. In Department of Justice v CCMA and others, (2004) 13 LAC, the court found that the employee was a public servant irrespective that she was in a different department. The Council has jurisdiction to hear the matter. Ruling:
Section 186 (2) (a) of the LRA states: “unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- “Unfair conduct by the employer relating to a promotion, demotion, probation (excluding disputes about dismissals relating to probation) or training of an employee or relating to the provision of benefits to an employee.” The Court held that if someone from an outside organization was appointed that non-appointment did not constitute a dispute about promotion. Applying the principles to the current matter, the applicant was not an employee of the Local Municipality. The Applicant failed to produce any evidence that the Local Municipality was part of the District Municipality. Department of Justice v CCMA and others, (2004) 13 LAC, held that a public servant was an employee of the Public Service irrespective employed by the Department of Transport of Public Health, was distinguishable from the present case. The municipalities operate on a different system and the employee of one entity is not an employee of another. The Applicant is not an employee of the respondent and the council does not have jurisdiction to arbitrate the matter. Lessons:
Only employees employed at a specific municipality can raise a dispute about unfair promotion and not employees from another municipality or another employer. The fact that the applicant is an employee of another municipality which is part of the District does not make him/her an employee of this municipality that he/she has applied for a position. The municipality can argue that the employee is not an employee as defined in Section 213 and Section 200A of the Labour Relations Act and that it’s not a promotion as defined in terms of Section 186 (2) (a) of the Labour Relations Act.
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CASE 4: SAMWU obo 157 member’s vs Potrans (Pty) Ltd and 2 others. Review of Ruling. Case Number: [2017] ZACJHB 218 Facts
The applicants sought to review and set aside the ruling as their condonation application for the late referral of their alleged unfair dismissal dispute was dismissed. This procedure is not provided for in the bargaining council’s Dispute Resolution Procedures. The Commissioner considered the condonation application on the papers without inviting the parties to make oral submissions. The applicants contended that this constitutes an irregularity on the part of the Commissioner. Ruling
It is trite that the test to apply in determining whether to grant or refuse condonation for non-compliance with the time frames is the interest of justice which is determined by having regard to the following factors: (a) the degree of lateness or the extend of non-compliance with the prescribed time frame, (b) the explanation for the lateness or the failure to comply with time frames, (c) prospects of success or bona fide defense in the main case; (d) the importance of the case, (e) the respondent’s interest in the finality of the judgment, (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. As a general rule these factors are not to be determined in isolation of each other but collectively. The Commissioner adopted an irregular approach in considering the condonation application only on papers submitted. A Commissioner faced with the absence of a replying affidavit and a dispute of facts on the papers before him ought to have directed that the matter be set down for oral submission. The Commissioner should have directed the parties to make written submissions which would have satisfied the audi rule. The ruling made by the second respondent is reviewed and set aside, and remitted to the bargaining council. Lessons:
The scheduling of a hearing in an application in the bargaining council is governed by rule 31.9 of the Rules of the bargaining council which states that the Council must allocate a date for the hearing of the application once a replying affidavit is delivered, or once the time limit for delivering a replying affidavit has lapsed, whichever occurs first. The parties will be informed of the date, time and place of the hearing. Municipalities should take cognizance if this rule. The case also sets out the factors that will be considered in a condonation application.
CASE 5: SAMWU obo Dlamini vs Ingwe Local Municipality: Representation at SALGBC. Case Number: KPD 071509 Facts
The applicant and the respondent raised points in limine as to the authority and or capacity of either representative to represent each party at the South African Local Government Bargaining Council in terms of the rules. The applicant submitted that the respondent’s representative had no authority to represent the respondent at the bargaining council as his authority only extended to assisting municipalities with internal disciplinary processes and not at the bargaining council. The respondent submitted that the applicant’s representative, a SAMWU official, had no authority to represent SAMWU members at the bargaining council as his membership with SAMWU was terminated.
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Ruling
Both parties were ordered to submit proof from their respective institutions that they were authorised to represent their parties at the bargaining council. A letter was received confirming the termination of Mr. Ngwane’s membership with SAMWU. The respondent failed to submit a letter confirming that he was authorised to represent the municipalities at the bargaining council. The letter or email from SALGA confirmed that he was authorised to assist municipalities in internal disciplinary processes. The rules of the bargaining council provide that only a union representative may represent an employee and only an official of the employer or an employer organisation official (in which case a SALGA official) may represent the an employer municipality at the bargaining council. Both representatives had failed to show that they met the requirements. The applicant’s representative and the respondent’s representative in this matter have no authority to represent their parties at this bargaining council. The parties were directed to seek representation that is in line with the rules of the South African Local Government Bargaining Council. Lessons:
In line with the SALGBC Main Collective Agreement, it’s clear that that only a union representative may represent an employee and only an official of the employer or an employer organisation official (a SALGA official) may represent the employer municipality at the bargaining council. Officials from other municipalities that may have assisted the municipality as a chairperson or employer representative may not represent the municipality at subsequent arbitration processes but may be called as witnesses at the subsequent arbitration process by the municipality.
CASE 6: S Hlatswayo & Others vs uThukela District Municipality: Unfair Labour Practice- Placement. Case Number: KPD011602 Facts
The applicants were placed onto the new staffing structure of the municipality on a close match basis where the job content of the new posts were compared to the existing job content of the employees. The respondent raised a point in limine on the jurisdiction of the SALGBC to arbitrate the matter as the matter related to placement. The applicants should have followed the dispute process in terms of the placement policy. Section 186 (2) (b) of the Labour Relations Act only provides that disputes relating to promotion, demotion, provision of training and benefits and unfair suspension, or disciplinary measures short of dismissal fall within the ambit of unfair labour practice may be referred to arbitration. The applicants submitted that the dispute was referred in terms of Section 186 (2) (a) of the Labour Relations Act and arose from a placement process undertaken by the respondent in August 2014 in terms of the placement policy. The process was unfair in that they were duly certified and competent to carry out the work as truck drivers but were placed as general workers. This amounted to a demotion as they lost rank, status or benefits which they were entitled to. The respondent’s contention that this is a mutual interest dispute that needs to be resolved through collective bargaining is wrong. Ruling:
Section 186 (2) (a) of the Labour Relations Act means unfair labour practice means any unfair act or omission that arises between an employer and employee involving: (a) unfair conduct by the employer relation to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits of an employee. This dispute does not deal any of the grounds listed in Section 186 (2) (a) but is based on the Uthukela District Municipality’s Placement Policy. The applicants had failed to follow the dispute procedures in the placement policy. The applicants in this matter did not lodge an objection to their placement as provided for in the placement policy and the issue of placement does not fall within the definition of an unfair labour practice as set out
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in Section 186 (2) (a) of the Labour Relations Act. The South African Local Government Bargaining Council does not have jurisdiction to arbitrate the matter. Lessons:
Placement is a separate process and regulated by policy as opposed to collective agreement. Placement disputes are not unfair labour practice matters and cannot be referred to the SALGBC under the guise of an unfair labour practice. The Placement policy provides for a dispute resolution process which must be followed by the employees.
CASE 7: G.P Maphumulo v Mooi Mpofana Local Municipality: Non- compliance with Disciplinary Regulations for Senior Managers. Case Number: KPD081526 Facts
The applicants sought an order that the disciplinary proceedings or hearing convened after the expiry of the time periods stipulated in the Local Government Disciplinary Regulations for Senior Manager 2010 is void and of no effect. The regulations formed part of the applicant’s contract of employment. There was non- compliance with the regulations. The respondent argued that a request to declare an Act invalid was outside the jurisdiction of the council. The Edcon judgement disposed of the issue of invalidity. A claim under the LRA is one confined to the relief under the said Act. The Act has specific remedies and there is no proviso for a declaratory order on null and void terminations. Invalid dismissals fell outside the contemplation of the LRA. The Constitutional Court held that an invalid dismissal is not a competent finding at arbitration. The issue in SARS v CCMA was not merely a procedural aspect. The court found the employer’s decision to dismiss was invalid as they were governed by the disciplinary code. The act of dismissal was invalid and that the unlawful act amounted to a substantively unfair dismissal. Ruling:
In Edcon v Karin Steenkamp and others (JS350/2014) [2015] ZALACJHB (3 March 2015) (Edcon) the employees brought an application to declare dismissals invalid and sought reinstatement with full back pay. If employees have already been dismissed, their recourse would be limited to an application to the Labour Court challenging the substantive fairness of the dismissals or the employees have a right to embark on a protected strike. The LAC held that it could not have been the intention of the legislature to invalidate or nullify dismissals from the scope of Chapter 8 of the LRA. The LRA makes no provision for invalid and unlawful dismissals and as such there would be no competent finding for the same. The Constitutional Court stated that there are no dispute procedures in the LRA for cases involving invalid or unlawful dismissals. In SARS v CCMA & Others (JA 067/11) (2015) ZALAC 52, the court held that when an employer acted outside his authority, in violation of the collective agreement then the dismissal itself was invalid. The Commissioner is confined to the remedies as set out in the LRA which are reinstatement, reemployment or compensation. The Commissioner has no power to make a determination that the dismissal was invalid or null or void but can only determine if it’s substantively and procedurally unfair. The point in limine was dismissed with costs. Lessons:
An arbitrator can only deal with substantive and procedural fairness and will not have power to determine the validity of the dismissal .The compliance with time frames in terms of legislation and collective agreements are important as it may result in a finding of procedural unfairness.
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CASE 8: James McCarthy vs Endumeni Local Municipality: Unfair Labour Practice: Section 186 (2) (a) of LRA. Review of Salary Notch. Case Number: KPD121503 Facts:
The respondent submitted that the council lacked jurisdiction as the applicant sought the review of his salary notch. This dispute fell outside the ambit of the section 186 (2) of the Labour Relations Act. The issue related to interest dispute about the negotiation of salary notch which the respondent regulated in terms of the Task Job Evaluation Policy which was not a collective agreement The applicant was appointed into a position which had been advertised and whose salary scale was declared to be within R 143 338 and R 186 120 per annum. Upon his appointment, the applicant was paid R 143 338 per annum which was within the scale as advertised. The applicant negotiated his salary with the respondent but was unsuccessful. The applicant cannot negotiate a review of his salary notch at the SALGBC as it lacks jurisdiction. The applicant submitted that he is not claiming unfair discrimination but his dispute was based on section 186 (2) (a) of the Labour Relations Act in terms of the benefit as his experience was not considered when he was appointed by the respondent, hence he was put on the minimum notch of the salary scale. The applicant sought to be placed on a salary scale of R 181 776. Ruling
Section 186 (2) (a) of the Labour Relations Act No 66 of 1995 states that “Unfair labour practice means any unfair act or omission that arises between employer and en employee and employee involving, “Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation or training of an employee or relating to the provision of benefits of an employee.” An employee is at liberty to negotiate his salary with the employer however if the outcome of such negotiation is not to the employee’s satisfaction, the employee may elect to accept or reject the appointment. The failure to reach agreement on the salary did not give rise to an unfair labour practice as defined in section 186 (2) of the LRA. The applicant’s dispute is not an unfair labour practice. The SALGBC lacks jurisdiction to hear the matter. Lessons
Unfair Labour practice matters are confined to the definition. A demand for a higher salary does not fall under an unfair labour practice definition.
CASE 9: D Mtshali vs Newcastle Local Municipality: Unfair Labour Practice Section: 186 (2) (a) of the LRA Refusal of Leave. Case Number: KPD031603 Facts
The respondent stated that the SALGBC doesn’t have jurisdiction as the dispute referred does not amount to an unfair labour practice. Leave is further not defined as a benefit. The shift system in terms of which the fire fighter, work ensures that they have Saturdays off. Should these shift systems change so that the fire fighters are treated as 6 day workers for the purposes of annual leave, it would in practice mean that they would have to apply for leave should they wish to take Saturdays off. Other fire fighters were opposed to this referral and wanted to retain the present shift system. The referral will have an impact on all fire fighters who were neither parties to nor represented at the arbitration. The applicant submitted that he wished to be treated as an essential services employee and that he was a 6 day worker and not a 5 day worker.
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Ruling
The applicant has failed to place an agreement or a policy document or contract stating that he is treated as a 5 day worker for the purposes of the allocation of annual leave. Section 186 (2) (b) of the Labour Relations Act No 66 of 1995 as amended provides as follows: “Unfair labour practice means any unfair act or omission that arises between employer and en employee and employee involving, ‘Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation or training of an employee or relating to the provision of benefits of an employee’ Section 20 of the Basic Conditions of Employment Act (BCEA) regulates leave. Apollo Tyres South Africa (Pty) Ltd v CCMA & others DA 1/11 [2013] ZALAC, held that a benefit was any advantage or privilege to which an employee was entitled or was offered, in terms of an existing policy or practice and which was granted at the employer’s discretion. There is nothing before the commissioner to show that the annual leave is either an advantage or privilege or alternatively that it is granted in terms of an employer’s discretion. Section C of the Main Collective Agreement (effective as from 1 July 2015) states annual leave is the subject of collective bargaining at a national leave and regulated by the BCEA. Leave is not a benefit but a right. The SALGBC lacks jurisdiction to determine this dispute. Lessons
Not all disputes can be regarded as benefits under the unfair labour practise definition. Leave is governed by Main Collective Agreement. Case law is quite clear that leave is a right as per the contract of employment.
CASE 10: SAMWU obo R Ramkissoon vs eThekwini Municipality – Transport Authority: Unfair Discrimination. Case Number: EMD011703 Facts
The applicant applied for the post of traffic engineering technician and was unsuccessful. She declared an unfair labour practice dispute relating to non-promotion in terms of Section 186 (2) (a) of the LRA. The respondent raised a point in limine that the applicant wanted to be appointed on the basis that she is a female. The relief sought constituted an unfair discrimination dispute relating to gender in terms of Section 6 (1) of the Employment Equity Act. The applicant stated that the relief sought is based on the Employment Equity Plan (EEP). Ruling:
The arbitrator derives powers to determine promotion dispute from Labour statutes viz LRA, EEA and collective agreements. The Employment Equity Plan (EEP) was concluded between the municipality and the trade unions. The purpose of the EEP was to ensure that appointments of employees complied with affirmative action. The EEP therefore becomes the primary point of reference when appointments are made and challenged. The dispute as per the referral is an unfair labour practice and not an unfair discrimination. The dispute filed is based on the Employment Equity Plan and the SALGBC has jurisdiction to hear the matter. Lessons:
The CCMA and Labour Court generally will have jurisdiction in respect of unfair discrimination disputes. However in this case the arbitrator found that this was a promotional dispute due to non-compliance with the employment equity plan and not the employment equity act. The commissioner derives his power in this instance from the LRA, EEA and collective agreement as he accepted that the employment equity plan is a collective agreement such as the employment equity plan. The award was not challenged but it may be that another commissioner may have found that this is a dispute in terms of non-appointment of female employee and that the matter had to be referred to Labour Court.
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CASE 11: SAMWU obo L Mdlala & others vs Msunduzi Local Municipality: Unfair Labour Practice: Section 186 (2) (a) of the LRA- Benefits. Case Number: KPD081617 Facts
The applicants all EPWP employees referred a matter to the SALGBC in terms of Section 186 (2) (a) of the LRA. They sought to be made permanent and to be entitled to the same benefits as permanent employees. The applicant referred to the EPWP grant agreement which stated that the purpose of the grant agreement is to achieve the targeted number of full time equivalent jobs through the EPWP by the end of 2016. The respondent acted outside the grant agreement when they elected to roll these contracts over a five year period terminating in December 2016. The employees were no longer employed in terms of the agreement or contract. They would be deemed to be permanent employees in terms of Section 198B. The respondent argued the applicants will not have any recourse if it is accepted that they are Expanded Public Works Programme (EPWP) workers. There was an agreement between the National Department of Public works and the Msunduzi Local Municipality in terms of which the department funded the programme. They were employed in terms of the scheme and are excluded from the provisions of Section 198B. Ruling:
Subsection 2 of Section 198B lists exclusions from the ambit of the Section 198 and the applicants are employed in terms of the EPWP which fell within the Ministerial Determination and therefore the applicants cannot claim any relief under section 198B as Section 198B (2) (c) of the LRA excludes any employee employed in terms of a fixed term contract which is permitted by Sectoral Determination. The respondent in this case demonstrated a justifiable reason for fixing the term of the applicant’s contract in terms of Section 198B (4) (g) of the LRA. The applicants were employed for the purposes of an official public works scheme. The dispute does not fall within the ambit of Section 186 (2) (b) and the SALGBC lacks jurisdiction. Lessons:
Municipalities must be aware of the amended Section 198B when deciding to appoint on a fixed term contract for longer than 3 months and where employees are paid under the BCEA overtime threshold and where the municipality will not have any justifiable reason for appointing these employees for a longer period of 3 months. The EPWP employees are however listed as a special category of employees and their appointment on a fixed term contract for longer than 3 months will be justifiable in terms of Section 198B (4) (a)-(i).The municipalities must however ensure that they comply with the general provisions as outlined when employing the EPWP employees ..
CASE 12: C.J Francis vs Newcastle Local Municipality: Unfair Labour Practice: Section 186 (2) (a) of the LRA – Benefits, failure to apply for condonation. Case Number: KPD091621 Facts:
The applicant sought to retain a long service bonus that originated in 1974 at the Borough of Newcastle Local Municipality. The long service bonus was stopped by the respondent when the new conditions of service collective agreement was first introduced in 2012. The respondent raised a point in limine that the matter should have been referred in 2012. The previous conditions of service terminated on the 31 December 2012. The applicant is bound by the current conditions of service and the applicant should have applied for exemption. The applicant stated that he lodged a grievance which remained unresolved on the 7 October 2016. The matter was conciliated, remained unresolved and a certificate of outcome was issued. It was now settled in law that a commissioner acquired jurisdiction to arbitrate a dispute when a certificate
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of non-resolution has been issued with reference to Fidelity Guards v Epstein NO and others (2000) BLLR 1389 (LAC). It was the setting aside of the certificate that would render the commission without jurisdiction to arbitrate. The applicant referred to Apollo Tyres South Africa (Pty) Ltd v CCMA & others (DA 1/11) (2013) ZALAC in which the respondent exercised its discretion not to grant the applicant a long service benefit. Ruling:
Section 191 (b) (ii) of the Labour Relations Act 66 of 1995 provides that referral in terms unfair labour practice must be made within 90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it a later date within 90 days which the employee became aware of the act or occurrence. It is well established in our law that one party cannot unilaterally confer jurisdiction on the Bargaining Council to conciliate or arbitrate disputes. A commissioner derives jurisdiction from the Labour Relations Act and not the certificate of outcome indicating a matter remains unresolved – Bombardier Transportation (Pty) Ltd v Mtiya NO and Others [2010] 8 BLLR 840 (LC) where the court concluded that a certificate of outcome has nothing to do with jurisdiction. A certificate is merely a document confirming that a matter remained resolved or unresolved. The dispute arose in 2013 and when the applicant was transferred. The SALGBC lacks jurisdiction as the applicant failed to refer his matter within 90 days to the SALGBC. Lessons:
When an employee is challenging the collective agreement on conditions of service claiming to retain a benefit that they had in terms of their individual contract of employment then these benefits will be replaced with the benefits as regulated in the collective agreement, even if the benefit is less beneficial .The employee or any party will have to apply for exemption if they want the provisions of the collective agreement not to be applicable.
CASE 13: S Mahabeer vs Ilembe District Municipality: Defective Referral. Case Number: KPD051711 Facts
The applicant referred a dispute to the SALGBC on behalf of ex Kwadukuza municipality staff. The dispute arose in 2003 and is alleged to be an ongoing dispute. The relief sought was to instruct the employer to continue with the benefits these employees received prior to transfer in terms of Section 197. The applicant relied on the extract from the Minutes of the Special Executive Committee Meeting on the 20 June 2003 which states, “that it had been accepted that all employees as appearing in the attached schedule would be transferred to the District with the current conditions of service including all applicable benefits, that grades be maintained and further that they be informed in writing of their pending transfer to Ilembe. Ruling:
The arbitrator ruled that the referral is void for vagueness and is materially flawed in that:
• the employees on whose behalf this application was brought are not listed and are therefore not parties to it;
• it is not apparent whether the applicant is an affected party, and that the applicant has necessary locus standi to have bought this application;
• that the proposed policy was accepted;
• there is nothing to show what the alleged benefit is,
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• this matter was not prosecuted in 12 years and no explanation has been advanced as to why nothing was done; and
• there is no explanation as to why the employees in question were transferred and whether it was in terms of section 197 of the LRA. Lessons:
When municipalities receive the notice of conciliation, they should check whether they have received the referral form. If not, they need to inform the SALGBC to ensure that proper service is affected. Any party referring a dispute such as the employee or trade union or legal representative cannot represent an employee or group of employees without having the necessary authority from the employees that is represented. If the application referral has more than one applicant then there should be a list of applicants attach to the referral. Any excessive delay without proper motivation and no reasonable prospects of success will generally not succeed in terms of a condonation application.
CASE 14: S Mhlophe and P. Mhlongo vs Umdoni, eThekwini and Vulamehlo: Section 197 of LRA –Transfer. Case Number: KPD091625 Facts
Vulamehlo Municipality was disestablished in 2016 and staff were transferred either to Umdoni Municipality or eThekwini Municipality in a 65% / 35% split respectively in terms of a placement policy. The respondents submitted the SALGBC lacks jurisdiction to arbitrate the dispute arising from the transfer of employees from one employer to another in terms of section 197 of the LRA because the law precludes the Bargaining Council from arbitrating such disputes. The applicants justified the referral on the basis that they were not consulted when the relevant policies were drafted and that they were not provided with information prior to the transfers. They objected to the transfers which response was received late. They sought to be transferred to eThekwini. They argued that the policy document was a collective agreement alternatively it constitutes an express agreement between all parties. The policy indicates that if a party is not satisfied with the interpretation, the party may refer a dispute to the Bargaining Council. Ruling:
Clause 7.6.5 states that, ‘should an objection not be resolved, the objections shall be referred to the SALGBC which shall appoint the arbitrator from its Panel of arbitrators to consider the objection. The municipalities shall be jointly responsible for the costs of the arbitrator to be appointed by the SALGBC. The policy states that where a municipality is disestablished and transferred to another existing municipality then such a transfer is to take effect in terms of Section 197 of the LRA. The policy as per clause 7.6.5 states unequivocally that the failure of the committee appointed to deal with objections entitled that employee to refer the matter to arbitration by an arbitrator on the panel of the SALGBC. This means that the SALGBC has the necessary jurisdiction. In City of Cape Town and SAMWU (obo Jacobs) and others, C 733/05, the court held that an employee who moved from a disestablished municipality and placed in a different municipality remains an employee at all times, that the transfer process from the disestablished municipality is governed by Section 197 of the LRA and that such an employee retains all his benefits and rights accorded in terms of the LRA. Independent Municipal Allied Trade Union v City of Cape Town and others (CA 13/2013) [2015] ZALAC 9 confirmed that the Bargaining Council has the necessary jurisdiction to determine placement disputes following a section 197 transfer. The SALGBC has jurisdiction to hear the matter.
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Lessons:
Municipalities need to ensure that when the conclude policies, they should not insert a clause directing that the SALGBC has jurisdiction to hear matters. Jurisdiction cannot be conferred on to the SALGBC.
CASE 15: T.O. Vilakazi vs Inkosi Langalibalele Local: Unfair Dismissal: Section 186 (1) of the LRA. Case Number: KPD011707 Facts
On 17 August 2016, the applicant tendered her resignation as an employee of the municipality having been elected as a councillor with immediate effect. On 18 August 2016 the applicant withdrew her resignation as an employee and tendered her resignation as a councillor. On 19 August 2016, the respondent’s acting municipal manager, rejected her withdrawal of her resignation. On the 15 September 2016, the respondent’s then acting municipal manager accepted the applicant’s withdrawal of resignation and reinstated her to her original position. The applicant’s employment was terminated during January 2017. The respondent submitted that the reinstatement was unlawful and invalid as neither the acting municipal manager or the applicant were legally empowered to respectively withdraw and accept the withdrawal of resignation. The subsequent employment contract was invalid therefore the employment contract was not binding. If the resignation could not be withdrawn then she was unlawfully reemployed. If it was found to be a dismissal, it was fair. The applicant submitted Section 55 (1) (e) of the Local Government Systems Act, states that “As head of the administration the Municipal Manager of a municipality is, subject to the policy directions of the Municipality Council, responsible and accountable for: (e) the appointment of staff other than those referred to Section 56(a). The Municipal Manager was empowered to appoint staff and there was nothing preventing him from reinstating or reemploying. Ruling:
In terms of Section 55 (1) (e) of the Local Government Systems Act, the Municipal Manager as Head of administration in the municipality, is responsible and accountable for the appointment of staff other than those referred in Section 56 (a). It follows that the reinstatement of the applicant was neither unlawful nor invalid and the termination of the applicant’s employment on 5 January 2017 amounted to a dismissal. The SALGBC therefore has jurisdiction. Lessons:
The resignation of an employee is a unilateral act that does not need acceptance by the employer or municipal manager. When an employee then decides to withdraw her resignation the municipal manager has an option to agree or disagree to allow the employee to come back to work. When a withdrawal of a resignation is accepted by the municipal manager who is an accounting officer, the municipality cannot then argue that the municipal manager cannot allow the employee to withdraw her resignation. The SALGBC has jurisdiction to arbitrate matters in respect of an unfair dismissal.
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CASE 16: SAMWU vs Amajuba District Municipality: Ruling on Certificate of outcome: KPD031707 Facts
The matter was referred as an unfair labour practice and was conciliated. The Commissioner seized with the matter indicated that the dispute related to “other,” and then described it as “Remuneration,” where after he indicated that the matter “can be referred” to the Labour Court. The applicant referred the matter to arbitration. Ruling:
The Labour Court has on a number of occasions found that the certificate of outcome is no more than a written record that the conciliation took place and that the dispute was resolved/remained unresolved. In Newcastle Local Municipality v SAMWU and others (D448/2014) 2014 ZALCD 36 the court held that the certificate of outcome records that the matter remained unresolved but did not form the basis of, nor did it determine in any way what the nature of the dispute was. The judgment held that the conciliating Commissioner was required to do no more than to attempt to conciliate the dispute and to record whether the matter was settled or not. The conciliating commissioner was not empowered to determine what the nature of the dispute is, as that went beyond the powers of a conciliator. It is trite law that the duty to determine the true nature of the dispute falls to the arbitrator and not the conciliator. In Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg and Bean Suncoast, the court held that the function of the conciliating commissioner is limited. The administrative function performed by the conciliator in completing the certificate of outcome, does not in any way impact on the matter or terms in which the applicant has referred the dispute. This was confirmed in Bombardier Transportation (Pty) Ltd vs Mthiya NO and others (2010) 31 ILJ 2065 (LC.) Goldfields Mining SA (Pty) Ltd vs CCMA [2010] 2 BLLR 149 (LC) stated that the conciliating commissioner lacked jurisdiction to classify the dispute. The certificate of outcome has no legal significance and is not binding on the parties nor the SALGBC. The matter may be set down for arbitration. Lessons:
From the case law, it is clear that a certificate of outcome has no legal significance. The conciliating commissioner was not empowered to determine what the nature of the dispute is, as that went beyond the powers of a conciliator. Even if the certificate indicates that a matter should be referred to labour court, the applicants can refer the matter to arbitration.
CASE 17: P. Myeza and 43 others vs eThekwini Municipality: Section 198B of LRA Case Number: EMD031701 Facts
The applicants EPWP employees have lodged a dispute in terms of Section 198B of the LRA and Section 186 (1) (b) non-renewal of a fixed contract. The respondent raised a point in limine that the applicants did not fall within the scope of the SALGBC. The applicants were not parties to the Main Collective Agreement and furthermore that they were not and had never been in the employ of the Ethekwini Municipality. EPWP is a programme to provide work for poverty alleviation and that persons employed in terms of EPWP were governed by the Ministerial Determination. Section 198B (2) specifically provides that it is not applicable to persons employed on FTC in terms of sectoral determination. In 2016, the applicants lodged a dispute concerning the termination of their contracts which was settled in full and final settlement. The applicants stated that aim of the programme was local development. The project started in 2014 and they were continuously handed FTC’s contracts and these contracts were rolled over. They had a reasonable expectation that the contacts would be renewed. The applicants fell under section 186 (1) (b). The dismissal was procedurally and substantively unfair.
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Ruling:
The applicants were employed in terms of the Extended Public Works Programme. Funding for the remuneration that was paid to the Applicants emanates from the central government which was the Department of Public Works. The applicant’s didn’t dispute that their conditions of employment are governed by a Ministerial Determination. As per that determination as well as of the LRA, several clauses of the Basic Conditions of Employment Act and the LRA do not apply to the participants in the EPWP. The Code of Good Practice and the Ministerial Determination comprise the statutory regime which applies to persons employed in terms of the EPWP. They are not covered by the Main Collective Agreement of the SALGBC and as such, the Council does not have jurisdiction to conciliate or arbitrate the disputes referred to the Council by persons employed in the EPWP. The applicants should refer the dispute to the CCMA. Lessons:
Extended Public Works Programme workers are not employees of the municipality and therefore do not fall under the jurisdiction of the South African Local Government Bargaining Council.
CASE 18: IMATU obo Members and vs Umlalazi Local Municipality: Interpretation and Application of Collective Agreement. Case Number: KPD011506 Facts:
The applicant referred an interpretation and application of a collective agreement in terms of the Umlalazi Local Municipality’s Placement Policy and Procedure. The policy states that following a placement exercise any employee who is aggrieved by their placement may submit a grievance and if that grievance is not resolved then a dispute may be referred to arbitration. The arbitrator who is appointed to deal with such a dispute will be limited to deciding whether the placement of the employee was “reasonable or unreasonable taking into account the provisions of the placement policy.” The applicant took a view that in terms of section 133 (2) of the LRA, the Bargaining Council was obliged to arbitrate the dispute and that furthermore the arbitrator was obliged to arbitrate the dispute once the certificate has been issued. The Respondent argued that in terms of the placement policy and procedure document, it was clear that it was the MM who had the power to appoint an arbitrator to deal with unresolved disputes. Ruling
It is trite law to state that a jurisdictional point may be raised at any stage of the proceedings (See Avgold Target Division vs CCMA and others 2010 2 BLLR 159 LC and Bombardier Transportation (Pty) Ltd v Mtiya NO and Others LC (2010) 31 ILJ 2065 (LC). The fact that a certificate of outcome has been issued does not necessarily confer jurisdiction on the CCMA or a Bargaining Council. The Court in the Bombardier Transportation held that certificate of outcome is no more than a document issued by a commissioner stating that on particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction. The Court specifically distinguished the case of Fidelity Guards Holding v Epstein NO and others (2000) 21 ILJ 2382 (LAC) which is the case that the Applicant’s representative relied upon. It is trite that one party cannot unilaterally confer jurisdiction on a Bargaining Council to conciliate and arbitrate disputes. The placement policy and procedure document does not confer jurisdiction on this Bargaining Council. This Council derives its jurisdiction from the Labour Relations Act and specifically section 28 read with section 51, 133 and 186 of the Act. This Bargaining Council does not have jurisdiction to hear this matter. Lessons
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In terms of case law, a jurisdictional point may be raised at any stage of the proceedings. The SALGBC has no jurisdiction to arbitrate matters pertaining to placement. A placement policy and procedure document does not confer jurisdiction on the Bargaining Council. Such clauses in polices giving the SALGBC jurisdiction should be removed.
CASE 19: Robert B Ngubane vs Maphumulo Local Municipality: Non-compliance with Disciplinary Regulations for Senior Managers Case Number: KPD091503 Facts:
The applicant was dismissed for gross misrepresentation, fraud and forgery. The applicant raised a point in limine that the procedure in terms of the disciplinary regulations for senior managers was not followed. The respondent stated that that the matter has been prematurely referred as per section 62(4) of the Municipal Systems Act and should be dismissed. It was only the MM who was able to implement the recommendations of the presiding officer and there was no need to hold a special meeting. The meeting was superfluous and had no legal standing in the dismissal of the applicant. Ruling:
The Applicant had referred an unfair dismissal dispute in terms of section 191 of the LRA yet the submissions made on his behalf suggest he was not dismissed either because the MM had not made a decision to dismiss him (if he was not a senior manager) or because the decision to dismiss him was void ab initio, if he was a senior manager. In those circumstances it appears as though the correct route would have been for the applicant to have brought an urgent matter to the Labour Court requiring the respondent to allow him to continue working. The existence of a dismissal does not appear to be in dispute. The applicant sought to raise a procedural issue as an in limine point, in the hope of getting his job back without enduring an arbitration hearing on the merits of his dismissal. Procedural unfairness can be raised at the arbitration. There was insufficient evidence placed before the commissioner to make a conclusive decision as to whether the applicant was a senior manager or not. The respondent will have to lead evidence at the arbitration hearing. There is no merit that the matter was prematurely referred. The matter is to proceed to arbitration on merits. Lessons:
Procedural issues cannot be disguised as preliminary issues. Whether procedure was not followed must be dealt with at the arbitration proceedings.
CASE 20: SAMWU obo Members’ vs Umhlathuze Local Municipality: Section 186 (2) of LRA. Case Number KPD041602 Facts:
The matter was referred as an unfair labour practice. The respondent failed to attend and the matter proceeded. The applicant’s representative testified that the issue was that the respondent implemented the Category 7 remuneration framework as per regulations only to the senior managers which was the municipal manager and the deputy municipal managers after there was a finding made that revealed that the respondent was now on a category 7 municipality. All the other employees of the respondent were left on a category 5. The matter was discussed and the respondent did not want to comply with being consistent so that all other employees could benefit. The relief sought was that all other employees be graded at category 7 municipality the same as Senior Managers. Ruling:
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Section 186 (2) of the Act provides that an unfair labour practice means any unfair act or omission that arises between an employer and an employer involving: (a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee…. NAWA & Another v Department of Trade and Industry [1998] 7 BLLR 701 (LC) held that the Applicant is required to prove that the conduct or practice falls within the statutory definition of an unfair labour practice. The applicant party’s case is one that does not fall within the parameters of Section 186 (2) of the Labour Relations Act and is dismissed for lack of jurisdiction. Lessons:
It’s imperative that the municipality must always attend arbitration proceedings otherwise an award will be issued in their absence. Disputes relating to the category of a municipality does not fall under the definition of an unfair labour practice. The National Bargaining Council has jurisdiction to deal with matters pertaining to the National Collective Agreement.
The categorisation of senior managers are done in terms of the regulations on upper limits of total remuneration of senior managers and employees are done in terms of the bargaining council processes and is not the same.
CASE 21: SAMWU obo N Ntenza vs Inkosi Langalibalele Local Municipality: Representation. Case Number: KPD 031603 Facts:
The Applicant’s representative raised a point in that Mr Sibiya who represented the municipality was not an employee of the Respondent, and is employed by Umkhanyakude Municipality. Mr Sibiya was a member of a panel of municipal employees, who were entitled to represent municipalities at disciplinary hearings i.e. it permits employees who are employees of a particular municipality, to act as initiators at internal disciplinary inquiries on behalf of other municipalities. This panel was maintained by the employers’ organization, SALGA. Mr. Sibiya’s membership of this panel did not entitle him to represent other municipalities at conciliation or arbitration hearings. Reference was made to a ruling by an SALGBC Commissioner in case number KPDO 71509, dated 16 April 2016, in which the Commissioner had ruled that the Respondent’s purported representative was not permitted to represent the Respondent at arbitration, as he was not an employee of the Respondent and he was not an employee or office bearer of the employers’ organization i.e. SALGA. Mr. Sibiya conceded that he was not an employee of the Respondent. He was a panelist of the SALGA panel, which authorized him to assist other municipalities at disciplinary hearings. He had been involved with this matter from the outset - disciplinary hearing, appeal hearing, as well as at the conciliation hearing. No objection had been raised to his presence. The union failed to comply with the rules of the Bargaining Council which required a party to give proper notice of its intention to raise an in limine issue. Ruling:
Rule 25 of the Main Collective Agreement of the SALGBC provides that an employer party at arbitration may be represented by a director or an employee of the employer party. If the party is a registered employers’ organization, then it may be represented by an officer bearer or official of that organization, or a director or employee of an employer that is a member of that employers’ organization authorized to represent that party. The SALGBC constitution provides at para. 14.8 that in any arbitration proceedings a party to the dispute may be represented only by a legal practitioner, a director or employee of the party or by a member, office bearer or official of that party’s organization. The Commissioner agreed with Mlaba’s KPD071509 ruling. Having regard to the Main Agreement, and the Constitution of the SALGBC, Mr. Sibiya is not an employee or office bearer of the Respondent or of SALGA. Insofar as the Constitution appears to allow a member of
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an employers’ organization to represent a party, membership of employers’ organization is institutional membership, not personal membership. Mr Sibiya has no authority to represent the municipality. Lessons:
In terms of the SALGBC Main Collective Agreement, if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member of that close corporation and if the party is a registered employers’ organisation, any office bearer or official of that employers’ organisation is authorised to represent that party.
CASE 22: IMATU obo R Govender vs Msunduzi Local Municipality: Legal Representation. Case Number: KPD061503 Facts:
The Respondent’s representative made an application for the Respondent to be represented by a legal representative, which was opposed by the Applicant party. The respondent tendered evidence in respect of the nature of the questions raised by the dispute, the complexity of the dispute, the public interest and the comparative ability of the opposing parties or their representatives to deal with the dispute. This was countered by the applicant. Arbitration Ruling:
Rule 25(1) (c) of the Rules for the Conduct of Proceedings before the Council as set out in the Main Collective Agreement provides that if the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relate to the employee’s conduct or capacity, a party is not entitled to be represented by a legal practitioner in the proceedings unless – i) The commissioner and all the other parties consent; ii) The commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering-
a) The nature of the questions of law raised by the dispute;
b) The complexity of the dispute;
c) The public interest and
d) The comparative ability of the opposing parties or their representatives to deal with the dispute.
The Applicant made a very valid point that it would be totally unreasonable and unjust to allow the Respondent to have legal representation when the Respondent as a member of SALGA, an association of employers is allowed to be represented by SALGA’s legal advisors. Lessons:
Municipalities must be aware that legal representation is not allowed in unfair dismissal matter relating to misconduct. The applicant or the municipality must make an application for legal representation addressing the following: The nature of the questions of law raised by the dispute, the complexity of the dispute, the public interest and the comparative ability of the opposing parties or their representatives to deal with the dispute
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CASE 23: SAMWU vs Umdoni Local Municipality: Interpretation of Selection and Recruitment Policy. Case Number: KPD061607 Facts
This dispute revolved around an interpretation of the selection and recruitment policy of the municipality. The commissioner raised an issue as to whether the Bargaining Council has jurisdiction to hear a dispute of this nature. He was referred to the policy itself by the applicant in terms of clauses 20.3 and 20.4, which together, read as follows; “The Municipal Manager shall give a final interpretation of this policy in the case of a written dispute. If the party concerned is not satisfied with that interpretation, a dispute may then be pursued with the SALGBC or arbitration.” The Applicant’s representative said that this clause of the policy conferred jurisdiction on the Bargaining Council. Respondent’s representative said that the policy was not a collective agreement and could not confer jurisdiction on the council. Ruling:
Compass Group SA (Pty) Ltd vs CCMA & Others August 2015 Case No. JR685/11 August 2015 LC held that jurisdictions can be raised at any stage in proceedings and that presiding officers are obliged to raise jurisdiction if the facts indicate a lack of jurisdiction. Institutions such as the CCMA are creatures of statute and may only act within the jurisdiction that is conferred on them by the Labour Relations Act and any other labour legislation. The court noted that a certificate of outcome issued indicating that the dispute could be referred to arbitration was irrelevant and that it is that a certificate of outcome has no legal effect and is not definitive of any jurisdictional matters. Jurisdiction or the lack of it is a factual enquiry. Either the CCMA has jurisdiction or it does not. This was in line with Madondo v Safety and Security Sectoral Bargaining Council and others [2015] 56 ILJ 2314 (LC). The CCMA and bargaining councils are creatures of statute and are not Courts of law, and cannot decide their own jurisdiction. The Respondent’s selection policy cannot confer jurisdiction on the Bargaining Council. This Council derives jurisdiction from the Labour Relations Act, and specifically section 28 read with section 21, 133 and 186 of the Act. It can also derive jurisdiction from collective agreements agreed to and signed under the auspices of the Bargaining Council. The Respondent’s selection policy is not such a document. The Bargaining Council does not have jurisdiction to hear this dispute. Lessons:
A party cannot unilaterally confer jurisdiction on a Bargaining Council to conciliate and arbitrate disputes. A selection policy cannot confer jurisdiction on the Bargaining Council. A policy is not a collective agreement.
CASE 24: R Govindsamy vs Umhlathuze Local Municipality: Section 186 (2) (a) of LRA – Benefits. Case Number: KPD061608 Facts:
The matter was referred as an alleged unfair labour practice dispute relating to the provisions of benefits. The applicant is employed an Assistant Superintendent of Traffic Services. A shift roster had been designed by the respondent which regulates the working hours of the employees including the applicant. The applicant requested a change in her shift to start later to attend to her daughter’s medical needs before she leaves for school. The respondent raised a point in limine that the council doesn’t have jurisdiction to arbitrate the matter as the issue related to working of shifts which is not a benefit and doesn’t fall within the definition of an unfair labour practice as defined in the LRA. The applicant referred to the Apollo Tyres SA (Pty) Ltd v CCMA & others (2013) 34 ILJ 112 (LAC) and argued that it was a benefit and the Council has jurisdiction to hear the matter.
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Ruling
Section 186 (2) (a) of the Labour Relations Act No 66 of 1995 defines an unfair labour practice as: “Unfair labour practice means any unfair act or omission that arises between employer and en employee and employee involving: (a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation or training of an employee or relating to the provision of benefits of an employee. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the Labour Appeal Court held that in terms of the LRA benefit means existing advantages or privileges to which an employee is entitled ex contractu or ex lege or granted in terms of a policy or practice subject to the employer’s discretion. In IMATU obo Verster v Umhlathuze Municipality & others (2011) 32 ILJ 2144 (LC), the court held that relying on distinction between rights and interest disputes is not enough, nor is distinguishable between remuneration and benefits. The right answer, the Court said, could be obtained from a “proper conceptualization,” of the nature of dispute between the parties and not how they have characterized or packaged the dispute. Though the Apollo case has widened the concept of benefits it is not broad enough to accommodate the working of shifts as a benefit. The working of shifts does not constitute a benefit and as such the Council has no jurisdiction to adjudicate this dispute as an unfair labour practice. Lessons
Unfair Labour practice matters are confined to the definition. Not every act or omission complained about is an unfair labour practice. Case law is quite specific as to what constitutes a benefit in terms an unfair labour practice definition.
CASE 25: Busisiwe Lorancia Zondo vs Mandeni Local Municipality: Section 186 (2) (a) of LRA – Benefits. Case Number: KPD091626 Facts:
The matter was referred as an unfair labour practice in respect of benefits. The respondent submitted that the applicant disguised the matter as a promotion and a benefit dispute but it is actually seeking a notch increase. This is a salary increase and does not fall under the definition of a benefit for the purposes of an unfair labour practice. The applicant submitted that on the 24 July that all staff received an annual notch increase. Ruling
Section 186 (2) (a) of the Labour Relations Act No 66 of 1995 defines an unfair labour practice as: “Unfair labour practice means any unfair act or omission that arises between employer and en employee and employee involving: Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation or training of an employee or relating to the provision of benefits of an employee. The applicant’s dispute does not fall under any of the above definition. A notch increase is not a promotion. The SALGBC lacks jurisdiction. Lessons
Unfair Labour practice matters are confined to the definition. Though the Apollo case has widened the definition of a benefit, what will be regarded as a benefit will depend on the facts of each case.
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CASE 26: N.O Mkhize and Others vs Mkhambathini Local Municipality: Section 186 (2) (a) of LRA – Salary Increase. Case Number: KPD071608 Facts:
The matter was referred as an alleged unfair labour practice. The applicants averred that the respondent had increased the salary of an employee in July 2013 and sought that their salaries be increased. The respondent argued that the council doesn’t have jurisdiction to arbitrate the matter as the issue related to salary increase. It did not fall within the ambit of section 186 (2) (a) and case law states that the upgrading of salary scale was not a dispute about promotion but a dispute of interest. The employee’s whose salary was increased had been reversed. He is now paying back the municipality. The applicant stated that this was an unfair labour practice in terms of the definition. Ruling
Section 186 (2) (a) states that an unfair labour practice means any unfair act or omission that arises between employer and an employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation or training of an employee or relating to the provision of benefits of an employee. Section 213 of the LRA defines remuneration as “any payment of money or in kind or both in money and kind, made or owing to any person in return for that person working for any other person, including the State.” Department of Justice and Constitutional Development v Van der Merwe NO & others (2010) 31 ILJ, held that disputes about increases in salaries whether as a means of narrowing salary gaps between managers and specialists, or any other increases in the remuneration of employees is a dispute of interest. The dispute relates to salary increases and not within the ambit of section 186 (2) (a) of the LRA. The SALGBC lacks jurisdiction. Lessons
Disputes about increases in salaries whether as a means of narrowing salary gaps between managers and specialists, or any other increases in the remuneration of employees is a dispute of interest. Salaries are negotiated at a National Level in terms of levels of Bargaining as per the Main Collective Agreement.
CASE 27: Albin Smith vs Dr Nkosazana Dlamini Zuma Local Municipality: Section 186 (2) (a) of LRA –Overtime. Case Number: KPD091613 Facts:
The first matter was referred as an unfair labour practice. The applicant stated that the municipal manager swore him and he sought an apology. The second matter related to non-payment of overtime and the third matter related to unfair discrimination. The respondent stated that the council doesn’t have jurisdiction to arbitrate the matters as the applicant failed to follow the internal grievance process. The second matter is related to payment of salary which is dealt with by the Department of Labour. The CCMA/Labour Court has jurisdiction to deal with unfair discrimination matters. The applicant averred that his matter was an unfair labour practice as the employer treated him unfairly. Ruling
The applicant’s concerns and desired outcomes does not fall under the section 186 (2) of the LRA. The SALGBC lacks jurisdiction to hear the matters. The issue of overtime is the jurisdiction of the Department of Labour and the CCMA/Labour court has jurisdiction to deal with unfair discrimination matters.
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Lessons
The Labour Court and the CCMA has exclusive jurisdiction to deal with matters in respect of unfair discrimination while disputes regarding overtime must be referred to the Department of Labour.
CASE 28: Linda Sakha & 211 others vs uMkhanyakude District Municipality: Section 186 (2) (a) of LRA – Benefits. Case Number: KPD071628 Facts:
The matter referred was an unfair labour practice relating the withdrawal of rental allowances. The respondent until the 1 July 2016, had been paying certain categories of employees a rental allowance as a benefit. It was withdrawn on the 14 July 2016 effective from the 1 July 2016 due to financial constraints. The respondent argued that the council doesn’t have jurisdiction to arbitrate the matter. The rental allowance is negotiated at National together with the housing allowance and other benefits. The Main Collective agreement was concluded on the 25 August 2015. Housing allowances is one of the issues that are regulated in it and should be read to include rental allowance. This dispute is about the interpretation and application of the Main collective agreement and should be referred to the National Division of the SALGBC. The applicants submitted that the matter was not an interpretation and application of the main collective agreement. Rental allowance is not negotiated at the national level. The SALGBC has jurisdiction. Ruling
The rental allowance is not provided in the Main Collective Agreement and it has been the practice of the municipality to pay its employees rental allowance for some time. An agreement was concluded on the 19 November 2015 wherein the municipality assured its employees that such benefits will not be terminated. This was months after the conclusion of the Main Collective Agreement. The benefit was terminated without any consultation. The matter relates to benefit and falls squarely within the ambit of section 186 (2) (a) of the Labour Relations Act. The SALGBC has jurisdiction to arbitrate this matter. Lessons
Municipalities should always consult and or agree with its employees before terminating any benefits. This will avoid disputes to the SALGBC. The Municipalities should rather approach the bargaining council to interpret any collective agreement prior to effecting current benefits of employees.
CASE 29: Ntuli and others vs eThekwini Municipality (City Health): Interpretation and Application. Case Number: EMD061607 Facts
The Applicants’ job description was changed during the job evaluation from Chief Clerk Information at grade 12 to Information Officer at grade 7.The new job description was used to grade their original post. About ten duties were left out when the new duty schedule was evaluated. The applicant allege that the conduct of the Respondent constituted a change of Organisational Rights Agreement (ORA) in terms of unfair labour practice because they were placed on TK 07 instead of TK12. The Applicants are seeking a regrading of their original job in terms of old organogram structure of 2007 and the job title changed to Sub-District Information Officer.
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Ruling:
A dispute about a Collective Agreement, is limited to the application and interpretation of Collective Agreement. Organisational Rights Agreement is concerned with the rights that are conferred to the Trade Unions by virtue of having majority members in the workplace. The CCMA has exclusive jurisdiction on disputes about unfair discrimination and the LRA does not have any provision for the dispute referred that falls under the residual unfair labour practice. The SALGBC does not have jurisdiction to hear and determine the dispute about “Changing the ORA.” Lessons:
The CCMA and Labour Court has jurisdiction in respect of unfair discrimination disputes. The ORA is part of the Main Collective Agreement and jurisdiction lies with the National division of the SALGBC.
CASE 30: S Kubheka vs Alfred Duma Local Municipality: Withdrawal of Settlement Agreement. Case Number: KPD041606 Facts:
The parties concluded a settlement agreement at the bargaining council. At the time of the settlement the applicant party representative was present but not the applicant. Sometime after the agreement was signed the applicant challenged the settlement agreement and requested the bargaining council to set aside the settlement agreement. Ruling:
A commissioner has no authority to withdraw a settlement agreement. (First National Bank Ltd (Wesbank Division) v Mooi No and others (2009) 30 ILJ 336 (LC)) Lessons:
A settlement agreement can be set aside by application in terms of a review to the Labour Court. The settlement agreement can be challenged in terms of contractual law on the following basis – impossibility to perform, duress, undue influence and misrepresentation of fraud (Hadio Linah Cindi v CCMA and others [2015] ZALCJHB 236) It is advisable that parties conclude settlement agreements under the auspices of the SALGBC and ensure that all parties are present when the agreement is concluded
CASE 31: B.P Sibiya and four others vs UThukela District Municipality: Section 186 (2) (a) of LRA – Adjustment of Salaries. Case Number: KPD051609 Facts:
The employees referred a dispute almost 3 years after the alleged unfair labour practise by the employer. The dispute related to a failure to back pay employees following an adjustment of salary scales. The applicants were appointed on a permanent basis as meter readers with effect 2010. They alleged that they were appointed on incorrect notches and should be paid on a higher scale. The respondent argued the municipality underwent restructuring and the applicants were appointed in new posts with effect 1 March 2013 and not entitled to back pay preceding that date. The respondent raised condonation and that the matter related to salary which was not a benefit in terms definition of an unfair labour practice.
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Ruling:
The three year period was inordinately excessive (Meintjies vs H.D. Combrink (Edms) BPK 1961 (1) SA 262 (A) approved in Cernatu vs Metalbox (2005) 26 ILJ 92 (LC) and Moila vs Shai NO (2007) 28 ILJ 1028 (LAC)). The SALGBC lacks jurisdiction to hear the matter. The second jurisdictional issue regarding benefits fell away as condonation was not granted. Lessons:
Unfair labour practice disputes must be referred within 90 days of the act or omission or when the employee became aware. In Melane vs Santam Insurance Co. Ltd 1962 (4) SA 531 stated the relevant factors to be taken into account in exercising the discretion whether to condone non-compliance are: the degree of lateness, the explanation for such delay, the prospects of success and the importance of the case to the parties / prejudice to the parties. Condonation will also be refused in the absence of an acceptable explanation for the delay, regardless of good prospects of success on the merits. Municipalities are therefore advised to scrutinize the referral and verify if the matter was referred within the time period.
CASE 32: S Ngwenya vs Newcastle Local Municipality: Section 186 (2) (a) of LRA – Non Promotion. Case Number: KPD071627 Facts
The applicant an internal audit manager applied for the position of Municipal Manager and was unsuccessful. He lodged a dispute in terms of section 186 (2) (a) of the LRA relating to a promotion. The appointee was joined as a second respondent. The respondent raised a point in limine that the SALGBC lacks jurisdiction to deal with the matter. The SALGBC’s Main Collective Agreement is a binding document. Clause 2 provides that Municipal Managers and persons appointed in terms of Section 56 and 57 of the Municipal Systems Act are excluded from this agreement, except clause 11, 14, 16 and 17. The appointment of the Municipal Manager arose out of statute, the Municipal Systems Act which needed the MEC’s approval. The arbitrator lacked power to appoint the Municipal Manager. The applicant argued that the SALGBC has jurisdiction. If the applicant was successful then the MEC could facilitate his appointment. The applicant is not a section 57 employee and reports to the HOD. Ruling:
The relevant provisions (Part A, Section 2.1) of the Main Collective Agreement provides that, “municipal managers….shall be excluded from this agreement except for the for the following provisions, Part D, section 2: Conduct of conciliation and arbitration proceedings before the Council of disputes, Con- Arb in terms of section 191 of the LRA, arbitrations and Rules that apply to conciliations, con-arbs and arbitrations.” Kouga Municipality vs SALGBC and Others P524/10 1 February 2012 (LC), stated, “the question that the court must determine is whether or not the Bargaining Council has jurisdiction. In this matter the question of jurisdiction was dealt with clearly and unequivocally in terms of the applicable of the collective agreement. The Main Collective Agreement specifies in the first section of the agreement dealing with its application that it shall not apply to section 57 employees except for that part of the agreement that governs the handling of disputes referred to conciliation and arbitration by the Council.” The actual recruitment process for municipal managers is determined in the Regulations on the Appointment of and Conditions of Service for Senior Managers. These regulations make provision for a standard process of advertising, shortlisting, interviewing and appointment of the municipal manager. The regulations also provides, like the Act that once an appointment is made, the council must report the appointment to the MEC. The respondents point in limine is dismissed and the matter must be set down.
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Lessons:
The recruitment of senior managers is determined in the Regulations on the Appointment of and Conditions of Service for Senior Managers. These employees are not excluded from referring promotion disputes to the bargaining council as they still fall under the dispute processes. They are only excluded from the main collective agreement provision with exception of certain provisions.
Section 57 employees generally fall under the jurisdiction of the bargaining council but the majority of agreements specifically exclude them from the agreement.
CASE 33. S. Nsibande and others vs Amajuba District Municipality: Section 186 (2) (a) of LRA – Adjustment of Salaries. Case Number: KPD011714 Facts
The matter was referred as an unfair labour practice relating to adjustment of salaries. The respondent raised a point in limine that the SALGBC lacks jurisdiction as the disputes relating to the adjustment of salaries and that the applicant had 90 days within which to refer their unfair labour practice dispute to the council. The dispute arose internally in 2013/2014 and no formal grievance was lodged. The applicants must apply for the condoning of the late referral. The applicants stated that they were unaware that they should have applied for condonation. Ruling:
The dispute emanates directly from a transfer of the applicants from Medical Health Services to the respondent. The employees of the Medical Health Services including the applicants were transferred in terms of Section 197 (8) of the Labour Relations Act 65 of 1995. The applicants’ primary complaint is that their salaries on transferring were lower than those employees employed at the same level at the Respondent and that their salaries should be adjusted in terms of clause 8.2 of the transfer agreement. The dispute relates to Section 197 of the LRA and this fits squarely within the jurisdiction of the Council. It’s not clear whether the applicants are alleging that a demotion arose out of a failure to place them at the salary scale comparative to their grade as employees already at a similar grade at the respondent and that this arose out of the undertaking in clause 8.2. The dispute falls within the auspices of the SALGBC and the applicants must apply for condonation for the late referral of their dispute. Lessons:
Any ULP must be referred within 90 days from the alleged Unfair Labour Practice. If the dispute is referred after this period then the applicant must apply for condonation. Municipalities must always peruse the referral documents and ascertain whether the dispute has been referred timeously. If not, condonation must be raised at the conciliation hearing.
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CASE 34: SAMWU vs Ndwedwe Local Municipality: Mutual Interest. Case Number: KPD051718 Facts
The respondent raised jurisdiction. The matter concerns the review of the respondent’s existing recruitment policy which is the prerogative of Council political office bearers and its Management’s duty to implement. Sections 84 and 85 of the Labour Relations Act deals with workplace forums. The review of policies is not specifically mentioned under s84. The issue in dispute does not fall within the ambit of mutual consensus on specified issues under the Labour Relations Act (LRA). There was no agreement between the respondent and SAMWU within the Local Labour Forum (LLF) to stand the review down for further consultation to take place. The minutes do not reflect such agreement as averred by the applicant. The SALGBC lacks jurisdiction. The applicant submitted that the dispute falls within the ambit of the Main Collective Agreement. Clause 11.8.2.1.1 grants the Local Labour Forum powers to negotiate and or consult on matters of mutual concern, which does not form the subject matter of negotiations at SALGBC. Disputes over what are negotiable, what are matters for consultation, and over a specific process constitutes sufficient consultation are to be resolved through SALGBC’s dispute resolution mechanism. The SALGBC has jurisdiction and the dispute was correctly referred. Ruling
The dispute was referred as a mutual interest dispute in terms of section 64 of the LRA. The applicant relied on the Main Collective agreement as well as s84 and 85 of the Labour Relations Act. S80 refers to the establishment of a workplace forum on application to the CCMA. The Main Collective Agreement established a Local Labour Forum which has a defined scope. S24 of the LRA which in summary pertains to disputes relating to the interpretation and application of a collective agreement. Disputes related to the interpretation or application of a collective agreement are arbitrated in terms of s 24(5). The SALGBC lacks jurisdiction to dispense with the dispute as s64 mutual interest dispute. The dispute is incorrectly referred as a mutual interest dispute and should be referred as an interpretation and application of a collective agreement. The dispute is dismissed. Lessons:
In this instance the dispute was wrongly referred as a mutual interest dispute as opposed to an interpretation dispute in terms of the main collective agreement. The municipalities must always scrutinise referrals and ascertain if the SALGBC has jurisdiction to hear the matter.
CASE 35: SAMWU obo Members vs Amajuba Local Municipality: Section 186 (2) (a) of LRA – Deduction of Salaries. Case Number: KPD031707 Facts
The matter was referred to conciliation as an unfair labour practice - deduction and summarised as “the employer deducted salary of employees without agreement.” The issue described in the arbitration form as “unauthorised deduction of bonus (unlawful deduction) unfair labour practice. The employer party raised a point in limine that the SALGBC lacks jurisdiction.
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Ruling
The dispute actually referred to the council relates to the alleged unfair deductions that the employer effected on the annual bonuses paid to the applicant’s members. It’s common cause that the applicant’s payslips indicate that the deductions were for tax purposes and was therefore payable to SARS. Tax deductions are statutory deductions and generally it cannot be regarded as unlawful deductions. The employee party argued that it has a “Bonus Tax Spread Agreement” with the employer party which ensure that no tax was deducted on the bonus payable to the employees. Irrespective of the exact wording of both referrals, the allegation of unauthorised tax deductions from the bonus is the true dispute that was referred to council. This dispute is not related to the payment of bonuses to the employees but to the quantum of tax deducted from the salaries of employees. The dispute is not an unfair labour practice related to benefits as the employees were paid the bonuses. Even when one considers the expanded definition of an “unfair labour practice,” the actual dispute is still related to alleged unauthorized deductions and not the provision of benefits. Even if the deductions were not authorised, the SALGBC does not have jurisdiction as such matters must be referred to Labour Court for adjudication – City of Johannesburg v SALGBC and others, Labour Court JR 2996/10. Lessons:
Disputes relating to deductions of salaries/bonuses are not an unfair labour practice and the SALGBC will lack jurisdiction to arbitrate the matter.
CASE 36: S Ndwandwe & Ilembe District Municipality others: Section 186 (2) (a) of LRA – Adjustment of Salaries. Case Number: KPD081605 Facts
The dispute related to remuneration and/or discrimination which did not fall within the definition of an unfair labour practice. The applicant’s sought a salary adjustment since they are currently “personal to holder,” and no longer entitled to notches in terms of clause 7.2.3 of a Local Agreement concluded between the council and the union SAMWU for the implementation of job evaluation outcomes dated 15 July 2014 which SAMWU signed and is bound to. Applicants are remunerated in terms of what was advertised and in terms of the contracts of employment. Promotions to higher posts was done through the recruitment and selection policy which was transparent and objective. They seek equal remuneration and benefits but such dispute was already referred to the CCMA. The applicants argued that respondent selectively promoted Supply Chain Management (SCM) unit employees from post level 10 to post level 8 in terms of the Van Der Merwe job evaluation system. This dispute falls within the definition of an unfair labour practice. The applicants lodged the dispute to SALGBC challenging selective promotion. Council has jurisdiction to adjudicate the dispute as per the CCMA award. Ruling:
The dispute is based on the implementation of the Local Agreement for the implementation of job evaluation outcomes which came into operation on 1 July 2014 and terminated on the 30 June 2015. The objectives of the agreement were to provide for new wage curves, ensure the implementation of the approved October 2008 Task Job Evaluations Outcomes Report as published by the SALGBC. The dispute does not fall within the definition of Section 186 (2) (a) of the Labour Relations Act but relates to the Local Agreement for Implementation of Job Evaluation Outcome. The SALGBC lacks jurisdiction.
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Lessons:
Applicants often disguise the disputes as an unfair labour practice when in fact the true nature of the dispute is a request for additional remuneration or salary. Municipalities are advised to scrutinise the referrals and to raise issues of jurisdiction at the conciliation hearing.
CASE 37: T Bigger vs Umzimkhulu Local Municipality: Unfair Labour Practice Section 186 (2) (a) of LRA. Transfer of an Employee. Case Number: KPD051614 Facts
The dispute referred was an unfair labour practice in that the employer refused to the transfer the employee on medical grounds. The municipality raised a point in limine that the SALGBC lacks jurisdiction. Ruling:
The employee sought to be transferred to a suitable position within 30 days. Section 186 (2) (a) defines an unfair labour practice as any act or omission that arises between an employer and employee involving unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. According to Darcy Du Toit et al, in The Labour Relations Law, A comprehensive Guide at page 545, “the closed nature of the list of unfair labour practices that are actionable in terms of Section 186 (2) obliges employees (employers) who are aggrieved by other forms of conduct to seek to fit them into one of the statutory categories or to rely on an alternative cause of action. The unfair transfer of an employee, for example may be regulated by Section 186 (2) if it amounts to a demotion or to disciplinary action short of dismissal or an occupational detriment. The LRA may provide a remedy if the dispute is governed by a collective agreement. The transfer is not included among the potentially unfair categories of employer action listed in Section 186 (2). The question of an unfair or unlawful transfer does not fall within the ambit of the conduct prescribed in Section 186 (2) (a). Lessons:
Disputes relating to transfer of employees from one post to another do not amount to an unfair labour practice as defined in terms of section 186 (2) (a).
CASE 38: SAMWU obo ATM Gwala & 27 Others vs Inkosi Langalibalele Municipality : Salary Increments. Case Number: KPD021624 Facts
The applicants were given new contracts of employment confirming their new salary increments by the former Municipal Manager of the municipality. The Acting Municipal Manager who joined the employ of the respondent after the municipal manager left, refused to implement the salary increments granted to the applicants. The applicants sought the decision to withhold the salary increments be set aside and implemented. The respondent stated that the SALGBC lacked jurisdiction as the dispute terminated by the acceptance of the new contracts of employment after the placement process. There was a placement process of all employees after the merger of Umtshezi Local Municipality and Imabazane Local Municipality. There was consensus with the placement process. The applicants accepted and signed new contracts after the placement process. Some of the applicants benefitted from this process in that they received salary
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increments. The applicants are bound by the new contracts of employment meaning that the dispute has been resolved. They relied on a placement letter to prove acceptance and signature. The applicants stated that commissioner must deal with the merit of the case to understand the background of the case. Ruling:
The commissioner referred to the placement letters. There is no evidence on the document to prove or suggest that by signing the letter, the applicants abandoned their dispute or that the acceptance of the new contracts of employment constitutes the settlement of the dispute. The documents indicates acceptance of the letter. The respondent bore the onus to prove that the dispute was settled through the placement process. The respondent failed to discharge the onus to prove that the dispute was settled through the placement process. Lessons:
The municipality did not challenge the jurisdiction of the bargaining council. This dispute relates to placement and to unilateral change to terms and conditions of employment and the SALGBC lacks jurisdiction.
CASE 39: Z Mngadi vs Mandeni Local Municipality: Unfair Dismissal Section 186 (1) of the LRA – Postponement Ruling. Case Number: KPD101503 Facts
The respondent’s legal representative applied for a postponement due to late instructions. The application was opposed. Ruling:
National Police Services Union and others v Minister of Safety and Security and others 2000 (4) SA 110 (CC) held that the postponement of a matter set down for a hearing on a particular date cannot be claimed as a right. An application for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. The applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that gave rise to the application. Whether a postponement will be granted is the court’s discretion and cannot be secured by mere agreement between the parties. In exercising that discretion, the Court will take into account a number of factors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed. The Commissioner stated the application for postponement had no merits and refused the postponement. The legal representative withdrew her representation and informed that nobody would be representing the municipality. The matter proceeded in the absence of any person representing the respondent.
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Lessons:
In many instances, municipalities on the day of the arbitration request a postponement as they are unprepared. However it should be noted that postponement can be refused by the commissioner especially when it is opposed. What is important is that postponement is not a right and the applicant seeking postponement must satisfy the commissioner that good cause exists and provide a satisfactory explanation. In terms of the clause 23 of the rules of the SALGBC, an arbitration maybe postponed by written consent between the parties or by application and on notice to the other parties in terms of sub rule (3). The council must postpone an arbitration if all the parties to the dispute agree in writing to the postponement; and the written agreement for the postponement is received by the Council at least seven (7) days prior to the scheduled date of the arbitration. If the parties do agree to postponement, any party apply in terms of Rule 31 to postpone an arbitration by delivering an application to the other party to the dispute and filing a copy with council.
CASE 40: eThekwini Metropolitan Municipality vs IMATU, SAMWU and SALGA: Interpretation and Application of Main Collective Agreement. Case Number: HQ111604 Facts
The matter relates to a grievance that was lodged on the 19 February 2015 and followed the grievance procedure. There was no outcome received till date despite reaching step 3. The respondent raised a jurisdiction point that the SALGBC lacks jurisdiction as the grievance was not finalised. Parties failed to adduce documents that the step 3 grievance process was underway. The respondents argued that until such time that the municipal manager has dealt with the matter, the applicant is precluded from referring a dispute. They further argued that that applicant lacked locus standi to have referred the matter. Ruling:
It was submitted that the grievance procedure is at present in the hands of the Municipal Manager. In terms of the grievance procedure, the municipal manger or his or her nominee must hear the details of the grievance including proposals to resolve the issue and shall endeavor to reach an agreed outcome within ten days of the referral. The municipal manager or his nominee shall inform the employee/s in writing of the outcome of hearings such outcome shall be final in terms of this procedure. If a grievance has not been resolved to the satisfaction of the aggrieved party, that party may refer the grievance to the council for adjudication provided that a dispute has been declared and the party is entitled in law to declare such a dispute. In terms of the above, the matter must be finalised by the municipal manger or his nominee. Until that has occurred, the grievance is in the hands of the municipal manager. The SALGBC lacks jurisdiction as the matter has not reached the stage where a dispute could be referred to this bargaining council for determination. Lessons:
Municipalities are advised to deal with grievances timeously in terms of the grievance procedure as outlined in the SALGBC Main Collective Agreement. Failure to do so may result in a dispute at the SALGBC or a compliance order from the SALGBC. Not all grievances can be arbitrated as it must still fall within the definition of an Unfair Labour Practice.
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CASE 41. SAMWU v Newcastle Local Municipality: Interpretation and Application of KZN Conditions of Service Clause 22. Case Number: KPD051733 Facts
The matter was referred as an interpretation/application of a collective agreement. The respondent raised a preliminary point that the SALGBC lacks jurisdiction as SAMWU referred the dispute to the SALGBC on behalf of the members without naming the employees. Rule 4 (2) states that of proceedings are jointly instituted then a list of the employees must be attached to the document. It’s impossible to determine the beneficiaries for compensation. The referral was defective would have to be referred again the dispute citing all the affected employees allegedly prejudiced by the respondent. IMATU and SALGA as parties to the collective agreement should be joined to the dispute. The applicant stated that the respondent ought to have complied with Rule 31 of the Bargaining Council rules by bringing the jurisdictional application 14 days prior to the hearing. Section 29.1 of the collective agreement states that any person or party may refer a dispute therefore SAMWU is entitled to refer the dispute to the Bargaining Council and the issue falls within the jurisdiction of the bargaining council. In terms of subsections 11 (1) and 11 (3) of the Constitution of the bargaining council the current dispute may be resolved under the auspices of the council. SAMWU as a registered trade union was entitled to bring this application in terms of Section 200 of the LRA. Section 22 of the Divisional Conditions of Service needed to be interpreted. Ruling:
The actual dispute that the applicant referred related to alleged unlawful or improper deductions made by the respondent from the salaries of certain members of the applicant. In terms of the clause 22 of the Conditions of Service Collective agreement, the applicant believed that such deduction should not have been made from the salaries of the applicant’s members. If it’s the applicant’s contention that the deductions were unlawful, then the dispute referred to the bargaining council is not about the interpretation and application of the collective agreement but the alleged failure of the respondent to comply with the collective agreement. In HOSPERSA obo Tshambi v Department of Health KwaZulu- Natal (2016) 649 LC, it was held that the invocation of section 24 by Tshambi and the bland of acceptance of such characterisation by the commissioner is wrong. A commissioner is required to determine the true nature of the dispute between the parties and must establish the relevant facts and construe the category of dispute correctly. A commissioner is not bound by what the legal representatives say the dispute is. A dispute of interpretation or application is essentially a difference of opinion aboutwhat a provision means (interpretation) or whether the agreement can be invoked (application). In this matter the collective agreement is not in dispute. The true dispute is about the breach of the collective agreement and is rather an issue about compliance. However if the commissioner is wrong that the dispute is not about interpretation and application of the Conditions of Service Collective agreement or an unfair labour practice then the applicant would need to specify the members’ names. The application is defective and the bargaining council lacks jurisdiction. Lessons:
Municipalities are advised to scrutinise referrals especially when the referral is by made on behalf of a number of employees that belong not only to the union that referred the dispute. All applicants have to be named in the referral. Municipalities are urged to comply with provisions of the collective agreements or may be challenged under the interpretation of a collective agreement or may even receive a compliance order where the collective agreement is not adhered to by the municipality. HOSPERSA held that, “the breach of a right that derives from a collective agreement will not automatically be classified as a dispute in terms of section 24 of the LRA.”
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CASE 42. Phumlani Horatio Nkwankhwa v KwaDukuza Local Municipality: Ruling on Representation. Case Number: KPD061714 Facts
The matter was referred as unfair labour practice. The respondent raised a preliminary point that the applicant’s representative, Mr. Mdlaka does not have locus standi on the basis that the respondent received a letter from the SAMWU KwaDukuza local office wherein his SAMWU membership and subscription was cancelled. His membership was officially cancelled by his union and there was deduction of subscriptions fees to SAMWU in September and October 2017. No documentation was received rescinding the decision of the cancellation of membership from the union. In terms of the SAMWU Constitution, a member whose membership ceases is no longer entitled to participate in the affairs of the union. Mr. Mdlaka’s membership was terminated as he was a member of SAMWU and IMATU. The letter signed by the SAMWU Provincial secretary Jaycee Ncanana was questionable and conflicting. Proof was required that Mr. Mdlaka was a bona fide member and subscription was paid. Mdlaka argued that it was incorrect that no one can terminate his membership as per the SAMWU Constitution, the union can terminate membership. The ruling by Commissioner Sewpersad allowed him to represent as he was a paid up member at the end of August 2017. He argued that he cancelled his IMATU membership on 29 August 2017. Mr. Ncanana confirmed that Mdlaka cancelled his IMATU membership and joined SAMWU. He questioned the letter from SAMWU KwaDukuza. Ruling:
Rule 25 (1) (A) of the Main Collective agreement states, “if the party is a registered trade union, any office bearer, official or member of that trade union is authorised to represent that party; or…” Mr Mdlaka has not established that he was an office bearer or member of SAMWU. There was no proof of subscriptions. To the contrary the employer produced documents that established that payments were not made for subs to SAMWU. The provisions regarding representation are peremptory, and cannot be waived by the parties or by the commissioner. A party may appear in person or be represented by those entitled to represent at conciliation or a legal practitioner. The focus is on the word “entitled.” If an objection is raised in relation to a representative or a Commissioner suspects he does not qualify, the commissioner must determine with the reference to documents as payslips, contracts of employment, constituencies, recognition agreements and proof of membership. In the current matter, the right to be represented by Mr. Mdlaka was challenged as he was not a SAMWU official. In terms of rule 25, Mdlaka had to be an office bearer, official or a member of that trade union. He failed to establish the same. Mr. Mdlaka has no locus standi to represent the applicant. SAMWU can nevertheless represent the applicant by appointing another office bearer, official or a member. Lessons:
Any trade union may represent their members even if it is not a party to council (Kalahari Country Club v NUM obo Mabote (LAC) CA 16/2013). Municipalities need to be certain that union representatives have the necessary locus standi to represent at the arbitration proceedings.
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CASE 43. SAMWU v Newcastle Local Municipality: Interpretation and Application of Main Collective Agreement. Case Number: HQ0701702
SAMWU v Newcastle Local Municipality Jurisdictional ruling (arbitration) Facts
The matter was referred as an interpretation or application of the Main Collective Agreement. The commissioner directed both parties to address him on jurisdiction. The parties agreed that there was no about the interpretation of clauses 11.4.1 and 11.4.6.2 of the collective agreement. The clauses were not required to be interpreted. The applicant submitted that Section G, clause 20.1 of the main collective agreement, which deals with the dispute procedures states that any person may refer a dispute about the application or interpretation of this collective agreement to the General Secretary of the Council. The provision starts with application and ends with interpretation. The council can hear disputes regarding application of a collective agreement even if there is no dispute about the interpretation. Applicant further submitted that Council cases should be treated differently from those referred to the CCMA as Section 24 of the Labour Relations Act refers to interpretation and application. The case of Wardlaw v Supreme Moulding (Pty) Ltd (2007) 6 BLLR 487 (LAC) does not apply to SALGBC referrals. The respondent referred to Hospersa obo TS Tshambi v Department of Health, Kwazulu Natal (2016) BLLR 487 (LAC) which held that “a dispute about the interpretation of a collective agreement requires at a minimum, a difference of opinion about what a provision of an agreement means. A dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked. The phrase ‘interpretation and application,’ are not disjunctive terms, and ought to be read as related.” The dispute has been disguised as an interpretation or application of a collective agreement but it’s actually a dispute about salary. The SALGBC lacks jurisdiction to hear the matter. Ruling:
Clause 18.1 of the Constitution of the Bargaining Council use the term application or interpretation interchangeably in clause 18 which is the caption and in the contents of clause 18.1 respectively. Clause 18.1 reads as follows, “Any person or party disputing the interpretation or application of a collective agreement...” The SALGBC forms under the nature of the dispute refer to interpretation or application of a collective agreement. There is no column in the referred form which categorise a dispute about application or interpretation. The dispute should be dealt with in line with section 24 of the Labour Relations Act, which deals with interpretation or application of the collective agreement. Section 24 confines of the LRA confines disputes that should be brought to these for a about interpretation and application of the collective agreement. The word interpretation and application should be read conjunctively. Where there is nothing to interpret, the council shall have no jurisdiction under section 24. Once a proper interpretation has been made, it must be applied. The council lacks jurisdiction to arbitrate the matter under section 24 of the LRA. Lessons:
In terms of the above case law, it’s clear that the SALGBC would lack jurisdiction to arbitrate disputes relating to interpretation or application of a collective agreement where the parties agree on the interpretation of the particular clause.
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CASE 44. S.P Ndaba and 17 others vs UGu District Municipality: Unfair Labour Practice Section 186 (2) (a) of LRA – Benefits. Case Number: KPD061717 Facts
The applicant lodged a dispute in terms of section 186 (2) (a) of the Labour Relations Act relating to the withdrawal of car allowance benefits. Its common cause that the act or omission had not taken place and that the municipality had and intended to implement a new policy. The applicant stated that they were beneficiaries of a car scheme that was negotiated between labour and the employer. In 2014, the employer proposed at the Local Labour Forum that all new appointments will be subject to a new car allowance and the resolution taken was that the current beneficiaries of the old car allowance scheme would remain unaffected. This resolution was escalated to Council and became a new resolution. No other resolution was taken in this regard nullifying the existing resolution. The employer already placed the new scheme without the applicant’s and unions’ consent. The SALGBC has jurisdiction. The respondent stated that was premature as the new vehicle allowance policy was not implemented. The matter does not fall within the definition of an unfair labour practice as there has been no unfair act or omission on the part of the employer. The applicants have suffered no prejudice as the result of the respondent’s intention to implement a new vehicle allowance policy. The SALGBC lacks jurisdiction to arbitrate the matter and to interdict the municipality from implementing its policies. The labour court has the power to do so in terms of section 158 (1) (a) of the Labour Relations Act as amended Ruling:
Section 186 (2) of the Labour Relations Act as amended states that unfair labour practice is any act or omission that arises between an employer and an employee involving – unfair conduct relating to promotion, demotion, probation (excluding disputes about dismissals) for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. Its common cause that the applicants are beneficiaries of a vehicle allowance policy which was negotiated between labour and the employer and which the applicants currently benefit. As the policy has not been implemented, there is no unfair labour practice dispute. The Council also has no jurisdiction to interdict the implementation of the said new vehicle allowance policy. The SALGBC therefore lacks jurisdiction. Lessons:
Municipalities are advised that exclusive jurisdiction lies with the Labour Court in respect of interdicts in terms of section 158 (1) (a) (ii) of the Labour Relations Act as amended. It should be further noted that there has to an act or omission on the employer for there to be an unfair labour practice dispute.
CASE 45. Siyabonga Ngcobo vs Mtubatuba Local Municipality: Unfair Dismissal. Section 186 (1). Case Number: KPD081702 Facts
The applicant referred an unfair dismissal dispute. The applicant applied for the position of manager – legal and regulatory compliance. He was short listed, interviewed and informed telephonically on the 18 July 2017 that he was appointed. The offer was withdrawn the next day as it was made in error. The respondent raised a point in limine that the applicant was not an employee therefore the SALGBC lacks jurisdiction. He was not issued with a contract of employment. The applicant stated that a valid contract of employment was concluded in terms of common law when an employee placed his services for a certain period of time and the employer undertook to pay him an agreed salary. He was offered the position by the HR manager and salary and benefits were discussed. It was agreed that he would commence work on the 1 August 2017.
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Although the offer was retracted, the employment contract commenced the moment the parties reached an agreement on the essential terms. This was the position even though the contract was not reduced to writing. The telephonic offer satisfied the essential requirements of the employment contract. The attempt to withdraw the offer constituted a breach of contract under the common law which amounted to a dismissal. The respondent argued that the applicant scored 73% while the appointee scored 75%. There was never an intention to appoint the applicant as the highest scoring candidate was the true and real person to be appointed. The error was rectified a day later. The Human Resources Manager did not have authority to make such appointment which vested with the municipal manager. The human resources manager was merely performing an administrative function. The applicant was not issued with a letter of employment hence there was no employment contract entered into between the parties. The applicant was not an employee and the council lacks jurisdiction. Ruling:
Section 200A – Presumption as to who is an employee-: the LRA places an onus on the Respondent to establish that Applicant was not an employee. The Act states, “until the contrary is proven, a person who works for, or renders services to, any other person who works for, or renders service to, any other person is presumed, regardless of the form of contract to be an employee.” If any of the factors as laid out in the section exist then the person is presumed to be an employee regardless of the contract. The courts have found that an employee is considered to be fully employed and therefore protected under labour law legislation from the moment the employment contract is concluded even if the employee has not yet actually started work. This applies even if the nothing has been put into writing or signed, and the contract of employment has only been verbally agreed between two parties. In terms of section 213 of the Labour Relations act an employee is, “(a) any person, excluding an independent contractor, who works for another person or the state and who receives or is entitled to receive, any remuneration; and (b) any other person who in a manner assists in carrying out or conducting the business of an employer.” This definition strongly implies that the employer’s obligations begins only on the day physically starts working. It was clear that the applicant was contacted in error and the same was rectified the very next day. The real intended relationship was between the appointee and the respondent. The telephonic call did not emanate in an offer and consequently did not lead to an employment relationship. The terms and conditions of an employment contract was not agreed upon and the employment relationship was not finalised. There was no written offer of employment. The applicant was not an employee of the respondent and the SALGBC lacks jurisdiction.
Lessons:
Jafta v Ezemvelo KZN Wildlife (D204/07) (2008) ZALC 84, held that under the common law, the first requirement for an offer of employment must be clear, unequivocal and unambiguous. In Wyeth SA (Pty) Ltd v Manqele, the Labour Appeal Court upheld the earlier decisions by the CCMA and Labour Court that Manqele had achieved legal employee status the moment his employment contract was signed. It Municipalities should tale cognisance of the above court cases when informing the successful candidates that she/he has been appointed.
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CASE 46. Ashneetha Beeharie vs Newcastle Local Municipality: Unilateral Changes to Terms and Conditions. Case Number: KPD121707 Facts
The matter was referred as unilateral changes to terms and conditions of employment. The respondent raised a point in limine that the dispute related to unilateral changes to terms and conditions of employment and was summarised as change of job description and the relief sought was to be appointed as a senior clerk as should have initially done. She further stated that she was unfairly discriminated as other employees were promoted. The applicant has in effect lodged three different matters in one referral form and should withdraw the dispute as referred and lodge either an unfair labour practice or unfair discrimination dispute. The referral was further premature as she lodged an appeal against the restructuring process which outcome is still pending. The SALGBC lacks jurisdiction. Ruling:
It appears from the referral form that the applicant has raised various issues and as the matter is presently referred, Council lacks jurisdiction to arbitrate the dispute. The applicant should ascertain the exact nature of her dispute and refer them to the appropriate forums, bearing in the mind the times frames that apply. Council does not have jurisdiction to arbitrate the matter. Lessons:
Municipalities should scrutinise referrals as parties sometimes refer three disputes in one referral. The SALGBC would lack jurisdiction as the referral would be defective.
CASE 47. Sibusiso Mngoma vs Nongoma Local Municipality. Unfair Labour Practice: Section 186 (2) (a) and (b) – Benefits and Suspension. Case Number: KPD011807 Facts
The matter was referred as unfair labour practice relating to unfair suspension, leave encashment and increment. The respondent argued that the applicant should have applied for condonation for late referral of the dispute must be referred within ninety (90) days of the act or omission or within 90 days of which the employee became aware of the act or occurrence. The act or omission occurred on the 25 April 2017, the date on which the applicant was suspended and the dispute should have been referred by 27 July 2017. The disputes in respect of leave encashment and increment should be referred separately as they do not relate to an unfair labour practice. The applicant argued that the dispute arose in November and December 2017 so was referred timeously. He was suspended on the 25 April 2017 and his disciplinary hearing was aborted and adjourned indefinitely. He referred to a meeting with the attorneys of both parties held on 9 November 2017 so there was no need to apply for condonation. The dispute about the salary increment and leave encashment arose in December and was referred timeously. Ruling:
Section 191 (1) (b) (ii) states that an unfair labour practice must be referred within ninety (90) days if the act or omission of the alleged unfair labour practice or within ninety (90) days of the date on which the employees became aware of the act or occurrence. It’s not disputed that the applicant was suspended on the 27 April 2017 and it follows that any dispute relating to an unfair labour practice must be referred within ninety (90) days. The applicant referred his dispute on the 28 January 2018 and would have to bring an
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application for condonation of the late referral. The SALGBC lacks jurisdiction in absence of a condonation application. The disputes relating to salary increments and leave encashment do not fall within the ambit of an unfair labour practice and the SALGBC lacks jurisdiction. Lessons:
All disputes relating to an unfair labour practice must be referred within ninety (90) days of the act of omission. An unfair suspension is not an ongoing an unfair labour practice. Disputes relating to salary increments and leave encashment are not benefits.
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Section C: Placement Municipalities in terms of a placement policy concludes a placement process and places employees into suitable posts. The policy guides the entire process and has an appeal / objection process.
If an employee is unhappy with the process, there is an objection process which entails the employee making representation against the proposed placement.
Most placement policies include a clause stating if the employees are unhappy, then the employee refer the dispute to the South African Local Government Bargaining Council (SALGBC) after the appeal process is finalised.
However the SALGBC lacks jurisdiction to hear matters relating to placement. CASE 1. IMATU obo N. Clifford vs eThekwini Municipality: Section 144 of LRA – Rescission of Award. EMD071615 Facts
Hibisicus Coast and Ezinqoleni Municipalities merged to form the Ray Nkonyeni Local Municipality. The applicant received a letter that placed her as a sports officer at Ray Nkonyeni Local Municipality. She was a Youth and Special Programme Practitioner at Ezinqoleni Local municipality. She objected to her placement citing reasons in the objection form dated 17 August 2016. The objection was refused. The applicant avers that the two respondents and herself were competing for the post of Special Programmes Officer but was arbitrarily placed as a Sports Officer The post should have been advertised and the normal recruitment process should have taken place. She is currently a sports officer and her salary is lower than the other two respondents. The respondent stated that the committee was guided by the organogram of the respective councils. The committee was confronted with a situation whereby in terms of the new organogram there were two positions in the Special Programmes Unit and one position in the Youth Office. Guided by the principle that in such cases employees should follow functions, the committee placed one employee as a special programmes officer and the applicant as Head Officer in Youth Office. Even though the applicant and the second and third respondents held the same position, they each specialised in different functions. Ruling:
There is no tangible evidence that the applicant and the two other employees were specialising in different functions in terms of their job descriptions in their municipalities. The positions in terms of the policy should have been advertised and be confined only to the three employees to compete for the post based on qualifications, experience and the criteria required for a suitable incumbent for the post of Special Programmes Officer. The special programme officer should be given the alternative post. The recruitment and selection policy should have been followed. Care should have been taken to ensure that there was no interruption in the terms and conditions of employment of the employees. The municipality failed to implement the policy correctly. The placement pertaining to the applicant and one of the employees was, declared null and void. The municipality was ordered to comply with clause 4.3 of the Staff Placement policy (HCM/Ezinqoleni Restructuring Process) in respect of the post of special programmes offices within four months of this award. Lessons:
The Staff Placement policy is a not collective agreement but a policy. The municipality should have raised the point that the SALGBC lacks jurisdiction to interpret a policy. ection D: Rescission Rulings
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An application for rescission is made when an award or ruling is issued in the absence of either party. This must be done in terms of Section 144 of the Labour Relations Act as amended and rules of the South African Local Government Bargaining Council.
Section 144 Variation and rescission of arbitration awards
Any commissioner who has issued an arbitration award or ruling, or any other commissioner appointed by the director for that purpose, may on that commissioner’s own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling –
(a) erroneously sought or erroneously made in the absence of any party affected by that award;
(b) in which is there is ambiguity, or in an obvious error or omission, but only to the extent of that ambiguity, error or omission; or
(c) granted as a mistake common to both parties to proceedings.
(d) made in the absence of any party, on good cause shown.
Clause 32 of the South African Local Government Main Collective Agreement
Variation or Rescission of Arbitration Awards or Rulings states as follows:
An application for the variation or rescission of an arbitration award or ruling must be made within (14) days of the date which the applicant became aware of the arbitration award or ruling.
CASE 1: IMATU obo N. Clifford vs eThekwini Municipality: Section 144 of LRA – Rescission of Award. EMD071615 Facts
The applicant applied for rescission of the default award. The applicant representative stated she was dealing with the matter in conjunction with another representative that passed away. She was not notified by him of the arbitration date. She was unaware if the other representative received an email with the notice. The applicant had good merits at the arbitration and will suffer emotional and financial prejudice if not granted an opportunity to challenge her dismissal. The respondent stated that the applicant’s representative was aware of the matter. The notice of set down was served on IMATU on the 13 December 2016 via fax. The reasons submitted are improbable. The respondent has good prospects to succeed at arbitration as the dismissal was procedurally and substantively fair. The applicant was not being financially prejudiced. Ruling:
The applicants sought rescission in terms of section 144(a) of the LRA which states, “Any commissioner who issued an arbitration award or ruling, or any other commissioner appointed by the director for that purpose, may on the commissioner’s own accord or on the application of any affected party, vary or rescind an arbitration award or ruling- (a) erroneously sought or erroneously made in the absence of any party, affected by that award; (b) in which there is an ambiguity, error or omission; (c) granted as result if a mistake common to the parties to the proceedings.” According to records, the current representative was handling the matter. The notice was sent to both parties via fax. The Late representative advised the respondent to communicate directly with current representative as she was handling the matter. The current representative was aware of the matter and she contradicted herself in her explanation. There may be some prospects of success but the explanation tendered is not properly justified. The application for rescission is refused.
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Lessons:
In order for the applicant to succeed, the applicant is required to show that the award was “erroneously granted,” in its absence. The applicant must show irregularity in proceedings or that facts existed and if it was known, would have changed the decision. The applicant should also provide a reasonable explanation of his/her non-attendance and put forward a bona fide defence to his/her claim
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Section D: Unfair Dismissals 186. Meaning of dismissal and unfair labour practice
(1) Dismissal means that -
(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed term contract of employment
reasonably expected the employer-
(i) to renew a fixed term contract of employment on the same or similar
terms but the employer offered to renew it on less favourable terms,
or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but
otherwise on the same or similar terms as the fixed term contract, but
the employer offered to retain the employee on less favourable terms,
or did not offer to retain the employee.
(c) an employer refused to allow an employee to resume work after she -
(i) took maternity leave in terms of any law, collective agreement or her
contract of employment; or
(ii) ……….
(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re- employ another; or
(e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or
(f) an employee terminated employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.
Unfair dismissals must be referred to the SALGBC or CCMA within thirty (30) days of the date of dismissal or if it’s a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal.
If the dispute is referred outside the thirty (30) day period, then the applicant will have to apply for condonation for the late filing of the dispute.
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CASE 1: N.S Biyela vs Nongoma Local Municipality: Unfair Dismissal: Section 186 (1) of LRA Fixed Term Contract. Case Number: KPD041322 Facts
The Applicant was employed as the Head of Technical Services on a five year fixed term contract and then on a three month contract. The contract which commenced on the 1st September 2009 and ended on the 31 December 2014 made no reference to Section 57 of the Municipal Systems Act. With the 3 months contract, he reported directly to the municipal manager. Subsection 6 (2) of the Amended Act stated that the deletion of Section 57(7) does not affect the continuation of the validity of the fixed term contract of a manger directly accountable to the Municipal Manager which is in force when the Act takes effect. The five year contract was in force before the amendment took effect. The applicant had a reasonable expectation that his contract would end on 31 December 2014. The five year fixed term contract continued uninterrupted after May 2011 local government elections. The respondent stated that the contract was subject to the Municipal Systems Act and Municipal Finance Management Act. On the 2nd February 2013, the applicant was given notice that his contract of employment terminated. The applicant signed a three month fixed term contract effective 1 February 2013 to 30 April 2013. The applicant therefore has no claim under the second contract as it terminated by operation of law. Ruling:
The true dispute was in respect of the five year fixed term contract. No evidence was presented that there was a resolution taken by the respondent to extend the application of Section 57 (6) to the applicant nor was there any clause in the contract of employment stating that the application of this section was extended to him. Whilst it is correct that in terms of clause 2.1 of the contract of employment the applicant accepted employment in terms of the Municipal Systems Act, Section 57(7) of this Act is directory provision and not a peremptory one. It was left to the respondent to either extend the application of section 57 (6) to the applicant and the respondent failed to do so. The parties signed a five year fixed term contract which is legal, enforceable and binding on both parties. There is nothing in the termination clause reflected in the contract of employment that is applicable to this matter. The applicant’s fixed term contract was prematurely terminated by the respondent on the 31 January 2013. The Applicant’s dismissal was procedurally and substantively unfair. He was awarded compensation of R 958 428.00. Lessons:
The municipality had a discretion to either appoint a Section 57 Manager on the same terms and conditions and contract period as the Municipal Manager or on different terms as per the contract. If they want the same terms and contract period then they should resolve as such in terms of a policy position. If they do not resolve as such and contract differently than the contract will regulate the agreement between parties.
CASE 2: D Mohapi vs Ubuhlebezwe Municipality: Unfair Dismissal: Section 186 (1) of LRA – Fixed Term Contract. Case Number: KPD061206 Facts:
The Applicant alleged she was unfairly dismissed by the municipality when her contract was prematurely terminated. The applicant was employed on a fixed term contract. The contract was initially for a period of five years linked to a performance contract but changed to a period of four years linked to a performance contract. The applicant was appointed in September 2009. The contract had been terminated prematurely with no procedures being followed. The municipality acted in terms of the Municipal Systems Act and
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Circular 5 of 2012 from COGTA which stipulated that the applicant’s contract should have terminated one year after the conclusion of the election. She was not dismissed as her fixed term contract terminated due to lapse of time. The parties erred in extending the contract for two years after the elections of the next council. It should have been extended for a year. The applicant’s contract ended by effluxion of time as per the Systems Act as the contract was in line with the contract of municipal managers. The contract is unlawful as it was contrary to the Systems Act and the law should not give effect to illegal conduct. There is no legal contract of employment and therefore the SALGBC has no jurisdiction to entertain the dispute. Ruling:
No extension was made in terms of Section 57 (7) as there was no resolution by the respondent and no clause in the contract of employment stating that the application of this section as applicable to the municipal manager be extended to her. The applicant accepted her employment in terms of section 57 of the Municipal Systems Act 32 of 2000 but section 57 (7) is a directory provision and not a peremptory one. It left the discretion with the municipality to either extend the application of section 57 (6) to her or not. The commissioner stated that had the applicant been the municipal manager or had the respondent exercised its election to the application of subsection (6) to her, the situation would be quite different as no legal consequences can arise from an illegal contract. There was a valid legal contract of employment that bound all parties and it was prematurely terminated. The contract should have been terminated at the end of May 2013. The dismissal was procedurally and substantively unfair. The applicant was awarded compensation of R 400 000-00 which was the one year remaining on her contract of employment. Lessons:
If the council did not resolve to extend the provisions of the contracts in line with Section 57 managers then the contract will regulate the termination of the contract and not the legislation. If councils would like the contracts to be aligned with Section 57 MM contracts then they should resolve as such and then employ in line with the resolution of council. Similar award:
Bheki Hamilton Khoza vs Uthukela District Municipality: Unfair dismissal arbitration
The commissioner ruled in the applicant’s favour and he was reinstated.
CASE 3: Q.P Hlatshwayo vs uMkhanyakude District Municipality: Section 186 (1) of LRA Unfair Dismissal- Intern Contract. Case Number: KPD051515 Facts:
The applicant was employed as an intern in 2010 for a period of 2 years. The internship contract was extended for a further period of two years. During this period, the applicant was again appointed in an acting capacity as a Stores clerk. Her employment was terminated in April 2015. The extension of the internship contract created an expectation when the position was advertised. The respondent felt that it would be unfair to terminate the internship contract before they could complete the internship programme. The applicant ended up being on internship for four and half years. The CFO motivated that she be appointed to act in the position of Stores Clerk but that there was not an appointment letter. The applicant had never been appointed on a permanent basis by the respondent but she had always been engaged as an intern. The applicant received a stipend from the treasury department and not a salary. There was no dismissal as her internship contract has come to an end.
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Ruling:
The internship contract, indicated that the completion of the internship will not give rise to an expectation on the part of the intern of the renewal of the internship contract or an offer of permanent employment within the respondent. The contract was extended for four months until 31 January 2014 on the basis that the applicant had not been allocated any duties during the period between of October to the end of January 2011. In February 2013, the applicant signed a new contract of internship in terms of which she was appointed as an Administrative Intern until 31 July 2013 on the same terms and conditions of the initial contract. The applicant never assumed the duties of the Stores Clerk and was not remunerated as a stores clerk. The applicant proceeded with her duties as an intern. The internship contract came to an end in April 2015 and it was never renewed or extended. There was no dismissal but that the internship came to an end in terms of the said contract. The applicant’s expectation was unreasonable and not legitimate. The applicant failed to discharge her onus. Lessons:
Internship programmes are for a defined period and cannot create expectations of permanency but such to be regulated in the contract of employment once completed the contract comes to an end. The applicant cannot state that she/ he has been dismissed.
CASE 4: H.M Bhengu vs uMhlabuyalingana Municipality: Unfair Dismissal: Section 186 (1) of LRA – Misconduct. Case Number: KPD071718 Facts:
The applicant was employed as Manager: Community services. He was dismissed after an internal hearing. The respondent stated that the employee was guilty of gross dishonesty in that he divulged wrong information to an outside company which brought the municipality into disrepute. He committed gross misconduct in that he instructed, or allowed his subordinate staff member to start preparations for the Youth Summit when Council had not approved the summit. His conduct was serious, deliberate and intended to adversely disrupt the activities of the municipality. The applicant denied all allegations. The information that was given to the newspaper was factually incorrect. The employer only relied on a fax which was not sent from the newspaper but from another company. There was no evidence that the employer attempted to find out who might have sent the letterto the newspaper. The identity of the sender remained a mystery. The writer was said to be the same person who wrote the article in the newspaper. Ruling:
The employer failed to place any satisfactory evidence to prove that Bhengu divulged the false information that was published in the newspaper. There was no evidence that he had malicious intent. The fact is simply that the document on which the first charge was based was so unreliable. Regarding the second charge the municipality failed to provide evidence that the applicant was instructed to stop his preparations for the summit. The employer failed to show any evidence that the employee personally benefitted from his conduct. The employer further failed to prove any loss or damage to the municipality’s image due to the alleged conduct of the employee. The dismissal of the employee was substantially unfair. The employee was reinstated retrospectively on terms no less favourable to him than those governed by the employment relationship prior to dismissal.
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Lessons:
The municipality needs to investigate each allegation properly prior to instituting disciplinary action against any employee. There needs to be substantial evidence against the employee. If the dismissal is found to be substantially unfair, there are financial implications when reinstatement is awarded retrospectively.
CASE 5: Z Mngadi vs Mandeni Local Municipality: Unfair Dismissal: Section 186 (1) of LRA – Misconduct. Case Number: KPD101503 Facts:
The applicant challenged the procedural and substantive fairness of her dismissal. The applicant was employed by the respondent as Director Corporate Services. She was suspended and subjected to a disciplinary enquiry for misconduct for undermining the councillors, causing SAMWU to fight and failing to request the secretary to leave the meeting. She pleaded guilty at the hearing and was issued a final written warning. On the 23 July 2015, she reported to work but the councillors said the chairperson of the disciplinary enquiry was wrong to give her a final written warning and should have dismissed her. The MEC and SALGA advised the councillors that they were wrong. The municipal manager informed the councillors that he cannot dismiss the applicant. The councillors informed the municipal manager that if he did not dismiss the applicant, they (councillors) would dismiss him (municipal manager). She was suspended and on the 4 October 2015, she received a letter of dismissal. Ruling:
The Commissioner only had the applicant’s version before him. From that version, the applicant was dismissed and such dismissal was unfair. In terms of item 2 of the Code of Good Practice read with Section 188 of the Labour Relations Act 66 of 1995. Dismissal is unfair if not effected for a fair reason and in accordance with fair procedure. The Applicant’s dismissal was procedurally and substantively unfair. The applicant was reinstated retrospectively with effect from 28 September 2015 on the same terms and conditions as governed here employment prior to her dismissal. Lessons:
The municipality should always defend its matter and not walk out of the proceedings as the commissioner will only have one version before him/her to make a ruling. The finding and sanction of the presiding officer at a disciplinary hearing is final and binding and cannot be amended or changed by the council.
CASE 6: S.W Shongwe vs uThungulu District Municipality: Unfair Dismissal: Section 186 (1) of LRA. Case Number: KPD 081517 Facts:
The applicant was employed by the respondent through the Extended Public Works Programme on the 1 March 2015 as a quality assessor earning R 200-00 a day. The Applicant alleged that he was dismissed on the 28 July 2015 but the respondent stated that he left employment on the 26 June 2015. The respondent led evidence that at the meeting held on 29 July 2015, it was agreed that since the Applicant does not know his duties but knows to be an artisan, he could choose whether to be a builder. The applicant decided not to work anymore.
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Ruling:
In terms of section 192 (1) of the Labour Relations Act 66 of 1995 in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. The applicant’s evidence that he was dismissed by respondent was not corroborated by any other evidence. The respondent had five witnesses who corroborated each other that the applicant was not reporting for duties and that in the meeting on 29 July 2015, he decided to leave on his own accord. The applicant insisted that respondent dismissed him in the meeting on 28 July 2015 but there was no meeting on 28 July 2015. The applicant had no proof that he was reporting for duty in July 2015 except the attendance register that he completed at his home. All the witnesses testified that he did not report for work in July 2015. There is no evidence that the respondent dismissed the applicant. The applicant has failed to discharge the onus of proving the dismissal. The applicant further failed to prove that he performed any duties in July 2015 such that the respondent owes him money. Lessons:
In terms of Section 192, the onus is on the applicant to prove that he/ she has been dismissed. If a dismissal has been established, then the onus is on the employer to prove that the dismissal was fair. Municipalities should always ensure that follow the process when an employee fails to report to work as employees can claim unfair dismissal.
CASE 7: T.J Qetsimane vs uThukela District Municipality: Unfair Dismissal: Section 186 (1) of the LRA: Consistency. Case Number: KPD021521 Facts:
The applicant was found guilty of gross dishonesty. The Applicant admitted that she had received an amount of R 400 111, 36 which was paid into her banking account. Other employees who had committed similar offences had not been dismissed and were given amnesty. The total amount embezzled at the municipality was approximately R 5 000 000. The applicant received the highest amount received by any one of the other employees. She made no attempt to repay it. Due to the seriousness of the scam, the respondent called in the assistance of the South African Police Services (The Hawks). The statements of five employees had been handed to the National Prosecuting Authority for a decision in respect of section 204 of the criminal procedure Act 51/1977 which relates to the issue of amnesty. It is also common cause that the respondent had granted amnesty to five employees on 20 October 2014. Ruling:
In NUM & Others v Amcoal Collieries & Industrial Operations (1992) 13 ILJ (LAC), the court held that contemporaneous inconsistency occurs when employees who commit the same offence contemporaneously, or at more or less the same time are not treated equally and different sanctions are imposed upon them. An employer may be able to justify any alleged inconsistency or differentiated disciplinary action if these factors exist (Hulley Alumunium (Pty) Ltd vs Bargaining Council for Metal Industry and others [2008] 3 BLLR 241 (LC) and SACCAWU and others vs Irvin and Johnstone Ltd [1999] 8 BLLR 741 (LAC). The respondent was justified in applying differentiated disciplinary action in this matter because if the amount that applicant had received and the seriousness of her conduct. The applicant committed these offences over an extended period of time and she had ample opportunity to consider the unlawfulness of her conduct and to refrain from continuing with it. The applicant’s conduct breached the trust relationship. The respondent did not act unfairly when it dismissed the applicant and the sanction was fair. The respondent further did not act inconsistently when it decided not to award the applicant amnesty.
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Lessons:
Sidumo and another v Rustenburg Platinum Mines Limited and another (2007) 12 BLLR 1097 (CC) the Court held that a commissioner must take into account the totality of circumstances including the following factors when deciding whether dismissal was an appropriate sanction:
• The importance of the rule that had been reached;
• Consider the harm caused by the applicant’s conduct;
• Consider whether additional training and instruction may result in the employee not repeating the misconduct;
• The reason the employer imposed the sanction of dismissal; and
• Consider the effect of dismissal on the applicant
Case law and principles do not dictate that inconsistency can be automatically regarded as unfair. Municipalities should note that inconsistency must be considered in conjunction with the employee’s personal circumstances and the nature of the offence. The courts require an individual approach when determining sanction and to differentiate when necessary. Other factors considered are remorse and breakdown in the trust relationship.
CASE 8: Thobejane vs Buthelezi EMS (Pty) Ltd unfair dismissal CCMA: Unfair Dismissal: Probationary employees. Case Number: (2015) 12 BALR 1357 (CCMA) Facts:
The applicant, an ambulance assistant, was dismissed during his probationary period for “disrespectful behaviour.” The applicant claimed that his dismissal was substantively and procedurally unfair. The applicant challenged the procedural fairness on that basis that his contract of employment was terminated whilst he was on probation. The respondent failed to comply with the procedural/legal requirements by not calling him to a formal (disciplinary) hearing and did not afford him the opportunity to state his case/respond to the allegations or afford time to correct his behaviour. He challenged the substantive fairness as there was no clinical evidence to prove that he did not meet his performance standards or that he committed any wrongful offence. The respondent claimed that he had repeatedly ignored reporting protocols and was rude to colleagues and superiors.
Ruling:
Labour Courts have held that there rests some positive duty on an employee to put some evidence before the arbitrator to support his/her case – a mere denial of the facts, especially when not explored in cross- examination, is not sufficient. The applicant was afforded the opportunity to respond to the allegations. He did not deny the SMS nor did he challenge the evidence. Schedule 8(8) requires a less stringent approach (procedure). The applicant’s contract was terminated on the basis of his general conduct (insolence, disrespect towards management, insubordination and to some extend serious misconduct. The applicant’s
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dismissal was fair within the context of Schedule 8(8). The dismissal of the applicant was procedurally and substantively fair. Lessons:
Schedule 8 (8) must be followed by municipalities in dealing with employees on probation. As long as the individual is invited to make representations, it will not be deemed to be procedurally unfair even if it’s not a formal hearing.
CASE 9: M.H Mbuli vs uThukela District Municipality: Unfair Dismissal: Section 186 (1) of the LRA. Inconsistency. Case Number: KPD021527 Facts:
The applicant was employed by the respondent as an Information officer. He was suspended, then charged for gross dishonesty and dismissed. It was common cause that the Applicant received monies which he was not entitled to and such payments emanated from a payroll scam involving other employees. The only issue in dispute was consistency. The applicant contended that the respondent was inconsistent in the imposition of dismissal as a sanction as other employees who had pleaded guilty had been granted amnesty and one employee had been issued with a final written warning. The respondent stated that the criteria used to select the Section 204 witnesses was to select those who had evidence to prove that they were sharing monies and also those who had pleaded guilty to the payroll scam. Ruling:
The Code of Good Practice: Dismissal: whether or not a dismissal is a fair reason is determined by the facts of the case, and the appropriateness of the dismissal as a penalty. Item 3 of the Code suggests that “serious” misconduct will be conducted which is of such gravity that it renders an employment relationship intolerable and examples of such conduct includes gross dishonesty. Where an employer concludes that an employee’s breach of the rule of conduct justifies dismissal the question to be determined is whether “dismissal” was an appropriate sanction for the contravention of the rule and factors which must be considered including: the gravity of the infringement taking into consideration factors such as the employee’s circumstances, the nature of the job and circumstances of the infringement; and consistency in taking disciplinary action. The Applicant was charged with gross dishonesty which warranted the sanction of the dismissal. The Respondent was justified in imposing a different sanction as there was a marked difference in the circumstances of their case as opposed to the Applicant who throughout the disciplinary enquiry maintained his innocence and decided to plead guilty at the conclusion of the case. There was a fair and objective basis for treating the applicant differently and that the disparity of treatment was not unfair in the circumstances. The dismissal was not unfair due to inconsistency. Lessons:
The employees always challenge inconsistency. Each case will be assessed based on the facts. An employer will be justified in differentiating between employees who have committed similar transgressions on the basis of personal circumstances of the employees, such as length of service and disciplinary record or the role played in the commission of the misconduct. The CCMA Guidelines on Misconduct Arbitrations indicate that unless the employer can provide a legitimate basis for differentiating between two similarly placed employees, a disparity in treatment is unfair. It is not inconsistent to treat employees charged with same misconduct differently if there is a fair objective and basis for doing so. In SACCAWU v Irvin & Johnson Ltd [199] 8 BLLR 741 {LAC} para 29 and Gwensha vs CCMA [2006] 3 BLLR 234 [LAC] par 35-38 it has been found that consistency is not a stand-alone requirement but an aspect of fairness which requires the exercise of a discretion in each individual case.
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CASE 10: Metsimaholo Local Municipality vs SALGBC and 2 others (Review Labour Appeal Court): Unfair Dismissal: Private Work. Case Number: JA78/14 Facts:
This is an appeal against the judgment and order of the Labour Court dismissing an application to review and set aside an arbitration award in favour of the two employees. The arbitrator found that the dismissal of the two employees was substantively and procedurally unfair and reinstated them. Review:
The onus was on the employer to prove that the employees broke a rule regarding conducting of private work which was clear and certain. That would have included establishing that the employees knew that the required permission to do such work had to be in writing. Evidence of an established practice was produced by the employees which was not refuted by the municipality. The employees’ evidence was direct and persuasive that such a practice existed. The court a quo correctly found that it was within the boundaries of reasonableness for the arbitrator to find, in light of all the evidence, that the employer did not prove that the employees had contravened the rule relied upon. It was not contested that the employees did the private work after having applied in writing, in the usual form, for permission to do such work. The municipality failed to give a reasonable and/or rational explanation for not charging the other employees. The inconsistency, was clearly shown. The appeal clearly lacked merit and was dismissed with costs. Lessons:
The municipality needs to be consistent in its actions and disciplining employees in that they only discipline some employees and not the others and have no justifiable reasons. The employer needs to have enough evidence to justify charging and dismissing the employees.
CASE 11: M Douse vs Oudtshoorn Local Municipality: Unfair Dismissal: Section 198 D of LRA. Case Number: WCP 071522 Facts:
The applicant referred a dispute in terms of section 198 D (1) of the Act employed on an indefinite basis. The applicant was employed on a number of fixed terms contracts which exceeded a period of three months. The respondent breached Section 198B of the Act, as it failed to state a reason for his fixed term contract and did not give a valid reason for the contract. This was a breach of Section 198B (3) of the Act which triggered the deeming provisions. The respondent stated that it had a valid justification for concluding a fixed term contract. The contractual relationship with the applicant did not trigger Section 198B of the Labour Relations Act. Ruling:
Section 198 B (3) states that “an employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if (a) the nature of the work for which the employee is employed is of a limited or definite duration or (b) the employer can demonstrate any other justifiable reason for fixing the term of the contract. The respondent’s financial crisis and being placed under administration constituted a compelling reason to fall within the justification contemplated in both sections 198B (3) and (4) of the Act. Section 198B does not state that a failure to stipulate a reason for fixing a contract triggers the deeming provisions. The respondent had complied with the provisions of section 198B (6) read with subsection (3) and (4) in that the fixed term contracts were in writing and the reason for fixing the duration was also justified. The respondent has proved that it had a justifiable reason for fixing the applicant’s contract of employment.
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Lessons:
Municipalities must be able to justify the appointments of fixed term contracts beyond the 3 months period. If they are unable to do so, they should not appoint on fixed term contracts. The amendments have implications on municipalities. The financial position may be a justifiable reason for appointment on a fixed term contract.
CASE 12: SAMWU obo P Bantam vs Khai-Ma Local Municipality: Unfair Dismissal: Section 198B of LRA. Case Number: NCD081515 Facts:
All sixteen applicants were employed by the respondent on fixed term contracts from 2012, 2013 and 2014 respectively for more than 3 months. The applicants earned below the threshold prescribed. Temporary employees were prejudiced because they didn’t enjoy or qualify for benefits (pension, medical aid etc) enjoyed by permanent employees. The respondent argued that the applicants cannot be appointed because their positions doesn’t exist in the approved organogram. The applicants were appointed without due processes being followed. The applicants shouldn’t be appointed permanently because their appointments were irregular. The amendments did make provision for temporary employees to be deemed to be on an indefinite duration after they worked more than three months. Ruling:
Section 198B describes fixed term contracts as contract of employment that terminates on (a) occurrence of a specific event; (b) completion of a specific task of project; or (c) a fixed date, other than an employee’s normal or agreed retirement age. Section 198 B (3) states that “an employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if (a) the nature of the work for which the employee is employed is of a limited or definite duration or (b) the employer can demonstrate any other justifiable reason for fixing the term of the contract. The respondent’s conduct clearly shows that the applicants were treated as employees even if the appointments were irregular. The respondents renewed the applicants’ contracts for more than three months and failed to justify the extension. Section 198B of the LRA was contravened and the applicants were deemed to be appointed on indefinite contracts of employment and must be treated as permanent employees from the inception of the amendments till date.
Lessons:
Municipalities must be able to justify the appointments of fixed term contracts beyond the 3 months period. Non-exhaustive list of justifiable reasons for successive fixed term contracts or contracts longer than three months (employer bears the onus to prove): (a) replacing another who is temporarily absent; (b) temporary increase in work, not longer than 12 months; (c) student to gain experience; (d) engaged for specific limited duration project; (e) non-citizen with work permit;(f) seasonal work; (g) public works scheme; (h) external funding; and (i) reached retirement.
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CASE 13: S R Mathobela vs Mtubatuba Local Municipality. Unfair Dismissal Section 186 (1) of LRA. Case Number: KPD111503 Facts:
The applicant was appointed as an acting Municipal Manager for a period of 6 months or until the finalisation of the appointment of the Municipal manager, whichever comes first. When he was served with a letter of intent of precautionary suspension pending an outcome of an investigation, he terminated his services with the respondent. The Respondent convened a meeting on 15 October 2015 and a resolution was passed that the contract seconding the applicant as acting MM for Mtutbatuba Local Municipality expired on the 22 September 2015. The applicant referred an unfair dismissal case demanding that his October salary be paid to him. The respondent submitted that there had been no dismissal or termination. There had been a secondment for a period of six months. This was in line with section 54A of the Municipal Systems Act which provides that an acting appointment shall not be longer than a total period of six months. The applicant was paid in accordance with his invoice submitted. Ruling:
Section 54A (6) (a) reads as follows: “The Municipal council may request the MEC for Local Government to second a suitable person on such conditions as prescribed to act in the advertised position, until such suitable candidate has been appointed.” The period of six months came to an end in mid-September 2015. It was at that point that applicant’s services ought to have been terminated and he had no right in law to an extension of the secondment. This is also in line with section 54A 2(A) of the Act which provides that an acting appointment of an MM may not be for a period of more than six months. Applicant’s secondment to the post of acting MM came to an end on 22 September 2015 ex contractu and ex lege. He was not unfairly dismissed on 15 October 2015 and as such not entitled to salary until the end of October 2015. Lessons:
Where the acting period is stipulated or regulated in terms of legislation or a collective agreement then acting cannot take place beyond the stipulated periods and need to be terminated.
CASE 14: IMATU obo SP Hlabisa and others vs UMkhanyakude District Municipality: Unfair Dismissal Section 187 of LRA (Automatically Unfair Dismissal). Case Number: KPD111518 Facts:
The applicants referred a dispute in terms of section 187 of the LRA- automatically unfair dismissal. Applicants alleged that their services were terminated as they were required to retire at the age of 60, whereas they allege that the retirement age is 65. Applicants signed standard contracts of employment in terms of which they are employed in various positions. All applicants were employed on a permanentasis and the contracts do not make reference to the retirement age. Three of the applicants were members of the Natal Joint Municipal Pension/Provident Fund and other applicants were members of the Government Employees Pension Fund. The Natal Joint Municipal Pension Fund makes provision for a retirement age of 65. At present there is no policy in place at the municipality which determines the age of retirement. Three of the applicants have been paid out their full benefits from their provident fund.
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Ruling:
In terms of section 191(5) (b) (i) of the LRA, an employee who alleges that his or her dismissal is automatically unfair in terms of section 187 of the Act must refer his or her dispute to the Labour Court. Neither a Bargaining Council nor the CCMA has jurisdiction to deal with the dispute of this nature. The Council has no authority to determine the current dispute. Lessons:
Only the labour court has jurisdiction over automatically unfair dismissals. Employers should consult with the pension funds to ascertain the retirement age before terminating services.The accepted retirement age if not regulated will be as per accepted norm in the industry and as per pension fund rules
CASE 15: V. Mhlongo vs Maphumulo Local Municipality: Unfair Dismissal: Section 186 (1) of LRA – Misconduct. Case Number: KPD031204 Facts:
The Respondent’ stated that the Applicant deliberated and intentionally disobeyed instructions from Respondent’s highest authority. He had a simple instruction of co-operating with a forensic audit company. The Applicant’s failure to co-operate, was tantamount to a disregard of a lawful instruction and a direct challenge of the Respondent authority. The trust relationship was broken down. It was not restricted to laid down procedures in terms of the disciplinary process for Senior Manager or any process. The applicant submitted that he was employed by the Respondent from 2001 to 2006 and from 2006 to the 8th February 2012 as a Municipal Manager. He was dismissed for misconduct. The Applicant disputes the allegations and evidence was led challenging procedural irregularities. The Applicant’s challenge related to both his suspension and subsequent disciplinary hearing. He contended that the Respondent did not follow procedure He prayed for retrospective reinstatement. Ruling:
The Regulations on Disciplining Senior Managers, 2010 in Local Government are applicable. The deviation from the Respondent was so serious that it had the effect of nullifying the entire disciplinary process especially because the evidence was that the Respondent operated from resolutions. The Respondent’s non-compliance with the Disciplinary Code for senior Managers and its own standing rules of order cannot be overlooked. The respondent failed to adduce evidence and dispute the applicant’s evidence. The dismissal was procedurally and substantively unfair. The applicant was reinstated retrospectively. Lessons:
Municipalities should proceed with disciplinary hearings after conducting a thorough investigation. There should be sufficient evidence against the employee to proceed and the applicable legislation or collective agreements should be strictly adhered to.
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CASE 16: Dunlop Mixing and Technical Services (Pty) Ltd and others vs National Union of Metalworkers of South Africa (“NUMSA”) obo Nganezi and others: Strike action: Violence damage to property and intimidation. Case Number: - [2016] 10 BLLR 1024 (LC) Facts:
The applicant employees were all dismissed for acts of misconduct during a strike, 29 of them having been found guilty of specific offences, and the remaining 78 on the basis of “derivative misconduct” because they failed to disclose the identity of those involved in “acts of violence, intimidation and harassment.” The CCMA Commissioner upheld the dismissals of those found guilty of specific offences and some of those who had been dismissed for derivative misconduct, but held that the dismissals of the remaining 65 were unfair and reinstated them. The applicant challenged only the latter finding on review, contending that the essence of these employees’ misconduct was not only their failure to come forward with the names of the actual perpetrators, but also a breach of the trust relationship that could be inferred from their remaining silent in circumstances where it could be inferred from the evidence that they were present during the direct misconduct. Judgment:
Given the trust inherent in the employment relationship, there was an evidentiary burden on the employees to either identify the perpetrators or explain why they could not. There is a clear distinction between proving on a balance of probabilities that the employees knew who the perpetrators were and deciding whether they were obliged to come forward with an explanation. The employees’ case was that they were not on strike or not present when the acts of violence occurred. The employer had led strong circumstantial evidence in that regard, and the employees had simply remained silent. By failing to consider whether the evidence created an inference that these employees were present and obliged to exonerate themselves the Commissioner had not properly considered whether they were guilty of derivative misconduct. The only reasonable inference to be drawn from the evidence was that they were all present during the strike. If they were not, and had information relating to the perpetrators, they should have said so. Given the volatile nature of most strikes, it is vital that employers should be entitled to rely on the good faith of the strikers. The duty of good faith required the employees to come forward. By failing to recognize this obligation, the Commissioner had failed to take into account material evidence that was before him. This constituted a valid ground for review. The Arbitrator’s award was substituted with an order declaring the dismissal of the employee concerned substantively and procedurally fair. Lessons:
Failure to take material evidence into consideration can result in a review application. Employees have a duty towards employer that if they witness any criminal activity or misconduct they are obliged to give evidence and can be dismissed if they fail or refuse to do so.
CASE 17: Sihle Ndaba vs Edumbe Local Municipality: Unfair Dismissal: Section 186 (1): Dishonesty. Case Number: KPD071622 Facts:
The applicant was employed as senior professional planner and was charged with fraud, late coming and absent on duty without leave or permission. At the disciplinary hearing, he pleaded guilty to all charges and was dismissed. The Presiding officer testified that the applicant was employed in a senior position and no mitigating factors could influence a lesser sanction. He considered the seniority of the employee in light of the charges. The misconduct of fraud classified as gross dishonesty which went directly to the heart
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of the employment relationship which warranted dismissal. The employment relationship was irretrievably broken. The applicant has worked in another municipality and was aware of the rules and consequences. The investigator and the prosecutor stated there was no agreement in respect of sanction and no settlement was reached. The records indicated that his submissions at the hearing in respect of sanction was dismissal. To retain the applicant would be a bad precedent. The applicant stated that the sanction was harsh as he pleaded guilty. He was remorseful and believed he could be restored.
Ruling:
Dishonesty has traditionally been regarded as an offence serious enough to warrant dismissal, as it could render an employment relationship intolerable. It damages the employer’s ability to trust the employees. In the current matter, dishonesty operated at the workplace and it caused prejudice to the respondent as the applicant would be paid for the time not at work. The issue of sanction has at its focal point the underlying notion of fairness between the employer and employee which ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment. The applicant was untruthful, dishonest, and fraudulent and didn’t go to work. Late coming and absent without leave was coupled with fraudulent behaviour. The fact that he pleaded guilty and displayed remorse cannot absolve him from the responsibility of his actions. There was no proof that a lesser sanction was agreed between the parties. Fraud relating to money affect the taxpayers and such abuse cannot be condoned as it had grave financial consequences. Such an offence went to the root of the employment relationship. Any form of dishonesty is intolerable and an employer cannot be expected to keep such an employee in its employ. It defeats the ethics and harmony of the working environment. The charges were extremely serious and the Applicant’s total disregard for rules of law led to the breakdown in trust and the sanction of dismissal was just and fair. The sanction of dismissal was fair. Lessons:
In labour law the employee’s duty of trustworthiness means that the employer has a right to expect employees to behave honestly at all times. The general principles in our law that trust is an important element in any employment relationship and dishonest conduct goes to the heart of the employment relationship and is destructive of it.
CASE 19: Vuyani Mthi vs uThukela District Municipality: Unfair Dismissal Section 186 (1) of LRA – Misconduct. Case Number: KPD091618 Facts:
The applicant, a public participation manager was charged with dishonesty, gross misconduct, and gross dishonesty and for bringing the name of the municipality into disrepute. The respondent led the evidence of an employee in supply chain management unit. He acted as SCM Manager between August 2013 and 1 December 2015. He was informed by his subordinates that the invoices for catering in the Disaster Awareness Campaign had no order numbers. He informed the senior manager who escalated it to the CFO. He led evidence in respect of the tender process. Deviations are only allowed with approval of the CFO. He denied any knowledge of the incident that led to the applicant’s dismissal. The respondent sought reliance on the statements of people who were not called to give evidence at the arbitration hearing. The applicant led evidence that he was often requested to assist sourcing the service providers for the events by the SCM Department. He would assist without any problems. He is aware of the Supply Chain Policy. He did nothing out of the ordinary. He was requested by two employees to verbally organize service providers to supply food parcels for 100 people. They suggested it should be four companies. All service providers turned up for the event. There was a norm that quotations were received from more than one company and the one price range is given as per the budget.
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Ruling:
The respondent failed to prove that the applicant’s dismissal was substantively fair. The respondent’s only witness did not provide evidence which linked the applicant to the charges. In fact he vehemently denied any knowledge of the evidence accept that he was told by his subordinates of the order numbers not accompanying the invoices. The respondent relied on statements of people who were not called to testify. The applicant was denied an opportunity to cross examine the deponents. This evidence was rejected as no valued can be attached to it. The applicant came across as a reliable witness. His evidence was not challenged. No evidence was placed before the commissioner to prove all four charges against him by the respondent. The dismissal was substantively unfair. Lessons:
It is important that municipalities defend their cases properly. Municipalities should ensure that witnesses are available to testify at the arbitration hearing. Without the evidence, the municipality will lose the arbitration. There are financial implications as in some instances, the commissioner will order reinstatement with back pay.
CASE 20: Matatiele Local Municipality vs R Shaik, SALGBC and another -Labour Appeal Court Judgment. Case Number: DA 3/2016 Facts:
The employee was suspended on the 1 April 2014. The employee was charged with six charges and dismissed. At the arbitration proceedings, she raised six points in limine. She was unfairly subject to a disciplinary hearing and that her dismissal was void as it was held outside the time limit prescribed in terms of clause 6.3 of the SALGBC Disciplinary Code Collective Agreement. The municipality failed to institute disciplinary proceedings within the three months from the date that the employer became aware of the alleged misconduct and did not apply for condonation. The commissioner found that the dismissal was void and of no legal effect. The employee was reinstated. The municipality reviewed the award. Ruling:
Clause 6.3 was clearly designed to ensure that discipline in the local government sector takes place expeditiously. The employer was obligated by clause 6.3 to “proceed forthwith or as soon as reasonably possible with a disciplinary hearing.” In Independent Municipal and Allied Trade Union obo Dandala v Ekurhuleni Metropolitan Municipality and Others, the Labour Court stated that: ‘Proceeding with a disciplinary hearing starts when the Municipal Manager appoints a presiding officer. The relevant outer date is the date on which the presiding officer was appointed and not the date on which the hearing sits as contemplated in clause 6.10.’ The Labour Appeal Court disagreed with this. A hearing proceeds only when there is an external manifestation of the municipality’s intention to proceed with a hearing and this occurs when the charges are formally furnished to the alleged offending employee. The charges were furnished to the employee on 14 May 2014. Even taking 15 February 2015 as the date that the municipality became aware of the misconduct, the last day to proceed with the disciplinary inquiry was 16 May 2014. The employee was furnished with the charges and notice to attend a disciplinary hearing on 14 May 2014. The municipality complied with clause 6.3 of the code. The employee was validly dismissed. The award is reviewed and set aside. Whether she was fairly dismissed is a matter for an arbitrator to determine. Lessons:
Municipalities should ensure that the employee is served the notice to attend the disciplinary enquiry within the 3 months period after establishing that the employee committed the alleged offences. This case is a Labour Appeal Court Decision and a precedent.
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CASE 21: IMATU obo S J De Lange vs Greater Kokstad Local Municipality: Unfair Dismissal: Section 186 (1) – failure to renew fixed term contract. Case Number: KPD031709 The applicant applied for the position of Manager Civil Engineering and was appointed on a five year fixed term contract. The contract was supposed to run from 18 August 2008 to 17 August 2013. Mr. Velem testified on behalf of the respondent that the contract was still in place, the respondent embarked on a retention strategy to retain skilled employees who were employed on fixed term contracts. It was established that the junior and middle managers were leaving the municipality as a result of the insecurity of a fixed term contract. Submissions were made to Council to employ those employees on a permanent basis but Council did not accept that. The applicant was given a new five year fixed term contract which was to run from 1 March 2011 to 28 February 2016. On the 2 February 2016 it was extended for a period of twelve months which expired on 28 February 2017. The applicant was given a letter dated 1 February 2017 informing him that his contract would terminate on 28 February 2017. He had been with the respondent for 9 years and his contract had been extended twice before. He referred to his performance appraisal. Velem told him that his contract would be renewed. Velem never told him that this contract would not be renewed or that there was performance issues. All other employees who were on fixed term contracts had their contracts renewed. His subordinate Mr. Shandu had his contract renewed and was employed in the applicant’s old position. He had a reasonable expectation that his contract would be renewed twice before. Ruling:
Section 186 (1) (b) of the Labour Relations Act 66 of 1995 defines dismissal as follows: (b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer – (i) to renew a fixed – term contract of employment on the same but the employer offered to renew it on less favourable terms or did not renew it; or….
The contract was renewed twice because the municipality was reviewing the current organogram to ensure it was realistically aligned to the municipality’s core business and available resources. There was no evidence when the organogram would be finalised. It was not unreasonable for the applicant to have expected his employer to keep on renewing his existing fixed term contract until such time as the process has been finalised. The applicant had a reasonable expectation that his fixed term contract would be renewed and the respondent’s failure to renew constitutes a dismissal. The dismissal was procedurally and substantively unfair. The applicant was awarded compensation equivalent to three months’ salary. Lessons:
Municipalities are advised to consider ramifications when a contract is renewed more than once. The employee will have a reasonable expectation that the contract will be renewed again. Contracts should therefore not be renewed when it expires.
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CASE 22: E Mthembu vs King Cetshwayo District Municipality: Unfair Dismissal: Section 186 (1) of LRA – Misconduct. Case Number: KPD091624 Facts:
The applicant was charged with 3 counts relating to misconduct in that he leaked a competency based assessment paper, failed to notice while marking, that the candidate had access to the model answers and he wrote a reference letter whilst on suspension. He was dismissed. The applicant pleaded not guilty. He challenged procedural and substantive fairness. He led evidence which was unchallenged by the respondent. Ruling:
The respondent failed to prove that the dismissal was procedurally and substantively fair. Procedurally, the respondent failed to apply for condonation for count 2 and the municipal manager had no authority to change the presiding officer. There was no evidence that the applicant leaked the competency based assessment paper. The second charge was vague and the evidence adduced by the respondent was largely hearsay. The respondent failed to lead the evidence of the Head of Department. In respect of the third charge, no evidence was led that the applicant should not have given a reference letter. The applicant was reinstated retrospectively and was awarded legal costs. Lessons:
Prior to instituting disciplinary action against an employee, municipalities must ensure that they have sufficient evidence to charge an employee and have complied with the applicable procedure or collective agreement.
CASE 23: S Matshigane vs Greater Kokstad Local Municipality: Unfair Dismissal Section 186 (1) of LRA – Misconduct. Case Number: KPD101403 Facts:
In an award dated 27 November 2017, the commissioner found the applicant was found guilty of misconduct. The Commissioner directed parties to address him in writing as to the appropriate sanction. The applicant stated that he had a clean disciplinary record and that he had suffered tremendously after he was dismissed. The respondent contended that as a consequence of the misconduct and the lack of contrition shown by the applicant, the relationship between the respondent and the applicant had irretrievably broken down. The misconduct was serious and rendered the continuous employment relationship intolerable. Ruling:
The applicant was employed as a supervisor and thus had a position of responsibility and influence with the respondent. He used this against to his own detriment. The applicant contradicted himself during the hearing and was dishonest. He provided false explanations at both the internal disciplinary hearing and arbitration. His lack of contrition and dishonesty supports the respondent’s contention that he trust relationship between the parties had completely broken down. The respondent has suffered financial loss as a result of the theft of the Bomag machine. Given the nature of the offences, the losses caused to the respondent, the lack of contrition and the dishonest explanations provided by the applicant, the commissioner was satisfied that the employee/employer relationship has completely broken down. The sanction of dismissal was fair and appropriate.
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Lessons:
Municipalities must ensure to lead evidence in respect of the breakdown of the trust relationship. In terms of 3(4) of the Code of Good Practice: Dismissal, it is generally not appropriate to dismiss an employee for a first offence except in circumstances where the misconduct is so serious as to make the continued employment relationship intolerable.
CASE 24: Henry Musa Bhengu vs Umhlathuze Local Municipality: Unfair Dismissal Section 186 (1) of LRA – Misconduct and Sanction. Case Number: KPD171718 Facts:
The applicant a senior library assistant was charged with gross misconduct in that he misappropriated R 8 467-16 from the funds belonging to the library. He pleaded guilty at the disciplinary hearing and was dismissed. The respondent argued that gross dishonesty in the form of theft is one of the most serious offences and justifies dismissal. It had lost faith in the applicant and could not rely on the applicant to fulfil his obligations in the future. It would be unfair to expect the respondent to take extra supervisory measures to monitor the applicant in the future to ensure he does not do the same thing again. The trust relationship has broken down. This misconduct was not an isolated incident. The applicant did not show remorse and on the face of convincing evidence did he pleaded guilty. The applicant agreed to pay the monies misappropriated. At the time the offence was committed, he had domestic problems and was abusing alcohol. He wanted to a second chance and requested a final written warning. He has a family to support. Ruling:
Gross dishonesty in the form of theft from an employer is a very serious offence and the fact is that the applicant is a first time offender is of no consequence when such a misconduct is committed. The fact that the applicant realised the error of his ways and is apologising is a sign of contriteness but it is not sufficient to warrant his return to the fold of the municipality as the trust relationship has been rendered intolerable. Taking back the applicant would send out the wrong message to other employees and rate payers. The municipality has to be consistent in this regard. The sanction of dismissal was appropriate. Lessons:
When dealing with appropriate sanction evidence should be led in respect of the breakdown of the trust relationship. The test in JD Group Limited v De Beer [1996] 17ILJ 1103 is that “the core test for appropriateness of dismissal has been consistently formulated and held by the courts as being whether or not what the employee did had effect of destroying, or seriously damaging, the employer/employee relationship so that the continuation of the relationship could be regarded as intolerable.”
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CASE 25: S Magondongo vs Khara Hais Local Municipality: Unfair Dismissal – Review, Labour Court Judgment. Case Number: (2018) 39 IL 406 (LC) Facts:
The applicant was dismissed by the first respondent and referred an unfair dismissal to the SALGBC. The commissioner ruled that the dismissal was unfair and ordered reinstatement. The municipality took the award on review. The applicant was represented by SAMWU who instructed attorneys. SAMWU raised a point in limine that the municipality had unduly delayed the review application and the application should be dismissed. The applicant on his own accord launched application and raised two preliminary points – that the founding affidavit was not properly deposed to; and the decision to launch the review was not of the Municipal Council (the municipal manager did not have the requisite authority to launch the review). Ruling:
Mr. Dalixolo Ngxanga, the then municipal manager initialed each page of the affidavit, including the last page. But he did not append his full signature to the last page. A commissioner of oaths affixed a SAPS stamp dated 9 November 2016 and certified on the basis the oath was properly taken. The commissioner of oaths clearly applied the relevant regulations. The only question is whether the deponent’s initials are sufficient to constitute him signing the declaration. In Cape Sheet Metal Works (Pty) Ltd vs J J Calitz Builder (Pty) Ltd the court held that the provisions of the Regulation then in force are not peremptory. In this case there has been substantial compliance with the Regulations. Mr. Ngxanga, the municipal manager, says that he is ex lege entitled to depose to this affidavit as he is the accounting officer and was delegated. In Lebu vs Maquasi Hills Local Municipality (1) (2012) 33 ILJ 642 (LC) Court has found that it is not a requirement that the Municipal Council must take a written resolution that a municipal manager may depose to an affidavit. ANC Umvoti Council Caucus v Umvoti Municipality held that no resolution is needed for a municipal manager to depose to an affidavit but it was necessary for the council to have delegated the power to institute legal proceedings to the municipal manager in writing. In this case, the Municipality placed no evidence before the Court that it has delegated the power – in writing – to the municipal manager to institute proceedings on its behalf. In Umvoti, the court held that, absent such a resolution, the municipal manager had to satisfy the court of a delegation in writing. The Municipality has not placed anything before the Court to show that in the absence a council resolution, the Municipality has delegated the power to institute the review application. Lessons:
In Kouga Municipality v SA Local Government Bargaining Council the court accepted that the municipal manager was properly delegated to institute proceedings on behalf of the municipality, even without a specific council resolution to that effect, but not that he had sub-delegated that authority tohis subordinates. It is necessary for the council to have delegated the power to institute legal proceedings to the municipal manager in writing; only in absence of such a delegation a council resolution is required to empower the official to institute court proceedings on behalf of the municipality.
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Section F: Unfair Labour Practice
Unfair labour practice disputes are referred to the South African Local Government Bargaining Council (SALGBC) or the Commission for Conciliation and Arbitration (CCMA) in terms of section 186 (2) of the Labour Relations Act 66 of 1995 as amended.
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating the provision of benefits to an employee.
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than a dismissal, in contravention of the Protected Disclosures Act 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
Unfair labour practice disputes must be referred within ninety (90) days of the act or omission which allegedly constitutes the unfair labour practice or if’s a later date, within 90 days of the date on which the employee became aware of the act or occurrence.
If the dispute is referred outside the ninety (90) day period, then the applicant will have to apply for condonation for the late filing of the dispute.
CASE 1: Mkhululeni S Dlamini vs uMkhanyakude District Municipality: Unfair Labour Practice Section 186 (2) (b) – Unfair Suspension. Case Number: KPD071518 Facts:
The Applicant was placed under precautionary suspension pending an investigation. No allegations of misconduct were stated in the letter. The applicant’s attorneys addressed a letter to the respondent requesting it to set out the allegations levelled against him in order for the applicant to make representations as to why he should not be suspended. The respondent replied and set out the allegations levelled against the applicant. A further charge of alleged insubordination was added. The applicant’s attorneys addressed a further letter seeking clarity amongst others on the allegations of insubordination. There was no response. The issue of the applicant’s suspension served before Council and it was resolved to suspend him pending the finalization of the investigation. The respondent’s representative submitted that the seven days had already lapsed and the applicant had ample time to make representations which he didn’t do.
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Ruling:
The respondent was aware that the applicant intended making representation regarding his intended suspension and hastily resolved to suspend the applicant. The investigation into the applicant’s alleged misconducts had been finalized and Council has resolved to institute disciplinary action against him. The only relief that the applicant sought was for the respondent to consider his representations. The respondent committed an unfair labour practice and directed the applicant to submit his written submissions as to why he should not be suspended and/or remain on suspension pending the outcome of his disciplinary proceedings to the respondent with 14 calendar days from receipt of this award. The respondent was ordered to consider the applicant’s written representations pertaining to his suspension at its first meeting to be held after receiving those submissions. Lessons:
Municipalities should adhere to the time frames as set out the Collective Agreement or Regulations. They should also respond timeously to all correspondences sent to them to enable employees to make representations. Sufficient information needs to be given to the employees to enable them to respond and make representations. Failure to follow the procedures can lead to disputes.
CASE 2: SAMWU obo M R Radebe vs uMngeni Local Municipality: Unfair Labour Practice Section 186 (2) (a) – Demotion. Case Number: KPD081326 Facts:
The applicant is permanently employed by the respondent since 2008. He was transferred from the Department of Water and Forestry to uMngeni Municipality. The dispute occurred in June 2012 and followed the grievance process which was unsuccessful. The applicant has alleged that he was demoted by the respondent which impacted negatively on his salary. The respondent stated that the municipality underwent a restructuring process between 2001 and 2004. After which the municipality underwent a job description process. The process was agreed by all stakeholders. The posts were sent to the Principal Job Evaluation Committee. The Applicant’s post came back as a Task Grade 6 and there was a title change from Artisan Welder to Handyman. The council accepted and approved all results. Job titles would be aligned with the Job Evaluation results received in 2008. Ruling:
The dispute relates to an unfair labour practice relating to demotion in terms of status, task grade and remuneration. The respondent didn’t dispute that the applicant was employed as an artisan welder (Task grade 10) and that he was negatively affected by the job evaluation process when he was placed on a task grade of Handyman Welder (task grade 6) which came into effect May 2012. There was no indication that the respondent complied with the provisions of the placement policy. There was no indication from the respondent that the municipality complied with the provisions of paragraph 14 (disputes) of its placement policy. The municipal manager and a senior manager from another municipality did not deal with the objection. There was no dispute that the applicant objected within the prescribed time period. The applicant had established that he was affected by the job evaluation process. There is no justifiable rational objective for the applicant’s demotion and deviation from his job description. The Applicant was severely prejudiced by the demotion. The demotion was unfair and unjustified. The municipality was ordered to reverse the demotion retrospective from 17 May 2012 to date of award.
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Lessons:
Demotions do not only occur when salaries are adjusted and lowered but also occur due to status, duties, responsibilities and rank. When policies are not consistently applied, it results in an unfair labour practice and financial implications. The municipalities need to apply its policies consistently and fairly.
CASE 3: N Madladla and S Kisten vs Hibiscus Coast Local Municipality: Unfair Labour Practice Section 186 (2) (a) – Promotion. Case Number: KPD031512 Facts:
The applicants are employed as library assistants. They alleged that they are performing duties of librarians and seek to be appointed as librarians. The first applicant commenced employment in 2009 while the second applicant commenced employment in 2011. The applicants submitted that they were employed as library assistants but performed the functions of librarians. There were no librarians at the respective libraries and they were fulfilling the role of librarians. They further performed the additional functions performed by the librarians but they were paid as Library Assistants. The respondent stated that the Library assistants are expected to perform some but not all duties as some of the duties are performed by the senior librarians. The applicants were given time off in lieu of working overtime. The respondent stated which duties are performed by the library assistants, librarian and senior librarians. Ruling:
The letter given to Mrs. Kisten when she was appointed stated that there would be no remuneration for extra duties performed. The applicants’ job description specified that they needed to take charge of the situation in the absence of a librarian. Doing the tasks needed to be performed by the librarian was part of their duties. The respondent clarified which duties the applicants performed. The two libraries that the applicants work at have no librarians as they are small libraries. The applicants did not raise any concerns when they were asked to perform extra duties. The organogram adopted by the council has no posts for librarians for these libraries. The applicants do not meet the requirements of a librarian post even if there was one available. The application is dismissed. Lessons:
In order to be successful in an unfair labour practice matter, the applicant has to show that they have met the requirements for the position (qualifications and experience).
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CASE 4: CP Ngcobo vs Water and Sanitation (eThekwini Metro Municipality): Unfair Labour Practice Section 186 (2) (a) – Progression. Case Number: EMD071503 Facts:
The applicant applied for progression from task 12 to 13 which was declined on the basis of qualification. The applicant met all the criteria and complied with the policy when she applied for progression. The certified scientists on task grade 12 were progressed to task grade 13. They were similar to candidate engineering technicians as they worked under a professional scientist. They also required a national diploma or degree which was similar to the candidate engineering technicians. They were also not professionally registered with a professional body. The respondent argued that there is a distinction between a certified scientist and candidate technician and the requirements for the former were higher. That was the reason for their progression. There was an error in the progression policy and it ought to have said “professionally registered,” instead of “registered with a professional council.” The panel interpreted the progression policy to mean professionally registered. There is a difference between the candidate engineering technician and natural scientist as the latter required experience and proof of competency. Ruling:
The only distinction drawn by the respondent was that the certified natural scientists had a more onerous requirement than the applicant as a candidate engineering technician. This was not included as a reason by the panel. This was not part of the Progression policy and all that was required was a registration with a professional body which the applicant met. The distinction drawn by the panel by treating groups differently was arbitrary, illogical, capricious and certainly unfair. There was no justifiable reason for the applicant not to be progressed from as all essential aspects she performed was similar to the certified natural scientists. Both set of professionals required a national diploma. There was no additional educational requirements for the certified natural scientists. The respondent appeared to have formulated excuses to justify its unfair conduct which was inconsistent with the policy. There was no evidence to condone such conduct and the applicant was unfairly treated. The respondent’s conduct was an unfair labour practice. An employer is bound by stringent policies and guidelines and in this case there was no justification for deviating from the Progression Policy and applying different requirements for two groups of similar employees. Such conduct is inconsistent and prejudicial. The respondent is ordered to progress the applicant from a task grade 12 to task grade 13. Lessons:
Failure by the municipalities to apply their policies consistently can lead to unfair labour practice disputes. Progression is regarded as a promotion as the individual’s salary, duties, responsibilities, position and status is increased.
CASE 5: Mkumatela v Nelson Mandela Bay Metropolitan Municipality: Unfair Labour Practice Section 186 (2) (a) – Demotion. Case Number: ECD121503 Facts:
The applicant was demoted two grades after being found guilty of gross insubordination. He denied that he was guilty and stated that the sanction was too harsh. He contended that the respondent breeched the code by appointing an official of rank equal to his to chair the disciplinary hearing. The charge arose out of an exchange of e-mails between the applicant and his manager, which began with a request by the manager that the applicant urgently provide his “comments” on a complaint received from a member of the public. The applicant refused to respond “anytime” and, in a further response to the manager’s reply that his defiance would be seen as insubordination, the employee told the manager that he was “welcome to take appropriate action.” 72 SALGA KZN Case Law
Ruling:
When insubordination becomes “gross” is a matter of degree. The authorities suggest that the borderline is established by the circumstances in which the insubordination occurred, by whether it was deliberate, and by whether it was calculated to undermine the employer’s authority structure. The applicant’s act of defiance was not spontaneous. It manifested itself in a series of emails. It was made abundantly clear to the applicant that his failure to respond to the instruction would be regarded as insubordination, and he did not relent even though the consequences were spelled out by his superior. The applicant has neither shown remorse nor offered an explanation for his conduct. The Commissioner was not empowered to decide the penalty afresh, but had to weigh the reason given by the employer against the employee’s challenge to it. It does not follow that an arbitrator, considering de novo the appropriateness of a sanction, may interfere with the employer’s decision on sanction without good reason for so doing. The sanction of demotion was imposed because the applicant was guilty of gross insubordination, because he had remained unrepentant, and because it wishes to correct the applicant’s conduct. Apart from his long service and clean disciplinary record, the applicant had led no compelling evidence in support of personal circumstances. There was no basis on which to interfere with the sanction. Lessons:
Municipalities should take cognizance of the powers of commissioners per the LRA. Sidumo and another v Rustenburg Platinum Mines Ltd and others, “A Commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair.” Theewaterskloof Municipality vs SALGBC and others [2010] 11 BLLR 1261 (LC) held, “What is relevant and important in any given case will invariably be defined by the particular facts of that case. That said, it will usually be so that the core inquiry to be made by a commissioner will involve the balancing of the reason why the employer imposed the dismissal against the basis of the employee’s challenge of [sic] it.”
CASE 6: Z Zungu and three others vs KwaDukuza Local Municipality: Unfair Labour Practice Section 186 (2) (a) – Benefits. Case Number: KPD121424 Facts:
The applicants referred an unfair labour practice dispute relating to transport and cell phone allowances. The positions they occupied required the allowances. The respondent refused to grant the transport and cell allowance as they did not budget for it. They disputed that the respondent had a policy relating to granting of transport allowances or not. Other employees were given transport allowances. The respondent led evidence on Policy. Council grants a transport allowance for any position depending on the need for it. The running cost transport allowance was paid to compensate the applicants who used their own vehicles to perform Council duties. There was no absolute right to transport allowance and it is Council’s prerogative. Any decision taken that has a financial implication has to go to EXCO or Council for approval. The respondent was currently facing tough financial difficulties. All applicants used the municipal vehicle and they could plan their trips in a way that they could use it optimally. He was not informed that critical duties could not be performed due to lack of vehicles. With regard to cell phone allowances, the respondent had budgetary constraints and was currently busy with cost cutting measures.
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Ruling:
The applicants referred to a practice used by the respondent but no evidence of such practice and what it entailed. There were therefore two Council vehicles available for HR to perform duties. The applicants do not qualify to receive a fixed transport allowance as they are not employed in the categories specified in the Scheme. The C-Track reports showed that they can perform their duties adequately by using Council vehicles and in the event of using their own vehicles, they were adequately compensated. The respondent did not commit an unfair labour practice by refusing to grant the applicants a fixed term transport allowance. In respect of the cell phone allowance the three reasons were given by the respondent for its refusal to grant the allowance i.e. no budget provisions have been made, no request or motivation was received by the department for the cell phone allowances and the job descriptions do not necessitate that they receive a cell phone allowance. In the absence of any evidence the respondent’s refusal to grant the allowances was not unfair and did not constitute an unfair labour practice. Lessons:
Employers should be consistent in giving benefits to its employees and if they are not, they have to have justifiable reasons for denying this benefits. The employer has to have justifiable reasons for refusing the allowances. In this case, the applicants were given council vehicles to use No employee has a right to a car allowance and this is regulated by policy of the council.
CASE 7: A.F Tait vs uThungulu District Municipality: Unfair Labour Practice Section 186 (2) (a) – Benefits. Case Number: KPD11413 Facts:
The Applicant claimed that she was entitled to her long service leave as the same was granted to other employees. This was a benefit granted to employees and she was deprived. There is no clause inthe agreement stipulating that if the leave or encashment was not done in the year due, then it was forfeited. The respondent was inconsistent as several other employees were allowed encashment or granted leave outside the year it became due and was in contravention of the new collective agreement. The applicant was unable to take her leave in the year it became due because of operational reasons. The conduct was grossly unfair and constituted inconsistent treatment. The respondent disputed that she was entitled to the same on the basis that she should have encashed it in 2012 and her failure to do so caused her entitlement to fall away. The respondent argued that long service leave was granted and encashed but this was in violation of the regulations and those persons would be disciplined. Arbitration Ruling:
The CCMA or Bargaining Council may adjudicate a benefit’s dispute in the light of the Apollo Tyres South Africa (Pty) Ltd v CCMA & Others decision in two instances, that is where the employer fails to comply with the obligation that it has towards an employee and where the employer has provided the employee with an advantage or privilege that has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. The long service leave is a benefit. It’s clearly unfair if the respondent allowed other employees the indulgence to take their long service leave outside the year it became due and denied the applicant. In terms of the collective agreement, the applicant was entitled to the more favourable benefit. In this case, neither the leave nor encashment was done in the year it became due. In terms of the Collective Agreement, she would forfeit same but the claim was based on inconsistent treatment. The respondents conduct was grossly unfair and constituted inconsistent treatment which amounted to an unfair labour practice. The respondent itself breached the collective agreement no justifications were given. The applicant was entitled to her 30 days long service leave which must be granted by the respondent in the current year.
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Lessons:
The municipality needs to be consistent in treating employees. Failure to do so can result in aggrieved employees referring disputes. The municipality should consistently follow policies, procedures and collective agreements. A deviation from this in respect of one employee and failure to accommodate another employee on the basis will result in disputes.
CASE 8: M. L Sakha & 4 others vs uMkhanyakude District Municipality: Unfair Labour Practice Section 186 (2) (b) – Unfair Suspension. Case Number: KPD031615 Facts:
The applicants’ - four shop stewards and one ordinary member from SAMWU alleged that respondents unfairly suspended them on the 17 March 2016. The matter proceeded in the respondent’s absence. SAMWU alleged that they were treated differently from IMATU. The desired solution was that the respondent must not treat SAMWU inconsistently or ill-treat SAMWU’s shops steward and members. The respondent unfairly suspended the shop stewards and members based on unfair or unjustified reasons which tantamount to an unfair labour practice. The respondent must issue a circular to all entities within the district to concede that they had erred in suspending the shop stewards and member inconsistently. The applicants were suspended on 17 March 2016 and the suspensions were uplifted on the 18 March 2016 through political intervention. There was no loss in pay and the applicants were back at work. Ruling:
Section 186 (2) (b) of the Act provides that an unfair labour practice means any unfair act or omission that arises between employer and en employee and employee involving the unfair suspension of an employee. NAWA & Another v Department of Trade and Industry [1998] 7 BLLR 701 (LC) held that that it is the applicant who is required to prove that the conduct or practice falls within the statutory definition of an unfair labour practice. The applicant did not establish that the respondent committed an unfair labour practice. Employers suspend employees for a variety of reasons. Usually the intention is either temporarily to remove the employee form the workplace pending disciplinary action (preventive suspension) or as a form of penalty for misconduct (punitive suspension). Preventive suspension may not necessarily be unfair. The applicants were suspended on the 17 March 2016 and these suspensions were uplifted the next day. There was no loss in pay and the applicants were currently back at work. The respondents conduct was not objectively unfair. Whether the conduct was remedied by political intervention or not, the fact remains that it was remedied and there was no evidence submitted that the applicants suffered loss. No evidence was submitted that the applicants were suspended as they belonged to SAMWU. The respondent did not commit an unfair labour practice. The commissioner has no jurisdiction to order the relief sought by the applicant. Lessons:
Case law is quite specific of what falls within the definition of an unfair labour practice. The relief that the applicant seeks also impacts on jurisdiction as the commissioner may not have the power to award the relief sought.
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CASE 9: Karabo T Molefe vs Ugu District Municipality: Unfair Labour Practice Section 186 (2) (a) – Non Promotion. Case Number: KPD091510 Facts:
The applicant applied for the post of manager – assets. He was short listed, interviewed but not appointed as he did not possess a degree or diploma. The requirements as per the advert included: diploma or degree in finance or civil engineering or equivalent relevant qualification. The policy stated that immediately after closing date of the applications, all unqualified applications must be eliminated as a result of such applications being incomplete, lack the necessary certificates, or had no required qualifications or relevant experience. This imposes a duty on the respondent to assess or vet the documents received. He did not misrepresent his application and curriculum vitae (CV). ‘Or equivalent’ did not mean that a diploma or degree was required. The Applicant scored the highest and was recommended for the post. The respondent argued that the policy did not suggest any peremptory or obligatory requirements. The practice adopted for internal applicants entailed an annual internal qualification audit. All curriculum vitaes for internal incumbents were accepted at face value and certificates were not attached. Equivalent relevant qualification means any relevant qualification with a degree or diploma. The CV should have stated that the degree was incomplete. Instead it stated that he had a diploma in financial accounting. Ruling:
The Policy as a guideline did not list any consequences if it was not adhered to. The argument that the policy placed a duty on the respondent to ascertain whether prospective applications met all the requirements and contained the necessary certificates had to be done prior to the interview is rejected. The advert stated and listed the information that was required to be attached to the CV. The applicant failed to comply with this requirement as he did not possess the qualification. The fact that the respondent did not pick this up at the short listing stage does not serve as immunity. The applicant stated in his CV that he had a diploma and listed the courses. Anybody would assume that he had the diploma as he listed the courses. He did not state it was incomplete. One cannot expect that the panel would know what courses would comprise a complete diploma. The equivalent relevant qualification meant that a degree was required in the appropriate field. The applicant was recommended but that recommendation needed to be followed by the municipal manager’s approval. It’s wholly clear that the applicant did not hold the minimum requirements and his CV was craftily drafted to indicate that he did possess a diploma. He deliberately misled the respondent and the interview panel. The respondent was not prohibited from carrying out the verification process after the interview and it was financially and practically feasible to do so at that stage. The application is dismissed. Lessons:
The respondent should be careful in the short listing process and ensure that those applicants short listed at least meet the minimum requirements.
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CASE 10: Ernest Mkhize & 4 others vs Hibiscus Local municipality: Unfair Labour Practice Section 186 (2) (a) – Benefits. Case Number: KPD091517 Facts:
The applicant’s confirmed that the respondent had arbitrarily increased transport allowances for some employees without complying with the applicable policy and had refused to increase the said allowances in respect of them but instead the respondent instructed them to prove that they were travelling the said kilometres per month warrant an increase by 200km. The applicant submitted that the conduct of the employer was unfair towards them. Ruling:
Clause 4 of the policy regulates new entrants into the scheme and is silent about the review and increases of the allowances. The issue is the manner in which the employer is applying the policy which to the applicants appear to be discriminatory against them. The dispute is therefore an unfair discrimination and the SALGBC lacks jurisdiction to hear this matter. The applicants were directed to approach the CCMA for recourse. Lessons:
The employer should be consistent in applying its policies to avoid disputes. The SALGBC lacks jurisdiction in respect of discrimination matters. Unfair discrimination is where the policy or practice imposes a burden or withholds a benefit or an opportunity from any person on any one of the prohibited grounds including race, gender, sex etc and on any arbitrary ground. The CCMA and Labour Court would have exclusive jurisdiction.
CASE 11: Bhekinkosi Mkhonza vs Abaqulusi Local Municipality: Unfair Labour Practice Section 186 (2) (b) – Unfair Suspension. Case Number: KPD021706 Facts:
The applicant was suspended and on the 5 May 2016 attended a disciplinary hearing where the initiator for the municipality stated that she was there to withdraw the charges. However, the chairperson of the enquiry, was not present in order to pronounce such withdrawal of charges. The matter proceeded in the absence of the respondent’s representative as the commissioner refused postponement. The applicant is employed by the respondent since 7 August 2014 as a manager supply chain earning R 31 000 a month. He was suspended on the 5 January 2016. After the applicant’s suspension a charge was preferred against him dated 12 February 2016. The charge has since been withdrawn. The applicant sought that his suspension be uplifted and sought compensation. Ruling:
From the applicant’s version it appears that the respondent committed an unfair labour practice. Section 186 (2) (b) of the Labour Relations Act 66 of 1995 states, “unfair labour practice means act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee.” In Ngwenya v Premier of KwaZulu – Natal (2001) 22 ILJ 1667 (LC) the applicant’s suspension with remuneration for an unreasonable period was found to be grossly unfair, unreasonable and irrational. In terms of section 185 (b) of the Labour Relations Act 66 of 1995 every employee has the right not be subjected to unfair labour practice. Section 194 (4) of the Labour Relations Act 66 of 1995 provides that compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all circumstances but not more than the equivalent of 12 month’s remuneration. The applicant was suspended with his full pay and did not suffer any monetary loss. His suspension amounts to unfair labour and there was no reasons as to why of compensation should not be awarded. The applicant was awarded R 180 000-00 as compensation. 77 SALGA KZN Case Law
Lessons:
Employees should not be suspended beyond the three month period as this would amount to an unfair labour practice. This could further result in financial implications for municipalities as compensation will be awarded.
CASE 12: Juan Francis V Dalen vs Great Kei Local Municipality & 3 others – High Court Judgment: Unlawful Suspension. Case Number: 2813/2016 Facts:
The applicant a senior manager, was appointed on a five year fixed term contract as Director Technical and Engineering Community Services. He was unlawfully suspended on 3 February 2016 and challenged his suspension as it was in contravention of Section 160 of the Constitution and Section 30 (1) and (3) of the Structures Act. It was thus in breach of the contract between the parties as the decision was not put to vote prior to being taken. The municipality contends that based on the contract, the CCMA had jurisdiction. The applicant argued that it was an unlawful suspension and not an unfair suspension therefore the High court has the jurisdiction. The municipality further argued that the applicant has not sought to review and set aside the Municipal Council resolution. The motion to suspend was introduced and seconded. There was a dissenting vote from a councillor. The motion was carried and a resolution was taken. Ruling:
In considering the issue of lawfulness, the judge referred to S160 (3) (a) of the Constitution which provides that a majority of the members of a municipal council must be present before a vote may be taken on any matter. Section 160 (3) (c) states that all other questions before a Municipal Council are to be decided by a majority of the votes before council. Section 30 (1) and (3) of the Structures Act states that a majority of the councillors must be present at a meeting of the council before a vote may be taken on any matter; and all questions before a municipal council are decided by a majority of votes subject to section 34. The fourth respondent’s affidavit doesn’t indicate that voting did in fact occur. There was only an ambiguous denial by the fourth respondent. No voting took place. The applicant’s suspension from 18 May 2016 was unlawful and in breach of the contractual agreement. Lessons:
The municipalities must follow the procedures in terms in terms of the disciplinary regulations for senior managers as well as the Municipal Structures Act (voting) and the Constitution and have to formally vote on the suspension of a senior manager before he/she can be suspended.
CASE 13: Charity B. Mkhize vs Endumeni Local Municipality: Unfair Labour Practice Section 186 (2) (b) – Unfair Suspension. Case Number: KPD021713 Facts:
The matter proceeded without any representation from the respondent as the commissioner refused postponement. The applicant received a letter of notification of her intended suspension. The letter contained no charges and no explanation as to why it was believed that the applicant will intimidate witnesses. She was given seven days to respond but was unable to as no allegations were furnished. Her attorneys requested the information which was not forthcoming. She was suspended. There was no
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compliance with Regulation 6 (2), (3), (4) and (5). Those regulations require a person in the applicant’s position being a section 56 manager be given an opportunity to make representations as to why she should not be suspended. In Lebu v Maquassi Municipality and others [2012] 4 BLLR 411 (LC), the judge stated that the notice of suspension must contain at least a description of the misconduct that the manager was alleged to have committed and the council’s justification for its decision and invite representations to both. The notice of intention to suspend did not meet the required standard set by the regulation 6 as such there was no opportunity to make representations. The suspension was unfair. The representations were not considered. Ruling:
The regulations in the Municipal Systems Act lists the process that have to be followed when a section 56 manager is to be suspended. In terms of the regulations a senior manager must be given an opportunity to make representations as to why she/he should not be suspended. Parts of the regulations are mandatory and require strict compliance. The respondent failed to provide reasons as to why she would jeopardise the investigation and/or interfere with witnesses. The applicant was denied an opportunity to make meaningful representations as she was not furnished with the charge. Lebu v Maquassi Municipality and others [2012] 4 BLLR 411 (LC), held that the alleged charge must be sufficiently set out so that meaningful representations could be made. The court further stated that it was not sufficient to merely reproduce the justifications listed in paragraphs 6 (1)-(b) of Regulation 6 (1). In this case, the notice of intention to suspend was devoid any reasons. The respondent contravened regulation 6 (3) as the council did not consider the applicant’s representations. The respondent also violated regulation 6 (5) (a) as the applicant was not provided with reasons of her suspension. The suspension was unfair and the applicant must return to work. Lessons:
Municipalities must have valid reasons for requesting postponements. A postponement will not be easily granted especially when it is opposed. The Commissioner can refuse the postponement. Municipalities must ensure that they follow the procedure in terms of Regulation 6 when they intend to suspend a Section 56 employee.
This case places far more stringent requirements on the council when suspending senior managers and is in some respects contrary to other judgements where such stringent requirements were not placed in terms of pending charges.
CASE 14: SAMWU obo Luthuli and others vs Umhlathuze Local Municipality: Unfair Labour Practice Section 186 (2) (a) – Benefits. Case Number: Facts:
The matter was initially referred as a dispute relating to an interpretation and application of the collective agreement. However the following the first sitting it became clear that the matter had been incorrectly referred as there was no collective agreement which formed the subject matter of the applicant’s case. The matter was re-referred as an unfair labour practice dispute relating to the provisions of benefits. The respondent raised a point in limine that the SALGBC has no right to hear the matter. He said that the dispute had been the subject of a settlement agreement entered into by the Respondent and both trade unions active in the workplace and that the matter has been settled. The applicant’s agreed that the matter had being ongoing since 1999 when the employees were transferred from the provincial government service to what was then the Richard Bay Transitional Local Council (TLC). The agreement was signed in January 2016 and payments were made in January 2016. Management called a meeting with the affected employees and they were told that they be paid a certain amount of money and that would it would be in of the 50 day leave benefit.
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Ruling:
The Commissioner stated that it had a clear purpose from the plain reading of the settlement agreement, which was to finalise the ongoing dispute between the certain former KZN Government employees and the respondent in relation to the ongoing issue of the 50 day leave benefit. The agreement stated that the former KZN government employees be granted long service leave days as defined in the Main Collective Agreement of the Bargaining Council (clause 7). No document was placed before the commissioner to indicate that any of the applicants or the union sought to challenge the right of the unions to have entered into the settlement agreement. No evidence was led by the applicants to prove that the person who signed the settlement agreement did not have authority to do so. The applicants appeared to have hid the existence of this settlement agreement from the arbitrator. It was not part of the applicant’s bundle. The dispute was lodged by SAMWU on behalf of its members. The settlement agreement is binding. The matter has been settled and SALGBC has no jurisdiction. Lessons:
If a matter is settled then the matter cannot be referred again to the SALGBC. The SALGBC would lack jurisdiction as the matter has already being determined.
CASE 15: JJ Coetzee and one other vs Endumeni Local Municipality: Unfair Labour Practice Section 186 (2) (a) – Non Promotion. Case Number: KPD071505 Facts:
The applicant both applied for the position of Senior Manager – Safety and Security and were not shortlisted. J Coetzee led evidence that the identity document was not a requirement and it was wrong for the respondent not to shortlist him. The respondent did not comply with clause 6.2 of the Recruitment and Selection Policy of Endumeni Local Municipality which provides the internal applicants should be given preference, should they meet the prescribed requirements, policies and legislations. The respondent did not comply with clause 6.1 in that a panel consisting of representatives from Human Resources Department, the unions and the supervisor and/or Head of Department concerned draws up a shortlist because there was no supervisor or Head of Department. Mdumiseni Ngwenya testified he believed he was qualified for the position. He testified that the SAPS 69 was attached to his application. He maintained that somebody removed his SAPS69 from his application so that he would not contest for the position. The respondent stated when an application is received, it is date stamped, filed and recorded in a computer system. It’s impossible in her office for anyone’s application to be tampered with. The manager of that department or HR are handed all applications on the closing date. She does not check if all persons have filed documents. Ruling:
Applicant was not shortlisted because his application did not have a certified copy of ID and driver’s licence. There was no proof that the application had a certified copy of the ID and driver’s licence. He denied that the certified ID was part of the requirements. But the advertisement for the vacancy reads “Application on the official application, together with CV and certified copies of ID documents, qualifications, diplomas, certificates, SAPS 69 clearance and drivers licence must reach the undersigned no later than 13 February at 12h00.” It’s clear that the certified ID document was part of the requirement. The second applicant was also not shortlisted because he did not submit the SAPS69. In his application he submitted the extract from
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the South African Police Service Criminal database. This document is not a police clearance certificate. He therefore did not submit a SAPS69 and that is why he was not shortlisted. There is no evidence that both applications were tampered with to the extent that the important documents were removed so they would not contest for the position. The respondent complied with clause 6.1 of its recruitment and selection policy as SAMWU was present to observe and an employee was delegated to represent the Head of Department. The respondent’s version is more probable than the applicants. Applicants failed to prove that the respondent committed an unfair labour practice. Lessons:
The applicants to a non-promotion dispute must clearly meet all the requirements in terms of the advertisement. The onus is on the applicant to show that the entire application form has reached the respondent.
CASE 16: S Dlamini vs Ilembe District Municipality: Unfair Labour Practice Section 186 (2) (a) – Non Promotion. Case Number: Facts:
The Applicant maintained that the Respondent perpetrated an act of unfair labour practice in respect of promoting an employee from a post Level 12 to a post Level 15. By promoting the post of Principal Administration Officer (Support Services) TASK Level (12) to “Manager: Support Services” TASK Level (15), without any scientific process. The Applicant challenged the consistency of the Respondent’s conduct in promoting without a scientific process and failing to do the same when approached by the Applicant. The Respondent’s conduct has set a precedent that the Applicant argues ought to be sustained in his case through upgrading his post from TASK Level (11) to TASK Level (14) to remedy the inconsistent conduct. The respondent argued that the dispute was referred as an unfair labour practice based on promotion, when in actual fact the dispute is a about remuneration. The Applicants intention is to get a backdoor increment since he is currently “Personal to Holder” and no longer entitled to notches in terms of Clause 7.2.3 of the LOCAL AGREEMENT FOR THE IMPLEMENTATION OF JOB EVALUATION OUTCOMES dated 15 July 2014. Ruling:
The dispute referred by the Applicant was an unfair labour practice relating to promotion. Section 186(2) (a) of the Labour Relations At 66 of 1995, as amended, provides that “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.” The Respondent raised a point in limine that the dispute is a dispute about remuneration. The matter is not only about remuneration so the SALGBC has jurisdiction to deal with this matter. It has become trite law that there are three basic requirements for a fair appointment or promotion, the procedure must have been fair; there must have been no discrimination and the decision must not have been grossly unreasonable. Promotion normally but not necessarily involves an increase in salary and it always entails an increase in responsibility and status. A demand that the employer upgrade the employee’s present post, or create a higher post, is not a dispute relating to promotion. The Respondent has not committed an unfair labour practice in respect of the Applicant. Lessons:
A demand that the employer upgrade the employee’s present post, or create a higher post, is not a dispute relating to promotion. Employees complaining of this form of unfair labour practice must prove at the outset that a post existed for which they are contenders, that the post was of higher status than the
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CASE 17: V J Lushaba vs Alfred Duma Local Municipality: Unfair Labour Practice Section 186 (2) (a) – Non Promotion. Case Number: KPD061611 Facts:
The dispute concerned a failure to promote the applicant into the position of Human Resources Admin Officer. The applicant applied, was short listed interviewed but unsuccessful. The appointee should never have been short listed as he lacked certain minimum requirements for the post in that he lacked a driver’s license as well relevant admin qualifications. He performed better than the appointee as the appointee lacked both experience and qualifications. The respondent submitted that the internal selection process was followed and the appointee was the most suitable candidate based on his performance at the interview. None of the candidates short listed (including the applicant and appointee) met the minimum requirements. This was a junior clerical position and a diploma was not necessary. The appointee was currently registered for a Diploma in Business Administration (HR Management). In regard to a driver’s license, although this was listed as a minimum requirement, it was not necessary since the job did not entail any driving. The appointee at no stage misrepresented that he had a driver’s license. The appointee undertook to obtain a driver’s license. Ruling:
George v Liberty Life Association of Africa Ltd (1996) 17 ILJ (571 (FC) is authority for the proposition that an employer enjoys a wide discretion as to whom to promote and hence courts should not intervene too readily. He was being highly selective in emphasizing the driver’s license (which he had whereas the Applicant did not) while downplaying the qualification (which neither of them had obtained). He failed to prove that the appointee had misrepresented that he did have a driver’s license which infers a degree of malicious intent on this part. There was no irregularity in shortlisting the appointee. In Msobo v IMATU (2008) 29 ILJ 459 (CCMA) it was held that, in order to succeed in an unfair labour practice claim relating to promotion the employer must be shown to have exercised its discretion capriciously, for unsubstantiated reasons or that the decision was taken on a wrong principle or in a biased manner. The Applicant has failed to establish any of these grounds. He also readily conceded that his acting appointments could not justify any legitimate expectations on his part. As a result this application fails.
Lessons:
There is no right to be appointed. An applicant must show good cause in the form of being the better candidate before an arbitrator will interfere with managerial prerogative in regard to the selection of the appointee over the Applicant. Acting does not guarantee permanent appointment to the position.
CASE 18: A D Ndzotyana vs Amajuba District Municipality: Unfair Labour Practice Section 186 (2) b) – Unfair Suspension. Case Number: KPD071606 Facts:
The Applicant was suspended on full pay by the Municipal Manager, for gross insubordination towards her senior manager, unauthorized leave of absence and abusive and insolent behaviour. The applicant addressed a letter to the Municipal Manager. The Municipal Manager advised the Applicant in writing that he could not find justifiable reasons to uplift the Applicant’s suspension, that his suspension letter remained in force and that she was required to comply with her conditions of suspension. The gist of the Applicant’s evidence was that she was disturbed because she was writing exams at that time, her dignity was challenged, and she felt like a criminal and was victimized. She also testified that she was the
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only person who had to report to the workplace whilst on suspension. The respondent submitted that the Applicant admitted that there was a ‘non-working relationship’ between her and her supervisor, the Applicant should have approached her employer to vary the conditions of her suspension the Applicant was afforded the right to be heard, it could have been arranged for her to report to one of the other office, this was not a punitive suspension/ Suspension was the only viable solution to the problem. The Code (to which the Respondent was bound) was nullified in January 2016 and the conditions of the Applicant’s suspension were fair. Ruling:
It is a common and an acceptable practice for employers to suspend employees who are suspected of some form of grave misconduct, or pending the finalization of investigations or the outcome of a disciplinary enquiry. It is also peremptory that the suspension must be fair and the fairness or not of a suspension is measured against inter alia the following principles: the substantive reasons for the suspension; the length of suspension, the actions of the employer during the period of suspension and the procedural fairness of the suspension. Although there is no general right to be heard or to be provided with reasons or information before being suspended for precautionary reasons, fairness requires that an employee is given an opportunity to state his/her case before the employer makes the final decision to suspend. The Municipal Manager acted unfairly when he treated the Applicant in a high handed manner and failed to adhere to her reasonable request to amplify the charges. Having considered not only the Respondent’s failure to afford the Applicant the right to be heard before she was suspended, but also the manner in which she was treated after she attempted to exercise a right afforded to her in the notice of suspension, namely to act if she felt aggrieved, the applicant is awarded equal to two weeks’ salary in the amount of R16 395.71
Lessons:
In terms of suspension, fair process must be followed. The employees must be given an opportunity to state reasons why they should not be suspended.
CASE 19: D Sreramalu vs KwaDukuza Local Municipality: Unfair Labour Practice Section 186 (2) b) – Unfair Disciplinary Action Short of Dismissal. Case Number: KPD061602 Facts:
The employee received at a disciplinary hearing two sanctions for different acts of misconduct. He received a final written warning as well as a 10 days suspension which resulted in loss of salary in the amount to R 7593.82 He had a clean service record and 21 years’ service and he claimed that by receiving two sanctions on two different acts of misconduct amounts to double jeopardy. The respondent was obliged to practice progressive discipline. The Code of Good Practice recommended that when deciding whether or not to impose the penalties, the employer should consider the gravity of the misconduct, the employee’s circumstances including the length of service, previous disciplinary record and personal circumstances, the nature of the job, and the circumstances of the infringement. Ruling:
Item 3 (2) disciplinary measures short of dismissal, Schedule 8, the Code of Good Practice: Dismissal of the Labour Relations Act 66 of 1995 as amended provides inter alia that “the courts have endorsed the concept of corrective and progressive discipline. Efforts should have be made to correct employees’
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behaviour through a system of graduated disciplinary measures such as counselling’s and warnings.” Item 3 (4) – “informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Repeated misconduct warrant warnings which may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for final warning, or other action short of dismissal.” The sanctions were blatantly and grossly unfair in the circumstances of the case. The final written warning was an appropriate sanction and should have been the only sanction imposed on the applicant. The ten day suspension was expunged and the respondent was ordered to pay the applicant the amount of R 7593-82. Lessons:
Municipalities should note that two sanctions on different acts of misconduct is not double Jeopardy in terms of the law – Double jeopardy can be defined as, “a second prosecution for the same offence after acquittal or conviction or multiple punishment for the same offence. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction, not necessarily double punishment.” When a sanction is considered then Schedule 8 of the Code of Good Practice: Dismissal must be considered.
CASE 20: SAMWU obo Ngwenya vs Endumeni Local Municipality: Section 186 (2) (a) of LRA – Non Promotion. Case Number: KPD091515 Facts:
The Applicant applied for the advertised position of supply chain manager (SCM). He was not shortlisted for the post as he did not meet the minimum requirements for the post. He had previously met the requirements for a similar post. The posts on a particular task grade level all had the same minimum requirements. The specifications in the advertisement were not in line with the minimum required specifications. He made reference to a similar advertisements for an SCM post in others municipalities. He should have been shortlisted as he had a National Diploma in Accounting. The respondent argued that Applicant did not meet the minimum requirements of the post as advertised. The post of asset manager and the position of SCM are distinctly different from each other. The advertisement of a post and the requirements for the post are within the discretion of the particular municipality. He was shortlisted for the Asset Managers post, and that was done on the basis that he had a national diploma. The Respondent was in the process of ensuring that all officials were being trained and capacitated. Ruling:
The Applicant did not have the Municipal Finance Management Programme certificate which was a requirement of the post. The fact that Applicant had done a portion of the programme, does not assist him. It is entirely up to an employer to prescribe what the minimum requirements for a post should be. The applicant did not have a degree. Insofar as the Applicant argues that Respondent erred in the manner in which it structured and created the advertisement, then the Applicant ought to have challenged that administrative issue through other means or another forum. The applicant has failed to prove that Respondent committed an unfair labour practice. Lessons:
The employer has the prerogative to prescribe what the minimum requirements for a post should be. Municipalities must ensure that employees are capacitated through training.
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CASE 21: S Khoza vs eThekwini Municipality: Section 186 (2) (a) of LRA – Non Promotion. Case Number: EMD061710 Facts:
The applicant applied for the post of senior clerk and was not shortlisted. The applicant testified that he had more experience than the appointee. He conceded he never worked with the appointee. He omitted in his CV that he was a voluntary driver. He agreed that he did not have 6 months’ work experience. The post of driver messenger existed which was challenged by the respondent. The post was changed in 2014 and there was no person in the contested post. He failed to produce any documentary evidence to substantiate his evidence. He could not deny that the appointee acted in the post of senior clerk. The respondent led evidence of the Manager. The post of driver messenger was created on 29 June 2016. The post that existed before was Senior/Driver Clerk. The appointee acted in the post of Senior/Driver Clerk. The appointee acted on an ad hoc basis. The appointee did not qualify for acting allowance as he did not act for a continuous period of three months or sixty days. The appointee acted and performed the duties of the contested post when the incumbent was away. Ruling:
The essential work experience required in the contested post is six months. The applicant conceded he did not have this experience. The applicant’s witness failed to produce any evidence to show that the post of driver messenger existed previously. The applicant did not know the appointee but disputed his credential through his witness. The applicant’s witness was not credible while the respondent’s witness produced credible evidence that the appointee acted in the contested post. The respondent’s version was more probable. The applicant failed to discharge the onus to prove that the respondent committed an unfair labour practice. The respondent did not commit an unfair labour practice. Lessons:
The onus to prove an unfair labour practise is on the person challenging the appointment to show that the employer committed a unfair labour practise in terms of the reason and procedure followed in appointment of the successful candidate .The employer or municipality must present evidence that the process followed in terms of the appointment was fair and did not prejudice the candidate that is challenging the appointment.
CASE 22: P. B. Mbhamali v Mbonambi Local Municipality- Unfair Labour Practice - Section 186 (2) (a) of LRA – Non Promotion. Case Number: KPD061602 Facts:
The applicant was short listed and interviewed for the post of tractor driver in line with the municipality’s recruitment and selection policy. He acted in the post. The municipality breached clause 7.3.9 (a) stated “as it failed to conduct proficiency tests e.g. typing, operating a grader etc. before or after the interview. The second aspect was that of “may be required,” in respect of which minutes of the interviewing panel on that day of the interview. Clause 5.12 states that, “The panel recommended to score the candidates 60:40 principle; 60% - verbal and 40%- practical assessment. The assessment was one of the requirements for the successful candidate, but that was never done and no reason was given. Clause 5.2 was breached as the scores would only be finalised after the practical assessment had been done. The municipality unilaterally changed the resolution in order to disadvantage the applicant which constituted the unfair labour practices. The municipality stated that appointee was not served the referrals. Clause 7.3.9 (a) may be required to be conducted before and after an interview is conducted. It was not compulsory and was left to the discretion of the accounting officer. The predecessor and the current incumbent were not subjected to a proficiency assessment test upon taking up the post. Job standards were that were below the task level grade 6 did not require a proficiency assessment test. Acting does not guarantee permanent appointment to the post. 85 SALGA KZN Case Law
Ruling:
The appointee was served both referrals. It was not disputed that the practical assessment was not done prior to the appointment of the successful candidate. No evidence has been provided to show that the exercise of the panel’s discretion was unfair and unreasonable. The panel did not adhere to his criteria and no evidence was provided to justify why it did not. To deviate from the agreed manner in which interviews were to be conducted without such reasonable basis is unfair. The municipality committed an unfair labour practice against the applicant. The appointment of the appointee was set aside and the appointment process to the position of tractor is to start afresh. Lessons:
It’s imperative that municipality should follow the recruitment and selection policy in making appointments. Failure to do so will result in unfair labour practice disputes and the process being declared unfair.
CASE 23: Xolani Ntshangase vs Msunduzi Local Municipality: Unfair Labour Practice - Section 186 (2) (a) of LRA – Salaries. Case Number: KPD041707 Xolani Ntshangase and others v Msunduzi Municipality Unfair Labour Practice (arbitration) Facts:
The applicants employed as traffic officers argued that they are placed at a lower salary notch than the position they applied for. Per the advert, they would be paid R 222 860-04 on the Patterson grading system. They were told that they will be remunerated at R 222 860-04 after they completed college. However the applicants were placed on Task Grade 9 and paid R 220 162-14 per annum. The respondent argued that task grade salary was lower than the Patterson system. Traffic officers were C2 and migrated to Task Grade 9. Employees who were already traffic officers were moved to Task Grade 9 but remained personal to holder. Ruling:
The applicants should have been placed at the same notch as other traffic officers on C2 personal to holder. The respondents acted unfairly and the municipality was ordered to convert the salaries of the applicants to that of C2 of the Patterson Grade at R 222 860-04. Lessons:
Clearly the matter related to upgrading of salaries which does not fall under the definition of an unfair labour practice. The SALGBC lacks jurisdiction to hear matters regarding salaries. Salaries are negotiated at a National Level.
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CASE 24: Gcinmuzi W Shalala vs Msunduzi Local Municipality: Unfair Labour Practice - Section 186 (2) (a) of LRA – Allowances. Case Number: KPD051717 Facts: The applicants all traffic officers sought payment of danger allowances. The applicants stated that there was an agreement with the respondent for the payment of danger allowance and was supposed to be paid from 2004. The respondent did not call any witnesses but argued that there was a collective agreement that prevented them from agreeing to pay danger allowances as they did not have jurisdiction to deal with this. The respondent applied for an exemption to the bargaining council but was not granted exemption to address danger allowances. Ruling:
The respondent was prohibited from negotiating danger allowance with its employees without getting exemption from the SALGBC. As there was no exemption from the Bargaining Council, the respondent could not enter into a valid contract with the applicants to pay danger allowances. Lessons:
Matters that are negotiated at the divisional level cannot be negotiated at a municipal level. If a municipality wants to be exempted from any clause in the conditions of service collective agreement, then they will have to apply for an exemption from the provisions of the collective agreement.
CASE 25: Nolwazi Nxumalo v Mooi Mpofana Local Municipality: Unfair Labour Practice - Section 186 (2) (b) of LRA – Unfair Suspension. Case Number: KPD091708 Facts:
The applicant a licensing cashier was suspended without pay from 1 June 2017 to 31 August 2017 as she was found guilty of misconduct at a disciplinary hearing held on 12 May 2017. The chairperson further recorded that the employer reserves the right not to employ the applicant in any position involving handling of cash. On the 20 September 2017 she was placed as a receptionist on the same TASK grade. She lodged an unfair labour practice on 2 October 2017 claiming unfair suspension and demotion with the date of suspension being 1 June 2017. Ruling:
In terms of Section 191 (1) (b) (ii) of the Labour Relations Act, a referral must be made within 90 days of the act or omission which allegedly constitutes an unfair labour practice or if it is a later date, within 90 days of the date on which the employees became aware of the act or occurrence. The act or omission occurred on the 1 June 2017. The applicant lodged the dispute on the 2 October 2017 being in excess of the 90 day period. The referral is defective and the applicant must apply for application for condonation for the late referral. Lessons:
Even if jurisdictional issues are not raised at the conciliation hearing, it can be raised at the arbitration. Rule 22 of the Bargaining Council states that if during proceedings it appears that a jurisdictional argument has not been determined, the commissioner must require the referring party to prove that the council has jurisdiction to arbitrate the dispute.
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Section G: Unilateral Changes to Terms and Conditions of Employment
Most employees affected by certain changes to terms and conditions of employment refer disputes to the South African Local Government Bargaining Council (SALGBC).
However the South African Local Government Bargaining Council (SALGBC) lacks jurisdiction to arbitrate the dispute. The matter can be conciliated but if unresolved the certificate will be issued for the employee to go on strike.
These type of disputes can only be arbitrated if both parties consent.
CASE 1: B.P. Khubeka vs Amajuba District Municipality: Unilateral changes to terms and conditions of employment. Case Number: KPD091622 Facts:
The matter proceeded in the absence of the respondent. The respondent’s attorneys withdrew on morning of the arbitration. Two sections namely Records Registry and Intergovernmental Relations with ten additional employees were incorporated into the Legal Section without the applicant’s consent and consultation. His workload increased and he was not compensated for the additional responsibilities he was executing. He sought for the two units and employees to be removed from the Legal Section and to be compensated for the additional responsibilities from June 2015 to August 2016 at a rate of R 20 000-00 per month. Ruling:
The unchallenged evidence shows that the respondent incorporated two sections and additional staff into the components of the Legal Section without being consulted. Its trite law that in term of the rule of natural justice or audi alteram partem rule, a person whose right is to be adversely affected by a decision to be heard or given a reasonable opportunity to make representation. The decision taken by the Respondent’s management was unfair. The respondent was ordered to restore the applicant’s original terms and conditions of employment that existed prior to the implementation of a unilaterally changed terms and conditions of employment. The respondent is ordered to pay compensation to the applicant in the amount of three hundred thousand rands (R300 000.00). Lessons:
Unilateral changes to terms and conditions of employment cannot be arbitrated. Jurisdiction lies with the Labour Court. Municipalities must ensure that they attend arbitration proceedings otherwise an award would be given in default which may have implications for the municipality. Municipalities can apply for rescission of the award which may be unsuccessful. Municipalities should also not agree at conciliation proceedings that matters which the SALGBC has no jurisdiction can be arbitrated.
The application was nothing else but a request for compensation disguised as a unilateral change to conditions of service and should have been challenged from the outset.
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Section H: Organisational Rights
21. Exercise of rights conferred by this Part
(1) Any registered trade union may notify an employer in writing that it seeks to exercise one or more of the rights conferred by this Part in a workplace.
(2) The notice referred to in subsection (1) must be accompanied by a certified copy of the trade union’s certificate of registration and must specify -
(a) the workplace in respect of which the trade union seeks to exercise the rights;
(b) the representativeness of the trade union in that workplace, and the facts relied upon to demonstrate that it is a representative trade union; and
(c) the rights that the trade union seeks to exercise and the manner in which it seeks to exercise those rights.
(3) Within 30 days of receiving the notice, the employer must meet the registered trade union and endeavour to conclude a collective agreement as to the manner in which the trade union will exercise the rights in respect of that workplace.
(4) If a collective agreement is not concluded, either the registered trade union or the employer may refer the dispute in writing to the Commission.
(5) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on the other party to the dispute.
(6) The Commission must appoint a commissioner to attempt to resolve the dispute through conciliation.
(7) If the dispute remains unresolved, either party to the dispute may request that the dispute may request that the dispute be resolved through arbitration.
(8) If the unresolved dispute is about whether or not the registered trade union is a representative trade union, the commissioner -
(a) must seek - (i) to minimise the proliferation of trade union representation in a single workplace and, where possible, to encourage a system of a representative trade union in a workplace; and
(ii) to minimise the financial and administrative burden of requiring an employer to grant organisational rights to more than one registered trade union:
(b) must consider - (i) the nature of the workplace;
(ii) the nature of the one or more organisational rights that the registered trade union seeks to exercise;
(iii) the nature of the sector in which the workplace is situated;
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(iv) the organisational history at the workplace or any other workplace of the employer; and
(v) the composition of the work-force in the workplace taking into account the extent to which there are employees assigned to work by temporary employment services, employees employed on fixed term contracts, part-time employees or employees in other categories of non-standard employment; and
(c) May withdraw any of the organisational rights conferred by this Part and which are exercised by any other registered trade union in respect of that workplace, if that other trade union has ceased to be a representative trade union.
(8A) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant a registered trade union that does not have as members the majority of employees employed by an employer in a workplace—
(a) the rights referred to in section 14, despite any provision to the contrary in that section, if— (i) the trade union is entitled to all of the rights referred to in sections 12, 13 and 15 in that workplace; and
(ii) no other trade union has been granted the rights referred to in section 14 in that workplace.
(b) the rights referred to in section 16, despite any provision to the contrary in that section, if— (i) the trade union is entitled to all of the rights referred to in sections 12, 13, 14 and 15 in that workplace; and
(ii) no other trade union has been granted the rights referred to in section 16 in that workplace.
(8A) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant a registered trade union that does not have as members the majority of employees employed by an employer in a workplace—
(c) the rights referred to in section 14, despite any provision to the contrary in that section, if— (i) the trade union is entitled to all of the rights referred to in sections 12, 13 and 15 in that workplace; and
(ii) no other trade union has been granted the rights referred to in section 14 in that workplace.
(d) the rights referred to in section 16, despite any provision to the contrary in that section, if— (i) the trade union is entitled to all of the rights referred to in sections 12, 13, 14 and 15 in that workplace; and
(ii) no other trade union has been granted the rights referred to in section 16 in that workplace.
(8B) A right granted in terms of subsection (8A) lapses if the trade union concerned is no longer the most representative trade union in the workplace.
(8C) Subject to the provisions of subsection (8), a commissioner may in an arbitration conducted in terms of subsection (7) grant the rights referred to in sections 12, 13 or 15 to a registered trade union, or two or more registered trade unions acting jointly, that does not meet thresholds of representativeness established by a collective agreement in terms of section 18, if—
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(a) all parties to the collective agreement have been given an opportunity to participate in the arbitration proceedings; and
(b) the trade union, or trade unions acting jointly, represent a significant interest, or a substantial number of employees, in the workplace.
CASE 1. Municipal and Allied Trade Union of South Africa vs Prince Albert Municipality (PAM) and others - Organisational Rights. Case Number: (2018) 27 CCMA 4.7.1 Facts:
The applicant union sought organisational rights at the respondent municipality as it had 21 members. The respondent argued that the unions and the employer organisation within the local government sector, had concluded an agreement in terms of which only unions with memberships exceeding 15% of employees in the municipal sector as a whole, could acquire organisational rights. Ruling:
One of the purposes of the LRA is to provide a framework within which the employees and the trade unions can bargain collectively with employers. MATUSA relied on section 21(8C) which allows for organisational rights to be granted to unions which do not meet the thresholds set by agreements in terms of section 18 if they represent a significant interest or a substantial number of employees. This must be read with section 21 (8) which requires Commissioners to minimise the proliferation of trade unions in a workplace and to take into account, inter alia, the composition and the nature of the workplace for the purposes of the application. MATUSA represented a substantial number of workers in terms of section 21 (8C) of the LRA, at 29%. The respondent municipality should be considered as a workplace for the purposes of this application. There was only one other union, which had a membership of 50% of its workforce. Recognising a second union would not amount to proliferation. MATUSA was declared entitled to rights in terms of Section 12, 13 and 15. Lessons:
When opposing such matters, municipalities should take cognisance of section 21(8) and the factors that the commissioners should consider when dealing with such a dispute. Verification of membership must also be conducted prior to the arbitration proceedings.
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