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Unfair Labour Practice

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Unfair Labour Practice SALGA KZN Case Law SALGA KZN CASE LAW 1 SALGA KZN Case Law 2 SALGA KZN Case Law 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 3 SALGA KZN Case Law 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 4 SALGA KZN Case Law 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. 5 SALGA KZN Case Law 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 6 SALGA KZN Case Law 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
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