City Of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR 56/2022) [2023] ZALCJHB 243 (16 August 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 56/2022

In the matter between:

CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant And SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent COMMISSIONER EVA NGOBENI Second Respondent TEBELLO MASEHE Third Respondent

Heard: 16 August 2023

Delivered: 16 August 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 16 August 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside an arbitration award issued by the second respondent (the arbitrator) on 30 November 2021. In her award, the arbitrator ordered the applicant to promote the third respondent to the position of regional head: regional operations and to pay him the remuneration and benefits applicable to that grade.

[2] One of the applicant’s grounds for review relates to the jurisdiction of the arbitrator. The applicant submits in essence that on the third respondent’s own version, the dispute did not concern an unfair labour practice relating to promotion and that the third respondent had applied for appointment to the post concerned, and not a promotion. In these circumstances, the arbitrator ought not to have assumed jurisdiction and in fact, had no jurisdiction to determine the dispute.

[3] The material facts are not in dispute. The third respondent had been appointed in terms of a fixed-term contract. The post he occupied was designated as a permanent post, and applications for the post were invited. The applicant applied but was not appointed. In the interim, his fixed-term contract had expired, but he remained employed by the applicant on a periodic basis, until he was advised that his application had been unsuccessful. The applicant disputed the decision not to appoint him and referred a dispute to the bargaining council.

[4] The Labour Appeal Court has drawn a distinction between external candidates who are ‘appointed’ to advertised posts, and internal candidates who may be ‘promoted’ to such positions. In IMATU obo Joubert v Modimolle Local Municipality [2018] 11 BLLR 1106 (LAC), the LAC held that an employee on a fixed-term contract who applied for a permanent position in the municipality was not seeking promotion, rather than appointment to a vacant permanent post. In these circumstances, the definition of unfair labour practice was of no application, since it was confined to disputes concerning the unfair conduct by an employer in relation to promotion.

[5] In the present instance, there is regrettably no copy of the referral form attached to the application. It is not disputed though that in paragraph 5 of the award, under the heading ‘Issue for determination’, The arbitrator stated that it was for her to determine ‘whether the conduct of the Respondent amount to unfair labour practice: promotion.’ Further, in the framing of the relief granted, the applicant was ordered to ‘promote’ the third respondent. There can be little doubt then that the arbitrator considered that the dispute that served before her was a dispute concerning an alleged unfair labour practice in the form of unfair conduct in relation to promotion.

[6] That being so, given that in law the dispute concerned a refusal or failure to appoint the third respondent to the post for which he had applied, the arbitrator ought properly to have decided that the dispute did not fall within the parameters of the definition of unfair labour practice in section 186 (2)(a) of the LRA, and that the dispute was accordingly not justiciable by the bargaining council.

[7] This much is acknowledged by the third respondent himself. In his answering affidavit, he states the following:

‘4.6 In terms of the referral form I submitted to the Bargaining Council my contention is clearly premised on the failure to appoint me as Regional Head even though I passed the interviews. Such failure falls under the auspices of unfair labour practice.

4.7 I did not seek a promotion…nor is there a minutest aorta (sic) of evidence I provided that suggests that I sought to be promoted.’

[8] To the extent that counsel for the third respondent submitted that the applicant’s conduct could nevertheless form the basis of a valid claim of unfair labour practice, there is no merit in this submission. The LRA abolished the open-ended definition of unfair labour practice developed under the 1956 LRA. The list of unfair labour practices is a closed list, and any employee seeking to claim an unfair labour practice must necessarily frame the referral so as to refer to one or more of the specified grounds established by section 186 (2). A failure to appoint is not a specified ground.

[9] For the above reasons, the dispute that served before the arbitrator was not a dispute that concerned unfair conduct by an employer in relation to promotion. The third respondent’s dispute fell outside of the definition of unfair labour practice and the bargaining council had no jurisdiction to entertain it. The arbitrator’s award thus stands to be reviewed and set aside. In these circumstances, there is little point in remitting the matter for rehearing; I intend to substitute the arbitrator’s decision with a ruling to the effect that the bargaining council lacks jurisdiction to entertain the claim.

[10] Finally, in relation to costs, the Constitutional Court has made clear that costs ought not to lightly be awarded against individual employees who seek to prosecute legitimately held grievances against their employers. For the purposes of section 162, the requirements of the law and fairness are best served by each party bearing its own costs.

I make the following order:

1. The arbitration award issued by the second respondent is reviewed and set aside.

2. The award is substituted by the following:

a. ‘The bargaining council lacks jurisdiction to entertain the referral’.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant:

D Mer,

Lawtons Africa Inc Attorneys

For the respondent:

M Schermes,

Mo Matladi Attorneys