Enoch Mgijima Local Municipality v South African Local Government Bargaining Council and Others (PR143/21B) [2024] ZALCPE 34 (1 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case No: PR143/21B

In the matter between: ENOCH MGIJIMA LOCAL MUNICIPALITY Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent NOZIGQWABE, MA N.O. Second Respondent PATISWA CHIBWE Third Respondent ZUKO DYWILI Fourth Respondent MSUTHUKAZI NOZEWU Fifth Respondent

Heard: 25 July 2024

Delivered: 1 August 2024

This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date for hand-down

is deemed to be 1 August 2024.

JUDGMENT

MAKHURA, J

[1] The Enoch Mgijima Local Municipality (Municipality) launched this application in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award issued by the second respondent (commissioner) in favour of the third to fifth

respondents (employees). The third to fifth respondents are employees of the Municipality who referred an unfair labour practice relating to the provision of benefits in terms of section 186(2)(a) of the LRA[2] to the first respondent (SALGBC).

[2] The Municipality has a scheme which allowed employees (excluding senior managers) to use their private vehicles to execute their duties. Subject to certain conditions or requirements, the employees would be entered into the scheme and receive monthly allowance. The policy regulating the participation of the employees into the scheme is called the Essential User Car Scheme Policy (Policy). The policy applicable to this dispute is dated 14 June 2018. In terms of this policy:

‘Any employee qualifies for Essential User Car Scheme only if he or she has been authorized by his or her head of department to us[e] his or her own private transport for working purposes. An employee must apply to participate in the Essential User Car Scheme. A motivation by the employee who apply (sic) for participation in the Essential User Car Scheme must include:

proof that duties of the employee include travelling around the jurisdiction of the Enoch Mgijima Municipality

that the employee owns a car in good condition …

On approval of the HOD the employee must satisfy Budget and Treasury Office that he/she travel[s] not less than 850km per month. Employees who already benefit from the scheme must also me[e]t the above requirements. The Municipal Manager will be the final arbiter on the Essential User Car Scheme.’

[3] On 12 December 2017, the Director: Corporate Services (CS director), issued a memorandum stating that the Local Labour Forum (LLF) recommended an investigation into whether all employees who benefit from the scheme meet all the necessary requirements. The CS director also recorded that he received applications from four employees, including the three employees in this matter, to be entered into the scheme and that he had decided to include them. These employees were included solely because they were either wellness coordinators or skills development facilitators or human resources officers. The memorandum continued that the four employees would be entered into the scheme pending the investigation by the LLF. Further, that after the LLF investigation and the policy has been developed, those who were entered in the scheme by default would be removed. This memorandum was approved by the Municipal Manager.

[4] There was a delay in implementing the above decision to include the employees into the scheme and the LLF investigation. On 21 August 2018, the Municipality Manager addressed a memorandum to the paymaster recording that he had approved the decision to include the employees into the scheme and set out the allowances they should be paid per month. The employees’ monthly allowances were - Chibwe: R10 311.28, Nozewu: R7900.00 and Dywili: R7900.00.

[5] In November 2018, the Municipality, as part of cost containment measures, established a committee to conduct an investigation on the legitimacy of employees who benefit from the scheme. This committee prepared a report dated 4 February 2019. The report found that the employees, and many others, did not qualify. The findings in respect of the employees’ legitimacy to be on the scheme were substantially the same. It was found that their jobs are office based and do not need daily use of a motor vehicle, the execution of their jobs do not require the provision of a motor vehicle by the Municipality, they were approved on 12 December 2017 by the Municipal Manager and that there was no evidence that the availability of sufficient funds was considered before the approval.

[6] On 25 June 2019, the Acting CS director issued letters to those employees who were found to benefit from the scheme erroneously or irregularly, including the three employees. The letter notified the employees that they were not entitled to benefit from the scheme and that they would cease to be beneficiaries with effect from 30 July 2019. The employees were given an opportunity to appeal the decision to withdraw the benefit. Their appeals were unsuccessful.

[7] The employees referred an unfair labour practice dispute to the SALGBC. They described the alleged unfair conduct of the Municipality to be unilateral unfair removal of benefit and sought reinstatement of the benefit and backpay.

[8] On 9 June 2021, the commissioner issued an award declaring that the withdrawal of the Essential User Car Scheme was unfair and constitutes unfair labour practice, ordered the Municipality to reinstate the employees into the scheme and awarded them 24 months’ allowance each for the period 30 July 2019 to June 2021.

[9] The Municipality challenges the award on grounds that the commissioner failed to apply his mind to the evidence, ignored relevant and material evidence, committed errors in his analysis of the evidence and committed misconduct which led to the unreasonable result.

[10] The Constitutional Court has set out the test for the review of arbitration awards.[3] It held that awards would be reviewable when the commissioner’s decision is one that a reasonable decision-maker could not reach.[4]

[11] The benefit in this case does not arise ex contractu or by legislation. It is provided for in the form of a policy.[5] The commissioner correctly found that the scheme provides a benefit as contemplated in section 186(2)(b) of the LRA. She then proceeded

to consider whether the Municipality’s decision to withdraw the benefit from the employees was fair.

[12] It is trite that the employees had the onus to prove that the withdrawal of the benefit was unfair. The benefit was granted to the employees per the memorandum dated 12 December 2017. The employees were granted the benefit by default and solely on the basis that they were either wellness coordinators or skills development facilitators or human resources officers, not based on the logbooks or proof of their out of office work nor their job description and daily duties. This very decision by the Municipality to include the employees is, on the face of it, irrational, unsustainable and untenable. The employees were beneficiaries of this irrational decision.

[13] The commissioner found that based on the travel claims the employees would file, it was most probable that their work had involved a lot of travelling before being part of the scheme and after their removal from it. She further found that the employees’ participation in the scheme was endorsed by the Municipal Manager and that the employees proved that they travelled more than a minimum of 850km per month as allegedly corroborated by the logbooks.

[14] The enquiry before the commissioner was whether the decision to withdraw the employees from participating in the scheme constitutes unfair labour practice. To answer this question and considering that the onus was on the employees, the employees were required to prove that at the time the decision was taken, they qualified in terms of the policy to participate in the scheme. To discharge this onus, they had to show first that their work requires them to travel. Second, produce record that in the preceding months they travelled a minimum or average of 850km per month within the Municipality’s jurisdiction, third that these trips were authorised or approved by the head of department (the CS director) alternatively that in the event that the CS director refused to approve their trips, that such refusal was irrational, arbitrary and/or capricious. Fourth, that the Budget and Treasury Office was satisfied with the employees’ respective cases that they travel not less than 850km per month.

[15] Other than the irrelevant or outdated evidence of the old logbooks of Chibwe and vague and unsubstantiated oral evidence of Chibwe and Nozewu that their jobs require them to travel, there was no evidence adduced to prove that they travelled a minimum of 850km per month for any month preceding the decision and after. The old logbooks cannot be used in perpetuity. Further, these logbooks do not show that the trips were approved. Even after they were given a month’s notice of their withdrawal from the scheme, the employees failed to provide any record to show that they travelled or were required to travel and would have travelled 850km but for the irrational or arbitrary refusal of the head of department. Further, there was no evidence of the Budget and Treasury Office being satisfied with their claims. Instead, the employees simply relied on their default inclusion into the scheme.

[16] Even if the logbooks were relevant, it was only Chibwe who discovered the record of her logbooks. Dwyili and Nozewu did not discover their logbooks at arbitration proceedings. Chibwe’s logbooks reveal that she travelled 40km in October 2017, 30km in November 2017, 140km in January 2018, 968km in February 2018 and 336km, 680km, 235km, 811km and 317km from March to July 2018 respectively. It eludes common sense how these logbooks could be found to constitute proof that not only Chibwe, but the two other employees who did not discover their respective logbooks, travelled 850km per month.

[17] Therefore, it follows that the commissioner’s finding that the logbooks prove that the three employees each travelled the minimum required kilometres per month and that the trips were authorised by the head of department is disconnected from the evidence and constitutes a material error which had the distorting effect.

[18] The fact that the Municipal Manager endorsed the decision of 12 December 2017 to include the employees into the scheme by default cannot be used to continue justifying the employees’ participation in the scheme when they do not meet the requirements. That irrational and irregular decision to simply include everyone by virtue of their positions was in any event pending an investigation by the LLF. The LLF did not conduct the investigation but management did. The investigation found that the employees do not qualify to be part of the scheme and recommended their withdrawal. The CS director implemented the decision and provided the employees with the opportunity to show otherwise. They could not show that they meet the requirements to participate in the scheme.

[19] The commissioner further took issue with the fact that the decision to withdraw of the employees from participating in the scheme was taken by an acting director without the Municipal Manager’s approval or endorsement. To support this finding, the commissioner referred to a provision in the policy that states that the Municipal Manager “will be the final arbiter on the Essential User Car Scheme”. The commissioner misconceived this provision which led him to misconceive the requirements to participate in the scheme. The CS director, as the head of department, was well placed to know if the employees were travelling or required to travel the minimum 850km per month. The employees did not petition the Municipal Manager after their appeal failed.

[20] Despite the lack of evidence showing that the employees used their private or Municipal vehicles to execute their duties and that they travelled or were required to travel a minimum of 850km per month for any period after their withdrawal from the scheme, the commissioner awarded them retrospective backpay from the period 30 July 2021 to June 2021. This is irrational and unreasonable especially considering that the scheme is intended to reimburse the employees for using their private vehicles. It is a further demonstration of the disconnection between the commissioner’s decision and the evidence and material before him. His award falls short of the reasonableness test and is liable to be set aside. The application stands to succeed.

[21] The full record of arbitration proceedings has been filed and this Court is in as good a position as the commissioner to pronounce of the merit of the dispute. The employees have dismally failed to discharge their onus and sending the matter back for a hearing de novo would defeat the purpose of expeditious resolution of labour disputes. The documentary and oral evidence led by them did not even establish a prima facie case that called for the Municipality to answer. Their claim was a non-starter and should have been dismissed. This Court is in a position to substitute the award and order the dismissal of the employees’ unfair labour practice dispute.

[22] In the premises, I make the following order:

Order

1. The arbitration award issued under case number ECD091918 dated 9 June 2021 is reviewed and set aside.

2. The award is substituted with the following order:

‘The employees’ claim for unfair labour practice is dismissed’.

3. There is no order as to costs.

M. Makhura

Judge of the Labour Court of South Africa

Appearances: For the Applicant: Adv. M. Grobler Instructed by: Mbabane & Maswazi Inc For the 3rd, 4th & 5th Respondents: Adv. M.R. Jacobs Instructed by: Wheeldon Rushmere & Cole Inc

[1] Act 66 of 1995, as amended.

[2] Section 186(2)(a) defines unfair labour practice to mean 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”.

[3] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; (2007) 28 ILJ 2405 (CC).

[4] Ibid at para 110.

[5] See: Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration and others (2013) 34 ILJ 1120 (LAC) at para 50: “In my view, the better approach would be to interpret the term 'benefit' to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment

'benefit' in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion. In as far as HOSPERSA, GS4

Security and Scheepers postulate a different approach they are, with respect, wrong.”