NEHAWU obo Civilian Employees of the Department of Defence - Financial Management Division v Department of Defence (J1546/15) [2016] ZALCJHB 519 (21 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG

JUDGMENT

Not reportable

Case no: J 1546/15

In the matter between:

NEHAWU obo CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENCE – FINANCIAL MANAGEMENT DIVISION Applicant And DEPARTMENT OF DEFENCE First Respondent Heard: 22 June 2016

Delivered: 21 October 2016

VAN NIEKERK J

[1] This application was enrolled for a pre-hearing assessment. At the hearing, the court raised concerns regarding the issue of

jurisdiction and specifically, whether this court had the jurisdiction to grant the relief sought by the applicant. The parties

agreed that the court should make a jurisdictional ruling after the filing of written submissions

[2] The background facts are not in dispute. Prior to 1994, the department of defence was militarised. The constitution provides for the establishment of a defence secretary in order to meet the constitutional imperative of civilian control over the military. The consequence for the individual applicants was that certain members of the defence force would be demilitarised, which involved the process of transferring members who had been soldiers to civilian status under the Public Service Act. Members in the respondent’s

financial management division, prior to its demilitarisation, were given the choice to remain within the military function or to be demilitarised. Members who did not wish to be demilitarised were transferred to other units and retained their military status and conditions of appointment. Although the applicants contend that the choice given to them was a Hobson’s choice, it is not disputed that there was no obligatory transfer from militarised to demilitarised status.

[3] The essence of the present dispute concerns the effect of demilitarisation on the individual applicants and in particular, their current terms and conditions of employment. The individual applicants contend that as a result of being demilitarised, they are progressively earning less and benefiting from smaller pensions than they would have enjoyed had they remained soldiers. In particular, they contend that this is unfair and in direct contradiction to express undertakings and promises made by the respondent prior to demilitarisation in 1998. The individual applicants’ case is that their placement in civilian posts has had an ‘unfair effect’ on them. They seek a declaratory order in the following terms:

1. Declaring that the de-militarisation of the civilian employees of the respondent’s Department of Defence (Financial Management

Division) represented by the applicant had an unfair effect on those employees in terms of their current salary and pension benefits with effect from 1 November 1998.

2. Directing the respondent to place the civilian employees of the respondent’s Department of Defence (Financial Management Division) represented by the applicant in the position they would have been but for their de-militarisation in respect of their salaries and pension benefits from 1 November 1998.

[4] The terms of the order sought do not make any reference to the awarding of any back pay or any other restitution to the individual

applicants. The applicant submits that the order sought would permit individual calculations to be made to remedy what they referred to as their ‘unfair dispensation’.

[5] The applicants submit that this court has jurisdiction to entertain their claim on account of the nature of the application and because they are in essence, attempting to prevent a multiplicity of disputes having to be determined individually. The applicants disavow that what is sought amounts to a declaration that the respondent committed an unfair labour practice as contemplated by s 191 of the LRA. In particular, they submit that what they claim is not any unfair act or omission referred to in S 186(2); they contend that ‘the respondent made a promise to the affected employees would place an ongoing obligation upon it’ and that the court ought to determine whether the respondent ‘has an obligation to which it should be held as a result of its undertaking’.

[6] It is well-established that a court’s jurisdiction ought to be established by reference to the pleadings. In Gcaba v Minister for Safety and Security 2010 (1) SA 238, Van der Westhuizen J held the following:

‘[74] The specific term ‘jurisdiction’, which has resulted in some controversy, has been defined as the ‘power or competence of a court to hear and determine an issue between parties…

[75] Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa and not the substantive merits of the case…’

In the present instance, the affidavits filed by the applicants make no specific reference to any basis on which this court has the necessary jurisdiction to entertain their claim. Section 157 of the LRA provides that subject to the Constitution and s 173 and except where the Act provides otherwise, this court has exclusive jurisdiction in respect of all matters that in terms of the Act and in terms of any other law ought to be determined by this court. In other words, although this court is a superior court that has authority, inherent powers and standing equal to that of the division of the High Court, this is in relation only to matters in respect of which this court has jurisdiction. In the absence of an all-encompassing jurisdiction in relation to employment disputes, it is incumbent on an applicant in proceedings such as the present to establish that this court, a creature of statute, has jurisdiction by invoking the relevant provision of the LRA (or any other law on which it relies) that confers jurisdiction on this court.

[7] As I have indicated, and despite the respondent’s attempts to characterise the dispute as such, the applicants expressly

disavow any reliance on the definition of unfair labour practice or any contention that what they in effect ask this court to do is to determine an unfair labour practice dispute. This is a prudent election – this court has no jurisdiction to entertain disputes that the Act or any other employment law requires to be determined through arbitration (see s 157 (5)). An unfair labour practice dispute is such a dispute (see s 191 (5) (a) (iv)). Further, the applicants have not framed their claim as one that concerns a contract of employment, a claim over which this court would have concurrent jurisdiction with the civil courts in terms of s 77 (3) of the Basic Conditions of Employment Act. What the applicants seek is an order that conduct by the respondent has an ‘unfair effect’. Absent any cause of action articulated in the papers before me that is justiciable by this court, this court has no jurisdiction to make orders of general import that effectively declare defined employer conduct to be unfair. Even statutory provision that empowers this court to exercise an all-embracing ‘fairness’ jurisdiction, I fail to appreciate on what basis the court has jurisdiction to entertain the applicants’ claim. In regard to paragraph 2 of the notice of motion, where the applicants seek substantive relief consequent on the declaratory order sought in paragraph 1, again, absent any cause of action over which this court is entitled to exercise its statutory jurisdiction, it seems to me that whether the respondent is obliged to place the individual applicants in the position they would have been but for their demilitarisation is not a dispute that on the papers as they stand, this court is empowered to determine.

[8] In so far as the applicant submits that this court ought to assume jurisdiction on account of its attempt to prevent a multiplicity of disputes having to be determined individually, this is no basis on which jurisdiction can be conferred. This court either has

jurisdiction or it does not. The motives of the applicant in framing the application as they have, magnanimous as they may be, are irrelevant.

[9] For the above reasons, in my view, this court has no jurisdiction to entertain the applicants’ claim. In so far as costs are concerned, there is no reason why costs ought not to follow the result. The application is misguided, and the respondent has been obliged to incur costs in its opposition to the applicants’ claim.

I make the following order:

1. The application is dismissed, with costs.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT