NEHAWU obo Matlou v Minister of International Relation and Cooperation and Another (JR248/2014) [2016] ZALCJHB 180 (17 May 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR 248/2014

In the matter between:

NEHAWU obo VALERIE MATLOU

Applicant

and

MINISTER OF INTERNATIONAL RELATION

AND COOPERATION

First Respondent

THE DIRECTOR GENERAL N.O.

Second Respondent

Heard:

14 January 2015

Delivered: 17 May 2016

PIENAAR, AJ

Introduction

[1] This is an application for review in terms of section 158(1)(g) of the Labour Relations Act, No 66 of 1995 ("LRA").

[2] The Applicant seeks to set aside a decision of the Second Respondent dated 20 January 2014. The Second Respondent ordered that the Applicant's member is to be transferred from her current position of Chief Director: Economic and Social Affairs ("CDES") at the Department of Foreign Affairs ("the Department") to the position of Chief Director: Consular Services ("CDCS"). The Second Respondent ordered the Applicant's member to report to the position of CDCS.

[3] I will hereafter refer to the Applicant's member as "the Applicant".

Background

[4] The following facts appear from the founding affidavit of Stuart Marshall who is employed as the National Legal Coordinator of the National Education Health and Allied Workers Union ("NEHAWU"). The Applicant confirmed the contents of Mr Marshall's Affidavit in a confirmatory affidavit.

4.1. On 8 August 2008, the Applicant was appointed by the Department as CDES.

4.2. On 9 March 2012, in a meeting between the Applicant and the Second Respondent, the Second Respondent suggested to the Applicant that she consider taking the post of Minister Plenipotentiary to the Embassy of Brussels as a multilateral mission. The Second Respondent informed the Applicant that should she accept such post, she would be required to relocate to Brussels within the following two months.

4.3. The Applicant responded to the Second Respondent by declining to accept such post. She stated that her reason for declining was that she had commenced training to become a sangoma. Therefore, the Applicant, in principle, could not consider the position. The Applicant nevertheless undertook to discuss the proposed transfer with her family.

4.4. The Applicant informed the Second Respondent on 13 March 2012 that, by virtue of her training, she could not take up the position.

4.5. During the beginning of September 2012, the Applicant was approached by the Deputy-Director: Human Resources ("DDHR") at work. The DDHR told the Applicant that she was supposed to report to the Directorate Consular Services with immediate effect.

4.6. The Applicant was surprised by this information. Upon realising that the Applicant genuinely did not know about her alleged transfer, the DDHR undertook to address a formal letter to the Applicant informing her of the transfer. The DPHR failed to send same to the Applicant.

4.7. The Applicant took annual leave at the beginning of October 2012 and returned to work at the beginning of November 2012.

4.8. On 20 October 2012, while the Applicant was still on leave, a letter was addressed by the Second Respondent to the Applicant informing her that she will be placed in the position of CDCS with effect from 1 November 2012.

4.9. On 13 November 2012, the Applicant had a discussion with the Second Respondent, in which she was informed by the Second Respondent that he had issued an instruction for the Applicant to report to the Directorate Consular Services on 1 November 2012. The Second Respondent also informed the Applicant that her current position of CDES was suited to people who would be posted abroad. The Second Respondent stated further that, because of the Applicant's training, the position of CDCS was more suited to her.

4.10. The Applicant responded by informing the Second Respondent that she was not aware of the letter which the Second Respondent was referring to and that she was also not aware of the fact that she was required to report to the Directorate Consular Services on 1 November 2012.

4.11. The Applicant finally received the letter dated 20 October 2012 on 14 November 2012.

4.12. There had been no consultation with the Applicant regarding her transfer from CDES to CDCS prior to the Second Respondent issuing the letter dated 20 October 2012 (except the Applicant's discussion with the DDHR, to the extent that such discussion constituted a consultation).

4.13. The Applicant submits that her transfer was viewed by her and other members of the Department as a demotion because the position is less challenging and more of an administrative position when compared to the position of CDES. The transfer did not affect her status, level of employment or remuneration.

4.14. On 15 November 2012, the Applicant addressed a letter to the Second Respondent requesting reasons for the transfer especially the rationale for the transfer from a political line function to an administrative role. On 5 December 2012, the Applicant followed up on this letter as she had yet to receive a response on her previous letter. At this stage the Applicant involved her Union, NEHAWU, in the matter.

4.15. On the same day (i.e. 5 December 2012), the Second Respondent responded to the Applicant's letter by stating, inter alia, that sections 14(1) to (2)(a) of the Public Service Act, No 103 of 1994 ("PSA") makes provision for the transfer of employees in order to enhance organisational effectiveness and skills. The Second Respondent stated further that the functions and responsibilities related to the unit in Consular Services were regarded as specialised and that such functions and responsibilities required an in depth overall understanding of foreign policy and objectives. The Second Respondent stated that it was against that background that it had been considered appropriate to redeploy the Applicant to Consular Services.

4.16. On 20 December 2012, the Applicant referred the matter to the CCMA. The CCMA issued a jurisdictional ruling on 18 January 2013. In terms of this ruling, it was held that the CCMA did not have jurisdiction to conciliate the matter as there was a registered Bargaining Council with jurisdiction which could provide such dispute resolution services.

4.17. On 2 February 2013, the Applicant referred the dispute to the General Public Service Sectoral Bargaining Council ("Bargaining Council").

4.18. On 16 May 2013, the Bargaining Council issued a jurisdictional ruling stating that it did not have jurisdiction to conciliate or adjudicate the dispute. The Bargaining Council stated further that the Applicant had to refer the matter to the Labour Court in terms of section 158(1) (g) of the LRA.

4.19. The Applicant, in the meantime, remained in her position of CDES.

4.20. The Second Respondent did not take any further action until 5 December 2013, almost seven months later, when the Second Respondent addressed a letter to the Applicant informing her of the Department's intention to transfer her from the position of CDES to CDCS in terms of section 14 of the PSA.

4.21. The Applicant was invited to make representations regarding the matter within three working days after the receipt of the letter, failing which the matter would be deemed to be dismissed. The letter stated that the Applicant was being transferred because it would enhance the operational requirements of the Department.

4.22. The Applicant thereafter consulted with her attorneys, who addressed a letter to the Second Respondent on 18 December 2013. In this letter, the Second Respondent was requested to provide the Applicant with all the factors which had been considered by the Department as well as the reasons for arriving at the decision that the transfer will enhance the operational requirements of the Department. This information was required in order to afford the Applicant the opportunity to make substantive and meaningful representations.

4.23. On 9 January 2014, the Second Respondent responded to the letter of the Applicant's attorney. In this response, the Second Respondent referred to the previous discussions between the parties in early 2012 during which the Applicant declined to accept the post of Minister Plenipotentiary to the Embassy of Brussels. The Second Respondent stated that the position of CDCS would give the Applicant an opportunity to undergo her training and gain the required practical experience in this regard (which, according to the Second Respondent, would require her to attend to same after hours and at weekends) whilst being able to perform her duties during office hours.

4.24. The Second Respondent stated further that the new position had been vacant for a considerable period of time and that it was therefore in the best interest of the public to transfer the Applicant to such position. Further, according to the Second Respondent, the transfer would serve the operational requirements of the Department.

4.25. At this stage, it appears to be common cause that the Applicant, after commencing her training, in any event performed her duties and attended to all travelling in lieu of such duties. In this regard, the Applicant refers to various trips, including, without limitation, trips to the United States of America, France and Switzerland.

4.26. On 14 January 2014, the attorneys of the Applicant responded to the Second Respondent on behalf of the Applicant. In such response, the Applicant's attorneys disputed the rationale for the transfer of the Applicant. According to the Applicant's attorneys, the Second Respondent's rationale was flawed because it was hardly in the "public interest" to transfer the Applicant. The Second Respondent was urged not to transfer the Applicant and was advised that such transfer would be unfair and unlawful.

4.27. Nevertheless, on 20 January 2014, the Applicant was instructed by the Second Respondent that Applicant's attorneys did not submit any representations and that she is to report to her new position with effect from 28 January 2014, for the reasons set out in previous correspondence.

4.28. The Applicant proceeded to lodge these proceedings before the Labour Court.

[5] In his answering affidavit, the Second Respondent, inter alia, submitted that the Applicant was transferred with the view of resolving an alleged rift between the Applicant and her immediate supervisor, Ambassador Mxakato-Diseko ("the Ambassador").

[6] It was further stated by the Second Respondent, in his answering affidavit, that the public interest cannot be served when an employee is not prepared to work with his or her immediate supervisor.

Application.

[7] Mr Gwala, acting on behalf of the Second Respondent in these proceedings, submitted that the Second Respondent's reason for the transfer of the Applicant, put forth in his answering affidavit, was not stated in the correspondence between the Applicant and the Second Respondent because it relates to a sensitive matter.

[8] The Applicant's representative responded to this submission by submitting that nothing prevented the Second Respondent from submitting such reasons in the correspondence. This is because the correspondence was between the Applicant and the Second Respondent and that the personal relationship between the Applicant and the Ambassador had no bearing on this.

[9] I am in agreement with the submissions made on behalf of the Applicant. I am also of the view that if the nature of the relationship between the Applicant and the Ambassador was indeed the reason for the transfer of the Applicant, the Applicant should have been afforded an opportunity to respond thereto. Of course, the Applicant could not have responded thereto because she was not at the time informed of this reason for her transfer.

[10] The Second Respondent's failure to provide this reason for the transfer to the Applicant and as such, to provide the Applicant with an opportunity to make representations in this regard, constitutes a reviewable irregularity.

[11] The principle of audi alterem partem requires that each party be given a fair opportunity to make representations in respect of a decision which may materially and

adversely affect their rights.

[12] It would be patently unfair to approach any affected person with a fait accompli and thereafter seek representations from the affected person in order to give credence to such decision.

[13] To the extent that a decision is largely premised on a particular reason, such as the alleged rift between the Applicant and the Ambassador, the affected party is entitled to be given an opportunity to respond thereto, prior to such decision being made.

[14] I am of the view that it is clear from the answering affidavit of the Second Respondent that the Second Respondent relied on the alleged rift between the Applicant and Ambassador as a basis for transferring the Applicant. I am of the view that the other reasons put forth by the Second Respondent in his correspondence with the Applicant were not the true reasons for the transfer.

[15] Therefore, while I accept that the Second Respondent was entitled to transfer the Applicant in terms of sections 14(1) to (2)(a) of the PSA, such transfer had to be subject to the Second Respondent following fair procedure.

[16] It was furthermore submitted on behalf of the Second Respondent that the Applicant's old position has since been filled and that the decision could therefore not be set aside.

[17] I do not accept this rationale insofar as the Second Respondent was well aware that the decision to transfer the Applicant was subject to review and the Department could easily have appointed someone in an acting position.

[18] It is trite law that the filling of a position previously held by a certain employee does not prevent a Court from reinstating such an employee.

[19] In Cholota v Trek Engineering (Pty) Ltd,[1] the employee had been dismissed pursuant to his participation in an unlawful strike. The employee approached the Industrial Court seeking reinstatement on the grounds that he had been the only striking employee to be dismissed. The employee's position had since been filled.

[20] The Industrial Court held that the fact that the employee's position had been filled did not prevent a Court from ordering that the employee be reinstated.[2]

[21] In my view, the same principle should apply in the present matter.

Finding.

[22] The transfer of the Applicant dated 28 January 2014 is therefore reviewed and set aside.

[23] There is no reason why the cost order should not follow the outcome of the proceedings. More so because the Respondent was not forthcoming with the real reason for the transfer in its correspondence with the Applicant.

[24] The First and Second Respondents are ordered to pay the cost of application jointly and severally, the one paying the other to be absolved.

_____________

Pienaar, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr N Thaanyane

Instructed by:

Thaanyane Attorneys

For the First Respondent: Advocate M Gwala

Instructed by:

State Attorneys

[1] (1992) 13 ILJ 219 (IC).

[2] Ibid at 224.