NEHAWU obo Nkambule v MEC: Department of Finance and Another (J 2241/13) [2013] ZALCJHB 288 (31 October 2013)

7

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

CASE NO J2241/13

In the matter between:

NEHAWU obo DUDU CAROL NKAMBULE ....................................................APPLICANT

and

MEC: DEPARTMENT OF FINANCE .................................................FIRST RESPONDENT

HOD: GAUTENG DEPARTMENT OF FINANCE .........................SECOND RESPONDENT

Heard: 11 October 2013

Judgment delivered: 14 October 2013

Judgment edited: 31 October 2013

EX-TEMPORE JUDGMENT

­VAN NIEKERK J

This is an urgent application brought last Tuesday and then postponed to Friday 11 October, in which the individual applicant seeks an order inter alia declaring the respondent's decision to transfer her to a call centre, to be unlawful.

The material facts in this matter are not in dispute. The individual applicant is employed by the Gauteng Department of Finance as what was termed a committee manager at the level of a deputy director.

On 25 October 2013 a Mr Steward Lumka, the deponent to the answering affidavit, called a meeting to which the individual applicant was invited. The meeting was called consequent on information obtained by the department; it would appear from Facebook comments, and in particular a comment posted by the individual applicant in response to a posting made by a former employee of the department.

In any event, Mr Lumka took the comment to represent, amongst other things, a challenge to his authority, and advised the individual applicant that with effect from 01 October she should report for duty as a call centre agent.

On 1 October 2013 the applicant was given a letter headed "precautionary transfer" in terms of which she was transferred to the position of call centre agent, a non-managerial position, pending the institution of a disciplinary process. The department relies on clause 7.2 of the applicable disciplinary code and procedure in order to effect what it terms a precautionary transfer.

For present purposes what is particularly relevant, given the fact that the applicants seek a final order in motion proceedings, is the cause of action, and in particular the question whether the applicants have established a clear right to the relief that they seek. The cause of action is spelt out in paragraph 19 of the founding affidavit, which says the following:

"I submit that in transferring the applicant to a call centre position, the respondents breached the applicant's contract of employment and also sought to unilaterally change the terms and conditions of my employment. Such a transfer constitutes nothing more than a gross and sever diminution of the applicant's status, responsibilities, prestige and authority. It is my respectful submission that to the extent that applicant was genuine in its "precautionary transfer" the respondents would have transferred the applicant to a similar and/or comparable position within the department."

In terms of that paragraph it would appear that the applicant seeks to make out a case for a breach of the applicant's employment contract, and also a unilateral change to the terms and conditions contained in that contract.

The cause of action is amplified in a supplementary founding affidavit in which the applicant makes reference to the doctrine of legality, and contends that the department's decision was unreasonable, unjustifiable and irrational in the circumstances.

The terms of the applicant's contract are such that in paragraph 12 thereof the applicant agreed to the following:

"All departmental policies, including the grievance and disciplinary code apply to all employees. Policies may change over time."

It is clear to me therefore that the department's grievance and disciplinary code is incorporated expressly into the contract of employment.

[10] The relevant portion of the disciplinary code, paragraph 7.2 reads as follows under the heading:

"Precautionary suspension;

(a) The employer may suspend an employee on full pay or transfer the employee if;

(i) The employee is alleged to have committed a serious offence; and

(ii) The employer believes that the presence of an employee at the workplace might jeopardise any investigation into the alleged misconduct, or endanger the wellbeing or safety of any person or State property.

(b) A suspension of this kind is a precautionary measure that does not constitute a judgment, and must be on full pay.

(c) If an employee is suspended or transferred as a cautionary measure, the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The Chair of the hearing must then decide on any further postponement."

[11] It seems to me that given the terms of the disciplinary code read with the terms of the individual applicant's contract of employment, the terms of her contract of employment permit a temporary transfer as a precautionary measure on the conditions stipulated in clause 7.2 of the disciplinary code. In other words the employer is entitled, in terms of the contract, to effect a precautionary transfer of the employee provided the two conditions set out in 7.2(a) are met, i.e. the employee is alleged to have committed a serious offence and the employer believes that the continued presence of the employee might jeopardise any investigation into the alleged misconduct.

[12] A list of misconduct is annexed to the disciplinary code, and included in that is a display of disrespect or behaviour that demonstrates abuse or insolence. The terms of the charges against the individual applicant have not yet been formulated but it seems to me from the answering affidavit, and this is not seriously contested, that the nature of the complaint against the individual applicant is that she made herself guilty of this form of misconduct.

[13] I must emphasise that it is not for this Court at this point, to make any decision in relation to the merits of any allegation of misconduct against the individual respondent. Indeed the founding affidavit deposed to by Mr Lumka seems to me to display perhaps inappropriately, or to rely perhaps inappropriately, on his subjective views regarding the individual applicant's conduct. He appears to regard what she is alleged to have done as a personal affront.

[14] Now that of course is not the test that is applied to determine the existence or seriousness of any misconduct, the test is objective, but as I have indicated, that is a matter for a disciplinary hearing to determine in due course.

[15] The high water mark, it would seem to me, of the applicant's case is that the transfer to the call centre represents a reduction in status, and here the argument is that the applicant has, in effect, through the mechanism of a transfer, been demoted. It must be so that the transfer constitutes a significant diminution of the applicant's status, responsibilities, prestige and authority, but the question that the Court is required to answer is whether that amounts to a breach of her contract, because that ultimately is the cause of action on which the applicant relies.

[16] As I have indicated the contract does envisage the use of transfer as a temporary precautionary measure pending an investigation into alleged misconduct. There cannot be, in those circumstances, any breach of contract or any unilateral change to terms and conditions of the employment contract simply on account of the transfer itself. There must be more, the applicant must establish, for example, an implied term to the effect that any transfer effected in terms of clause 7.2 of the disciplinary code and procedure would be effected to a position commensurate with that held by the employee.

[17] However, in the papers before me there is no case made out in relation to any such term to be implied into the contract or otherwise. To the extent that the applicants appeared to rely on a general assertion of fairness, this Court no longer has the right to read into contracts of employment a general obligation on the part of an employer to act fairly. In SA Maritime Authority v McKenzie [2010] 5 BLLR 488 (SCA), Judge Wallis AJA as he then was, said the following at paragraph 37:

"I share the view of Professor Halton Cheadle, whose role in the drafting of the LRA is well documented, that where, as here, the

employees are protected by the LRA, section 8(3) of the Constitution does not warrant or require an importation from the realm of constitutionally protected labour rights into individual contracts of employment by way of an implied term. The LRA specifically gives effect to the constitutional right to fair labour practices and the consequent right not to be unfairly dismissed. Accordingly the constitutional basis for developing the common law of employment and thereby altering the contractual relationships is absent."

[18] To the extent that the Supreme Court of Appeal had previously held that certain fairness related rights could be read into contracts of employment, and in particular those cases dealt with the right to a pre-dismissal hearing, the Court considered that it was not the intention of the Court in those matters, to lay down any new principle in law, and the Court went on to reiterate that it is not open to this Court or any other to read down constitutional rights to fair labour practices into contracts of employment, whether by way of implied terms or otherwise.

[19] To the extent that the applicant relies, in relation to the terms of any transfer contemplated in the contract on any right to fair labour practices, and in particular to any right to be transferred to any commensurate position, in principle, this Court does not have the jurisdiction to read such a clause into the contract. In any event, as I have indicated, the case that has been made out does not extend to any implied or tacit term in that form.

[20] Insofar as the applicant relies on Section 158(1)(h) of the Labour Relations Act, in my view the same considerations must apply. The applicant, broadly speaking, is entitled to act as it did. That is not to say that the applicant is without a remedy, to the extent that the applicant's case might be that the terms of the transfer constituted an unfair demotion, the applicant has rights in terms of the unfair labour practice jurisdiction established by the Labour Relations Act, to protect her rights in that regard. But again that is not the case specifically made out in these papers, and in any event, since there is an alternative remedy available, urgent interim relief or urgent final relief is not the appropriate remedy to seek in those circumstances.

[21] I should mention in passing, the submission made by the respondents in regard to what is contended to be a suspensive condition in the applicant's contract of employment. The argument, as I understood it, was that the applicant's contract of employment was conditional on her signing within three months of the commencement of her service, what was referred to as a performance contract.

[22] It is common cause that no such contract was signed. This being so, the respondents contended that the suspensive condition having not been met, the contract or employment terminated on that account, three months after the applicant commenced her employment, i.e. with effect from 01 November 2011.

[23] It is not necessary for me to make any decision on this matter, given the conclusion to which I have come in relation to the merits of the application itself, but it would seem to me that in circumstances where, on its own version, the department has done nothing to ensure that a performance agreement was signed, that it is not in a position, in these proceedings, to rely on its own incompetence to contend that the applicant is no longer employed by it. Clearly the applicant has tendered her services in accordance with her contract of employment since the expiry of the three month period following 01 November 2011, and clearly she has been remunerated for the services that she has rendered.

[24] In any case, and to the extent that the applicant relies on Section 158(1)(h) of the Act all that is required is that she falls within the definition of "employee" in Section 213 of the Labour Relations Act in order to seek relief in this court. There is no dispute that the applicant is an employee as defined for that purpose.

[25] So in summary then, in my view, the applicant has not made out a case for breach of contract. The contract specifically entitles her employer to effect a precautionary transfer subject to the limitations, especially in terms of time that apply. In other words

the transfer has been effected within the scope of what is contemplated by the applicant's contract of employment, it is temporary and without loss of benefit. To the extent that the transfer prejudices the applicant's status, again, in my view, this raises what is largely a matter of fairness. As I have indicated this court is not entitled to read a general obligation of fair dealing

into the contractual terms and in any event the applicant, to the extent that she submits that the terms of the transfer effectively

amount to a demotion, has an alternative remedy in the form of the unfair labour practice. For those reasons, in my view, the application stands to be dismissed.

[26] That leaves the question of costs. It was argued that costs ought to follow the result and that the applicant should pay the costs of both 08 and 11 October 2013. The Court has a general discretion in terms of Section 162 of the Labour Relations Act, to make orders for costs according to the requirements of law and fairness.

[27] The Labour Appeal Court has recently reiterated that the Court is required to consider all relevant factors and that an order to the effect that costs ought automatically to follow the result, is not appropriate. In the present matter the Court must necessarily take into account that the applicant is bona fide, that she genuinely feels aggrieved at the conduct of the respondents, and that she sought relief in this Court on that basis. As the Labour Appeal Court pointed out the Court ought to be careful to ensure that orders for costs are not used to create a barrier for entry into the court and thereby to deny access to justice for genuinely aggrieved employees.

[28] As I have indicated, I have no doubt that the applicant feels genuinely aggrieved, and in my view there is some basis for her

feeling aggrieved in relation to the conduct of the respondents and of Mr Lumka in particular.

[29] But for the reasons I have outlined I am of the view that she has not made out a case in contract or otherwise, to secure the relief that she seeks to secure in this court. But given all of the facts and circumstances, it is appropriate that there be no order as to costs.

For those reasons I make the following order:

1. The application is dismissed.

2. There is no order as to costs.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT