Nhlapo-Mofokeng v Emfuleni Local Municipality and Another (J 943/2022) [2022] ZALCJHB 236; [2023] 1 BLLR 63 (LC); (2023) 44 ILJ 815 (LC) (18 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Of interest to other Judges

Case No: J 943/2022

In the matter between:

MVULAZANA EDWINA CATHERINE

NHLAPO – MOFOKENG

APPLICANT

And

EMFULENI LOCAL MUNICIPALITY

1ST RESPONDENT

MUNICIPAL MANAGER: MONOSI LESEANE

2ND RESPONDENT

Heard: 17 August 2022

Delivered: 18 August 2022

(This judgement 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 18 August 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks an interim order interdicting and restraining the respondents from unilaterally transferring her from the position of assistant manager: communications, to assistant manager: organisational performance, pending the resolution of a dispute referred by her to the South African Local Government Bargaining Council.

[2] The material facts are not in dispute. On 4 July 2022, the applicant received a letter from the second respondent to advise that she was being transferred from the office of the executive mayor to the position of assistant manager: communications. The applicant accepted this transfer. On 20 July 2022 the applicant received further correspondence advising her that she was to be transferred to the organisational performance department. The applicant does not accept this transfer. On 29 July 2022, the applicant referred a dispute to the bargaining council. The applicant classified the dispute as one concerning any unilateral change to terms and conditions of employment and seeks an outcome to the effect that she remain employed in the communications department as an assistant manager.

[3] The applicant relies on the right to fair labour practices in terms of section 23 of the Constitution, which she contends has been violated by the conduct of the respondents.

[4] At the hearing of the application, the applicant’s counsel accepted that the principle of subsidiarity was applicable, and that it was not open to the applicant to rely directly on section 23 of the Constitution to found the relief that she seeks.

[5] To the extent that the applicant seeks interim relief pending the determination of the dispute referred to the bargaining council, it is clear that this court has jurisdiction to grant interim relief, in appropriate circumstances, where a dispute is to be determined by arbitration under the auspices of either the CCMA or a bargaining council. At the hearing of the application, the court put to the applicant’s legal representative a difficulty associated with the nature of the dispute referred to the bargaining council. In particular, the court requested submissions on whether section 64(4) of the LRA provides a substantive basis for a challenge to any unilateral change to the terms and conditions of employment of an individual employee.

[6] Section 64 (4) reads as follows:

(4) any employee or any trade union that refers a dispute about a unilateral change to terms and conditions of employment to a council or the commission in terms of subsection (1) (a) may, in the referral, and for the period referred to in subsection (1) (a) –

(a) require the employer not to implement unilaterally the change to terms and conditions of employment; or

(b) if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change.

[7] Section 64 (1) (a) provides that every employee has the right to strike and every employer has recourse to lockout if the issue in dispute has been referred to a council or to the CCMA as required by the act, and if either a certificate stating that the dispute remains unresolved has been issued, or a period of 30 days has elapsed since

the referral was received by the bargaining council or the CCMA. Section 64 (5) requires the employer party to comply with any

requirement to restore existing terms and conditions of employment or not to implement any change unilaterally within 48 hours of service of the referral on the employer.

[8] The wording of section 64 (4), situated as it is in a section that concerns the right to strike, is a means to protect workers who intend to embark on a strike in circumstances where the employer unilaterally alters terms and conditions of employment or threatens to do so. A failure by the employer to comply with this requirement within the 48-hour period referred to as the consequence that a protected strike can commence without adherence to any further statutory procedures (see section 64 (4) and (5)). Put another way, as Thompson and Benjamin (South African Labour Law AA1-320) suggest, the status quo provisions established by section 64 (4) are firmly embedded in a chapter dealing exclusively with strikes. The authors further observed that the status quo remedy provides very restricted scope for judicial intervention in that it requires the employer to

do no more than to check or reverse changes for a period of 30 days. put another way, and accepting that the true equivalent of the strike is unilateral action by the employer, if employees cannot strike pending conciliation, it is fair and functional to restrain unilateral action by the employer in the same measure. The remedy afforded by section 64 (4) is thus ‘available to freeze the employer’s key power weapon – unilateral implementation – in circumstances where, for good statutory reasons, unions are not yet allowed to use that counterpunch. In principle, it should not be available where power play is not a statutory option’ (at AA1-321).

[9] In Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC), this court held, in the context of a dispute that concerned the alleged unilateral reduction of a commission payable to an employee, that section 64 did not apply and that the section pertains to employees in a strike context. The court observed further that an individual employee cannot strike and that the section therefore had no application in the dispute, it being a dispute between an individual employee and her employer. Viewed thus, section 64(4) does not establish any discrete, substantive right available to individual employees aggrieved at any unilateral change to their terms and conditions of employment. The purpose of s 64 (4) is both clear and limited – it affords a trade union and its members a remedy, for a limited period only, where the employer unilaterally implements its bargaining position or threatens to do so, thus undermining the status of the union as collective bargaining agent. In the present instance, given the nature of the applicant’s grievance and the fact that she is an individual employee, section 64 (4) is simply not applicable, as no strike on the issue in dispute would be protected if the respondents failed to heed a status quo notice. (See also Du Randt v Ultamat SA (Pty) Ltd & another (2013) 34 ILJ 2228 (LC), where this court, at paragraphs 27 and 28 of the judgment, confirmed that an individual employee cannot strike and that the applicant had available to him the remedy of specific performance.)

[10] In the supplementary heads of argument filed on the applicant’s behalf, I understand the applicant to concede that that section 64 (4) is not available to her. Her counsel belatedly submits though the provisions of section 77 (3) of the Basic Conditions of Employment Act, read together with section 158(1)(a)(i) do not bar the court from granting the relief sought pending the arbitration of the dispute referred to the bargaining council. There is no merit in this submission. Section 77 (3) of the BCEA does no more than confer jurisdiction on this court, concurrently with the civil courts, to hear and determine matters concerning a contract of employment. Section 158 (1)(a)(i) does no more than empower this court to grant urgent interim relief. It remains for an applicant seeking to invoke the court’s contractual jurisdiction to plead a case in contract. As the court pointed out in Du Randt, the remedy of specific performance may be available to an employee where terms and conditions are unilaterally varied by an employer. No such case is made in the founding affidavit. In any event, and to the extent that the applicant relies on section 158 (1)(a)(i), it is correct that the court is empowered to grant urgent interim relief where a case for that relief is properly made. In the present instance, as I have indicated, the dispute referred to the bargaining council is misguided, in the sense that section 64(4) does not create a substantive right in favour of individual employees who seek to reverse changes unilaterally effected to their contracts of employment. In so far as the applicant now appears to contend that her cause of action is contractual, bargaining councils have no jurisdiction to determine contractual disputes. This court will not grant interim relief pending the outcome of a dispute referred to a forum that patently has no jurisdiction.

[11] In summary, the referral by the applicant to the bargaining council, insofar as she purports to rely on section 64 (4) as a substantive remedy against a unilateral change by her employer to her terms and conditions of employment, is misguided. There is no substantive remedy afforded to the applicant by the section on which she relies in circumstances where her grievance is that she was transferred from one department to another. That being so, the applicant has failed to establish that she has any right (in the form of a prima facie right open to some doubt) for the purposes of interim relief. To the extent that the applicant (belatedly) seeks to rely on a contractual

claim, this is not the nature of the dispute refereed to the bargaining council, nor does the bargaining council have jurisdiction

in respect of such a claim. The application for interim relief thus stands to be dismissed.

[12] Insofar as costs are concerned, the court has a discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. Ordinarily, this court is reluctant to make orders for costs against individual employees who seek to pursue legitimately felt grievances against their employers. The court is acutely conscious of the need to recognise and give effect to the right of access to justice, and to avoid closing its doors to prospective litigants is may be discouraged from pursuing their rights by the prospect of an adverse order for costs. However, there is a limit. In the present instance, the application is misguided. What aggravates matters on the annexures attached to the founding affidavit. Pages 28 to 369 comprise copies of the papers in an application brought by the first respondent in these proceedings against a number of individual respondents (including the applicant in these proceedings) in respect of a matter that has no direct bearing on these proceedings. This is nothing less than an abuse of the process of this court and has added to the burden of an already urgent court roll. I see no reason why the ratepayers of the first respondent ought to be left to fund the costs of opposition to the application. The requirement of the law and fairness dictate that the applicant be liable for the costs of the proceedings.

I make the following order:

1. The application is dismissed, with costs.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

MM Petlane

Instructed by:

Mudzusi Molobela Inc.

For the respondents:

M Tshivase

Instructed by:

Madhlopa & Thenga Inc.