Solidarity and Others v Eskom Holdings SOC (Ltd) and Another (J 722/21) [2021] ZALCJHB 234 (16 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 722/21

In the matter between:

SOLIDARITY First

Applicant

MARIUS VAN NIEKERK Second

Applicant

SEBILI MOHALE Third

Applicant

and

ESKOM HOLDINGS SOC (LTD) First

Respondent

ENGINEERING COUNCIL OF SOUTH AFRICA Second

Respondent

Date heard: 29 July 2021

Date delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 12h00 on 16 August 2021.

JUDGMENT

BALOYI, AJ

Introduction

[1] The first applicant, Solidarity together with its members, the second and third applicants approached this court on urgent basis seeking the following order:

1. The non-compliance with the rules in respect of service, forms and prescribed time periods is condoned and accordingly this matter is heard as that of urgency.

2. Directing the first respondent to consult with Solidarity and its members; on matters incidental and associated with the relinking (relocating) process; in accordance with the Procedure for Deployment (document: 240-128158712); together with the Principles for Employee Migration During Transformation (document: 240-77037196); and the Group Technology Relinking Project Update and Leadership Toolkit, dated 30 January 2020;

3. Directing the first respondent to consult with Solidarity and its members; affected by the relinking process (relocation); in compliance with the prescripts referenced in prayer 2 above;

4. That pending the aforesaid consultative process the first respondent be interdicted and restrained for proceeding with the relinking process of Solidarity’s members.

5. That pending the aforesaid consultative process the first respondent be interdicted and restraint from initiating disciplinary processes in respect of the relinking process or ancillary charges thereto against the members of Solidarity.

6. That the first respondent is ordered to pay the wasted costs occasioned by the postponement of the matter on 15 July 2021.

[2] The application is opposed by the first respondent coupled with a challenge to urgency. The applicants’ case is based on claim for specific performance assertable in terms of section 77(3) of Basic Conditions of Employment Act 75 of 1997. It flows from what the applicants consider as breach of contract on account of the first respondent’s failure to consult with the employees affected by the relinking process in terms of policies as referred to in the employees’ contracts of employment. The first respondent’s opposition is rested on number issues amongst others that the relief sought is not competent. Secondly, the main contentious issues have been resolved based on the first respondent’s undertakings. As a result, there was no need for this Court to be involved in the matter since the subject matter of the application is about collective bargaining.

[3] There is no substantial relief sought against the second respondent, the absence of its opposition, no surprise under the circumstances.

[4] The second and third applicants are engineers by profession and are based at the first respondent’s head office at Megawatt Park, Sandton in the province of Gauteng. As part of the first respondent’s turn around strategies aimed at diffusing the crisis (financial, load shedding etc) in which it found itself, certain employees were earmarked for transfer to the power stations. The first respondent wanted to have them posted where their skills are needed most. The second and third applicants formed part of such group. This type of transfer is known as relinking as derived from the first respondent’s policies.

[5] This relinking was suggested to advance the first respondent’s new business model of generation, transmission and distribution formulated in November/ December 2018. During the period between April 2019 to February 2020, the first respondent sensitized its employees about this model through various engagements and presentations. During this period some employees took issues with this development. This resulted in multiple grievances lodged by the first respondent’s employees seeking an outcome that will compel the first respondent to halt the relinking. Furthermore, that the first respondent must embark on a proper consultation process to be agreed to with employees who were negatively affected. It was further a desired outcome that the first respondent must during such consultation process comply with all its policies and ensure that a correct process is followed. In the main, the employees required the first respondent to consult with them on one-on-one basis to enable them to make submissions regarding their personal circumstances.

[6] Whilst to a greater extent the first respondent maintains that it has consulted with its employees through engagement and presentations, it remained disputable that such efforts amounted to consultations carried out in terms of the policies. The dispute of facts which the parties argued with minimal vigour is rested on this issue. It is apparent that the parties’ arguments on dispute of facts do not have a bearing on determination of this matter. This is in view of multiple grievances that were consolidated and heard as one before the appointed grievance chairperson, Adv. Ramolefe.

[7] It is not in dispute that the essence of the finding of Adv. Ramolefe revealed that the consultation was neither sufficient nor complete. Consequently, the following recommendations were made at paragraph 48 of the grievance outcome:

“48. In this specific circumstances, I consider recommendations that are fair and pragmatic to be that:

48.1 All employees who have not been adversely affected by the relinking and relocation should be allowed to remain where they currently are;

48.2 Eskom should urgently engage the Grievance on how best to resolve the contentious issues that remain unresolved, among these being the payment of relinking benefits and, in particular, the correct implementation of the 50+1 principle which place a significant role in determining a specially relocation;

48.3 Employees who are in line to be relinked should be consulted one-on-one in order to ascertain their concerns on the one hand, and Eskom’s operational needs on the other, and that every effort should be made to harmonise these two considerations and strike a balance;

48.4 All relinking benefits, including travelling costs, and all other contractual benefits which to date remain unprocessed or unpaid should be processed without any undue delay;

48.5 Eskom’s Human Resources and Industrial Relations should, following implementation of paragraph 48.2, formulate as a matter of urgency a summarised schedule to guide management on how to regulate and manage a uniform and fair implementation of outstanding relinking;

48.6 Eskom’s Human Resources should arrange for subject matter experts to meet Management and all aggrieved employees in order to discuss the correct interpretation of Personnel Movement and Cost of Transfer in line with Eskom’s Conditions of Service.”

[8] It is not clear from both parties’ papers as to what exactly happened after the issuing of the grievance outcome. Only the following less significant issues could be picked up:

1. There were meetings held with employees on 2nd, 20th & 28th January 2020 as alleged by the first respondent.

2. Adv. Ramolefe issued a document titled “clarification of my report, ruling and recommendations” dated 19 February 2020. According to the applicants this document was rejected by the employees on 15 March 2021.

[9] It bears mention that the first respondent did not give any detail of what were those three meetings of January 2020 particularly about and/or the conclusions thereof. What followed was the issuing of relinking letters addressed to the affected employees on 01 February 2020 and 01 May 2020, according to what is stated in the first respondent’s answering affidavit. These letters were not made part of this application.

[10] On 18 March 2021 a letter from the applicants’ attorneys was addressed to the first respondent demanding compliance with the procedures in terms of the policies and that the relocation should be halted pending efforts to secure such compliance. The first respondent was specifically called upon to comply by no later than 25 March 2021 failing which this Court will be approached for urgent relief.

[11] The first respondent’s response came on 12 April 2021 with the following salient points:

“In this regard, please note that Eskom will in line with its policies and procedures be embarking on an internal process of engaging the affected employees on the issues raised i.e. inclusive of the requested to consider their personal circumstances and one and one engagements. As this is an internal process, Eskom will not be engaging employees through any legal representatives. Employees will as always, will have the right to be engaged with their representative trade unions. The employees and the representative trade unions will be approached shortly in order to commence”

[12] Contrary to the above, the first respondent issued a letter dated 12 May 2021 instructing the third applicant to report for duty at Arnot power station in Mpumalanga on 01 June 2021. The second applicant was also instructed through a letter dated 25 May 2021 to report for duty at Medupe power station in Limpopo on 28 June 2021. They did not heed the instructions. The third applicant was served with disciplinary charges to appear in the disciplinary hearing scheduled for 28 June 2021.

[13] It is not known as to what happened on 28 June 2021. The Counsel for both parties did not have clear instructions on this issue. What is apparent is that the hearing of the third applicant did not proceed on 28 June 2021. The applicants served this application on 01 July 2021 directing the respondents to file opposing papers by no later 12 July 2021 at 16h00.

[14] On 12 July 2021 the first respondent’s attorneys addressed a letter to the applicant’s attorneys specifically advising of the following at paragraph 8:

“8 The above notwithstanding, we are instructed that during the on-going consultations the very issues that at the heart of the application before the Court have been addressed in the following way:

8.1 Eskom, after consultation with Solidarity, NUM and NUMSA has established the Relinking Review Committee (the “Committee”). The unsigned Terms of Reference (“TOR”) are attached to your papers as annexure “TJ 19”. The purpose of the Committee is to consider reasonable options and alternatives in this regard. Individual employees/ members will be able to make their representations to the Committee and to be heard. This Committee will operate as some kind of “Appeal” to consider the very grievances of employees on an individual basis.

8.2 The Chair of the Committee is the General Manager in the office of the Group Executive: Generation and the members are General Managers. The composition point to the seniority and gravitas of Committee.

8.3 In the very last consultation meeting that was convened on 02 July, (which included aggrieved employees’ representatives – Mr Andrew Dales and Navern Moodley), Eskom gave undertaking that the TOR will be finalized and signed. The Committee will start its work on Friday 16 July 2021 and will operate for a period of approximately 3 months.

8.4 In the same meeting of 02 July 2021, Eskom further undertook to hold the disciplinary enquires against employees in abeyance, in order to allow the employees to make their representations to the Committee and for the Committee to consider those representations.

8.5 In this regard, Mr Mohale will not be undergoing disciplinary action and nor will any employee who has refused to tender their services at a different workplace / power plant at Eskom until the finalization of the work of the Committee.

8.6 In this regard, we are of the view that the approach to the Labour Court is altogether unnecessary and to say the least premature. Accordingly, we require a written undertaking by close of business today. Monday 12 July 2021 (17h00) that Solidarity will withdraw the application and notify the registrar.

8.7 If we receive no such undertaking we will proceed to file our Answering papers on Tuesday 12 July, and will bring this letter to the Court’s attention. In the circumstances we will argue for costs on a punitive scale. We trust this will not be necessary.”

[15] The applicants did not withdraw the application and the first respondent filed its answering affidavit on 14 July 2021. The matter did not proceed on 15 July 2021. It was postponed to 27 July 2021 to enable the applicants to file a replying affidavit. It was ultimately heard on 29 July 2021.

Evaluation

[16] Given the first respondent’s challenge to urgency, I am thus constrained to first deal with this issue. The urgency is challenged on the basis that the first respondent has undertaken to comply with some of the orders sought by the applicants, as such the matter has become no longer urgent. Furthermore, that there is no injury or any apprehension thereof. Given the facts of the matter, I exercised my discretion by allowing the matter to be heard on urgent basis. In the first respondent’s own words, the relinking is necessary to contain the crisis it faced financially and operationally which led to load shedding amongst others. The first respondent has no luxury of options but to promptly implement the process hence the letters of instruction placed the second and third applicants on terms as to when to report for duty at the power stations. The speed which the first respondent is desiring to have the crisis resolved, on its own justifies the resolution of this matter on urgent basis. In this regard I find the matter to be urgent.

[17] The first respondent raised another point about the third applicant not being a member of the first applicant according to its records. As a result, he is not entitled to be represented by the first applicant. It was argued by Mr Matyolo that it was a point of law requiring this Court’s determination. No indication was given on the nature of the ruling which this Court should make. The Labour Appeal Court in McDonald’s Transport Upington (Pty) Ltd v Association of Mine Workers & Construction Union & Others[1] held that other than a need for union to prove membership for collective bargaining purposes, the employer has no locus standi to interfere with private contractual relationship between the union and its members. The first respondent’s point of law is in no doubt misguided as it is brought to perpetuate the interference. Since it is not clear as to what the first responded sought to achieve with this point, nothing of consequence should be read into this.

[18] Turning onto the principal dispute of this matter, the specific policy documents which the applicants are seeking compliance with are Procedure for Deployment (document: 240-128158712), Principles for Employee Migration During Transformation (document: 240-77037196) and the Group Technology Relinking Project Update and Leadership Toolkit dated 30 January 2020.

[19] It is not in dispute that the policies adopted by the first respondent are in terms of the employees’ contracts of employment

incorporated as such to the contract. Effectively a breach by a contracting party of any such policy translates to a breach of

contract of employment, thus entitling a party aggrieved by the breach to enforce the terms of the contract. With legislation created

for the protection of the aggrieved contracting party, the applicant resorted to approaching this Court under section 77(3) of read with section 77A(e) of the Basic Conditions of Employment Act. A pleaded case should be the one that alleges any term of the employment contract or alleging breach of contract[2].

[20] In this instant case, it has clearly came out that the second and third applicants are not opposed to the relinking. What they are seeking in the administration of the relinking process is that the first respondent should act in accordance with the policies, in particular the Procedure for Deployment (document: 240-128158712), Principles for Employee Migration During Transformation (document: 240-77037196) and the Group Technology Relinking Project Update and Leadership Toolkit dated 30 January 2020. They wish to see the policies being applied to the extent of affording them one-on-one consultations as provided in the relinking policy. This will enable them to make representations on their personal circumstances before a decision is made.

[21] The first respondent maintains having extensively consulted with the employees in general, dating back to January 2019 with specific reference to a number of meetings, presentations and staff engagements. This argument was also presented on behalf of the first respondent in the grievance hearing which resulted in Adv. Ramolefe’s outcome of 27 November 2020. His findings as pointed above revealed that the first respondent had not sufficiently consulted with the affected employees and directed the first respondent to do so on one-on-one basis with status quo remaining.

[22] What the parties considered as dispute of facts on whether consultations took place or sufficiently so, has been settled by the grievance Chairperson’s findings. What was left for the first respondent was to ensure that the recommendations made by the grievance Chairperson were put in place. As pointed above, it remained unclear as to what steps were exactly taken to put the recommendation in place. The first respondent’s explanations for the relinking instructions of 12 May 2021 and 25 May 2021 addressed to the third applicant and second applicant respectively, came post the filing of this application.

[23] The letter from the first respondent’s attorneys dated 12 July 2021 addressed to the applicants’ attorneys makes reference to the establishment of the Relinking Review Committee as a kind of appeal, to consider grievances on individual basis. At that time the terms of reference of the Committee were not signed, according to the first respondent it was due to execute its mandate from 16 July 2021. In its answering affidavit, without any explanation the first respondent recorded a new date of commencement of duties of the Committee, that is, 22 July 2021.

[24] In the first respondent’s own words the Committee was established to deal with individual grievances. The applicants’ attacks on the Committee which according to the first respondent is to consider individual grievances instead of consultations in terms of the policies are in my view justified. The move did not demonstrate any attempt to implement the recommendations of the grievance Chairperson. Even after the retraction of the relocation instructions of 12 and 25 May 2021, the first respondent still failed to follow the policies. The establishment of Relinking Review Committee fell short of compliance with the policies as it is primarily established with a purpose of hearing individual grievances that were already before Adv. Ramolefe. The one on one representations are in terms of the Procedure for Deployment read with Standard Principles of Employee Migration During Transformation to be made before the employee’s responsible Manager not a group of General Managers in the form of Relinking Review Committee.

[25] The first respondent as a contracting party to the employment relationship with its employees is bound by the policies it has developed to govern such relationship. To this end there is no explanation as to why the first respondent has elected not to follow the policies. The undertakings which according to first respondent have been made, do not in my view put the issues in dispute to bed. The functions of the Relinking Review Committee based on the terms of reference which are aimed at considering individual grievances fall outside the policy provisions. Secondly, the first respondent is unable to explain the current status of the third applicant’s disciplinary hearing. In the circumstances, I find no reason to suggest that the case is not made for the relief sought.

[26] The next issue relates to costs; the applicants are seeking costs of the application including the reserved costs of 15 July 2021. The first respondent submitted, irrespective of the outcome that each party should be ordered to pay its own costs. In so far as the reserved costs are concerned, I find no cogent reason why the filing of the answering affidavit was late and this, indisputably so, necessitated a postponement of the matter to enable the applicants to prepare a replying affidavit. It is not in dispute that on the date that the answering affidavit was to be filed, the first respondent elected to write a letter demanding withdrawal of the application. In this regard, the first respondent should be held liable for the applicants’ wasted costs occasioned by the postponement.

[27] Regarding the costs of the entire application, I am constrained to consider one important factor of the ongoing relationship between the applicants and the first respondent. The underlying issues to this relinking process are of national interest aimed at dealing with the crisis in which the first respondent find itself, most particularly load shedding. It will thus not be within the confines of law and fairness to make a cost order under these circumstances.

[28] The following order is therefore made:

Order

1. The non-compliance with the rules in respect of service, forms and prescribed time periods is condoned and accordingly this matter is heard as that of urgency.

2. The first respondent is directed to consult with the first applicant and its members; on matters incidental and associated with the relinking (relocating) process; in accordance with the Procedure for Deployment (document: 240-128158712); together with the Principles for Employee Migration During Transformation (document: 240-77037196) and the Group Technology Relinking Project Update and Leadership Toolkit dated 30 January 2020.

3. The first respondent is directed to consult with the first applicant and its members; affected by the relinking process (relocation) in compliance with the above prescripts.

4. Pending the aforesaid consultative process, the first respondent is interdicted and restrained for proceeding with the relinking process of the first applicants’ members.

5. Pending the aforesaid consultative process, the first respondent is interdicted and restrained from initiating disciplinary processes in respect of the relinking process or ancillary charges thereto against the members of the first respondent.

6. The first respondent is ordered to pay the applicants’ costs, limited to wasted costs occasioned by the postponement of the matter on 15 July 2021.

M Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicants: Adv. Goosen

Instructed by: Serfontein

Viljoen & Swart

For the first respondent: Adv. Matyolo

Instructed by: Mkhabela

Huntley Attorneys

[1] (2016) 37 ILJ 2593

[2] In Shezi v SA Police Service & Others (2021) 42 ILJ 184 LC, the Court dismissed an application in which a relief was sought to enforce the terms of contract whilst no pleaded case was presented to support the relief in question.