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Member of the Executive Council for Transport: Kwazulu-Natal and Others v Jele (DA6/03) [2004] ZALAC 13 (9 July 2004)

.RTF of original document

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: DA6/03

In the matter between:-

MEMBER OF THE EXECUTIVE COUNCIL
FOR TRANSPORT: KWAZULU-NATAL     1ST APPELLANT
PREMIER OF THE PROVINCE OF
KWAZULU-NATAL    2ND APPELLANT
V. CUNLIFF       3RD APPELLANT
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING
COUNCIL  4TH APPELLANT
        
and

HARRY JELE                                                    RESPONDENT
___________________________________________________________
JUDGEMENT

ZONDO JP        

Background

[1]      In May 2000 the Department of Transport in the Province of KwaZulu-Natal caused a post of Chief Director: Corporate Services to be advertised in the Sunday Times of 21 May 2000. The respondent, who, at the time, was employed as Deputy Director in the Department of Health, KwaZulu-Natal Provincial Government, applied for appointment to the post. The third appellant also applied for appointment to the same post. I am sure that there were other candidates besides the two who also applied.

[2]      The respondent was not successful in his application. The third appellant was appointed to the post. The respondent was aggrieved by his not being appointed. He considered that the conduct of the first appellant, or, of his Department, not to appoint him constituted an unfair labour practice as defined at the time in item 2(1)(b) of schedule 7 to the Labour Relations Act, 1995 (Act 66 of 1995)(“the Act”). The provision of this item will be quoted shortly. The first appellant or the Department maintained that the decision was lawful, fair and justified.

[3]      In due course the respondent referred an unfair labour practice dispute to the General Public Service Sectoral Bargaining Council, the fourth appellant, for initially conciliation and, when conciliation failed, for arbitration, by the bargaining council. The respondent based his claim on the provision of item 2(1)(b) of Schedule 7 to the Act. Item 2(1)(b) read thus at the time:
“For the purposes of this item an unfair labour practice means an unfair act or omission that arises between an employer and an employee involving –
(a)     
…
(b)     
the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee.”
In terms of item 2(3) and (4) of the same Schedule an unfair labour practice dispute falling within the ambit of par (b) of item 2(1) was required to be referred to arbitration if conciliation failed. Paragraph (a) dealt with an unfair labour practice dispute relating to appointment. The latter dispute was required to be referred to the Labour Court for adjudication if conciliation failed.

[4]      In the bargaining council the point was taken on behalf of the first and second appellants that the bargaining council did not have jurisdiction in respect of the dispute. The basis advanced for this objection to the bargaining council’s jurisdiction was that item 2(1)(b) was not applicable to a dispute concerning the non-appointment of a candidate to a post but related to conduct concerning the promotion of a candidate to a higher post. It was argued that a candidate can only be promoted by its employer and not by someone who is not its employer.

[5]      It was further contended that the respondent was not employed at the relevant time by the first appellant and, because of that, it could not be said that the dispute related to promotion as contemplated by item 2(1)(b). It was submitted that the dispute related to non-appointment which fell outside the jurisdiction of the bargaining council and fell within the jurisdiction of the Labour Court. The respondent disputed the correctness of the first and second appellant’s contention in this regard. He submitted that he was employed by the State in the public service and that, if he had been appointed to the post in question in the Department of Transport, KwaZulu – Natal, he would still have been employed by the State albeit in a different department and such appointment would have been a promotion for him. The bargaining council upheld the first and second appellants’ objection and held that it did not have jurisdiction.

[6]      The respondent brought an application in the Labour Court to review and set aside the decision of the arbitrator. The Labour Court granted that application. It held that the respondent’s employer was the State and that his appointment to the post of Chief Director in the Department of Transport would have been a promotion for him and, that, for that reason, the provision of item 2 (1)(b) was available to him. Pursuant to an application for leave to appeal to this Court, the Court a quo granted the first and second appellants leave to appeal. This, then, is the appeal against the order of the Court a quo.

The appeal

[7]      The only issue in this appeal relates to the identity of the respondent’s employer at the time of the decision not to appoint him. On behalf of the first and second appellants it was submitted that the respondent’s employer was the Member of the Executive Council for Health, KwaZulu – Natal or the Head of that Department and that there was no employment relationship between him and the first or second appellant and that, for that reason, item 2(1)(b) was not available to him and that the arbitrator had no jurisdiction to arbitrate the dispute. It was submitted that the Court a quo had erred in making the decision that it made in this regard. The respondent maintained that his employer was the State and not the Member of the Executive Council for Health but that the latter simply represented the State just as the first appellant also represented the State in relation to employees in the Department of Transport in the KwaZulu - Natal Provincial Government and that appointment to the post of Chief Director in the Department of Transport would have been a promotion for him. He submitted that, if he had been appointed to the post, this would not have meant a change of employers. He submitted that his employer would have remained the same, namely, the State.

[8]      There can be no doubt that in an unfair labour practice promotion dispute provided for in item 2 (1) (b) the applicant must be in the employ of the employer referred to in item 2(1)(b) before he can rely thereon. In other words there cannot be a dispute relating to promotion unless there is an employment relationship between the parties concerned. However, the question in this case is who the respondent’s employer was at the time that the decision was taken not to appoint him to the post of Chief Director in the Department of Transport. If his employer before and after such decision would have been the same and was the State, the appeal must fail because then his appointment to the post in question would have constituted a promotion. If, however, his employer before the decision and his employer after a successful application for appointment to the post would have been different people or entities, the appeal must succeed.

[9]      In support of his contention, Counsel for the first and second appellants referred to certain provisions of the Constitution as well as various provisions of certain statutes. I turn to deal with provisions the Constitution as well as those of various statutes. We were referred to some of the provisions that I shall deal with but there are also others that I deal with to which we were not referred but which, in my view, help to throw light on the issue at hand.

[10]     Sec 1 of the Constitution of the Republic of South Africa NO 108 of 1996 (“the Constitution”) reads in part: “The Republic of South Africa is one, sovereign, democratic state founded on the following values …” (my emphasis). Sec 40 of the Constitution provides:-
                  “40. Government of the Republic, - (1)
         In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.
(2)     
All spheres of government must observe and adhere to the principles in this chapter and must conduct their activities within the parameters that the Chapter provides.”
The chapter referred to in sec 40 (2) deals with co-operative government.

[11]     Sec 85 of the Constitution deals with the executive authority of the Republic. Sec 85(1) reads: “The executive authority of the Republic is vested in the President”. Sec 85(2)(c) gives the President the authority of “co-ordinating the functions of state departments and administrations.” Sec 103 of the Constitution gives a list of the provinces of the Republic. Sec 125 vests the executive authority of a province in the Premier of that province. Sec 132(2) provides: “The Premier of a province appoints the members of the Executive Council, assigns their powers and functions and may dismiss them.” Sec 133(1) provides that “(m)embers of the Executive Council are responsible for the functions of the executive assigned to them by the Premier.” Chapter 10 of the Constitution deals with public administration. Sec 195(1) provides that “(P)ublic administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles” and various principles are then set out. Subsection 2 then provides that those principles “apply to
(a)     
Administration in every sphere of government;
(b)     
Organs of state
(c)     
public enterprises.”

[12]     Sec 196(1) of the Constitution provides: “There is a single Public Service Commission for the Republic.” Subsection (2) provides, among other things, that the Public Service Commission “must exercise its powers and perform its functions … in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service.” Sec 196(4) sets out powers and functions of the Public Service Commission. These include the power “to propose measures to ensure effective and efficient performance within the public service;”, “to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in section 195”, “to investigate grievances of employees in the public service concerning official acts or omissions, and recommend appropriate remedies, and to advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service.”

[13]     Sec 197 of the Constitution deals with public service. It provides thus:.
“(1)      Within pubic administration there is a public service for the Republic, which must function and be structured, in terms of national legislation, and which must loyally execute the lawful policies of the government of the day.

(2)      The terms and conditions of employment in the public service must be regulated by national legislation. Employees are entitled to a fair pension as regulated by national legislation.

(3)     
Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service.”

[14]     In sec 213 of the Act public service is defined as meaning “the national departments, provincial administrations, provincial departments and organizational components contemplated in section 7 (2) of the Public Service Act, 1994 (promulgated by Proclamation 103 of 1994 but excluding
(a)      the members of the South African National Defence Force
         (b)      the National Intelligence Agency; and
                  (c)      the South African Secret Service.”
Section 239 of the Constitution defines the phrase “organ of state” as meaning:
“(a)      any department of state or administration in the national, provincial or local sphere of government; or
(b)      any other functionary or institution –
a.      
exercising power or performing a function in terms of the Constitution or a provincial constitution;
b.      
exercising public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer.”

[15]     It is clear from sec 197(4) of the Constitution that employees employed in the provincial governments are part of the public service particularly in the light of the definition of public service in the Act. It is clear from sec 197(3) of the Constitution that provincial governments have the authority or power to recruit, appoint, transfer, promote and dismiss members of the public service in their administrations. It is also clear from the definition of “organ of state” that a department in a provincial administration is an organ of the state.

[16]     There is no definition of the word “employer” in the Act. However, there is one for the word “employee” in sec 213 of the Act and Counsel for the first and second appellants referred us to that definition. The word “employee” is defined in sec 213 of the Act as meaning –
“(a)      any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b)      any other person who in any manner assists in carrying on or conducting the business of an employer,” and ‘employed’ and ‘employment’ have meanings corresponding to that of ‘employee’.

[17]     From the definition of the word “employee” in sec 213 of the Act, there can be no doubt that the State is an employer. The respondent was employed in a provincial government department. A provincial government is part of the State. Accordingly, unless there is a statutory provision which suggests strongly that there is another entity other than the State which was the respondent’s employer, it should be accepted, on the basis of the definition of “employee” in sec 213 of the Act and the fact that it is common cause that the respondent worked in a provincial government department, that his employer was the State and that, if he had been appointed to the post, his employer would have continued to be the State. Accordingly, the definition of the word “employee” does not assist Counsel for the first and second appellants.

[18]     In support of his contention Counsel for the first and second appellants also referred to the definition of the word “workplace” in the Act as amended by the Labour Relations Amendment Act, 2002 (Act No 12 of 2002). In particular he referred to par (a)(ii) of that definition. It provides that the word “workplace” means “(a) in relation to the public service-
(i)      for the purposes of collective bargaining and dispute resolution, the registered scope of the Public Service Co-ordinating Bargaining Council or a bargaining council in a sector in the public service, as the case may be; or
                 
(ii)     for any other purpose, a national department, provincial administration, provincial department or organizational component contemplated in section 7(2) of the Public Service Act, 1994 (promulgated by Proclamation NO. 103 of 1994), or any other part of the public service that the Minister for Public Service Administration, after consultation with the Public Service Co-ordinating Bargaining Council, demarcates as a workplace.”
         (b)      …
(c)      in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation.”

[19]     The definition of the word “workplace” does not in any way support the submission by Counsel for the first and second appellants in regard to the identity of the respondent’s employer. The fact that a provincial department may be a workplace on its own is neither here nor there. That cannot make it the employer nor is it a useful factor in the determination of the identity of the respondent’s employer. Even in the private sector different branches of a company which operate in different places may be workplaces in their own right in terms of that part of the definition of the word “workplace” which applies to the private sector. In regard to the private sector that would not mean that each branch is the employer of the employees working in that branch. The company would still be the employer of all the employees in the various branches as well as those based at the headquarters of the company. (see par (c) of the definition of the word “work place” in sec 213 of the Act.)

[20]     The provisions of sec 197(1), (2) and (4) of the Constitution have been quoted above. At this stage it is not necessary to quote them again. It is sufficient to simply make the points that:
(a)      subsection (1) gives recognition to the existence of a public service for the country which, it says in part, must function and be structured in terms of national legislation and,

(b)      subsection (2) provides that the terms and conditions of employment in the public service must be regulated by national legislation.
Subsection (4) clearly contemplates that employees employed in the provincial governments are part of the public service. It provides: “Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their framework of uniform norms and standards applying to the public service.”

[21]     In terms of the preamble to the Public Service Act, 1994 (Act 103 of 1994) (“the PSA”) the purpose of that Act is “to provide for the organisation and administration of the public service of the Republic, the regulation of the conditions of employment, terms of office, discipline, retirement and discharge of members of the public service, and matters connected therewith.” In sec 1 the term “public service” is defined as meaning “the public service contemplated in section 8.” Sec 8(1) sets out what the public service consists of. Sec 8(1)(a) reads thus:
                  “The public service shall consist of persons who –
(a)     
         hold posts on the fixed establishment –
(i)     
classified in the A division and the B division
(ii)    
in the services;
(iii)   
in the Academy, the Agency or the Service; and
(iv)    
in the state educational institutions”:
Fixed establishment as referred to in sec 8(1) (a) is defined in sec 1 as meaning “the posts which have been created for the normal and regular requirements of a department.” A “department” is defined as meaning “a national department, a provincial administration or a provincial department.” From the definition of “fixed establishment”, that of “department” and the provision of sec 8(1)(a), it is clear that employees in a provincial department are employed in the public service.

[22]     The provisions of Sec 8(1)(b) and (c) provide, respectively, that, among persons in the public service are those who,

“8(1)(b)  having ceased to hold posts on the fixed establishment contemplated in paragraph(a), and not having retired or having been discharged, are employed additional to the fixed establishment or who are deemed to continue to hold posts under the circumstances contemplated in sub-section 3(c);
(ii)     are appointed permanently additional to the fixed establishment;
(c) (i)  hold posts on the fixed establishment other than posts referred to in paragraph (a);
(ii)     are employed temporarily or under a special contract in a department, whether in a full-time or part-time capacity, additional to the fixed establishment or in vacant posts on the fixed establishment.”

[23]     Sec 7(1) of the PSA provides that the public service established by sec 197(1) of the Constitution “shall be structured and organized as provided for” in national legislation. The PSA is, in my judgement, such national legislation. Sec 7(2) reads: “For the purposes of the administration of the public service there shall be national departments and provincial administrations mentioned in the first column of Schedule 1, provincial departments mentioned in the first column of Schedule 2 and the organizational components mentioned in the first column of Schedule 3.”