Mhlekude v South African Airways (Soc) Ltd and Others (PA5/15) [2016] ZALAC 59; (2017) 38 ILJ 577 (LAC) (24 November 2016)

Principle:

Where an employer redeploys a full time union representative to her/his previous position in compliance with a collective agreement when that person ceases to be such a representative, this does not constitute a demotion.

Facts:

On 11 June 2011, while still holding a level 6-9 post, an employee was appointed as a Full Time Union Representative (FTUR) in terms of an agreement. This entailed her fulfilling the duties of a FTUR and not those of a customer service agent. She was remunerated by SAA, in her capacity as FTUR, on remuneration level 13. She also received an allowance of R3 000 per month.

This was governed by clause 5.2.6 of the recognition agreement. It reads:

'Upon the ending of the office term of the FTUR, or his removal from office:

5.2.6.1.   Management shall, where practicable and possible, offer the same, or equivalent, or higher alternative employment to the FTUR.
5.2.6.2.   The term of office and benefits of a FTUR shall automatically cease to exist when the FTUR is dismissed, or his or her services are terminated due to death, incapacity, resignation or according to the union's constitution.'


On 3 February 2014, the union expelled her as a member. This had the immediate effect that she no longer served as the union's FTUR. SAA then redeployed her to the position which she occupied prior to her becoming a FTUR, namely a customer service agent. SAA, however, continuedto remunerate her on the level 13, i.e. the salary that she had earned as a FTUR. But, in accordance with the agreement, the allowance of R3 000 ceased.

The employee was dissatisfied with the situation and referred an unfair demotion dispute to the CCMA. The arbitrator found that the employee had been demoted by SAA and that the demotion was unfair. He ordered SAA to offer her the same level 13 or equivalent or higher alternative position by 30 August 2014.

SAA launched an application in the Labour Court to review and set aside the award. The court concluded that the matter turned upon the correct interpretation of clause 5.2.6.1 of the agreement. Properly construed, this clause required the employer to do no more than seek to place the employee in another position at the level or equivalent or higher than that which she occupied at the time of her appointment. The employee had no right to remain engaged at level 13 after her dismissal from office as a full-time union representative. Her placement in a post-graded at the same level in which she was engaged prior to her appointment did not constitute a demotion; it was no more than a reversion to the status quo.

On appeal, the Labour Appeal Court agreed with the Labour Court. It held that where an employer redeploys a full time union representative to her/his previous position in compliance with a collective agreement, when that person ceases to be such a representative, this does not constitute a demotion.

Extract from the judgment:

(AA Landman J)

[12]   Mr Grogan, who appeared for the appellant, submitted that on a proper interpretation of clause 5.6.2.1 of the collective agreement, the appellant, because she was remunerated on level 13 and retained that remuneration, should have been offered a position in SAA on that level unless it was impractical or impossible. Mr Grogan's submissions rest upon his interpretation of the words "same... employment" in clause 5.2.6.1, that reads: "Management shall, where practicable and possible, offer the same, or equivalent, or higher alternative employment to the FTUR." Mr Grogan submits that "same... employment" refers to the FTUR post. But, there is no FTUR post in SAA's organizational structure and the context clearly shows that it is a reference to the post held by the FTUR in SAA before she was appointed by the union to this position.

[13]   The FTUR post fell outside SAA's organization and there was no equivalent post within SAA although there were other posts on level 13. Assuming, for a moment, that the appellant was entitled to be offered a level 13 post, then it would be a promotion from her previous position within SAA. The deployment of the appellant to the same post (apparently at level 10-11L; ie a slightly higher level than her initial appointment) she occupied before she became a FTUR does not constitute a demotion. It is an action contemplated by the collective agreement. The character of her deployment to her previous post is not affected by SAA's gesture of allowing her to retain her higher salary.

[14]   The CCMA has the power to interpret collective agreements. However, the Commissioner was not requested to perform this function of simply interpreting the agreement. He was requested to arbitrate a dispute concerning an alleged unfair labour practice and, in the course of doing so, he was obliged to interpret the agreement. This is an important distinction because his jurisdiction to grant the appellant relief was contingent on his finding that the appellant had been unfairly demoted. No relief could be granted if she had been wrongly or unfairly refused an equivalent or higher post than she occupied prior to becoming a FTUR.

[15]   The Commissioner relied on Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services, and Others (Nxele), which was concerned with the transfer of a correctional services official. This Court held that the official's transfer constituted a demotion, even though his salary and rank remained the same because far greater responsibilities and status were attached to the official's previous position than to the new position to which he was transferred. This accordingly constituted a demotion.

[16]   Nxele's case is relevant and binding in so far as it decides what constitutes a demotion. But, the facts of the appeal before us are not concerned with the demotion of an employee qua employee. Rather the circumstances in which the appellant finds herself was caused by her union expelling her and thus removing her from her position as a FTUR, which was a union position and not a position within SAA. In so far as there may have been a diminution in her status, which she certainly perceives to be the case, it was not caused by her employer. It has to do with her fall from grace in the union. In my view, the interpretation of clause 5.6.2.1 by the court a quo is the correct interpretation.

[17]   Furthermore, I am of the opinion that this Court is entitled to interpret the agreement and is not required to be deferent to the commissioner's finding or interpretation. This is because of the nature of the dispute that the appellant referred to the CCMA. She categorised the dispute as one concerning an unfair labour practice. Whether or not it is an unfair labour practice is, therefore, a jurisdictional fact, which must be decided by the courts. See in this regard, the incisive analysis by Hulley AJ in Distinctive Choice 721 CC t/a Husan Panel Beaters v The Dispute Resolution Centre (Motor Industry Bargaining Council) and Others.

[18]   Finally, I must point out that Ms Msizi, who appeared for SAA, correctly submitted that the benefits in the agreement rest on the basis that the appellant is a member of SATAWU. (Clause 17). Ms Msizi went on to make the further submission that, at the moment the appellant was expelled from the union, she lost the position of FTUR as well as the dispensation applicable to a FTUR whose term had ended. This proposition was not raised in the arbitration and in the court a quo. In any event, SAA was entitled to act as it did in the exercise of its prerogative as an employer as if the agreement was binding.

[19]   In the result, the appeal falls to be dismissed. I am not inclined to award costs against the appellant.

Order

[20]   I make the following order:

  1. The appeal is dismissed.
  2. There is no order as to costs.