The four Appellants are, the Commissioner of the National Lotteries Commission (“the NLC”), the NLC, the board of the NLC, and the Human Capital Manager of the NLC (“the HCM”). The Respondents are respectively the National Union of Public Service and Allied Workers (“NUPSAW”) and Ms Mokgatlha (“Mokgatlha”). The appeal is against the Labour Court’s (“LC”) judgment that the refusal of the HCM to deviate from the decision of the Commissioner to deploy, on the basis of a company restructuring decision, Mokgatlha was ultra vires and thus null and void.
In 2013 the Lotteries Act 57 of 1997 (“the Lotteries Act”), which regulates lottery activities and provides a framework for the management of the National Lottery, was amended, and as such new requirements were added, such as: the establishment of the NLC; and the requirement that the NLC extend their service delivery to all of the provinces. In accordance with the requirement to extend the NLC services to all provinces, Mokgatlha was chosen from 9 other employees, on merit, to be transferred from Pretoria to Durban, such decision was after an extensive consultation with employees who volunteered for same.
The consultation process involved all the relevant trade unions, and included: an engagement forum in which no objections were raised regarding the assessment process and criteria therefor; and, consultations with affected employees, with one on one sessions being provided to all impacted employees. This process, and the outcome thereof, was tabled as a memorandum of agreement (“the MoA”) with the relevant trade unions, including NUPSAW.
NUPSAW, the Respondent union, signed the MoA approving the transfers and the process followed. Mokgatlha appealed the decision, on the basis of personal circumstance, with the Commissioner and the HCM, which was rejected. Mokgatlha was warned that the board of the NLC reserved the right to terminate employment should she fail to report for duty in Durban. Under protest, Mokgatlha eventually reported for duty to the Durban office.
An application by NUPSAW and Mokgatlha was instituted in terms of Section 158(1)(h) of the Labour Relations Act 66 of 1995 (“the LRA”), which provides that the LC may review decisions or acts taken by the State as an employer. The NLC is an organ of state as such its decisions and, or, acts are reviewable under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), provided that it amounts to administrative action, or on the principle of legality under the Constitution.
This application was to review and set aside the decision of the Commissioner as procedurally unfair or irrational, in that:
• the NLC and Commissioner had allegedly failed to give Mokgatlha an opportunity to during the re-deployment process to present her personal circumstances;
• her appeal of the re-deployment was unreasonably and irrationally refused;
• the Commissioner had failed take the decision and, in her stead, delegated such authority to the HCM; and
• the HCM dismissed Mokgatlha’s appeal without the authority to do so.
The LC subsequently held that the transfer was neither procedurally unfair nor irrational, however, it was held that the Commissioner unlawfully delegated her power to decide the appeal, and that the Commissioner’s “mere say-so…that she had delegated her authority to consider the appeal was ‘simply insufficient’”.
Thus, it was held that the HCM’s decision was ultra vires and null and void. The LC ordered the Commissioner to reconsider the decision to transfer Mokgatlha. This decision was then appealed by the Applicants.
The court a quo had erred in a number of issues:
• The fact that the Commissioner had met with, discussed and considered the appeal and transfer with Mokgatlha had not been denied on the papers.
• The Labour Court should not have accepted that the transfer policy afforded transferred employees the right to appeal decisions on transfer. Rather, the policy afforded the Commissioner, or any person delegated thereby, the right to reconsider the decisions.
• The outcome report of the final meeting of consultations, and MOA, regarding the transfer, constituted a collective agreement (in terms of Section 231(b) of the LRA). This collective agreement bound the Respondents, according to Section 23(1)(b) of the LRA.
• Collective agreements are not subject to review, thus there was neither a unilateral administrative decision nor an exercise of public power to be reviewed.
The appeal was upheld and the decision of the LC was dismissed.
Further, NUPSAW was found to have acted unreasonably in their application, on the following grounds: • Mokgatlha had been consulted and assessed properly, and had been reasonably accommodated; • NUPSAW had agreed to and signed the MOA, which constituted a collective agreement. NUPSAW was thus ordered to pay costs of both the application in the LC and the costs of this appeal.
A collective agreement is neither a unilateral administrative decision nor an exercise of public power, and is thus not subject to review.