Employment law update – No transfer of authority to transfer employee

September 1st, 2013

The Minister for Public Service and Administration and Another v Kaylor (LAC) (unreported case CA18/12, 11-6-2013) Davis JA (Tlaletsi ADJP and Coppin AJA concurring).

By Moksha Naidoo

The respondent employee was, in 2009, appointed as a chief director: business development at the Public Administration Leadership and Management Academy (PALMA) in Cape Town.

Sometime towards the latter part of 2010 the second appellant, the director general of PALMA, issued a directive whereby the respondent was instructed to take up the position of chief director: quality assurance in Pretoria.

The respondent appealed to the first appellant for proper consultation before the decision to transfer her was finalised. In response to this, the respondent met with the second appellant to discuss issues regarding her proposed relocation and also the restructuring of the organisation, in terms of which the respondent was to take up the position in Pretoria.

Unhappy with the outcome of her meeting with the second appellant, the respondent referred a dispute concerning a unilateral change to terms and conditions of employment to the relevant bargaining council. In the absence of any settlement being reached at conciliation, the respondent successfully obtained an interim order staying the enforcement of her transfer pending the finalisation of an application to review the transfer directive issued by the second appellant.

The respondent launched her review application in terms of s 158(1)(h) of the Labour Relations Act 66 of 1995, which provides:

‘The Labour Court may –

(h) review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law.

The court a quo, per Steenkamp J (Kaylor v Minister of Public Service and Administration and Another (2013) 34 ILJ 639 (LC)), found that, in reviewing a decision involving the state as an employer, the doctrine of legality applied. In terms of this doctrine, public officials could only exercise powers and perform duties that have been conferred on them by law. Furthermore, any application of such powers must be exercised in a manner that is not arbitrary, unreasonable, irrational or procedurally unfair.

Applying this to the merits at hand, the court found that the second appellant did not properly consult with the respondent prior to issuing the transfer directive and, secondly, in terms of the relevant sections in the Public Service Act 30 of 2007 (PSA), it was only the first appellant who was authorised to make the appointment in casu. While the PSA allowed the first appellant to delegate this power to the second appellant, the court did not find any evidence that such delegation had taken place.

Having made these findings, the court a quo set aside the transfer directive.  The court further ordered the second appellant to engage in meaningful consultation with the respondent and to consult with the first appellant and heads of other departments outside of PALMA to offer the respondent a suitable alternative position, which could be in another governmental department situated in Cape Town. Should the second appellant be unsuccessful in finding the respondent an alternative position, the court ordered the parties to enter into retrenchment consultations.

On appeal the Labour Appeal Court (LAC) examined both the merits of the matter as well as the findings made by the Labour Court.

On the first finding, that is, whether there was a duty on the second appellant, before issuing the transfer directive, to consult with the respondent and if so found, whether proper consultation had taken place, the LAC held:

‘It is not permissible in terms of the LRA [Labour Relations Act 66 of 1995] for an employer, such as first and second appellant, to decide to place an employee in a new post without any meaningful consultation. See Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Service and Others (2008) 29 ILJ 2708 (LAC) at para 61 and 69, where Zondo JP (as he then was) said: “A decision to transfer an employee that is made before the employee can be heard is generally speaking unlawful and invalid in law”.’

Turning to the merits of the case the LAC held: ‘In short, there was no consultation which was sufficient to justify the conclusion that the appellants had acted fairly and in a manner which is permissible in law, which term incorporates the right to procedural fairness and the concomitant right to be consulted in such circumstances.’

With regard to the legal position concerning who was authorised to transfer the respondent and whether such authority had been delegated to another, the LAC held:

‘The power to appoint public servants to departments in the public service and transfer employees from one post or position to another post or position in the same or any other department is a power which, in terms of the Public Service Act, resides with the “executive authority”, which as was already noted, means the Minister responsible for the particular department. In terms of s 42A(1)(a) of the Public Service Act, first appellant may delegate to second appellant any powers which had conferred upon him by the Act. In terms of s 42A(7), any delegation of such a power shall be in writing.’

Did the second appellant obtain the necessary authority from the first appellant when issuing the transfer directive?

In answering this question the LAC concurred with the findings of the court a quo, in concluding there was inadequate proof to accept that the first appellant delegated his authority to the second appellant when the latter issued the directive.

The LAC therefore confirmed the findings of the court a quo and, in doing so, dismissed the appeal. However, on the issue of remedy, the LAC held the Labour Court ‘overreached the scope’ of the relief it ordered. The LAC found that there was nothing before the court a quo for it to accept that the second appellant was authorised to offer the respondent employment in other departments. The LAC replaced the remedy with an order that the second appellant engage in consultations with the respondent in seeking an alternative position for her and further consult with the first appellant with regard the possibility of the respondent being placed in other governmental departments.

Note: Unreported cases at date of publication may have subsequently been reported.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

These articles were first published in De Rebus in 2013 (Sept) DR 58.