Thabang Mampane, N.O and Others v National Union of Public Service and Allied Workers ("NUPSAW") and Another

The National Lotteries Commission (NLC) embarked on an organisational restructuring process from 2011 to implement amendments to the Lotteries Act requiring service delivery across all provinces. This necessitated the relocation of employees to newly established provincial offices. A comprehensive consultation process was undertaken with trade unions including NUPSAW. The process involved multiple phases: voluntary relocation, interviews for multiple positions, and capacity assessments. Ms. Mokgatlha, an assistant manager, was not placed in the first two phases. After assessment, she scored lowest among candidates and was allocated to KwaZulu-Natal on 18 November 2015 by the Commissioner. Mokgatlha appealed based on personal circumstances (building project, university children, family responsibilities). The Commissioner and Human Capital Manager (HCM) met and rejected her appeal on 7 December 2015. Mokgatlha submitted further requests for reconsideration in January and March 2016. On 31 March 2016, the HCM sent a letter confirming the unsuccessful appeal. NUPSAW and Mokgatlha sought review of the decision, alleging procedural unfairness, irrationality, and unlawful delegation of power. A collective agreement (engagement forum close out report) signed by NUPSAW in February 2016 confirmed the deployment outcomes.

• Whether the employee had a right to appeal the relocation decision under the NLC Relocation Policy
• Whether the Commissioner personally reconsidered the relocation decision or unlawfully delegated this power to the HCM
• Whether clause 9 of the Relocation Policy limited the Commissioner's statutory power to delegate under section 2D of the Lotteries Act
• Whether the decision to relocate the employee was reviewable under section 158(1)(h) of the Labour Relations Act
• Whether a collective agreement binding on the employee could constitute a reviewable decision
• Whether the relocation decision was procedurally unfair or irrational

The appeal was upheld with costs against NUPSAW. The Labour Court's orders were set aside and substituted with an order dismissing the application and ordering NUPSAW to pay the costs of both the application and the appeal.

A relocation policy governing compensation for relocation expenses does not create a right to appeal the substantive relocation decision itself. The statutory power to delegate under an empowering provision (section 2D of the Lotteries Act) is not limited by provisions in a policy dealing with a different subject matter (compensation rather than decision-making process). A collective agreement to which an employee is bound as a party through union membership under section 23(1)(b) of the LRA cannot constitute a reviewable decision, as it represents agreement rather than a unilateral exercise of public power. Where evidence establishes that a decision-maker personally reconsidered a decision, there is no unlawful delegation even if subsequent communications emanate from other officials.

The court observed that disputes over employee transfers or relocations are not specifically dealt with in the LRA and cannot be arbitrated by the CCMA or bargaining council unless the transfer constitutes an unfair labour practice affecting benefits, an unfair disciplinary measure, demotion, or unfair constructive dismissal. The court also noted that while decisions by organs of state in their capacity as employers are reviewable under section 158(1)(h) of the LRA on legality grounds (either under PAJA if they constitute administrative action, or on constitutional legality grounds), transfers do not constitute administrative action but rather labour practices, so PAJA does not apply. The court commented that it is conceivable that a collective agreement extended by the Minister to non-parties under section 32 of the LRA could be reviewable, but this differs fundamentally from review by a party bound by the agreement. The court found that Mokgatlha was given ample consideration, the grounds of review were spurious, and the decision to transfer her was entirely fair as she was properly consulted, fully assessed, and more than reasonably accommodated.

This case clarifies important principles in South African labour law regarding: (1) The reviewability of employer decisions under section 158(1)(h) of the LRA on legality grounds; (2) The interpretation of relocation policies and the scope of rights created thereby; (3) The statutory power of public entities to delegate decision-making authority and the limitations (or lack thereof) on such delegation; (4) The binding nature of collective agreements on union members under section 23(1)(b) of the LRA; (5) The distinction between reviewable administrative decisions/exercises of public power and decisions arising from collective agreements; (6) The procedural requirements for challenging relocation decisions in the context of organizational restructuring. The judgment emphasizes that not all employer decisions in the public sector are reviewable and that collective agreements binding on employees preclude review. It also demonstrates the importance of distinguishing between substantive employment decisions and ancillary policies governing their implementation.