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[2020] ZALAC 48
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Public Servants Association of South Africa obo Ramukhesha and Others v Department of Agriculture, Forestry and Fisheries and Others (CA 09/2019) [2020] ZALAC 48; [2021] 5 BLLR 459 (LAC); (2021) 42 ILJ 811 (LAC) (27 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: CA 09/2019
PUBLIC SERVANTS
ASSOCIATION obo
H R RAMUKHESHA AND
SEVEN OTHERS Appellants
and
DEPARTMENT OF
AGRICULTURE,
FORESTRY AND
FISHERIES First
Respondent
THE GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING
COUNCIL Second
Respondent
COMMISSIONER JUSTICE
NEDZAMBA N.O Third
Respondent
DEPARTMENT OF PUBLIC
SERVICE AND
ADMINISTRATION Fourth
Respondent
Heard:
29 September 2020
Delivered:
27 November 2020
Coram: Davis JA,
Coppin JA and Kathree-Setiloane AJA
JUDGMENT
DAVIS JA
Introduction
[1]
This appeal concerns an interpretation of
resolutions passed by the General Public Service Sectoral Bargaining
Council (PSSBC) which
forms part of a collective agreement involving
the translation of posts of a series of employees from old post
establishment into
a newly created Occupational Specific Dispensation
(OSD).
[2]
A dispute arose in relation to the
interpretation and application of the OSD, in particular, the OSD for
scientists and for scientific
technicians respectively. The crisp
issue which was disputed was whether the OSD for scientists
incorporated the post of scientific
technicians. The dispute was
heard by third respondent who held on 13 December 2016 that the first
respondent should have applied
the OSD for scientists as incorporated
in Resolution number 3 of 2009 to the employees who were considered
to scientific technicians.
He ordered the first respondent to
translate these employees into the OSD for scientists.
[3]
This decision prompted an application for a
review of this award. Sitting in the court
a
quo
, Whitcher J set aside the
arbitration award of 13 December 2016. With leave having been granted
by the court
a quo
,
the appellant approaches this court on appeal.
The factual background
[4]
The relevant members of the appellant were
employed by first respondent as Senior Plant Health Officers at the
time of the translation
of their posts into the new OSD as scientific
technicians, the latter being effected by second respondent in terms
of Resolution
of 5 of 2009. At the same time a further resolution
being Resolution 3 of 2009 was passed which concerned the
implementation of
OSD for scientists.
[5]
According to the pre-trial minute which was
served prior to the hearing of the arbitration the following were
considered to be facts
which were common cause:
‘
The
applicants were all employed as Senior Plant Health Officers at the
time of their translation to Occupational Specific Dispensation
(OSD).
When the OSD process
started they resorted under the Directorate Plant Health.
When the OSD process was
concluded they resorted under Inspection Services.
The applicants were all
translated to the OSD for Scientific Technicians in terms of GPSSBC 5
of 2009.
The Plant Health officers
of the divisions Plant Health Early Warning and Pest Risk Analysis
were translated to the OSD for scientist,
in terms of GPSSBC
Resolution 3 of 2009.
The dispute concerns
GPSSBC resolutions 5 and 3 of 2009.
Both resolutions came
into effect on 1 July 2009.’
[6]
The affected employees, who are all
represented by the appellant, lodged grievances on 16 February 2012
in which they challenged
the translation of their posts from senior
plant health officers to scientific technicians. The basis of their
grievance was set
out in a document prepared by one of the employees,
Mr Ramsey Maharaj who set out his complaint thus:
‘
I
strongly feel that my post was unfairly classified and translated, as
the nature of my job warrants the translation to that of
a
Scientist. The current Job description which was used as the
basis to translate the post in an outline of the broad job
requirements and does not reflect the complexity and the finer
details that the post details.
The comparison between
the broad job description and the requirements of OSD may have caused
the complexity of these posts to be
under-estimated and the posts
were subsequently translated to Scientific Technicians.
[7]
First respondent disagreed with the case as
made out by Mr Maharaj. In a letter of 8 August 2012 first respondent
answered Mr Maharaj
as follows:
‘
Ms
T Pieterse, Assistant Director: Policies and Practices, Directorate,
Employee Relations was appointed to conduct an investigation
into the
grievance.
The investigation that
the job description of Senior Plant Health Officer (SPHO) does not
correlate with the Key Performance Areas
(KPAs) of the OSD for
Scientist as prescribed in the OSD, but it correlates with the OSD
for the post of Scientific Technician.
The investigation
confirmed that the job descriptions do not contain details of all
activities performed, but it is a broad and
generic description of
what a post entails. The job description is used as a basis for
developing a work plan in which an
employee’s specific
environment is taken into account and to ensure that it is aligned
with specific job objectives and required
outputs.
In
light of the above, the Investigation Officer recommended that you
should be informed that the process of translation of the
post of
Senior Plant Health Officer of the OSD for the category of scientific
technician was conducted fairly and correctly.
’
[8]
The approach adopted by the third
respondent was to hold that the employees’ job
functions “correlated more
with that of scientist than that of
scientific technicians’ and accordingly ‘the respondent
incorrectly translated
the applicant to the position of scientific
technician instead of translating them to the position of
scientists.”
[9]
In setting aside the award, the court
a
quo
relied to a considerable extent on
the evidence of Mr Braam van der Walt who was the Deputy Director in
the Directorate of Remuneration
Policy for the fourth respondent.
The core of Mr van der Walt’s testimony is captured in the
following paragraph from
his testimony:
‘
If
the functions were duties of the incumbent … is different from
that which is attached to the post in terms of the job
description
those duties and functions could not have been taken into account in
order to determine the correct OSD post to which
it should be
converted. As I have indicated it is not in the hands of the
incumbent of the post or supervisor in order to
come up with other
duties etcetera to be attached, to be included in the job
description. Therefore those duties could
not have been
used or considered in coming up with the correct OSD post to which
the incumbents should have been translated
.’
[10]
In setting aside this award, Whitcher J
found that the third respondent had:
‘
Overlooked
the crucial aspect that, even if most of the employees may have
performed functions equivalent to those of CPHO or scientist,
and are
scientist in their qualifications, the formal function and purpose of
the posts they had occupied, that of SPHOs (and which
was translated)
was a technical support post. The closest correlation to this
post was that of scientific technician.
Furthermore, that the
posts of CPHO was one level above that of an SPHO.’
The appeal
[11]
The essence of appellants’ case
before this Court was to refer to evidence presented during the
arbitration to the effect
that the employees concerned performed the
same functions as that of scientists. Accordingly, the finding of the
third respondent
could not be considered to be unreasonable,
particularly in the light of clause 2.1 of resolution 3 of 2009 which
provided that
the objective of the resolution, inter alia, was to
provide ‘career pathing opportunities for competencies,
experiences,
performance and scope of work and therefore to recognise
appropriate experience and increased competence.
[12]
In support of this submission Mr du Preez,
who appeared on behalf of the appellants, relied on the judgment in
Department of Correctional Services
(Western Cape) v Democratic Nursing organisation of South Africa and
others
[2414] ZALAC 76 (18 December
2014) to the effect that formal job descriptions attached
to posts did not constitute
the only basis for assessment.
Consideration must be given to the actual functions and skills of an
employee for the purposes of
translating a post from a particular
classificatory dispensation to another.
[13]
The case of
Department
of Correctional Services
, supra, needs
to be placed in its appropriate factual context. It concerned the
question of whether a professional nurse who had
managed a nursing
speciality unit as the operational manager was entitled to the
appropriate salary scale attached to the corresponding
management
level for the operational manager of the unit. The finding of the
court is reflected in para 22 as follows:
‘
Since
the employee was managing a nursing speciality unit primary health
care clinic, and although not in possession of the post
– basic
clinical nursing qualification listed in Government Notices R 48 or R
212 but had been performing these duties and
managing the unit
satisfactorily on 30 June 2007, she was entitled to be translated as
a once off provision to the salary level
PN – B3, being the
appropriate salary scale for nurses who were previously earning at
salary level 8 and 9. Therefore,
her translation to the lower
salary scale of R 183 000. 00 per annum attached to the post of
Clinical Nurse Practitioner was erroneous’.
[14]
Contrary to the submission of appellants’
counsel in the present dispute, the judgment in
Department
of Correctional Services, supra
, is not
authority for the proposition that the translation of posts as set
out in a previous occupational dispensation to that
of the OSD
requires an examination of the actual performance of individual
employees which may extend beyond the formal job description
that
attaches to the post.
[15]
In describing the approach to translation
that was adopted by first respondent, Mr van der Walt testified thus:
‘
The
Department had to analyse the job description attached to the post
which the incumbents occupied on 30 June 2009. It is like
taking a
photograph, a snapshot on the first, on that millisecond on 1 July
2009 when this new dispensation came into being.
The Department
had then to assess and to check it with the key performance areas
attached to the OSD post which is contained in
the determination by
the Minister to find the closest correlation where there, no not
closest correlation. To find the correlation
which is strong enough
that would validate or justify a conversation of the post of the
incumbent to the relevant OSD post and
once that has been established
the translation of the incumbent namely the applicants, and I assume
the applicants were in service
on 1 July 2009, then to the identified
OSD post, because attached to tan OSD posts is a set of key
performance areas which is contained
in the determination
.’
[16]
In essence, the appellants’ case was
the following: when a translation process takes place such as
occurred in the present
dispute, the employer in the position of
first respondent must focus on each incumbent of the designated post
and then consider
that employee’s job description in the light
of the individual performance of each incumbent rather than applying
the formal
job description that is attached to the post itself in
terms of the requirements as set out in the relevant resolution.
[17]
One needs only to state this proposition to
realise the uncertainty which its vindication would cause to the
classification of posts
in the public administration. In a case such
as the present, if Mr Maharaj claimed without being gainsaid that he
performed tasks
in excess of the designated job description but none
of the other employees could show a similar level of performance,
then Mr
Maharaj would stand to be reclassified as a scientist while
the other employees would be held to have correctly been translated
as scientific technicians. This would cause a level of uncertainty
that would make the entire process of translation of posts almost
impossible to implement in a coherent, consistent and manageable
fashion.
[18]
For these reasons, the approach which was
adopted by the court a quo, namely that the formal function as set
out in the OSD description
of the relevant posts must be employed in
the translation process is correct. It, therefore,
follows that in the present case the affected employees were
correctly translated by first respondent into that of
scientific
technicians.
[19]
For all of these reasons therefore, the
appeal is dismissed with costs.
_________________
Davis JA
Coppin
JA and Kathree-Setiloane AJA concur.
APPEARANCES:
FOR
THE APPELLANT:
Adv C Du Preez
Instructed
by T Brivik from Malcolm Lyon& Brivik Inc.
THE
FIRST RESPONDENT: Adv B
Joseph SC
Instructed
by C Bailey from State Attorney Cape Town.