About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2021
>>
[2021] ZALAC 33
|
|
Department of Defence v Farre and Others (CA17/2020) [2021] ZALAC 33; [2022] 1 BLLR 52 (LAC) (11 October 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA17/2020
DEPARTMENT
OF
DEFENCE Appellant
and
RUTH
FARRE First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL Second
Respondent
COMMISSIONER
JACQUES BUITENDAG NO Third
Respondent
Heard:
17
August 2021
Delivered:
11
October 2021
Coram:
Waglay JP, Davis JA and Kubushi
AJA
JUDGMENT
DAVIS
JA
Introduction
[1] This
case concerns the question as to whether the appellant committed an
unfair labour practice by demoting
the first respondent from a
position to which she claimed she had been promoted with effect from
1 March 2014. The first respondent
holds a BSC degree in Ocean and
Atmosphere Sciences and Environment and Geographic Sciences. In 2005,
she was appointed as a Superintendent
of Tidal Information by the
appellant after having acted in the position since 2001. According to
the job description, her key
responsibilities were:
‘
Collecting,
collating, analysing and arching tidal information from a network of
tide gauges (TG’s); Maintaining and operating
the TG network in
the RSA and Namibia; Planning and executing tidal stream
observations; calculating and preparing tide tables
for the RSA and
Namibia; Manage relevant environmental projects undertaken by IMT on
behalf of the Hydrographic Office, and Lecture
tidal theory and
Oceanography.’
[2] In
October 2008, the Job Evaluation Committee of the South African Navy
noted that the work that the first
respondent was required to perform
had been inappropriately classified as administrative. It accordingly
recommended that this
classification be amended at which time there
were no financial implications as the post remained at salary level
9.
[3] This
recommendation was not approved by the Minister of Defence because it
appears that shortly after the recommendation
had been generated, the
Occupational Specific Dispensation (OSD) for Engineers and Related
Occupations was approved. In terms of
a letter generated by R K
Pienaar Manager Naval Management and Renewal Services (Fleet
Command): Deputy Director on 28 July 2011
“the post in question
will potentially also be covered by the OSD and as such there are
different salary scales attached
to the post. The current post
incumbent will therefor potentially benefit from the OSD.”
However, in a further letter of
11 October 2011 signed by Rear
Admiral SL Pillay: “the Technicians and Artisans Occupational
Specific Dispensation (OSD)
is currently been finalised within the
SANDF and submissions for the approval is currently being prepared
for submission”.
In terms of the OSD’s policy, the above
mentioned post (that is the post held by the first respondent) “will
not be
considered for translation to the Technical OSD as it is
currently approved as an Administrative post and not a Technical
post.”
[4] The
OSD was implemented by the appellant in January 2011. It applied only
to employees who on 1 July 2009 fell
within the occupational
categories that required registration within the appropriate
professional council. This registration was
considered to be an
inherent requirement for the relevant post. When the OSD was
implemented only employees covered by its scope
were translated to
the OSD as a “once off action”.
[5] According
to a resolution of the second respondent (Resolution 5 of 2009)
further appointments after the translation
date would be dealt with
as follows:
‘
5.1.1.
An employee meeting the appointment requirements, inclusive of but
not limited to, possessing the relevant qualification
(s), prescribed
years of experience, registration with an appropriate professional
council;
5.1.2.
Availability of posts; and
5.1.3. After
appointment the employee must perform the functions of the new posts
(job).’
[6] According
to the appellant as the first respondent did not occupy a
professionally designated post on 30 June
2009 she could not as at
January 2011 be translated in terms of the OSD retrospectively to 1
July 2009. Thus she was not translated
along with those employees
whose posts as at 30 June 2009 fell within the scope of the OSD. On
13 December 2011, CA Spreeth, Chief
Business Analyst together with RK
Pienaar made the following recommendation:
‘
It is recommended
that the post class Assistant Director: Admin be amended to Control
Oceanographic Technician (050348), with a
resultant CORE change to
the Natural Sciences Core (D2010500). The post number is
3810/376469/C944/001 on the establishment of
Fleet Command HQ.’
[7] As
the code of remuneration (CORE) had been abolished with the
introduction of the OSD, the Core codes were
no longer available as
they been abolished, deactivated and replaced by the OSD post
dispensation. It followed that a recommendation
based on a
deactivated system was never placed before the Minister.
[8] On
4 April 2012, a further request was made to Colonel JA Zietsman who
worked in the office of the Chief of
Human Resources in which the
recommendation was again made that the first respondent’s Class
Code be changed to “Control
Oceanographer Technician”
while the post title code of “Superintendent Tidal Information
should be retained as is.”
[9] It
appears that instead of creating an OSD post to be filled in
accordance with a competitive interview process
in terms of
resolution 5 of 2009, a post class code 052803 was issued on 23
November 2012 for a “Control Scientific Technician
Grade A
without the requisite authority”. It meant that the first
respondent’s purported translation was effected in
a manner not
provided for by the OSD agreement or any of the relevant directives
that had been issued at that time. In response
to what appeared to
have been a practice, the Director General of the Department of
Public Service and Administration informed
all national provincial
departments in provincial administrations that:
‘
Departments that
have erroneously advertised and filled post of Control/Chief at Grade
B are requested to rectify the affected employees’
salaries as
such remuneration is regarded as incorrectly granted remuneration and
departments must recover the overpayment, in
terms of the provision
of Public Service Act, 1994 section 38, from the affected officials.’
[10] In
August 2012, the first respondent submitted her registration and paid
the applicable fees to the South
African Council for Natural
Scientific Professions (SACNASP) and she was then registered as a Geo
– Spatial Scientist with
effect from 31 July 2013. Thereafter
on 28 January 2013 Mr Pienaar wrote to the South African Navy
Hydrographer in which he stated
“the post of Superintendent
Tidal Information has been included in the above documentation as the
post class has been amended
and the post had been translated to the
OSD. As the post levels have been centrally evaluated by the
DPSA, no further job
evaluation results are required for posts
translated in the OSD.”
[11] Her
OSD salary was backdated to 1 March 2014 because that was the date
upon which she received her registration
details from SACNSASP. As
the first respondent stated in her answering affidavit:
‘
Owing to delays in
giving effect to the change in the classification of my post, I was
translated to the OSD three years after my
colleagues. Whereas my
colleagues’ translation was backdated to July 2009 (the date on
which the OSD was approved), my translation
was only backdated to 1
March 2014. This appeared to me to have been done somewhat
arbitrarily. (The Department has subsequently
explained that my
translation was backdated to the date on which it received my proof
of registration with SACNASP).
On 27 August 2014, I
lodged a grievance setting out the history and requesting that my
translation be backdated to July 2009 in
line with my colleagues’
translations. The Grievance Office did not resolve my grievance
within the requisite time period,
and it remained unresolved when the
following events unfolded.’
[12] The
events to which the first respondent referred commenced in April 2015
when she obtained her salary advice
for that month which reflected
that she had received a zero take home pay. Certain changes had been
unilaterally made to her terms
and conditions of employment. Her job
description had been amended to administrative support personnel and
her salary notch had
been decreased. She was now informed that she
owed the appellant an amount of R 168 629.28.
[13] It
was this set of events which finally resulted on 22 February 2017 in
the first respondent referring an
unfair labour dispute relating to
her alleged demotion to the second respondent who appointed the third
respondent to arbitrate
the dispute. In finding that the appellant
had committed an unfair labour practice and ordering the latter to
restore the first
respondent’s position to Control Scientific
Technician grade BCSTGB retrospectively with effect from 1 March
2014, the third
respondent justified the granting of the order thus:
‘
In my
determination the applicant is denied a translation to the OSD
because the respondent dragged its feet to re-classify the
ASD post
from administrative to scientific and because the respondent did not
follow its own internal approval procedures to effect
the change from
ASD Admin to Control Oceanographic Technician with a change to the
CORE to natural science.
[1]
…
The experimental
competency, qualification and statutory registration for this OSD
post is a Diploma in Science or relevant qualification;
6 years post
equalisation technical (scientific) experience and compulsory
registration with SACNASP. The applicant meets these
requirements.
She achieved her BSc – Ocean & Atmosphere and Environmental
& Geographic Science degree in 2000. She
has performed the same
functions since 2005 and is registered with SACNASP.’
[14] Pursuant
to this finding the appellant then approached the court
a quo
on review to set aside this award. I turn to deal with the judgment
of the court
a quo
.
The
decision of the court
a quo
[15] Sitting
in the court
a quo
, Rabkin-Naicker J found that, even if it
was correct that the post had been wrongly migrated to the new OSD
establishment in July
2014, it was possible for the appellant to have
corrected this problem without violating the first respondent’s
right to
a fair labour practice. Her status, salary and benefits had
been diminished when she had “been restored” to her
pre-translation
post in April 2015. The court
a quo
thus held
that the third respondent had reasonably concluded that this action
on the part of the appellant constituted a demotion.
The learned
judge also found that the third respondent had correctly found that
the appellant had not complied with the
audi alteram partem
rule before it had taken the decision effectively to demote the first
respondent. Further the learned judge found that the reason
for this
demotion was that “the employer dragged its feet in
reclassifying her post”. Furthermore, the functions which
the
first respondent had performed would have always been scientific and
not administrative which was clearly evident from the
description of
that which she was required to perform in terms of her post.
[16] For
these reasons, Rabkin-Naicker J concluded thus in dismissing the
review application with costs:
‘
In the court’s
view, the remedy provided by the arbitrator to restore the status quo
ante is a reasonable one, and within
his powers. The decision cannot
be faulted on the Record before him. This was the remedy that Farre
sought given her long service
and qualifications and the fact that
her job function has essentially stayed the same through the many
years of her employment
by the applicant. I can find no basis to
conclude that the review should succeed. It is surely time that
the applicant takes
steps to ensure that Farre’s function and
Farre herself are given the necessary formal recognition.’
The
appeal
[17] On
appeal, the appellant’s counsel referred to a judgment of this
Court in
Public Servants Association of South Africa obo
Ramukhesha and others v Department of Agriculture Forestry and
Fisheries and others
(2021) 42 ILJ811 (LAC) which held in effect
that a formal function as set out in an OSD description of the
relevant post has to
be employed in the translation process. It
followed on the basis of this judgment that if an employee such as
the first respondent
was incorrectly translated by the appellant,
there could be no question of a demotion or the commission of an
unfair labour practice.
Developing this argument, counsel contended
that the third respondent could not have determined the fairness of
the demotion without
first examining Resolution 5 of 2009 of the
second respondent and thus determining its applicability to whether
there was a post
into which the first respondent could be translated.
[18] Notwithstanding
the plethora of documents that engulfed this court, the first
respondent’s claim that
her work had always been technical and
scientific in nature could not be gainsaid. Similarly, it was clear
from the evidence that
the appellant had realised that the first
respondent technical and scientific work justified a translation into
the post to Control
Scientific Technician. Indeed, it was this
recognition that caused the translation of her post into the OSD,
albeit that it had
taken three years longer than had been the case
with some of her colleagues. Although the translation may have taken
longer in
her case as a result of the later attainment of the
necessary professional qualifications. The sharp point is that the
translation
was backdated to 1 March 2014 and more than a year later
in April 2015 she received a notice that the translation had been
reversed.
This raises the question of the basis on which a case of an
unfair labour practice can be based.
[19] In
turn this raises the further question as to whether an unfair labour
practice can only be claimed when
there is a prior right which has
been infringed by the practice. The answer to this question is
required to deal with the appellant’s
argument that there was
no position into which the first respondent was entitled to be
translated. Thus she could invoke no right
in support of her unfair
labour practice claim. The legal nature of an unfair labour practice
has been canvassed by this Court
on a number of occasioned. Suffice
to say that in
Apollo Tyre South Africa (Pty) (Ltd) v CCMA
[2013]
5 BLLR 434
(LAC) this Court agreed with the minority judgment of
Goldstein AJA in
Department of Justice v CCMA
(2004) 25 ILJ
248 (LAC) para 14 where the learned judge said:
‘
Whatever the
position it seems to me respectively with the view expressed in
paragraph 9 that item 2(1)(b) provided only for rights
which arose
ex
contractu ex lege
was clearly wrong. If that was so, the
provision would have been redundant since such rights would have been
enforceable in the
absence of item 2 (1)(b). It is significant that
item 3 (4)(b) expressly provided for a dispute referred to inter alia
in item
2 (1) (b) to be resolved in arbitration. It is significant to
that the introductory words in item 2 (1) and the cardinal words in
item 2 (1)(b) concerned an unfair labour practice and unfair conduct.
Just as the LRA provides for disputes arising from unfair
dismissals
in respect of which there are no contractual remedies and remedies of
common law to resolve an arbitration so was item
2 (1)(b) designed
for situations when neither the contract of employment nor the common
law provided an employee with a remedy.’
[20] In
following this approach, Musi AJA in
Apollo Tyres
said at para
51:
‘
An employee wants
to use the unfair labour practice jurisdiction in s 186 (2) (a)
relating to promotional training does not have
to show that he or she
has a right to promotion or training and ought to have remedy when
the fairness of the employers’
conduct relating to such
promotion (or non-promotion) or training is challenged.’
[21] In
my view, therefore the third respondent was correct to hold that the
conduct of the appellant was unfair
in that it was unfairness of the
practice rather than the breach of a pre–existing right which
formed the basis of the claim.
This observation is subject however,
to one issue which, in view, is dispositive of this dispute, being
the existence of an independent
existence of a post into which the
first respondent could be placed. The appellant’s counsel in
argument before this Court
contended that there was no post into
which the first respondent could be placed and hence there was no
basis by which she could
be so translated.
[22] The
appellant’s counsel referred to the approach adopted by the
appellant to the first respondent’s
grievance by way of a
letter generated by the Chief Director HR Strategic Direction and
Policy, Major General Shongaye of 23 February
2015 in which he stated
that the process by which the first respondent had been translated
into her technical role “was regarded
as an expansion of OSD
post that was not the intention of the OSD.” Thus, it followed
that if there was no post existed into
which the first respondent
could have been translated, the issue as to whether the appellant had
committed an unfair labour practice
had to be reconsidered in the
light thereof. However, there was uncontested evidence that “the
reconfiguration of SA Navy-
Hydrographic Officers DIMS on 3 September
2013 was confirmed and that attached to that letter were documents
which referred to
the post of Superintendent Tidal Information.”
Furthermore, the third respondent asked Ms Patrick, who worked in
career management
section of the directorate fleet human resources
and who gave evidence on behalf of the appellant as to “and
this other post-
is there another post here that says a Control
Scientific Technician, is there such a blokkie?” To which the
answer was in
the affirmative. Ms Patrick also confirmed that the
post under dispute would be advertised. Significantly, in the letter
signed
by General Sit Shongaye he states further, “Ms Farre was
absorbed in the newly created Controlled Scientific technician grade
B post even though the post should have been advertised”.
[23] It
does appear that much of the evidence led by the appellant concerned
whether the first respondent was ineligible
for the post either on
the basis that her work was administrative or that she did not meet
the appointment criteria. However, given
her job description it was
clear that her work was scientific and not administrative and
certainly the following passage from her
answering affidavit does not
appear to have been placed in dispute:
‘
I fall within the
occupational classes identified in the OSD collective agreement for
translation. I am a Natural Scientist whose
fields of practice
includes Geographic Information Science, Geographical Science and
Hydrological Science (all of which fall within
the scope of the OSD).
I am registered as a Certified Natural Scientist (which is the
equivalent to the Scientific Technician)
in Geospatial Science by
SACNASP.’
[24] In
my view, there was a post into which the first respondent could and
unquestionably should have been placed.
That she was, in effect
placed in this post only for the decision to be reversed at great
cost to the first respondent was manifestly
unfair. That the
appellant itself eschewed certain requirements of Resolution 5 of
2009 does not detract from the fact that there
was a post available
into which a suitably qualified person had been placed by the
appellant. That she was then “transferred”
back to her
previous post with the concomitant reduction of salary and obligation
to repay R 178 88.98 clearly constituted the
kind of practice which
falls within the scope of principle of an unfair labour practice
which does not depend on a priori right
as opposed to the assessment
of the conduct of the appellant causing significant unfairness to a
dedicated employee .It is thjs
latter classification , based on the
facts that successfully grounds the first respondent’s cause of
action
[25] For
all of these reasons, the appeal is dismissed
Davis
JA
Waglay
JP and Kubushi AJA concur.
Appearances:
FOR THE
APPELLANT: Brenton
Joseph SC & Adv Ntwanano
Mashava
Instructed
by the State Attorney
FOR THE
RESPONDENT: Adv
Suzanna Harvey
Instructed
by Brendan Guy Attorneys
[1]
This
finding by the third respondent is not factually accurate. To
classify the conduct of the appellant as foot dragging is incorrect
in that the first respondent did not translate to the OSD in January
2011 because she had not so occupied an OSD post at of 3
June 2009
and further at that time she did not have all the requisite
professional qualifications. However, the enquiry on review
depends
less on the reasoning of the arbitrator and, in essence, on whether
the result arrived at by the arbitrator is justified
for reasons
that are based on the facts of the dispute