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[2024] ZALCJHB 138
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Department of Public Service and Administration v Naidoo N.O. and Others (JR2348/18) [2024] ZALCJHB 138 (7 March 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
case no: JR 2348 / 18
In the matter between:
DEPARTMENT OF PUBLIC
SERVICE AND
ADMINISTRATION
Applicant
and
M NAIDOO
N.O.
(AS ARBITRATOR)
First
Respondent
PUBLIC SERVICE
CO-ORDINATING
BARGAINING COUNCIL
Second
Respondent
THABO MGOQI AND
RESPONDENTS WHOSE
NAMES APPEAR AT
ANNEXURE “A”
Third Respondent
DEPARTMENT OF WATER
AFFAIRS AND
SANITATION
Fourth Respondent
Heard
:
1 February 2024
Delivered
:
7 March 2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 7 March 2024
Summary:
Bargaining
arbitration proceedings –
review of arbitration award – test for review – s 145 of
LRA 1995 – principles
considered – error of law
considered – material error of law justifying review where
error leads to unreasonable outcome
Interpretation and
application of Resolutions – Resolutions constituting
collective agreements – principles relating
to interpretation
and application of collective agreements considered and discussed –
interpretation of Resolutions by arbitrator
constituting material
errors of law – award reviewed and set aside
Interpretation and
application of collective agreement – distinguished from
enforcement of agreement – dispute in this
case properly one of
interpretation and application – dispute competently before
arbitrator
Review application –
application under s 145 of LRA – consideration of evidence by
arbitrator – arbitrator misconstruing
evidence relating to
interpretation of Resolutions – outcome arrived at unreasonable
Review application –
proper case for review made out – review application granted
and award substituted
REASONS FOR COURT
ORDER
SNYMAN, AJ
Introduction
[1]
The
applicant has brought an application to review an arbitration award
handed down by the first respondent in his capacity as an
arbitrator
of the Public Service Co-Ordinating Bargaining Council (PSCBC), being
the second respondent. The application has been
brought in terms of
section 145, as read with section 158(1)(g), of the Labour Relations
Act (LRA)
[1]
. The dispute
concerned the interpretation and application of collective
agreements,
[2]
in the form of
Resolutions adopted by the parties to the PSCBC. These Resolutions
related to the issue of the grading of salary
levels of the third
respondent parties. The first respondent, in an arbitration award
dated 30 May 2018, found in favour of the
third respondent parties,
and interpreted and then applied the aforesaid Resolutions in the
manner as will be dealt with in detail
later in this judgment.
[2]
The
arbitration award of the first respondent was handed down on 30 May
2018. But that was not the end of the proceedings before
the PSCBC.
What followed were variation applications by the third respondent
parties, the last one being brought on 7 September
2010. On 10
September 2018, the PSCBC advised the third respondent parties that
the variation application was brought of time and
condonation was
required. It was stated further by the PSCBC that the matter would
remain closed until the condonation application
had been brought.
After affording a reasonable time to the third respondent parties to
file this condonation application, and nothing
further being
forthcoming, the applicant then brought the review application on 20
December 2018. The review application was thus
timeously brought,
properly placed before this Court for determination, and has been
opposed by the third respondent parties on
the merits thereof.
[3]
The
review application came before me for argument on 1 February 2024.
After hearing argument by both parties, I granted the following
order:
‘
1.
The
applicant’s review application is granted.
2.
The
arbitration award of the first respondent, arbitrator M Naidoo, dated
30 May 2018 and issued under case number PSCB 847 –
14/15, is
reviewed and set aside.
3.
The
arbitration of the first respondent is substituted with an award that
clause 18.1 of PSCBC Resolution 1 of 2012 does not apply
in this
matter and that none of the individual third respondents are entitled
to relief in terms thereof.
4.
There
is no order as to costs.
5.
Written
reasons for this order will be handed down on 24 February
2024.’
[4]
Due
to a number of unforeseen circumstances, the particulars of which
need not burden this judgment, I was unable to finally complete
the
written reasons by 24 February 2024. I accordingly hereby amend the
date as referred to in paragraph 5 of the aforesaid order
by
substituting the date of 24 February 2024 with 7 March 2024, the
latter date being the date upon which these written reasons
were
finally completed. This judgment therefore constitutes the written
reasons referred in paragraph 5 of my order, and must be
considered
to have been handed down on 7 March 2024.
[5]
For
ease of reference, I will refer to the applicant as the ‘
DPSA
’,
the fourth respondent as the ‘
DWAS
’,
and the individual third respondent parties as ‘
the
employees
’.
The relevant
background
[6]
It
is perhaps appropriate to start with the applicable regulatory
framework at stake in the current case. Conditions of employment
of
all Government Departments resorting under the PSCBC are determined
by collective agreements concluded in the PSCBC, which are
then
publicised as ‘
Resolutions
’.
In this case, there are two Resolutions of relevance. The first is
Resolution 3 of 2009 (
the 2009
Resolution
), and the second is
Resolution 1 of 2012 (
the 2012
Resolution
).
[7]
Firstly
at stake is Clause 3.6.3.2 of the 2009 Resolution, which came into
operation on 1 April 2010, and reads:
‘
The
commencing salary for all employees on the posts not covered by an
OSD as per PSCBC Resolution 1 of 2007 and 3 of 2008 and appointed
as
Assistant Directors and Deputy Directors shall, with effect from the
1
st
July 2010 be on salary Level 9 and Salary Level 11 respectively.’
[8]
Next,
clause 18.1 of the 2012 Resolution is up for consideration, which
came into operation on 1 August 2012, and in turn reads:
‘
Clause
3.6.2.3 of PSCBC Resolution 3 of 2009 is hereby amended to allow
employees whose posts are graded on Salary Level 10 and
12 to be
appointed and remunerated on Salary Level 10 and 12 respectively.’
[9]
It
was common cause that the employees were appointed by the DWAS in
either Assistant Director (AD) posts or Deputy Director (DD)
posts.
All of them were appointed and commenced employment with the DWAS
after 1 August 2012, being the date on which the 2012
Resolution came
into effect.
[10]
There
was no evidence as to what the actual graded salary level was of the
AD and DD posts to which the employees were appointed,
as such
grading may have existed prior to 1 July 2010 when the 2009
Resolution came into operation. What was in evidence was a
schedule
of individual posts and the graded salary level attached to those
posts, but this was not linked to the specific individual
employees.
In particular, the employees presented no evidence as to whether the
individual posts they had been appointed to was
actually graded in
the period prior to 1 July 2010, and if so, what these posts were
graded at. It also appeared from the evidence
that when grading a
post, it is done not only on the basis of the post grade in the
approved occupational structure, but also involves
an actual job
evaluation (job weight).
[11]
The
above being said, and in the past (prior to 1 July 2010), it appeared
that there was there existed an inconsistency as to how
the salary
level of AD and DD posts would be determined. To illustrate, a
particular DD post, even as graded, could competently
resort under
either a salary level 11, or a salary level 12. This led to
difficulties where it came to ensuring that employees
were being
appointed to such posts at a consistent salary level. This state of
affairs was the cause for the introduction of clause
3.6.3.2 of the
2009 Resolution, which made it compulsory for appointments to AD and
DD posts to be made only at salary levels 9
and 11 respectively.
However, clause 3.6.3.2 of the 2009 Resolution caused its own
problems, in that AD and DD posts that were
actually and properly
graded at salary levels 10 and 12 were not being recognised as such,
as employees would not be appointed
at such salary levels, despite
the specific grading. Clause 18.1 of the 2012 Resolution was
introduced to resolve this. This entire
situation will however be
discussed in more detail later in this judgment.
[12]
On
5 August 2014, and after the implementation of clause 18.1 of the
2012 Resolution, the DPSA issued a directive to all other
Departments, being Circular 4 of 2014 (
the
2014 Circular
). In the 2014 Circular,
clause 18.1 of the 2012 Resolution was specifically dealt with. It
was pointed out that all positions that
were graded on salary levels
10 to 12 between 1 July 2010 and 31 July 2012 but where incumbents
were appointed on salary levels
9 and 11, those incumbents would
qualify for an automatic upgrade, subject to supporting job
evaluation results being provided.
Importantly, the 2014 Circular
stipulated that any grading of positions can only be done with the
approval of the DPSA and before
that can be done, the DPSA must be
provided with a job description, organizational structure, a
completed job evaluation report,
a service record and motivation in
support of the request for approval,
[13]
As
contemplated by the 2014 Circular, the DPSA then did conduct a
grading exercise on all the positions that may have been affected
by
the application of clause 18.1 of the 2012 Resolution. This included
all the positions occupied by the employees. In a notification
dated
15 December 2014 by the DPSA to the DWAS, it was determined that all
these positions were graded at salary levels 9 and 11
respectively,
being the grade at which the employees had actually been appointed.
It was specifically recorded at the conclusion
of the notification
that ‘
Please be advised that the
above grading decision is final and cannot be amended by the
Department after consultation
.’
[14]
Turning
then to the employees
per se
,
they all came into the picture only after the 2012 Resolution had
come into operation, in that they were all, as said, only appointed
then. The posts to which the employees were appointed were advertised
after such Resolution, as either salary level 9 (in the case
of AD
posts) or salary level 11 (in the case of DD posts). The employees
applied for such posts, as advertised, and were appointed
accordingly, at salary levels 9 and 11. There is no evidence of any
of the positions the employees were appointed in having been
graded
in the period between 1 July 2010 and 31 July 2012, and no job
evaluation results were presented in evidence. And then,
and
following the 2014 Circular, their positions were actually graded by
the DPSA at salary levels 9 and 11 respectively, as a
final grading.
[15]
The
employees were not satisfied with this state of affairs. According to
them, a proper interpretation and application of clause
18.1 of the
2012 Resolution meant that they were entitled to be graded at salary
levels 10 and 12 and that such grading should
apply retrospectively
to the respective dates when they were first appointed to the AD and
DD posts. As a result, a dispute was
referred by the employees to the
PSCBC on 19 March 2015. The dispute that was referred concerned the
issue of the interpretation
and application of clause 3.6.3.2 of the
2009 Resolution and clause 18.1 of the 2012 Resolution. This dispute
was unsuccessfully
conciliated on 19 May 2015, and then referred to
arbitration on 4 June 2015.
[16]
But
whilst this dispute was pending, the DWAS unfortunately bedevilled
matters. It would appear that despite the clear directives
given by
the DPSA, the DWAS conducted its own internal audit on the
implementation of clause 18.1 of the 2012 Resolution and the
regrading of the positions of incumbents appointed at salary levels 9
and 11. In a report finally signed by the Director General
of the
DWAS on 12 April 2015, it was recommended that the incumbents (which
would include the employees) be upgraded from a salary
level 9 and
11, to salary level 10 and 12, respectively. As a result of this
report, the employees, with the exception of seven
of them, were then
upgraded by the DWAS to salary levels 10 and 12 respectively, with
effect from 1 December 2015.
[17]
The
DPSA has contended that the 1 December 2015 upgrade effected by the
DWAS was invalid, but this issue need not concern this judgment,
as
such upgrade is not being challenged in this matter. It must however
just be mentioned, in passing, that the first respondent
himself, in
his award, accepted the contention by the DPSA that this grading
exercise by the DWAS would be a nullity, unless it
was approved by
the DPSA, which approval, on the facts, was never granted.
[18]
However,
and now having been graded at salary levels 10 and 12 in terms of the
grading exercise implemented by the DWAS on 1 December
2015, the
interpretation and application dispute brought by the employees, and
which was still pending before the PSCBC, shifted
somewhat. The issue
of whether the employees should be graded at salary levels 10 and 12
no longer needed to be decided, and the
main focus of the dispute
then was whether the employees that were so upgraded should have been
graded at salary levels 10 and
12 from the dates of their first
appointment, by virtue of the application of clause 18.1 of the 2012
Resolution. In essence, they
sought the difference in their salaries
at salary levels 9 and 11, as opposed to what they would have earned
at salary levels 10
and 12, as from their dates of appointment and
until they were upgraded on 1 December 2015 as aforesaid. The seven
employees not
upgraded at all, still sought relief that they also be
upgraded to salary levels 10 and 12, and then the same difference in
salary
also be applied to them.
[19]
There
were a number of intervening events in the pending arbitration
proceedings in the PSCBC which delayed the conclusion of the
matter.
This included joinder applications, a dismissal ruling, rescission
applications, postponements, directives by arbitrators
and the like.
I will not delve into all of these details in this judgment. Suffice
it say, the arbitration only finally commenced
before the first
respondent on 4 December 2017 and concluded on 24 May 2018.
[20]
In
his arbitration award issued on 30 May 2018, the first respondent
held that clause 18.1 of the 2012 Resolution in fact found
application in this case. He then proceeded to interpret the clause
as meaning that the employees would be entitled to be graded
at
salary levels 10 and 12 from the date when they were first appointed
to the posts. It followed that they were entitled to be
paid the
difference on salary from such dates and until they were actually
upgraded to such salary levels in the 2015 gradings
conducted by the
DWAS. The reasons why the first respondent came to this conclusion,
and the assessment of such reasons, will be
dealt with later in this
judgment.
Test for review
[21]
Where
it comes to the review application by the applicant, the test for
review to be applied is trite. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
the
Court held that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’,
and that the threshold test for the reasonableness of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[4]
.
This
means that the award in question is tested against all the facts
before the arbitrator to ascertain if it meets the requirement
of
reasonableness.
[5]
In conducting
this test it is always necessary and important for the Court to
enquire into and consider the merits of the matter
and the entire
evidence on record in deciding what is reasonable.
[6]
In
Herholdt
v Nedbank Ltd and Another
[7]
the
Court said:
‘
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable. …’
[22]
Based
on the aforesaid, the first enquiry is to establish if there a
failure or error on the part of the arbitrator. Second, and
where
there is such a failure or error, it must be shown that the outcome
arrived at by the arbitrator was unreasonable as a result.
It would
only be if the consideration of the evidence and issues before the
arbitrator shows that the outcome arrived at by the
arbitrator cannot
be sustained on any grounds, and the irregularity, failure or error
concerned is the only basis to sustain the
outcome the arbitrator
arrived at, that the review application would succeed.
[8]
As said in
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[9]
:
‘…
the
reviewing court must consider the totality of evidence with a view to
determining whether the result is capable of justification.
Unless
the evidence viewed as a whole causes the result to be unreasonable,
errors of fact and the like are of no consequence and
do not serve as
a basis for a review …’
[23]
The
above being said as constituting the general test for review, what is
at stake in this case is nothing else but a review based
on a case
that the first respondent committed material errors of law in
interpreting and applying clause 18.1 of the 2012 Resolution.
If an
error of law is committed by an arbitrator, and that error of law is
material, it would render the award arrived at to be
unreasonable,
and thus subject to being reviewed and set aside.
[10]
In fact, an award based on a material error of law can be
legitimately challenged not only on the basis of it being
unreasonable,
but also on the basis that the award would be
incorrect.
[11]
The simple
point is that a reasonable arbitrator will not commit a material
error of law. The Court in
Herbert
v Head of Education: Western Cape Education Department and Others
[12]
articulated the following apposite summary:
‘
In
MacDonald’s
Transport
it
was found that the LRA did not contemplate that a CCMA or bargaining
council arbitrator, both statutory roles, would have
the last word on
the proper interpretation of an instrument as this would mean that a
patently wrong interpretation would be left
intact, which ‘would
be absurd’. The wrong interpretation of an instrument by
an arbitrator could therefore constitute
a reviewable irregularity as
envisaged by s 145 of the LRA, in the sense that a reasonable
arbitrator does not get a legal point
wrong. The court concluded that
either ‘the reasonableness test is appropriate to both value
judgments and legal interpretations.
If not, “correctness”
as a distinct test is necessary to address such matters’. This
view was echoed in
NUMSA
, in
which it was stated that an incorrect interpretation of the law by a
commissioner constitutes a material error of law
which ‘will
result in both an incorrect and unreasonable award’, which ‘can
either be attacked on the basis of
its correctness or for being
unreasonable’.’
[13]
[24]
As
against the above principles and test, I will now turn to deciding
the merits of the review application by the DPSA.
Analysis
[25]
In
this instance, it must be appreciated that the case has nothing to do
with the unfair labour practice disputes one often finds
in the case
of grading of positions in the Public Service. The employees’
case was never founded on an unfair labour practice
in terms of
section 186(2)(a) of the LRA,
[14]
nor was any such dispute ever pursued to the PSCBC. It must follow
that any decisions taken, or discretions exercised by the DPSA
and /
or the DWAS, relating to how the AD and DD positions should be and
are actually graded in particular circumstances, is not
open for
consideration, and stand. This matter, at the heart of it, concerns
one thing only, being whether the employees have the
right,
ex
contractu
,
by virtue of the application of clause 18.1 of the 2012 Resolution,
to have their positions automatically graded at salary levels
10 and
12 respectively, and that this be done retrospectively to the date of
their first appointment to their AD and DD positions.
[26]
DPSA
has contended that the dispute brought by the employees does not
concern the interpretation or application of a collective
agreement,
as referred by the employees to the PSCBC, but is rather a dispute
about enforcement of a collective agreement or an
attempt to review
the terms of the 2009 and 2012 Resolutions. I do not think there is
any merit in this argument. In
Health
and Other Services Personnel Trade Union of SA on Behalf of
Tshambi
v
Department of Health, KwaZulu-Natal
[15]
the Court held:
‘
What
is a 'dispute' per se, and how one is to recognise it, demands
scrutiny. Logically, a dispute requires, at minimum,
a
difference of opinion about a question. A dispute about the
interpretation of a collective agreement requires, at minimum, a
difference of opinion about what a provision of the agreement
means. A dispute about the application of a collective agreement
requires, at minimum, a difference of opinion about whether it can be
invoked. …’
[27]
In
casu
,
there was clearly such a difference in opinion where it came to how
clause 18.1 of the 2012 Resolution should be interpreted,
and then
applied. According to the employees, clause 18.1 meant that they were
entitled to an automatic upgrade to salary levels
10 and 12, and that
this upgrade applied from the date when they were first appointed.
According to the DPSA on the other hand,
clause 18.1 would find no
application in this case, because the employees were all appointed
after 31 July 2012 and the clause
required an actual grading of the
posts at salary levels 10 and 12 in order to apply, which did not
exist. It is these differences
of opinion that lie at the heart of
deciding this matter, and it thus clearly concerns a dispute about
the interpretation and application
of the Resolutions concerned.
[16]
[28]
Because
the 2009 and 2012 Resolutions are legal instruments, in the form of
collective agreements, the ordinary principles applicable
to
interpreting and applying such legal instruments are to be utilized.
These principles were enunciated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[17]
as follows:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A
sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent
purpose of the document …’
[29]
There
has been some debate about what the aforesaid dictum in
Endumeni
supra
actually means. In
University
of Johannesburg v Auckland Park Theological Seminary and Another
[18]
the Court clarified the position as thus:
‘
This
approach to interpretation requires that 'from the outset one
considers the context and the language together, with neither
predominating over the other'. In
Chisuse
,
although speaking in the context of statutory interpretation, this
court held that this 'now settled' approach to interpretation,
is a
'unitary' exercise.
[45]
This
means that interpretation is to be approached holistically:
simultaneously considering the text, context and purpose.
The approach
in
Endumeni
'updated' the previous position, which
was that context could be resorted to if there was ambiguity or lack
of clarity in
the text. The Supreme Court of Appeal has
explicitly pointed out in cases subsequent to
Endumeni
that
context and purpose must be taken into account as a matter of course,
whether or not the words used in the contract are
ambiguous. A
court interpreting a contract has to, from the onset, consider the
contract's factual matrix, its purpose, the
circumstances leading up
to its conclusion, and the knowledge at the time of those who
negotiated and produced the contract.
This means that parties
will invariably have to adduce evidence to establish the context and
purpose of the relevant contractual
provisions. That evidence could
include the pre-contractual exchanges between the parties leading up
to the conclusion of the contract
and evidence of the context in
which a contract was concluded. …’
[30]
And
more recently, in
Capitec
Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty)
Ltd and Others
[19]
,
the Court had the following to say:
‘
Endumeni
simply
gives expression to the view that the words and concepts used in a
contract and their relationship to the external
world are not
self-defining. The case and its progeny emphasise that the meaning of
a contested term of a contract (or provision
in a statute) is
properly understood not simply by selecting standard definitions of
particular words, often taken from dictionaries,
but also by
understanding the words and sentences that comprise the contested
term as they fit into the larger structure of the
agreement, its
context and purpose. Meaning is ultimately the most compelling and
coherent account the interpreter can provide,
making use of these
sources of interpretation. It is not a partial selection of
interpretational materials directed at a predetermined
result.
Most contracts, and
particularly commercial contracts, are constructed with a design in
mind, and their architects choose words
and concepts to give effect
to that design. For this reason, interpretation begins with the text
and its structure. They have a
gravitational pull that is important.
The proposition that context is everything is not a licence to
contend for meanings unmoored
in the text and its structure. Rather,
context and purpose may be used to elucidate the text.’
[31]
A
final reference is to
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of SA and Others
[20]
,
where the Court applied the aforesaid
dictum
in
Endumeni
supra
specifically in the context of interpreting a collective agreement,
and said:
‘
All
interpretations of law are themselves in a sense ‘factual’:
certain textual and other sources (for example, statutes,
common and
customary law) are excavated and marked out as factually ‘law’,
in contradiction to non-law. But this process
itself involves a
contextual analysis of those sources. See in this regard
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012
(4) SA 593
(SCA)
at para 18. Indeed, interpretation and
application are simultaneous and intricated. The most imaginative
exponent of this insight
is Ronald Dworkin. See Dworkin
Law’s
Empire
(Harvard University Press Cambridge 1986) at vii: ‘legal
reasoning is an exercise in constructive interpretation’,
in
which we advance ‘the best justification of our legal practices
as a whole’.’
[32]
I
will start the exercise contemplated by the principles summarized
above by first considering the
background facts
leading to adoption of clause 3.6.3.2 of the 2009 Resolution and
clause 18.1 of the 2012 Resolution. Prior to the
2009 Resolution, the
AD and DD positions often sat in what was called an ‘overlap’,
being that the post as it existed
could be at either a salary level 9
or 10, in the case ADs, or salary level 11 or 12 in the of DDs. This
would obviously cause
consistency problems. Clause 3.6.3.2 of the
2009 Resolution sought to correct this anomaly. What the clause
brought about was that
no matter at what salary level the particular
individual AD or DD post had been determined to be at in the past,
any appointment
of employees as ADs or DDs after 1 July 2010 could
only be at salary level 9 in the case of ADs, or salary level 11 in
the case
of DDs. However, and with the aforesaid anomaly being
resolved, another was created. What about those AD or DD positions
that had
actually been properly graded, by way of job evaluations,
and had turned out, based on these job evaluation results, to be a
salary
level 10 or salary level 12 position. It would in effect mean
in the case of any appointments after 1 July 2010 in such instances,
the employee would be under graded. That is where clause 18.1 of the
2012 Resolution then came in to correct this anomaly. It would
permit, despite the prescripts of clause 3.6.3.2 of the 2009
Resolution, and where an employee’s position that was actually
graded and that grading came out at a salary level 10 or 12, that
that employee could be appointed at that salary level.
[33]
When
one considers the award of the first respondent, it appears that he
was more or less alive to the aforesaid background. He
referred to
the fact that prior to the introduction of clause 3.6.3.2 of the 2009
Resolution, the AD posts could either be graded
at a salary level 9
or 10, and the DD posts at a salary level 11 or 12. He also found
that clause 3.6.3.2 and its introduction
in effect ‘
abolished
’
grading at salary levels 10 and 12 for the AD and DD posts. Save for
the issue of whether there was an actual abolishment
of gradings,
this reasoning is in mostly line with the above facts.
[34]
Against
this background, and then considering the wording of clauses 3.6.3.2
of the 2009 Resolution and clause 18.1 of the 2012
Resolution, what
do these clauses then mean? From the outset, the clauses must be read
together, because the very purpose of clause
18.1 was to amend clause
3.6.3.2, and not substitute it. The text of cause 3.6.3.2 is in my
view clear and unambiguous. As I have
said, it contemplated that as
from 1 July 2010, all ADs shall be appointed at salary level 9 and
DDs shall be appointed at salary
level 11, and no other salary level
of appointment is allowed, no matter what the grading of the post. It
is as simple as that.
That being so, how does clause 18.1 of the 2012
Resolution then amend clause 3.6.3.2? In my view, by adding a
proviso, to the effect
that where an AD or DD post has actually been
graded on salary level 10 and 12, it is
allowed
that an employee may be appointed and remunerated at salary level 10
and 12, as the case may be. So, in simple terms, and for all
practical purposes, the combined version of clause 3.6.2.3 and clause
18.1, would read something like this:
‘
The
commencing salary for all employees on the posts not covered by an
OSD as per PSCBC Resolution 1 of 2007 and 3 of 2008 and appointed
as
Assistant Directors and Deputy Directors shall, with effect from the
1
st
July 2010 be on salary Level 9 and Salary Level 11 respectively,
provided that it is allowed that employees whose posts are graded
on
Salary Level 10 and 12 to be appointed and remunerated on Salary
Level 10 and 12 respectively.’
I must emphasize that I
am not re-writing the clauses, but am simply providing a practical
illustration how the texts of the two
clauses, as they stand, would
be properly and competently married, as they should be.
[35]
The
first respondent found that only job gradings that were done
(existed) prior to 31 March 2010 would be of any relevance to the
application of clause 18.1. But this finding would be patently wrong,
not only based on the interpretation I have set out above,
but also
for several other reasons. First, the date of 31 March 2020 is wrong.
Although the 2009 Resolution became operative on
1 April 2010, clause
3.6.3.2 itself only became applicable as from 1 July 2010. Secondly,
and more importantly, it is not only
gradings of salary levels made
prior to 1 July 2010 that would be relevant to the application of
clause 18.1. To describe it as
simply as possible, where employees
had already been appointed prior to 1 July 2010 in either salary
levels 9 or 10 in the case
of ADs, or salary levels 11 and 12 in the
case of DDs, nothing would change for them after 1 July 2010. There
is no suggestion,
indication, or evidence, that the effect of clause
3.6.3.2 would mean that already appointed employees (employees
actually appointed
prior to 1 July 2010) at salary levels 10 and 12
would be downgraded to salary levels 9 and 11. Clause 3.6.3.2 clearly
only contemplated
first time appointments made after 1 July 2010,
which could then only be at salary levels 9 and 11. This remained the
case until
the introduction of the amendment by way of clause 18.1 on
31 July 2012. So what would happen after clause 18.1 came into effect
is that any appointment of an employee made after 1 July 2010 into a
post that had been actually graded, at any time prior to the
appointment of the employee being made, at salary levels 10 or 12,
would entitle (allow) a Department to upgrade such an employee
to
salary level 10 or 12. The initial approach adopted by the first
respondent in interpreting clause 18.1 was thus entirely incorrect.
[36]
The
first respondent found that clause 18.1 ‘
anticipated
’
that an employee could occupy a post at either salary level 9 or 10
in the case of an AD, or either a salary level 11 or
12 in the case
of a DD. That would be correct. The first respondent further found
that it was not intended that clause 18.1 would
substitute all
employees having salary levels 9 and 11, with salary levels 10 and
12. Again, this is correct. But having made these
findings, the first
respondent’s reasoning then goes awry.
[37]
As
said, the first respondent reasons that the employees occupying the
AD or DD posts must be paid according to the job gradings
in
existence prior to 2010 when the posts were last graded. This
reasoning is not sustainable, for the reason already given. It
is not
about when the job was graded. It is about whether the job was
actually graded at a specific salary level. Clause 18.1 also
does not
provide that an employee ‘
must
’
be appointed to salary level 10 or 12 in such circumstances. The
clause simply allows for it, in circumstances where, between
1 July
2010 and 31 July 2012, no appointment other than on a salary level 9
or 11 was allowed. In fact, the first respondent’s
own
reasoning as set out above implies that there is no compulsory and
prescribed upgrade. So, it is difficult to understand why
only a
salary level 10 and 12 grading done prior to 1 July 2010 would result
in an upgrade, which is what the first respondent’s
finding
contemplates.
[38]
An
illustration by example is perhaps appropriate. An employee is
appointed to a DD position on 1 January 2012. Because of clause
3.6.3.2, he can only be appointed at salary level 11. However, the DD
post to which the employee was appointed was actually graded
pursuant
to a job evaluation and outcome done on 1 February 2011, at a salary
level 12. Does this now mean that this employee does
not qualify for
an upgrade just because the grading was not done prior to 1 July
2010? Surely not. This is where the real intention
of clause 18.1
becomes evident. It was intended to resolve a specific problem. That
problem only existed in the period between
1 July 2010 and 31 July
2012, when ADs and DDs could only be appointed at salary levels 9 and
11, even if the post they had been
appointed to had actually been
graded higher. Prior to 1 July 2010 there would be no such problem,
as ADs and DDs could be (and
was) appointed to salary levels 10 and
12 respectively. So, what clause 18.1 did was to empower any
Department to upgrade the salary
level of such an employee only in
the case where such post, at any time prior to the appointment of the
employee, had actually
been graded at salary levels 10 and 12. This
further means that for any appointments after 31 July 2012, it is
competent for any
Department to appoint an AD at either salary level
9 or 10, or a DD at either salary level 11 or 12, depending on actual
job grade
outcomes. In failing to properly appreciate this, the first
respondent committed a gross and reviewable irregularity.
[39]
When
one turns to the employees, it is difficult to understand why they
should derive any benefit from a measure intended to correct
a
problem that only applied until 31 July 2012, prior to them being
appointed. Considering they were appointed after 31 July 2012
to AD
and DD posts at salary levels 9 and 11, this resorted well within the
competence of DWAS to do. There is simply no basis,
in my view, upon
which clause 18.1 can then be applied to these appointments to
generate some or other automatic upgrade to salary
levels 10 and 12.
[40]
But
on the facts, and despite clause 18.1 of the 2012 Resolution not
specifically providing and stipulating to this effect, the
DPSA had
adopted the view in the 2014 Circular that where it can be shown that
there was an actual job evaluation as evidenced
by a job evaluation
report prior to the appointment of the employee concerned, showing
the salary level as being either 10 of 12
as the case may be, the
employee concerned would be automatically upgraded. But importantly,
this view of the DPSA was not open
ended, and according to it,
automatic upgrades would only apply to jobs that were actually graded
at salary levels 10 and 12 in
the period between 1 July 2010 and 31
July 2012. If that is how the DPSA wished to apply the clause, then
so be it, and there would
be nothing wrong with it, as it would fall
within the parameters of what the clause allowed. This manner of
application would mean
that none of the employees would qualify for
an automatic upgrade, as there was no evidence of their posts being
graded in the
period between 1 July 2010 and 31 July 2012. This
approach of the DPSA does not change the meaning of clause 18.1 as I
have discussed
above. It can in fact be said that what the DPSA did
was empowered by clause 18.1. As I have explained, clause 18.1 allows
the
DPSA to effect an upgrade, provided there was an actual job
grading as evidenced by a proper job evaluation outcome, as nothing
in clause 18.1 says the DPSA must upgrade. What the DPSA has done is
to simply exercise this power given to it, and stipulated
that an
automatic upgrade would follow where there was an actual job grading
done between 1 July 2010 and 31 July 2012 as supported
by actual job
evaluation results.
[41]
Where
the first respondent also gets it wrong is where he concludes that
clause 3.6.3.2 ‘
abolished
’
salary levels 10 and 12 for AD and DD positions. That is simply not
correct. What the clause did was to provide, effectively,
that no
matter what graded salary level existed, appointments to AD or DD
positions could only be done at salary levels 9 and 11.
But it never
abolished the actual job gradings that may be associated with those
positions, whenever those may have been made.
The fact that these
gradings continued to exist is why clause 18.1 could work. The point
simply is that if an employee lost out
on an appointment at a higher
salary level supported by an actual job grading done, between 1 July
2010 to 31 July 2012, because
of clause 3.6.3.2 of the 2009
Resolution, that could be remedied.
[42]
In
my view, it is incomprehensible that clause 18.1 could come to the
assistance of the employees, because they were appointed after
the
problem sought to be resolved by clause 18.1, had already been
resolved. There was no prohibition on the employees being appointed,
at the very outset of their appointments, to salary levels 10 or 12.
The DWAS advertised the positions at salary levels 9 and 11.
The
employees applied for these positions on such basis, and were
appointed on such basis. It must follow that there was no actual
alternative grading of their positions, because if there was, they
would have been appointed at salary levels 10 and 12, as clause
3.6.3.2 no longer prohibited it. It is only if there was no actual
job gradings that clause 3.6.3.2 would compel an appointment
at
salary level 9 or 11. But more importantly, if the employees believed
that they were wrongly graded when they were appointed
at salary
levels 9 and 11, they should have pursued an unfair labour practice
dispute relating to benefits to the PSCBC.
[21]
[43]
In
my view, what is clear from a proper and common-sense consideration
of clause 18.1, is that there are three requirements that
must be
fulfilled in order for an employee to qualify for the automatic
upgrade in terms of the clause, as applied by the DPSA
in the 2014
Circular. The first is that the post must be actually graded and a
job evaluation outcome provided. The second is that
the grading must
have happened between 1 July 2010 and 31 July 2012. The third is that
this job evaluation outcome must reflect
a salary level 10 or 12. If
any one of these requirements are not met, then the employee cannot
qualify for an automatic upgrade
in terms of the clause.
In
casu
, there was no evidence of an
actual job evaluation being done on any of the posts the employees
were appointed to, in the period
1 July 2010 and 31 July 2012. As
such, they would not qualify for an automatic upgrade. The first
respondent acted unreasonably
in failing to appreciate this.
[44]
But
even considering the position without having any regard to the manner
in which the DPSA sought to apply clause 18.1, then the
employees
would still have the problem that clause 18.1 does not compel the
DPSA or the DWAS to upgrade the employees. The clause
simply
allows
for it to happen. To describe it as simply as possible, clause 18.1
does not read that employees whose posts were graded on salary
levels
10 and 12 ‘
shall
’
be appointed and remunerated on salary levels 10 and 12 respectively.
It reads that such an appointment is ‘
allowed
’
in such circumstances. It must follow that the employees have no
right to demand an upgrade. It still remains the prerogative
(discretion) of the DPSA to effect such an upgrade. This leaves the
employees with one of two choices if they want to challenge
their
salary levels. They can either say that they were wrongly appointed
at salary levels 9 and 11, because their posts are actually
graded at
salary level 10 and 12, which would be an unfair labour practice
relating to benefits.
[22]
Or
they could say that it was unfair for the DPSA to decide not to
upgrade them to salary levels 10 and 12 as it was entitled to
do,
which would be an unfair labour practice relating to promotion.
[23]
No unfair labour practice dispute was ever pursued by the employees.
The point is that a dispute concerning the interpretation
or
application of a collective agreement cannot be used to circumvent
this, as this the PSCBC cannot decide an unfair labour practice
dispute under the auspices of a dispute concerning the interpretation
or application of a collective agreement.
[24]
[45]
The
DPSA, which is the Department responsible to finally approve
gradings, would of course be free to at any time, in consultation
with the DWAS, to conduct a new salary level grading of some or all
of the posts in the DWAS. The first respondent correctly appreciated
this in his award. However, and according to the first respondent,
any such grading exercise would have ‘
no
bearing
’ on the application of
clause 18.1. This reasoning is in my view completely wrong. Clause
18.1 is not some or other form
of immunity protecting the employees
from any actual lower grading of their positions being conducted at
any time after their appointment,
and going forward.
In
casu
, there was an actual grading
exercise conducted by the DPSA in 2014 which set the employees’
posts at salary levels 9 and
11. That means that the actual grading
that would apply to the employees’ AD and DD positions would be
at this salary level,
and this was already the position before the
dispute was referred to the PSCBC. Clause 18.1 cannot change this.
[46]
Another
difficulty is that the employees simply failed to prove their case to
the effect that they were appointed in positions that
were actually
graded by way of job evaluation results, that would bring clause 18.1
into play. Whilst it is true that in the arbitration
an undisputed
list of AD and DD positions was produced, that were graded according
to such list at salary levels 10 and 12, there
was no evidence by
each individual employee that such employee was actually appointed to
any of such listed graded positions. In
simple terms, the employees
did not produce evidence that their specific individual appointments,
with job descriptions, key performance
areas, responsibilities, and
the like, matched the listed salary level 10 and 12 graded positions.
I point this out as an aside,
because, as I have said, there is
nothing in clause 18.1 that entitles the employees to an automatic
upgrade as they demanded,
and which the first respondent clearly
wrongly awarded.
[47]
This
then only leaves the upgrading done by the DWAS on 1 December 2015.
According to a report compiled by the DWAS in March 2015,
such
Department considered the provisions of clause 18.1, as well as
various background facts and alleged arbitration awards (the
details
of which need not burden this judgment) and came to the conclusion
that a proper interpretation of clause 18.1 required
an ‘
upgrade
’
of the AD and DD positions to salary levels 10 and 12. According to
the DPSA, this grading done by the DWAS was irregular.
As stated
above, even the first respondent accepted that it was a nullity. But
in the end, and fortunately, little turns on this,
because even
accepting that when the DWAS of its own accord decided to upgrade
these same positions with effect from 1 December
2015, whether
rightly or wrongly, it could only be a new salary level grading, that
would seek to change the earlier salary level
grading by the DPSA in
2014. As such, it cannot apply retrospectively, and can only apply
going forward. It therefore cannot serve
a justify a retrospective
upgrade of the employees’ salary levels.
[48]
In
the end, the case
in
casu
has many similarities with the judgment in
Herbert
supra.
[25]
In that case,
[26]
it was about
whether only the experience gained by a psychologist (employed in
employed by the Western Cape Education department)
after registration
with the HPCSA should be taken into account where it came to an
upward translation under an OSD agreement, and
not also prior
experience. The OSD agreement did not specifically provide to this
effect, and only referred to ‘
relevant
experience
’.
The
arbitrator, in interpreting the agreement, found that since the
functions performed by the employee before registration were
the same
as those performed after registration, his relevant earlier
experience had to be considered, as this was what was meant
by the
OSD agreement. On that basis, the arbitrator determined that the
employee should have been translated into the role of grade
3
education psychologist and that he be remunerated on the grade 3
scale, with retrospective pay. The Court, in considering this
reasoning by the arbitrator, held as follows:
[27]
‘
In
interpreting the collective agreement in this matter, the arbitrator
was required to have regard to the aim and purpose of the
collective
agreement, the words and language used in it, having regard to
ordinary rules of grammar and syntax, and the context
in which the
disputed terms appear in the agreement.’
Having
so held, the Court then concluded:
[28]
‘
Having
regard to the plain meaning of the words, the language used in the
light of the ordinary rules of grammar and syntax and
the context in
which the words are used, it is apparent that the ‘relevant
experience’ required for the role of grade
2 and 3 education
psychologist was that gained ‘after registration with the
[HPCSA] in respect of RSA qualified psychologist’.
The
registration required for appointment into both grades was
‘[r]egistration with the [HPCSA] as psychologist’. It
follows that the relevant experience referred to is that obtained
‘after registration’ as a psychologist and not in
any
different role. As much is supported by the reference to relevant
experience, after registration, in respect of ‘a RSA
qualified
psychologist’. It is therefore years of experience as a
registered psychologist that is required and which is ‘relevant’
for purposes of the provision. A different finding does not accord
with the plain meaning of the OSD agreement, nor with its aim
and
purpose, which expressly sought to retain and attract specialist
skills in particular identified roles in public education.
Had it been intended that
relevant experience prior to registration as a psychologist was
permissible, the provision would have
stated as much expressly. …’
[49]
Based
on what I have summarized above, this same kind of considerations
would equally apply
in casu
.
Clause 18.1 of the 2012 Resolution does not prescribe an automatic
upgrade of salary level, considering the plain text thereof.
This
clause was also intended to correct an anomaly applicable only to a
specific period, and cannot serve as some kind of licence
to demand
an automatic upgrade later. It is clear that clause 3.6.3.2 of the
2009 Resolution read together with clause 18.1 of
the 2012 Resolution
provides that in the ordinary course, appointments of ADs and DDs
take place at salary levels 9 and 11, however
where there exists a
proper job evaluation and outcome actually grading a particular
position at salary level 10 or 12, the appointment
may (and not must)
be made at that level.
[50]
In
summary, I therefore conclude that the employees cannot rely on
clause 18.1 of the 2012 Resolution to effect what is nothing
else but
an automatic retrospective upgrade of their positions. This clause
does not provide for such an eventuality. It only allows
for an
upgrade to happen, but does not prescribe that an upgrade must
happen. If clause 18.1 contemplated an automatic upgrade
based on job
evaluations, it would have provided for it. The clause simply
intended to remedy a past anomaly, which only existed
for a specific
period in time. It was never intended to serve as a licence to claim
upgrades for future appointments after this
period of anomaly ended.
If employees appointed after 31 July 2012 believed that there were
problems, anomalies or difficulties
with regard to the salary levels
at which they were appointed, these can only be dealt with and
resolved under the unfair labour
practice jurisdiction of the LRA,
and not by way of an interpretation and application of a collective
agreement dispute.
[51]
In
his award, the first respondent concluded that clause 18.1 of the
2012 Resolution is ‘
interpreted
’
to mean that public service officials who occupy the posts of ADs and
DDs, as ‘
covered
’
by clause 3.6.3.2 of the 2009 Resolution, must be appointed and
remunerated at salary levels 10 and 12 with effect from
their dates
of appointment, if the posts were graded at such levels prior to 31
March 2010, and that they must be paid at such
salary levels from the
date of their appointment. Considering all I have set out above, this
interpretation is plainly materially
wrong. The following conclusion
in
Herbet
supra
is apposite
in
casu
:
[29]
‘
The
arbitrator in this matter incorrectly interpreted the relevant
appointment provisions contained in annexure C3 to the OSD agreement
insofar as they related to the appellant. This error was of such a
material nature that it resulted in a decision which, on a proper
interpretation of the OSD agreement, was one that a reasonable
arbitrator on the material before them could not reach. The Labour
Court was correct in finding that the arbitration award fell to be
set aside on review.’
Conclusion
[52]
Therefore,
and based on all the reasons set out above, I conclude that the first
respondent’s arbitration award constitutes
a material error of
law to the extent that the determination he arrived at is
unreasonable and thus cannot be sustained. The arbitration
award thus
falls to be reviewed and set aside.
[53]
Having
reviewed and set aside the award of the first respondent, I see no
reason to remit this matter back to the second respondent
again for
determination
de novo
before another arbitrator. In terms of section 145(4), I have the
power to finally determine the matter. As stated above, the factual
matrix in this matter was undisputed and in fact to a large extent
common cause. The interpretation of the 2009 Resolution and
the 2012
Resolution is in essence a legal conclusion, and need not be
considered and then decided all over again in another forum.
The
matter also dates back to 2015, and must be finished off. I therefore
consider it appropriate to finally determine this matter,
once and
for all. As a result, I consider it appropriate that the arbitration
award of the first respondent be substituted with
an award that the
provisions of section 18.1 of the 2012 Resolution does not find
application in this case, and cannot serve as
a basis for the
employees to be entitled to an automatic retrospective application of
an upgrade of their salaries to salary levels
10 and 12.
Costs
[54]
This
only leaves the issue of costs. In terms of section 162(1) of the
LRA, I have a wide discretion where it comes to the issue
of costs.
Even though the applicant was successful, I do not intend to make a
costs award against the third respondent parties,
as they at least
had an arguable case. I also do not think any of the parties acted
unreasonably in seeking to pursue this matter
to finality, and in any
event, it is an issue that called for final determination by this
Court. I also consider
the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[30]
where
it comes to costs awards in employment disputes before this Court,
and in this case there certainly exists no reason to depart
from the
principle set out therein.
Therefore,
I consider it to be in the interest of fairness that no costs order
should be made.
[55]
It
is for all the reasons as set out above that I made the order that I
did, as reflected in paragraph 3 of this judgment, supra.
S Snyman
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Advocate M H Mhambi
Instructed
by:
The State Attorney
For the Third
Respondent:
Ms L Weideman of Kietzman & Weideman Attorneys
[1]
Act
66 of 1995 (as amended).
[2]
Such a dispute is contemplated by section 24 of the LRA, which
provides for the dispute to be resolved by way of arbitration.
[3]
(2007)
28 ILJ 2405 (CC).
[4]
Id
at para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[5]
See
Duncanmec
(Pty) Ltd v Gaylard NO and Others
(2018)
39 ILJ 2633 (CC) at para 43.
[6]
Id at para 41.
[7]
(2013)
34
ILJ
2795 (SCA)
at para 25. See also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14;
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[8]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016)
37 ILJ 116 (LAC) at para 32.
[9]
(2015)
36 ILJ 1453 (LAC) at para 12.
[10]
See
Head
of Department of Education v Mofokeng and Others
(2015)
36
ILJ
2802
(LAC) at paras 32 – 33;
Democratic
Nursing Organisation of SA on behalf of Du Toit and Another v
Western Cape Department of Health and Others
(2016)
37
ILJ
1819
(LAC) at paras 21 – 22;
Civil
and Power Generation Projects (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others
(2019)
40 ILJ 2055 (LC) at para 33.
[11]
In
National
Union of Metalworkers of SA v Assign Services and Others
(2017)
38
ILJ
1978
(LAC) at para 32, it was held: ‘…
An
incorrect interpretation of the law by a commissioner is, logically,
a material error of law which will result in both an incorrect
and
unreasonable award. Such an award can either be attacked on the
basis of its correctness or for being unreasonable …
’.
This
judgment of the LAC was upheld by the Constitutional Court in
Assign
Services (Pty) Ltd v National Union of Metalworkers of SA and Others
(Casual Workers Advice Office as Amicus Curiae)
(2018)
39
ILJ
1911
(CC).
[12]
(2022)
43 ILJ 1618 (LAC) at para 24.
[13]
The Court was referring to
MacDonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union and Others
(2016)
37
ILJ
2593
(LAC) at para 29, and
Assign
Services
(
supra
).
[14]
The
section reads: ‘’
Unfair
labour practice’ means any unfair act or omission that arises
between an employer and an employee involving (a) unfair
conduct by the employer relating to the promotion, demotion,
probation or training of an employee or relating to the provision
of
benefits to an employee’
.
[15]
(2016)
37 ILJ 1839 (LAC) at para 17. See also
MEC
for Economic Development, Environment and Tourism, Limpopo v Leboho
(2022) 43 ILJ 2695 (SCA) at paras 15 – 16;
Member
of the Executive Council: Police, Roads and Transport, Free State
Provincial Government v Public Service Co-Ordinating
Bargaining
Council and Others
(2022) 43 ILJ 1628 (LAC) at para 61.
[16]
Compare
Passenger
Rail Agency of SA v Commission for Conciliation, Mediation and
Arbitration and Others
(2020)
41 ILJ 961 (LC) at para 44.
[17]
2012
(4) SA 593
(SCA) at para 18. See also
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para 12;
Democratic
Nursing Organisation of SA on behalf of Du Toit and Another v
Western Cape Department of Health and Others
(2016)
37 ILJ 1819 (LAC) at para 33.
[18]
2021
(6) SA 1
(CC) at paras 65 – 67.
[19]
2022
(1) SA 100
(SCA) at paras 50 – 51.
[20]
(2017)
38 ILJ 831 (CC) at fn 28.
[21]
In
National
Union of Mineworkers on Behalf of Coetzee and Others v Eskom
Holdings SOC Ltd
(2020)
41 ILJ 391 (LAC) at para 66, it was held: ‘
The
failure to properly grade an employee is related to the provision of
benefits for the simple reasons that benefits (including
status,
remuneration, eligibility for promotion etc) are normally determined
by grade. As Ms Harvey, on behalf of NUM, correctly
submitted,
an employee who complains that his or her job is wrongly graded does
not seek promotion to a new, higher or different
job. Any re-grade
of the job to coincide with the actual work done does not change the
job contents. A re-grade does not promote
an employee into a new
position — it merely recognises the correct value to be
attached to what the employee, in fact,
is already doing. A
promotion gives an employee a different or revised task. A dispute
about an unfair incorrect grading is
thus an unfair labour
practice dispute relating to the provision of benefits …
’.
[22]
Compare
Aucamp
v SA Revenue Service
(2014) 35 ILJ 1217 (LC) at para 30.
[23]
As
the Court said in
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013)
34 ILJ 1120 (LAC) at para 51: ‘…
An
employee who wants to use the unfair labour practice jurisdiction in
s 186(2)(a) relating to promotion or training does not
have to show
that he or she has a right to promotion or training in order to have
a remedy when the fairness of the employer's
conduct relating to
such promotion (or non-promotion ) or training is challenged …
’.
See also
Passenger
Rail Agency
(
supra
)
at paras 69 – 70.
[24]
See
Tshambi
(
supra
)
at paras 14 – 15;
Passenger
Rail Agency
(
supra
)
at para 45.
[25]
Id at fn 12.
[26]
See paras 8 and 9 of the judgment.
[27]
Id at para 16.
[28]
Id at para 18 – 19.
[29]
Id at para 25.
[30]
(2018)
39 ILJ 523 (CC) at para 25. See also
Union
for Police Security and Corrections Organisation v SA Custodial
Management (Pty) Ltd and Others
(2021)
42 ILJ 2371 (CC) at para 35.