About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2024
>>
[2024] ZALAC 56
|

|

IMATU obo Spangenberg and Others v Overberg District Municipality and Others (CA09/2023) [2024] ZALAC 56; [2025] 2 BLLR 137 (LAC); (2025) 46 ILJ 321 (LAC) (15 November 2024)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA9/2023
In
the matter between:
IMATU
obo SPANGENBERG & OTHERS
Appellant
and
OVERBERG
DISTRICT MUNICIPALITY
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
COMMISSIONER
DANIEL DU PLESSIS N.O.
Third
Respondent
Heard:
17 September 2024
Delivered:
15 November 2024
Coram:
Savage ADJP, Mlambo AJA and Davis AJA
JUDGMENT
DAVIS,
AJA
Introduction
[1]
This is an appeal
against the decision of the court
a
quo
which had set
aside an arbitration award of the third respondent. The third
respondent (arbitrator) had found that the second respondent
had
committed an unfair labour practice in causing the appellant
employees’ job descriptions to be revised with the effect
that
their jobs were graded lower than what had been contained in a set of
recommendations, made by first respondent’s Job
Evaluation Unit
and approved by the Provincial Audit Committee (PAC). He thus ordered
that the first respondent pay each employee
R15 000 as
compensation and an amount which each employee would have received
had the initial job evaluation been properly
implemented.
[2]
The court
a
quo
substituted the
award of the arbitrator after it had found that the first respondent
acted in a procedurally unfair manner when
it revised the job
descriptions of the appellant employees. The court
a
quo
held that the
first respondent had committed an unfair labour practice relating to
the benefits of the employees represented by
the appellant.
[3]
The essence of the
order of the court
a
quo
is contained in
the following paragraphs of the order:
‘
1.
By 15 February 2023, the grievants, singly or jointly, and the
applicant must submit any written representations they wish
to make
to the Western Cape Provincial Audit Committee, mentioned in Clause
2.7 of the TASK Job Evaluation Policy adopted by the
Overberg
District Municipal Council on 3 December 2013, on why any of the
initial or revised evaluation are correct.
2.  By 30 March
2023, the Western Province Provincial Audit Committee (‘PAC’),
shall decide which if [sic] the
initial or revised evaluations are
correct after considering any such representations by the grievants
and the applicant, which
decision shall be final.
3.  The decision of
the PAC under paragraph 3.2 shall be implemented by the applicant
with retrospective effect to May 2015,
within 30 days of the decision
being made.’
[4]
The appeal is lodged
against these orders. Hence the appeal before this Court was argued
exclusively on this limited ground.
The factual matrix
[5]
Given the limited
nature of this appeal, the background to the arbitration award and
subsequent hearing before the court
a
quo
can be
summarised briefly.
[6]
On 3 December 2012, the
first respondent formally adopted the so-called TASK Job Evaluation
Policy which represented a job grading
methodology which had been
developed by auditors Deloittes.
[7]
A range of disputes
emerged but these were finally settled when the municipalities in the
Overberg District signed a memorandum
of agreement on 10 June 2015
for the purpose of implementing the TASK Job Evaluation System in
order to achieve “
uniform
norms and standards in the description of similar jobs and their
grading and to underpin job comparison
”.
[8]
The key to the policy
was contained in Clause 7 of the TASK Policy which reads thus:
‘
7
JOB EVALUATION PROCESS
7.1
If a job has changed substantially and permanently, a job incumbent
or his/her relevant manager may
make an application through the
departmental head that the job be re-evaluated; provided that such
functions were performed for
more than 6 months.
7.2
The TASK Job Evaluation Process shall be done on a continuous basis
by the JE Unit for as long as there
are new posts being added to the
staff establishment of the municipality as per s 66 of the Local
Government Municipal Systems
Act, 2000 (Act No 32 of 2000 as amended)
7.3
If required, the JE Unit shall gather the relevant facts from both
the incumbent of the jobs as well
as the relevant manager and the
Head of Department of the job in question to ensure adequate
information is available for the evaluation
of the post;
7.4
A competition of a job description should be preceded by a proper job
analysis;
7.5
The incumbent of the post as well as the relevant manager and Head of
Department shall be required to
sign off the job description prior to
the JE Unit grading the job on the TASK Job Evaluation System;
7.6
In the event of no consensus reached, the Manager or his/her nominee
will determine the content of job
description;
7.7
The evaluation takes place by
(a)
Determination of the skill level of the post
(b)
The scoring of the factors relating to Complexity, Knowledge,
Influence and Pressure;
(c)
The scoring of the sub-factors relating to Complexity, Knowledge.
7.8
The JE Unit shall then compile a JE Outcome Report for the PAC with
appropriate audit trail;
7.9
The PAC shall be furnished with all relevant documentation within (7)
working days prior to the date
of the PAC meeting to ensure
sufficient time for preparation;
7.10    A
representative of the JE unit shall present the result to the PAC.
7.11
The Chairperson of the PAC shall sign off the result of the job
evaluation process prior to the JE Unti communication
(
sic
)
same to the Municipal Manager for implementation on the effective
date.’
[9]
By 30 November 2015,
the work of the Job Evaluation Committee had been completed. Its
recommendations were approved by the Provincial
Audit Committee. In
December 2015, Mr David Beretti, the municipal manager of the first
respondent, halted the implementation of
these recommendations in
respect of some 12% of the staff who were concerned that some support
department management posts had
been more highly graded than those of
the managers of the municipality’s largest operational
department performing service
delivery functions. Furthermore, in
some cases, Mr Beretti was concerned that the new grades resulted in
a post being raised by
a salary equivalent of two grades compared
with the existing salary of an incumbent. A management team was then
constituted in
order to review the gradings which amounted to 12% of
the staff.
[10]
On 20 April 2016, Mr
Beretti wrote a letter to the affected employees which included the
following:
‘
I
have identified a number of concerns with the outcomes, which, if
implemented as is, would result in inconsistencies, errors or

anomalies. Some of the problems are as a result of poorly written
jobs descriptions which do not accurately describe the content
of
work. These jobs descriptions need to be revised. Your job
description has been identified as one of these which require
revision.
Human resources, together
with your line manager, will discuss this with you in the course of
this month. As soon as I received
the revised job descriptions, and
will resubmit them to the District Job Evaluation Committee.’
[11]
It appears to be common
cause that the affected employees were not invited to make any
further submissions on their job descriptions
before revisions were
implemented. These revisions were completed on 22 August 2016 which,
in turn, created the dispute which required
resolution by way of
arbitration.
[12]
In finding against the
first respondent the arbitrator held as follows:
‘
The
Municipal Manager signed over all of this rights and obligations
regarding the TASK process to the JEC and PAC. This was done
in line
with his obligations in terms of the Municipal Systems Act. Once the
PAC had come to a final conclusion, the results had
to be
implemented. Mr Beretti had no discretion. In terms of the Municipal
Systems Act he must act in line with policies. These
is no agreement
or policy that gives the PAC the authority to revisit a prior
endorsement and by so doing the PAC acted
ultra
vires
. These is
also no policy or agreement by virtue of which the job evaluations
could have been referred to the West Costs JEC. He
found that it was
the responsibility of the municipality’s own JEC and that in
terms of the MOA, the west Costs JEC did not
have the power to
perform evaluations for the ODM. Accordingly, the West Costs
evaluations had no legal consequences whatsoever
and consequently the
PAC’s consideration of the revised evaluations was similarly
irrelevant. In addition, Beretti overstepped
his powers by revising
the endorsed evaluations. The arbitrator held that having done so,
his actions could no longer be fair,
“irrespective of the
explanation or motives behind the action.’
[13]
The issue which is
central to the present dispute is that the arbitrator awarded two
forms of relief, being R15 000 to each
applicant as compensation
for the infringement of his or her right to a fair labour practice
and further that the first respondent
be ordered to pay each employee
what they would have received on the basis that the job evaluation
which had first been approved
by the PAC had been implemented at that
time.
The judgment of the
court
a quo
[14]
Sitting in the court
a
quo,
Lagrange J
found that the key question which the arbitrator had been called upon
to determine concerned the fairness of revising
some of the job
evaluations. Given this specific question, it is somewhat difficult
to divine the exact reasoning which led Lagrange
J to set aside the
arbitration award.
[15]
Reading the judgement
holistically it appears that the learned judge found that because the
arbitrator had rejected first respondent’s
motives for the
reassessment as being irrelevant, he failed to consider the interests
of either the employer or the affected employees
in this particular
case. Furthermore, he held that:
‘
[T]he
final assessment was again done by the same body which had considered
and approved the first evaluations, so the ad hoc revision
procedure
embarked upon still depended on a similar process to the one
envisaged in the policy, except that another municipality’s
JEC
was involved and employees did not have a clear opportunity to make
representations on the proposed revisions which would disadvantage

them in relation to the outcome of the first assessment process.’
[16]
Accordingly, in the
view of Lagrange J, the arbitrator had misdirected himself in the
manner in which he approached the dispute.
In particular, his
findings constituted a misdirection based on errors of law which had
led him to fail to consider significant
material considerations which
ought to have been weighed up; in particular, the motivations for the
reassessments and the opportunity
of the affected employees to make
relevant representations on the proposed revisions.
[17]
Based on the finding
that the affected employees did not have a fair opportunity to be
heard on the proposed regrading before the
PAC decided to do so,
Lagrange J found that the essential basis by which the arbitration
award was based stood to be set aside
for procedural irregularities
suffered by the affected employees as well as to the employer.
Accordingly, the appropriate remedy,
in the view of the learned
judge, was to rectify the defective process by taking account of the
bona fide
concerns of the person charged to provide job descriptions while
allowing the affected employees an opportunity to contest the

revisions. It is on this basis that the order of the court
a
quo
to which I have
made reference earlier was made.
Evaluation
[18]
Much of the dispute
between counsel concerned the scope of the appeal to this Court based
upon the nature of the wording of the
application for leave to
appeal. In its application for leave to appeal, the appellant
contends that the court
a
quo
had erred and
misdirected itself as follows:
‘
1.1
made an order against a party which was not before the court, namely
the Western Province Provincial
Audit Committee (“the PAC”);
1.2
made an order against the PAC without requesting submissions from the
parties regarding the appropriateness
or desirability of the order;
1.3
made an order against the PAC without inquiring whether that party
should be joined to the application;
and
1.4
made an order against the PAC without giving it an opportunity to
make submissions on the proposed order.’
[19]
As Mr Oosthuizen, who
appeared on behalf of the first respondent, correctly noted, in
effect, the argument of the appellant before
this Court was based on
a broadening of the appeal to attack the substantive findings of the
court
a quo
,
none of which could be found in the grounds set out the application
for leave to appeal. By contrast, the grounds of appeal were
located
solely in respect of the order made against the PAC. Hence in the
view of Mr Oosthuizen, this Court was constrained to
dispose of this
appeal on the basis of the application for leave to appeal.
[20]
In my view, there can
be little doubt that the order of the court
a
quo
was itself
misconceived in that it sought to compel a party not before it to be
subjected to an order and therefore to conduct
itself in the manner
directed in the order. The order was also made in circumstances when
the PAC had not been afforded an opportunity
to make submissions
regarding its willingness or ability to comply with the order. At the
very least, it should have been allowed
a hearing or an opportunity
to make written submissions regarding the impact of the order which
the court granted.
[21]
It is also regrettable
that, as appears from the record, the court did not inform the
relevant parties as to the direction of the
order it intended to make
in order to elicit their particular views in this connection.
Furthermore, it appears that in terms of
the TASK Job Evaluation
Policy, the PAC’s role was to sign off job evaluations
submitted to it by the relevant job evaluation
unit. It was not
required to act as a referee in determining which of the competing
job evaluations was correct. Accordingly, the
court
a
quo
had assigned a
role which, as Mr Bosch who appeared on behalf of the appellant
submitted, fell outside of the remit of the permitted
policy and
would thus have required the PAC to act
ultra
vires
.
[22]
The question which now
arises concerns the relief that this Court should grant in the light
of its finding that the court
a
quo
erred in a
material fashion. If the order of the court
a
quo
must be set
aside, what are the consequences? This Court was not asked to
reinstate the arbitration award as the notice of leave
to appeal did
not include such specific relief. However, the order of the court
a
quo
set aside the
arbitration award and substituted it with the order to which
reference has already been made. That substitution clearly
stands to
be set aside in that it was based on the material errors to which I
have made reference. In short, this order of substitution
should
never have been granted in that it does not pass legal muster.
[23]
Once the core of the
order is set aside in that the substitution can no longer stand, the
question arises as to the consequences
thereof. It must follow that,
once this Court has decided to set aside the substitution of the
arbitration award, the only option
which is available to it is to
hold that the arbitration award has no longer been substituted. It
would be legally meaningless
to set aside the substitution of the
award of the arbitration without more. The very purpose of the
substitution was to provide
relief in circumstances where the award
was no longer binding on the parties. The substituted order is
inextricably linked to the
initial setting aside of the award. Absent
the substitution, it must follow that the award of the third
respondent must stand.
[24]
For these reasons, the
following order is made:
Order
1.
The appeal succeeds
with costs.
2.
The order of the court
a quo
of 29 November 2021 is set aside.
3.
For this reason, the
arbitration issued under case number WCP031608 remains binding upon
the parties.
Davis AJA
Savage ADJP and Mlambo
AJA concur.
APPEARANCES:
FOR THE APPELLANT:
Instructed
by
FOR THE FIRST RESPONDENT:
Instructed
by