Gauteng Provinsiale Administrasie v Scheepers and Others (JA44/99) [1999] ZALAC 29 (1 January 1999)

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[1999] ZALAC 29
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Gauteng Provinsiale Administrasie v Scheepers and Others (JA44/99) [1999] ZALAC 29; [2000] 7 BLLR 756 (LAC); (2000) 21 ILJ 1305 (LAC) (1 January 1999)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
Held
at Johannesburg
CASE
NO.:JA 44/99
In the matter
between:
DIE GAUTENG
PROVINSIALE ADMINISTRASIE
Appellant
and
A E
SCHEEPERS
First
Respondent
L
J SMIT
Second
Respondent
J
B C BARWISE
Third
Respondent
JUDGMENT
CONRADIE
JA
[1] There are
two procedural matters relating to the prosecution of this appeal
from the judgment of the industrial court. The notice
of appeal was
delivered late. The non-compliance has been satisfactorily explained.
It had to do in part with the omission of the
industrial court to
give the appellant’s attorneys notice of the delivery of the
judgment, and in part with the non-availability
of counsel who
conducted the matter in that court. That necessitated the briefing of
new counsel. The delay was not significant and
was not caused by
carelessness or indifference. We accordingly condoned the
non-compliance.
[2] The record
of the appeal proceedings was also delivered late. It was due on 13
September 1999, but was only delivered on 4 November
1999. Rule 5 of
the rules governing proceedings in the labour appeal court deals with
delivery of an appeal record. Sub-rule (8)
provides that ‘the
record must be delivered within sixty days of the date of the order
granting leave to appeal…’ This formulation
has given occasion to
my brother Zondo to remark in
Xaba
v Portnet Ltd
[2000]
1 BLLR 55
(LAC)
and
JDG Trading (Pty) Ltd t/a Price ‘n Pride v Brunsdon
(case
no JA 70/98, Judgment 21.10.99) that a determinable period for
delivery of an appeal record cannot be said to have been laid
down by
the rules in the case of an appeal from the industrial court. I was
inclined to the view that one should, in the context
of an appeal
from the industrial court, adopt the expedient of reading the section
as though it provided for a period of sixty days
from the date of the
industrial court judgment appealed against. This is the scheme of
rule 7 of the rules of the supreme court of
appeal. However, this
interpretation runs into the difficulty that rule 5A permits an
appeal to be noted ten days after the date
on which the court gives
(full) reasons for its judgment. This, as experience has shown, may
be long after the sixty days have elapsed.
The record cannot be
delivered before this. It would be fruitless to do so and is, anyway,
not allowed by sub-rule (7).
[3] The
majority view taken in
Xaba
v Portnet
(supra) has the merit of avoiding the difficulties associated with
sub-rule (17). That sub-rule prescribes a procedure for permission
to
deliver an appeal record late –
(17) If the
appellant fails to lodge the record within the prescribed period, the
appellant will be deemed to have withdrawn the appeal,
unless the
appellant has within that period applied to the respondent or the
respondent’s representative for consent to an extension
of time and
consent has been given. If consent is refused the appellant may,
after delivery to the respondent of a notice of motion
supported by
affidavit, apply to the Judge President in chambers for an extension
of time. The application must be accompanied by
proof of service on
all other parties. Any party wishing to oppose the grant of an
extension of time may deliver an answering affidavit
within 10 days
of service on such party of a copy of the application.
It is not
entirely clear whether the application to the judge-president
envisaged by the sub-rule must also be made within the sixty-day
period. I assume not. But it would still have to be made before the
record is lodged, since (without the consent of the respondent
to the
late delivery of the record) the appeal would have lapsed and a
lapsed appeal cannot be prosecuted. Another aspect which is
obscure
is whether the procedure in rule 5(17) is meant to be the only means
of obtaining an indulgence for the late filing of an
appeal record. I
would think not. Rule 12(1) of the labour appeal court rules gives
the court the power, for sufficient cause shown,
to excuse parties
from compliance with any of the rules. An appellant making an
application for condonation in terms of this rule
would, apart from
explaining the lateness of the record, also have to offer a
sufficiently persuasive explanation why an application
for an
extension of time for filing of the record was not timeously
presented to the judge-president and why the appeal should no
longer
be regarded as having lapsed. In all the circumstances and since the
respondents, with whose consent the period for delivery
of the record
could in any event have been extended, did not oppose the condonation
application, we condoned the late filing of the
record.
[4] The
appellant comes before us on appeal from a judgment of the industrial
court as the public body responsible for the affairs
of the Pretoria
Academic Hospital. (‘The Hospital’). The respondents are employed
at the Hospital where they at all relevant
times held posts in the
occupational class ‘administration clerk’ in the salary structure
group: administrative support personnel.
Despite their allocation to
this occupational group, they have for some time been employed to
perform tasks ordinarily performed
by incumbents of posts which fall
within the occupational class ‘network controller’ in the salary
structure group: information
technology personnel.
[5] The
occupational class of each of the appellant’s employees (in which I
include ‘officers’) is determined by a ‘Personnel
Administration Standard’ (‘PAS’). It prescribes the broad job
contents, appointment requirements, promotion requirements and
salary
determination and progression for employees in each occupational
class. The PAS favours network controllers with regard to
salaries,
benefits and career opportunities in comparison to administration
clerks. The first respondent has been tasked as a network
controller
since 1989 and the second and third respondents since 1992 and 1996.
The industrial court member found that it was unfair
of the appellant
to have used the respondents as information technology personnel when
they were not employed in that category. He
determined that this was
an unfair labour practice and made what he considered the appropriate
remedial orders.
[6] A similar
matter was recently heard in this court. Judgment was delivered on 9
March 2000 in H
ospersa
& another v Northern Cape Provincial Administration
case no.: JA39/99 It is as yet unreported. It decided that a chief
professional nurse who had for two years acted as nursing services
manager at the Gordonia hospital was not entitled to the salary
appropriate to the higher post. It was decided that the judgment
of
the labour court, given on review from a decision of a commissioner
of the Commission for Conciliation , Mediation and Arbitration
(‘The
CCMA’), that the decision could not be allowed to stand, was
correct. The labour court judgment has been reported as
Northern
Cape Provincial Administration v Hambidge NO
[1999] 7 BLLR 698
(LC). The labour court decided (at 701 H – I)
that the dispute about the so-called ‘acting allowance’ to which
the second appellant,
the employee, claimed to be entitled was a
dispute of interest which could not have been adjudicated by the
CCMA. The reasoning
was approved by this court. Mr Oosthuizen, who
appeared before us for the appellant, relied on the decision. Mr Van
der Merwe, for
the respondents, did not contend that it was wrong. He
contented himself by arguing that the respondents did indeed enjoy
certain
rights and that the dispute before this court was a dispute
of right.
[7] The
importance of the distinction between disputes of right and matters
of mutual interest in the present case is that the now
repealed
Public Service Labour Relations Act 105 of 1994 (‘the PSLRA’) did
not permit any dispute other than a dispute of right
to be submitted
to the industrial court. S 5(10)(a) of the PSLRA contained the
following provision –
‘
An employee
who … has declared a dispute … may apply in the case of an unfair
labour practice dispute, to the industrial court
in terms of this
Act, or, in the case of any other dispute of right, to any other
court for a decision…’
This provision
was amplified by s 22 dealing with the powers of the industrial
court. Ss (5) of s 22 read –
‘
(5) In the
event of a dispute of right not being –
resolved by a
chamber of the council;
settled by a
conciliation board; or
settled by the
parties contemplated in section 23(3),
any party to the
dispute may, in the case of an unfair labour practice, approach the
industrial court, or, in the case of any other
dispute of right, any
other court for adjudication of the dispute.’ The concession that
the industrial court could only have pronounced
upon the dispute if
it had been one of right, was therefore correctly made.
[8] There is a
valuable collection of authorities on what is to be comprehended
under the notion of dispute of right in
Mineworkers’
Union & another v AECI Explosives and chemicals Ltd,
Modderfontein Factory
[1995] 3 BLLR 58
(IC). The discussion shows that, by and large,
disputes of right concern the application or interpretation of
existing rights. Generally
speaking a dispute relating to proposals
for the creation of new rights or the diminution of existing rights
is a dispute of mutual
interest. Such disputes are ordinarily to be
resolved by collective bargaining. (See also:
Bester
Homes (Pty) Ltd v Cele & Others
(1992) 13 ILJ 877 (LAC) at 886 D – H;
Hlope
v Transkei Development Corporation Ltd
(1994) 15 ILJ 207 (IC(TK)). The PSLRA defined ‘matters of mutual
interest’ to mean,
inter
alia
,
terms and conditions of employment, employee compensation,
remuneration and service benefits.’ Since a rights dispute must be
one about a right or rights, the applicants before the industrial
court were obliged to show what that right was and where it was
located. It could be located in statute, in a collective agreement or
in a contract of employment or, as Mr Van der Merwe suggested,
in the
unfair labour practice under the 1956 Labour Relations Act.
[9] S 14(3)(c)
of the Public Service Act 103 of 1994 (‘the Public Service Act’),
in so far as it is presently relevant, provides
that an officer who
is employed in a post which is graded higher than his or her own
grade is not, by reason only of that employment,
entitled to a higher
scale of salary applicable to the post. S 30(c) of the Public Service
Act makes it impermissible for an officer
in the public service to
claim additional remuneration for any work which he or she is
required by a competent authority to perform,
unless his or her
conditions of service provide otherwise. S 30(c) being directed, I
would think, at the payment of overtime, it
and s 14(3)(c) are not
meant to cover exactly the same ground; but they do make the same
point. Unless provision therefor has been
made in a collective
agreement, or regulation or individual employment contract, an
officer has no claim (right) to remuneration
other than that which
attaches to the post to which he or she is appointed.
[10] It has not
been suggested that the respondents’ entitlement rested on any
(individual) employment contract. The only other
place where a right
might reside would be the Public Service Staff Code. That Code had,
by virtue of the provisions of s 13(5) of
the PSLRA, the status of a
collective agreement. Mr Van der Merwe was unable to point to any
provision in it which might have assisted
the respondents. It nowhere
provides that an employee whose services are utilised in a post other
than the one to which he or she
has been appointed is entitled to the
service benefits attaching to that post. The Code in clause 2(b) of
part IV rather suggests
the contrary:
‘
An officer
transferred to a post of a higher grade than his/her own (held out of
adjustment) or whose post is upgraded, is not entitled
to the higher
scale of salary applicable to that post (section 14(3)(c) of the
Public Service Act 1994)’
[11] In the
absence of any right derived from statute, collective agreement or
employment contract, what right was there to have sustained
the
respondents’ cause of action? The respondents rely on a right not
to be unfairly treated which is said to derive from the Labour
Relations Act 28 of 1956 and from s 1 of the PSLRA which defined
‘unfair labour practice’ in the same terms as the 1956 Labour
Relations Act. However, s 5(10)(a) and 22(5) of the PSLRA quoted
above made it clear that an unfair labour practice, to be
justiciable,
had to involve a dispute of right. If Mr Van der Merwe
were correct that an unfair labour practice included a broad general
‘right’
not to be unfairly treated, all practices which were
unfair would under the PSLRA have qualified as ‘unfair labour
practices’.
That was patently not the intention of the lawgiver.
Moreover, unfair labour practice, as traditionally understood,
involved the
infringement of a right; that the right (one thinks for
example of the entitlement of an employee to be heard before
dismissal for
misconduct) was judicially created pursuant to powers
given to the industrial court by statute, and not by contract or
legislation
did not make it less of a right.
[12] The
appellant ought not to employ persons as administration clerks and
then for extended periods utilise them as network controllers.
The
situation which this creates is intolerable to the employees. They
cannot progress within their own occupational class because
they are
not gathering experience in that field. They cannot progress in the
class within which they are utilised because they do
not strictly
speaking belong there. So, for example, an administration clerk is
not eligible to do a public service sponsored course
in information
technology because he or she does not fall in the information
technology occupational class. It is a phenomenon which
is by no
means uncommon in the public service. It even has a name in public
service jargon. It is called ‘misappropriation’.
There have been
discussions between the appellant and the respondents’ trade union
about the inequity of this practice since 1995,
but despite the
support of the appellant’s superintendent general of health and the
director: information technology for the establishment
of information
technology sub-directorates for the Hospital, the provincial service
commission has refused to approve their establishment.
There is
agreement on a broad front that the respondents should have different
and better conditions of employment. But a dispute
of that kind is an
interest dispute which can only be resolved by the mechanisms of
collective bargaining. The industrial court was
not entitled to
pronounce upon it.
Mr Oosthuizen
indicated that his client would, if successful, not seek costs on
appeal or in the court below.
The appeal is
upheld. The order of the industrial court is set aside and replaced
by one reading:
‘
The
application is dismissed.’
_______________
CONRADIE
JA
I
agree
______________
ZONDO
AJP
I
agree
_________________
WILLIS
JA
Date
of Hearing: 23 March 2000
Date
of Judgment:
Attorney
for Appellant: E H Erasmus for the State Attorney
Attorney
for Respondent: Sampson Oakes Higgins Inc
Counsel
for Appellant: Adv M M Oosthuizen
Counsel
for Respondent: Adv F J Van der Merwe