Telkom SA Ltd v Rajbunsi and Others (DA29/01) [2001] ZALAC 14 (1 January 2001)

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[2001] ZALAC 14
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Telkom SA Ltd v Rajbunsi and Others (DA29/01) [2001] ZALAC 14 (1 January 2001)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD
IN DURBAN
HELD
IN DURBAN
HELD
IN DURBAN HELD IN DURBAN HELD IN JOHANNESBURG HELD IN JOHANNESBURG
HELD IN JOHANNESBURG HELD IN JOHANNESBURG Case No: DA29/01
In
the appeal between:
TELKOM
SA Ltd Appellant
and
P.
RAJBUNSI 1
ST
Respondent
COMMISSIONER
A. DEYZEL 2
nd
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION 3
rd
Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO
JP
Introduction
[1] After
hearing argument presented on the appellant

s
behalf in this matter, we dismissed the appeal but made no order as
to costs as it was not opposed. We indicated then that the
reasons
for that order would follow. These are they.
[2] The
appellant appealed to this Court against a judgement given by the
Labour Court in an application brought by it to have a
certain
arbitration award reviewed and set aside. The award had been issued
by the second respondent, a commissioner employed by
the Commission
for Conciliation, Mediation and Arbitration, the third respondent,
in a dispute between the appellant and the first
respondent. The
dispute related to the correct rate of pay applicable to the first
respondent. The arbitration award was in favour
of the first
respondent. The Labour Court dismissed the appellant

s
review application and made no order as to costs. It subsequently
granted the appellant leave to appeal to this Court, hence this
appeal.
The
facts
[3] Prior
to November 1998 the first respondent was employed by the appellant
as a technician in Umbilo, Durban. He fell into the
C1 grade in
terms of the Pattersen grading system. Although he was called a
technician, in effect he was, as far as he was concerned,
a level C1
technical officer. He earned R6 519, 25 per month which put him at R
78 230,00 per year. The next grade above level
C1 was level C2. The
starting salary for level C2 was R 86 533,00 per year.
[4] On
the 29
th
May 1998 the appellant advertised two posts of
technical officer. One of these posts was a level C1 post whereas
the other one
was a level C2 post. At that time the post that the
first respondent was occupying was on level C1. The closing date for
applications
was the 12
th
June 1998. The first respondent
submitted his application for the post within the specified period.
The first respondent was a
member of the Communication Workers
Union.
[5] On
the 8
th
July 1998 the appellant and the union concluded a
collective agreement in terms of which level C1 and level C2 grades
were abolished
as grades and a new grade 8 was established in which
the employees who had been on levels C1 and C2 prior to that now
fell. In
terms of a practice that had become established between the
appellant and the union, collective agreements concluded between
them
came into operation on the first day of the month following the
month in which they were concluded. Accordingly the collective

agreement abolishing levels C1 and 2 and creating the new grade 8
came into operation on the 1
st
August 1998.
[6] On
the 6
th
August the first respondent was informed that he
had been short-listed for an interview on the post. The interview
took place on
the 11
th
August 1998. During the interview
the issue of a salary rate for the post was not mentioned. Indeed,
neither the persons who conducted
the interview nor the first
respondent were aware of the changes brought about by the collective
agreement in respect of levels
C1and C2.
[7] On
the 3
rd
November 1998 the first respondent was informed by way of an e-mail
from a human resources consultant of the appellant that his
application had been successful. The position was that of Technical
officer (Telematies). On the 28
th
December 1998 the first respondent was informed by the appellant

s
regional manager, human resources, of his success but he also
informed him that his move from his position to the new position
was
a horizontal one in terms of the collective agreement concluded with
the union and that, for that reason, there would be no
change in his
salary. The first respondent believed that the salary that he should
be paid once appointed to the new position was
the salary rate that
attached to the position prior to the change brought about by the
collective agreement.
[8] A
dispute arose between the appellant and the first respondent on
whether or not the first respondent was entitled to the level
C2
rate of pay or whether he was not entitled to any increase at all to
his salary. The appellant took the attitude that the first
respondent was not entitled to the higher salary rate whereas the
first respondent maintained that he was entitled. The first

respondent contended that the appellant

s
conduct in denying him the higher salary rate constituted an unfair
labour practice as contemplated by item 2(1)(b) of Schedule
7 to the
Labour Relations Act, 1995 (Act no 66 of 1995)(

the
Act

).
Item 2(1)(b) provides that :-
(
1) For the purposes of this item, an unfair labour practice means
any unfair act or omission that arises between an employer and
an
employee, involving-
(
a)

.
(
b) the unfair conduct of the employer relating to the promotion,
demotion or training of an employee or relating to the provision
of
benefits to an employee

(
c)

(
d)

Arbitration
proceedings
[9] The
dispute was referred to arbitration. The second respondent was
appointed to arbitrate the dispute. The appellant did not
call any
witnesses. The first respondent testified and called a witness as
well. Ultimately the second respondent concluded that
the
appellant

s
conduct constituted an unfair labour practice and found that the
first respondent was entitled to the higher salary rate. He issued
an award ordering the appellant

to
remunerate [the first respondent] with effect from 7 December 1998
on the salary that he would have earned had he been on the
lowest
notch of a grade C2 position prior to August 1998 i.e on a salary of
R 86 533-00 per annum.

Proceedings
in the Labour Court
[10] The
appellant was aggrieved by the second respondent

s
arbitration award. It brought an application in the Labour Court to
have the award reviewed and set aside. As already stated above
the
Labour Court dismissed that application but granted the appellant
leave to appeal to this Court.
The
appeal
[11] In
support of its prayer for the setting aside of the award, the
appellant relied on two grounds of review in its founding
affidavit.
The one was that the award was not justifiable in that there was no
rational connection between the evidence properly
before the second
respondent and his conclusion. The other one was that the second
respondent committed a gross irregularity in
the conduct of the
proceedings

in
that he made certain mistakes of law which resulted in his
misconceiving the nature of the enquiry and in so doing, denied a
fair hearing.

[12] In
support of the contention that the award is not justifiable and that
the second respondent committed a gross irregularity,
the appellant
averred that it was an express term of the collective agreement that
persons in level C1 and C2 would retain their
salary and other
benefits. The answer to this is that, assuming that there was such
an express term agreed, this did not mean that
a person who was
appointed to what up to then had been a level C2 position and who
had previously been on a level C1 position had
to retain the
previous salary despite the increase in the responsibilities or even
despite a change in the functions. On the face
of it what that meant
is that the mere change from levels C1 and C2 to grade 8 would not
on its own entitle an employee to a higher
rate of pay. This was not
the first respondent

s
circumstances. His situation was that a level C2 position was
advertised at a time when, to everyone

s
knowledge, it carried a higher salary rate than a level C1 position
which he occupied at the time, that he applied for it and
was
interviewed and was not advised of anything different until after a
decision had been taken that his application had been successful.
He
was, therefore, not in the same position as the other employees
whose grades changed from levels C1 and C2 to grade 8 without
them
having applied for a position that paid at a higher rate than their
own and which at the time of advertisement was known to
carry a
higher salary rate.
[13] The
second respondent concluded in his award that the advertisement of
the position constituted an offer which the appellant
subsequently
accepted and, by implication, because the offer was conveyed to the
appellant at a time when the position carried
the higher salary, the
first respondent was, so reasoned the first respondent, entitled to
the higher salary rate. The second respondent
was wrong to conclude
that the advertisement constituted an offer. The advertisement was
simply an invitation to do business. However,
this does not
necessarily render his award reviewable. It is clear from the second
respondent

s
award that his finding that the appellant

s
conduct constituted an unfair labour practice did not depend
entirely or even mainly on his conclusion that the advertisement
constituted an offer. The reasons for the second respondent

s
finding appear in three paragraphs at page 8 of his award. He gives
his reasons thus:-

In
my view the respondent

s
actions clearly amounted to unfair conduct relating to promotion.
The respondent advertised a position at a higher level than
that
occupied by the applicant. The applicant applied for that position
and
his
application was successful. The interview panel clearly had it in
mind that the applicant should be appointed to a higher position
and
that was what they recommended. Mr Meth in his opening statement
indicated that had it not been for the restructuring of the
grading
system the applicant would have been appointed on the lowest level
of C2.
How
the re-grading of the
respondent’s
salary structures changed the position was not explained. The
agreement relating to the restructuring of the grading
system made
provision that persons on grade C1 and C2 would retain their salary
and other benefits. The post was advertised prior
to the
restructuring of the grading system and at the time the idea was
that the successful candidate would receive the salary
and other
benefits that a C2 received. There was no indication that the
restructuring of the grading system had any effect on the
level of
the post that the applicant applied
for.
In
my view fairness required the respondent to view the applicant

s
position as if he had been successful in applying to a C2 position
as at the time of the closing date for applications. Had the
applicant been successful in applying for the advertised position
prior to 1 August 1998 his
appointment
to that position would have been accompanied by a salary increase.
The position carried more responsibilities and appointment
to the
position would have been a promotion. The advertisement implied that
the appointment would be made on the salary pertaining
to a level C2
position. There was no evidence as to why this was
changed
and whether the person that decided to change this had any authority
to do so.
Mr
Meth submitted that the advertisement was to an offer but merely an
invitation. In my view however the advertisement was in fact
an
offer. The applicant applied for the position and he was informed
that he was successful. That in my view also entitled him
to receive
the higher salary.
[14] In
my judgement the appellant

s
contention that the second respondent

s
award is unjustifiable or that the second respondent committed a
gross irregularity in coming to the conclusion that the appellant
committed an unfair labour practice is devoid of any merit.
Accordingly, the Court a quo was correct in dismissing the
application.
_________________
Zondo
JP
I
agree.
_______________
Davis
AJA
I
agree.
___________________
Du
Plessis AJA
Appearances
For
the Appellant : Mr Mc Gregor
Instructed
by : Deneys Reitz
For
the respondent : No appearance
Date
of judgement :