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[2014] ZALAC 72
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Mathibeli v Minister of Labour (JA25/2013) [2014] ZALAC 72; [2015] 3 BLLR 267 (LAC); (2015) 36 ILJ 1215 (LAC) (25 November 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JA25/ 2013
In the appeal of:
NTSANE ERNEST
MATHIBELI
...........................................................................................
Appellant
and
MINISTER OF
LABOUR
.....................................................................................................
Respondent
Heard: 04 June
2014
Delivered: 25
November 2014
Summary: Unfair
labour practice relating to promotion- Employer upgrading post
occupied by employee- Implementation of the upgrading
subject to
ministerial approval- Upgrading process in error and conflicting with
Occupation Specific Dispensation. Commissioner
finding that employer
committed unfair labour practice and ordering backpay. Labour Court
reviewing arbitration award for lack
of jurisdiction because dispute
referred to arbitration is one of interest- Appeal. Labour Court
decision upheld- Different reasoning-
dispute referred to arbitration
dispute of right related to promotion- evidence showing upgrading not
implemented- arbitration
award unreasonable- employee’s claim
dismissed.
Coram:
Waglay JP, Tlaletsi DJP and Sutherland AJA
JUDGMENT
SUTHERLAND AJA:
Introduction
[1]
This appeal is against the Labour Court’s
decision reviewing and setting aside the award of an arbitrator which
had held that
the appellant had been subjected to an unfair labour
practice (ULP) in regard to an upgrade of the post he occupied and in
respect
of which the appropriate relief was to pay the appellant
salary for the period September 2008 – August 2009 at the rate
higher
than what he had received. The Labour Court, on review,
decided the matter by finding that the arbitrator had no jurisdiction
to
hear the matter because the true nature of the dispute was one of
interest and not one of right.
[2]
The appeal raises two issues; first,
whether a factual basis was proven for the higher salary claim, and
secondly, whether the claim
was a dispute of interest or of right.
Ultimately, the crucial question on appeal, no less on review, is
whether the arbitrator’s
award was one to which no reasonable
commissioner could come. In my view, the award was one to which no
reasonable arbitrator could
come. However, I differ from the court
a
quo
on the reasoning that supports that
outcome.
The facts adduced
in evidence and their implications
[3]
Despite stout efforts to complicate the
matter by delving into irrelevant and tangential issues, the relevant
facts are few and
true issue is crisp.
[4]
The relevant facts on the record, placed
before the arbitrator, and found by him, are summarised thus:
4.1.
The appellant was employed by the
Department of Labour (DoL) as a legal officer. The post he occupied
was at grade 10.
4.2.
On 1 September 2008, the DoL concluded an
exercise which resulted in
recommendations
approved by the Director-General to upgrade several posts. Among the
posts so identified was the post occupied by the appellant.
It was to
be upgraded from grade 10 to 11. A higher salary would be attached to
a grade 11 post.
4.3.
The
implementation
of the upgrading and the
timing
of
their effective date were dependent upon ministerial approval, a
decision influenced by budgetary considerations. No evidence
existed
of a decision by the Minister, ie, the respondent, to approve and
implement the recommendations. In an email of 11 May
2009, the
Executive Manager, Management Advisory Services, reported in response
to a request, that there existed no record of a
submission to the
Minister, and axiomatically, no decision by the Minister.
4.4.
After the upgrading exercise in January
2008, referred to, it was noticed by the Department of the Public
Service and Administration
(DPSA) that the DoL’s upgrading
exercise, in respect of professional posts, was apparently in error
as the Occupation Specific
Dispensation (OSD) policy governed all
professional posts from 1 July 2007, and the upgrading exercise
carried out in January 2008,
was inconsistent with the scheme of the
OSD. This was communicated to the DoL in a circular from the DPSA on
26 March 2009. The
letter provided schedules of the affected posts
and specified the post occupied by the appellant as being among the
posts subject
to OSD and not permissible to be upgraded otherwise.
The letter went on to instruct the DoL to give effect to the
translations
of the posts to the OSD. A critical passage in the
letter is this:
‘
Departments
are cautioned that as per paragraphs 24 and 25 of the Minister of The
Public Service and Administration’s (MPSA)
determination dated
29 April 2008,
all legal posts
must with effect from
1 May 2008
be advertised and filled in terms of the provisions of the OSD.
Furthermore, since the grading of all posts in the OSD has been
centrally determined by the MPSA, departments may not job evaluate or
upgrade any legal post.’
4.5.
The result was that the upgrading of the
post occupied by the appellant was “abandoned”, the term
used by the respondent.
The effect of that would therefore be that
the post was not upgraded to grade 11 for want of the necessary
approvals.
4.6.
However, to muddy the waters, the DoL on 15
January 2009, appointed Mr S S Latola to act in a vacant legal post,
equivalent to the
post occupied by the appellant, and paid him at
grade 11 rates. At about the same time, a request for additional
legal staffing
dated 29 January 2009, was submitted by the Director
–General to the Minister and ultimately approved on 24 February
2009.
In this submission, reference was made to the posts grading
levels, and in respect of the posts equivalent to that occupied by
the appellant, they are described as being at grade 11. The Minister
approved this submission, which act fell foul of the OSD prescripts.
This advertised post was never permanently filled.
4.7.
Lastly, it was common cause, that Clause
C.6 of Part V of the Public Service regulations makes it clear that
the current incumbent
of a post that is indeed upgraded, does not
automatically acquire any right to remain in the upgraded post. These
regulations provide
for the Minister to select whether to advertise
the posts and invite applications in a competitive process, or make a
decision
to “continue to employ” the incumbent in the
higher graded post if certain conditions are met. There was no
evidence
that the Minister made a selection.
[5]
However, the arbitrator was, ostensibly,
more impressed by certain other facts, namely the DoL’s
bungling of the upgrading
exercise, the impression created by the
exercise on the employees who might enjoy a prospect of benefiting
from the exercise, especially
the wrong advertising of a vacant post
as grade 11, which encouraged belief that the upgrading must have
indeed been implemented,
and the failure of the DoL to alert the
employees that the upgrading had been abandoned at the recommendation
stage. The arbitrator
might also have added the fact that the DoL
ignored several written requests from the appellant about the issue,
showing thereby
a contemptuous attitude towards its own employee.
[6]
In search of the rationale for the decision
of the arbitrator to hold that as a result of these facts and
circumstances a ULP had
been committed and that upon that foundation
he could justify an order for back pay salary at the grade 11 rate,
the sole clue
is this statement in the award:
‘
It
is clear then that the [DoL]
negligently
conducted
a job evaluation exercise,
upgraded posts, advertised the posts and failed to inform its
employees despite being asked. The [DoL]
further
neglected
to inform
its employees of the DPSA
circular [ie the circular referred to above.] It was only able to
conceptualise this in June 2009.
I find
this to be unfair.
The respondent
cannot embark on processes with such serious implications and later,
due to its negligence,
not take responsibility for its actions or prejudice its employees as
a result.
From these
circumstances, detailed above, [the DoL] has committed an ULP as set
out in S186(2) (a) of the LRA.’
(
emphasis
supplied
)
[7]
The cited passage is premised on the
arbitrator’s justified disapproval, or perhaps his
understandable disgust, with the blunders
of the implicated officials
in the DoL. However, these factual findings and his opinion about the
bad treatment of the appellant’s
requests for information, have
no logical connection with the outcome that he reached. The
arbitrator did not find that the proposed
upgrades were, in fact,
implemented. Upon that premise, no rights existed that could be
violated, and no prejudice could be caused
to any employee,
notwithstanding whatever disappointments had been engendered. The
conduct the arbitrator condemned as an ULP was
the bungling of the
illicit job evaluation exercise and erroneous allusions to an
upgrading that had not been implemented, which,
even if the conduct
could be construed as a ULP did not cause a loss of income by any
employee.
[8]
Furthermore, no finding was made that the
failure to retain the appellant in a putatively upgraded post
constituted an ULP, nor
could it be, because on the facts found by
the arbitrator in regard to the provisions of the regulations, there
could be no legitimate
expectation of automatic retention in an
upgraded post by the appellant.
[9]
The outcome that an ULP had been committed
on the basis the arbitrator thought it had been committed cannot
logically be connected
to the notion that paying the appellant a
back-salary at the grade 11 rate was appropriate. Thus, because it is
not justified by
its premises it is irrational. Accordingly, the
award was unreasonable and must be set aside.
The
jurisdictional controversy
[10]
I turn to address the controversy about
jurisdiction, which was the basis for the Labour Court’s
decision for dismissing the
claim of the appellant.
[11]
The arbitrator had dismissed a preliminary
point about jurisdiction based on the contention that the dispute was
one of interest
not right. The Labour Court, revisiting that issue,
upheld it. In paragraph [24 ] –[25] of the judgment, the Labour
Court
held:
‘
[24]
The Public Service Regulations contain conditions that are a
precursor to the population of a re-graded post. By the mere
re-grading of a post therefore, the incumbent of that post does not
acquire a right to be promoted to the newly created status level
of
the post. A dispute arising between the employer and the employees,
in its work place, would accordingly not be one of right
but one of
interest, for which the employees might be entitled to strike.
[25] The second
respondent therefore lacked authority to issue the award as the third
respondent had no jurisdiction to be seized
with this matter for
arbitration purposes. In any event, the third respondent did not even
lead any evidence to show that he met
all the set requirements for
the population of the upgraded post. The DPSA circular added yet
another complication for the third
respondent, which consideration is
no longer of any consequence, due to the findings already made.’
[12]
The rationale of the Labour Court’s
finding that the dispute is one of interest is that the regulations
do not afford any
right to achieve a back-door promotion to a person
who is the incumbent of an upgraded post. The absence of a back -door
promotion
is a correct finding.
[13]
However, in my view, this is not a
sufficient foundation to conclude that this particular dispute
referred by this appellant was
properly construed as an interest
dispute. An examination of exactly what was referred is necessary.
[14]
The dispute referred for conciliation was
described as the issue of “promotion”. When the dispute
was referred to arbitration,
the issue was described thus:
‘
The
Department of Labour has upgraded the post that I am [at present]
occupying from SR level 10 to SR level 11 but is refusing
to pay me
my salary of R….. in accordance with SR 11.’
[15]
The arbitrator mentioned in the award that
he understood the issue to be whether an ULP in terms S186(2)(a) had
been committed;
ie:
‘…
any
unfair act or omission that arises between an employer and an
employee involving ….unfair conduct by the employer relating
to the promotion… of an employee…’
[16]
Albeit the label of a “promotion”
was used in the referral to conciliation, the refinement in the
referral to arbitration
(cited above), in my view, more usefully
defines the issue. Two claims are made by the appellant.
16.1.
First, the appellant’s referred
dispute alleged a fact: ie, that he was
already
occupying
a grade 11 post. Unless that
allegation of fact was proven, the appellant had no claim to more
pay. This factual allegation was
not a claim of entitlement to be
promoted to a grade 11 post, which would indeed be an interest issue,
but rather, an allegation
that he was, as a fact, in a grade 11 post.
If he failed on that alleged fact, as he plainly did, the claim had
to fail too.
16.2.
Secondly, even if he had proven that the
upgrade of the post had been implemented, the common cause fact that
he was not, under
the regulations, entitled to retain it destroyed
his second claim that by virtue of occupying a grade 11 post he was
entitled to
the higher pay. This latter claim is not necessarily an
interest claim but rather a claim which turned on the application and
interpretation
of the Public Service Regulations.
16.3.
In argument, the appellant who appeared in
person, was at pains to point out that the core of his complaint was
that he was underpaid
and that notwithstanding anything said before,
he did not assert a right to a promotion.
[17]
The unravelling of the facts to discern the
true dispute in a matter concerning money claims in relation to job
upgrades was addressed
by Freund AJ in
National
Commissioner of the SA Police Service v Potterill N O and Others
(2003) 24 ILJ 1984 (LC) at [11] –
[20] as follows:
‘
[11]
The dispute was referred by the employees for arbitration on the
basis that the employer was alleged to have committed an unfair
labour practice. It is clear that this was intended to be a reference
to an unfair labour practice as contemplated in item 2(1)
of schedule
7 to the LRA and, in particular, item 2(1)
(b)
.
[12] Mr Oosthuizen
did not dispute that if, properly analysed, the dispute was a dispute
about an alleged unfair labour practice
in terms of item 2(1), the
arbitrator had jurisdiction to arbitrate the dispute. He contended,
however, that the dispute was in
fact an 'interests dispute'
concerning a demand or claim for an increase in salary and not a
'rights I dispute' concerning a failure
to promote or any of the
other instances of residual unfair labour practices set out in item
2(1). He contended that the arbitrator
accordingly had no
jurisdiction to entertain the dispute, exceeded her powers and acted
ultra vires.
[13] The relevant
part of item 2 provides as follows:
'(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
- . . .
(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
. ' (Emphasis added.)
[14] Mr
Oosthuizen
submitted that the nature of the dispute which was referred to the
arbitrator had to be determined by reference to the document
in terms
of which the dispute was referred to the bargaining council and by
the substance of the dispute as it appears to this
court. He
submitted that, in the referral documents, the employees made no
mention of the term 'promotion' and did not indicate
that promotion
was the desired outcome; they merely claimed an increase in salary.
He submitted that a claim for salary is an 'interest
dispute' and
that the dispute, properly analysed, did not pertain to an alleged
unfair labour practice. More particularly, whether
or not the
employer had acted unfairly, its conduct was not conduct 'relating to
the promotion' of the employees.
[15] In my view
there is no merit in this point. The substance of the dispute
pertained to the employees' complaint that their posts
had been
regraded but, despite the fact that they had continued to be employed
in the same posts and despite the requirements of
regulation 24,
their salaries had not been increased. In my view this is a complaint
about alleged unfair conduct 'relating to
the promotion' of the
employees.
[16] In my view
regulation 24 requires one to draw a distinction between a decision
to regrade a post and a decision to allow the
incumbent employee in
the regraded post to continue to occupy that post. Where the
incumbent employee is permitted to continue
to occupy the regraded
post and is afforded the appropriate higher salary, the employee is,
in my view, 'promoted'. In my view
such a situation falls within the
first meaning given for the word 'promote' in
The Concise Oxford
Dictionary
(9 ed), namely:
'V.tr.1 (often foll.
by to) advance or raise (a person) to a higher office, rank, etc (was
promoted to captain).'
[17] A bulletin
issued by the South African Police Service on 28 March 2002 which
sought to explain the meaning and effect of regulation
24 stated:
'There is, however,
no obligation on the National Commissioner to
upgrade the post
and
promote the incumbent
. Instead, he may, . . .' (Emphasis
added.)
In my view the
author of this document was quite correct in distinguishing between
the decision to 'upgrade the post' and the decision
to 'promote the
incumbent'.
[18] The employees'
complaint that regulation 24(6) had not been applied with regard to
their posts and their request that their
salaries be increased to the
salary level of directors must, in my view, be construed as a
complaint that they were entitled to
be, but had not been, promoted.
By alleging that their employer was guilty of an unfair labour
practice they impliedly alleged
unfair conduct on its part 'relating
to' its failure to promote them. Having regard to the substance of
the dispute as the parties
understood it I am satisfied that this was
a dispute about alleged unfair conduct relating to promotion.
[19]
Mr
Oosthuizen
argued that the employees' failure to state expressly in the referral
forms that the relief that they sought was promotion established
that
the dispute referred to arbitration was not a dispute concerning
promotion. I B cannot agree with this. In my view a distinction
needs
to be drawn between the nature of the dispute underlying the remedy
sought and the remedy itself. The remedy sought does
not necessarily
give a clear indication as to the real nature of the underlying
dispute. As to a similar conclusion reached in
a different context,
see
Ceramic
C
Industries
Ltd t/a Betta Sanitaryware & another v NCBAWU & others
(1997)
18 ILJ 671
(LAC);
[1997] 6 BLLR 697
(LAC) at 703E-J.
[20] I do not accept
the argument that the dispute was a 'dispute of interests' which, for
this reason, fell beyond the jurisdiction
of the arbitrator. The
employees' case was that they were the victims of an unfair labour
practice and that, as a matter of law,
they were entitled to salary
increases. This was a 'dispute of rights'. The fact that the remedy
sought was an increase in salary
does not change the character of the
dispute. A claim for a higher salary as a matter of right is not an
'interests dispute'.”
[18]
In my view, this dictum correctly captures
the controversy and elucidates the implications and is therefore
adopted by this Court.
[19]
Accordingly, the view I take is that a
right issue was indeed referred by the appellant, ie a claim based on
being paid the wrong
amount. Nevertheless, despite the arbitrator
having jurisdiction, the claim was meritless, both on the facts and
in the law, by
reference to the regulations.
[20]
The question of whether the true claim
intended by the appellant was not one that ought to have been brought
as a civil claim in
terms of section 77(3) of the Basic Conditions of
section Employment Act 75 of 1997 was not raised in the arbitration
or during
the review proceedings. The claim bears characteristics
which strongly suggest that this is what the appellant had in mind.
Nevertheless,
it is unnecessary for this Court to pronounce on that
matter.
[21]
The upshot is that:
21.1.
There is no merit in the claims of the
appellant, having regard to the facts adduced in evidence: he was not
an incumbent of a grade
11 post.
21.2.
The award was unreasonable because the
evidence demonstrated the meritless of the claims, and the rationale
for finding otherwise
was not rationally connected to the evidence.
21.3.
The award should be set aside in its
entirety.
21.4.
The appropriate outcome should have been
the outright dismissal of the dispute.
[22]
A matter that bears emphasis, and which is
common cause, is that the appellant was repeatedly ignored by the
management of the DoL
in regard to his requests and later demands for
action over his grievance. This was aggravated by the effect of the
DoL’s
other conduct about the upgrading of posts, which
encouraged, in the absence of proper information, a wholly wrong but
nevertheless,
sincerely held view by an employee. (It is an unhappy
occurrence that such treatment can occur, in of all places, the DoL,
where
it would be reasonable to suppose that an enhanced sensitivity
to sound industrial relations ought to be part of the DoL’s
culture, and indeed, of all Departments of State ).
[23]
The parties no longer are in an employment
relationship. But for the fact that the appellant conducted his own
case and incurred
no legal costs, it would have been appropriate for
the court to have considered a costs order adverse to the respondent.
The order
[24]
In the result, I make the following order:
(i)
The appeal is dismissed with no order as to
costs.
(ii)
The setting aside of the award by the Labour Court is confirmed.
______________
Sutherland AJA
I agree
_____________
Waglay
JP
I
agree
_____________
Tlaletsi DJP
APPEARANCES:
FOR THE APPELLANT:
In Person
FOR THE RESPONDENT:
Adv D Mtsweni
Instructed by the
State Attorney, Pretoria