About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2002
>>
[2002] ZALCJHB 20
|
|
Minister of Environmental Affairs v Strydom (JR536/01) [2002] ZALCJHB 20 (5 September 2002)
[COMMENT1]
Sneller
Verbatim/MLS
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR 536/01
2002-09-05
In
the matter between
MINISTER
OF ENVIRONMENTAL
AFFAIRS Applicant
and
P
H
STRYDOM Respondent
J
U D G M E N T
NGCAMU
J
:
The applicant in this matter seeks to have the award of the first
respondent be reviewed and set aside in terms of Section 145
of
the Labour Relations Act.
The
award was issued on 16 March 2001 under the auspices of the General
Public Service Bargaining
Council. The second
respondent is employed by the applicant as an assistant director with
the bureau.
On 19 April 1996 an
agreement between the state as the employer was entered into with the
Trade Union in terms of which the employee
organisations agreed to
the right to bargain in all the public service.
It was therefore agreed
that a voluntary severance package, known as the VSP, be implemented
from 1 May 1996. The objectives
were to provide a mechanism
which would facilitate the right sizing of the public service and
create room for the absorption of
super numerary officials within the
various departments. The other objective was to reduce the
number of the public servants
Clause 1(a) of this document provides:
"All personnel may
volunteer for severance packages in order to create room for the
absorption of super numerary officials
in other
programmes/departments/administrations subject to the interest of the
state and also taking into account the interest
of the
officials/departments/administrations and decide which officials may
be allowed to have the severance under this provision.
In the case of key personnel the executing authority should, after
consulting the relevant official, also consider utilising the
mechanism of postponing the date of termination of service for a
period not exceeding 18 months to allow for suitable successions."
The second respondent
applied to be granted the VSP. His application was declined.
The application for the others who applied
were granted. The
reason given for the refusal of the second respondent's application
was that those who applied and granted
the package were nearing
retirement.
The applicant applied
again when he was nearing retirement. His application was again
refused.
The second respondent
then declared a dispute for unfairly practice in respect of the
alleged inconsistency with regard to the application
of collective
agreement on voluntary package.
The Conciliation did not
resolve the dispute. The dispute was
then arbitrated. Following
the arbitration the first respondent
issued an award in which he found the department guilty of having
committed an unfairly practice
and ordered that the pre-arbitration
agreement be enforced in terms of which the second respondent is to
be granted the voluntary
service package and that the department had
to consult with the second respondent in terms of the collective
agreement.
This is the award which
is the subject of the review.
The applicant raised
several grounds of review on which it relies for the review of the
award. The applicant has raised a
jurisdictional point as its
first ground of review. It contends that the arbitrator did not
have jurisdiction to entertain
the dispute brought by the second
respondent.
It was submitted that the
dispute concerned is not an unfairly practice as defined in Schedule
7 of the
Labour Relations Act 66 of 1995
but that of mutual interest.
The second point is that
the General Public Service Sectorial Bargaining Council under whose
auspices the arbitration was conducted,
did not have jurisdiction.
The second jurisdictional
point was not pursued during the argument, although not specifically
abandoned by the applicant.
I will accordingly not deal with
this point.
It was further submitted
that the decision on the VSP lies with the Minister.
The applicant did not
argue this jurisdictional point during the arbitration hearing.
Furthermore, on page 4, line 17 to 21
of the arbitration record, the
following is recorded:
"
COMMISSIONER
:
Prior to the matter being recorded an informal discussion was held
where certain points
in limine
were raised by the respondent.
After discussion between both sides, the respondent withdrew both
points
in limine
. Is that correct, Sir?
MR
MOGANEDE
: That is correct."
It has been submitted
that the points
in limine
were the points raised which the
applicant intended to raise regarding the jurisdiction. It
appears from the record that
these points were in fact not pursued
during arbitration.
It therefore follows that
the applicant accepted the jurisdiction of the commissioner. He
accepted the jurisdiction during
the Consilliation of the dispute.
A certificate issued, recorded the dispute “as alleged in
consistence with regard
to the application of collective agreement on
voluntary package”. The applicant accepted the
certificate and did not
raise any issue.
The dispute then went for
arbitration. The arbitrator derives his authority from
the certificate of non-resolution.
If one of the parties is
disputing the jurisdiction, that party has to approach the court to
have the certificate declared null
and void. If the applicant
did not raise the jurisdictional issue at the Consiliation and during
arbitration, it cannot now
in review attack the jurisdiction of the
arbitrator. The arbitrator was entitled to arbitrate as the
certificate had not
been declared null and void.
See in this regard
Fidelity Guards Holdings (Pty) Ltd v Eksteen NO and Others
2000 12B LLR 1389 LAC.
I t was argued that this
matter can be distinguished from the
Fidelity Guards
as that
case dealt with another issue. In my view there are no basis
for distinguishing the present case from the
Fidelity Guards
case. I therefore reject this argument in that the certificate
issued by the commissioner is the first step for any arbitration.
It therefore does not matter what the dispute was. The dispute
in the present matter was the same as the one in
Fidelity Guards.
I accordingly reject the
applicant's contention that the arbitrator did not have any
jurisdiction to entertain this dispute.
It was also argued on
behalf of the applicant that the decision to grant the severance
package lies with the Minister concerned.
It was therefore
submitted that the granting of the VSP is not a benefit or a right to
any employee. The implications of
this submission is that the
arbitrator did not have jurisdiction and again on this point, this
was not raised before the commissioner
when the matter was
arbitrated.
It was never at any stage
suggested to the witnesses or in argument before the commissioner
that he had no jurisdiction with regard
to a decision regarding the
VSP.
On the contrary, both
parties participated in the arbitration and approached the dispute as
an unfairly practice. The applicant
created a special
arrangement in terms of which employees could volunteer to have their
services terminated.
This dispute which the
second respondent referred for consiliation and arbitration related
to the inconsistency in the application
of the collective agreement
on voluntary package. In other words, the dispute related
to the manner in which the agreement
was applied. The
agreement, in my view, when applied created a benefit to the
employee. This, in my view, brings
the dispute within the ambit
of item 2 of Schedule 7, which defines an unfairly practice as
involving:
"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."
The benefit would
therefore, in my view, include an advantage afforded to the employee.
The applicant referred me
to the case of
Schoeman and Another v Samsang Electronics SA
(Pty) Ltd
1997 18 IFJ 1098. That case dealt with the
remuneration and the court found that the benefit does not include
the remuneration.
This case is accordingly, in my view, not
relevant.
I was also
referred to the case of
Gaylard v Telkom SA Ltd
1998 19 ILJ 1642 LC. In my view, this case does not assist the
applicant. This case dealt with the payment of accumulated
leave pay and therefore it is not relevant to the case where a
dispute involves the agreement relating to the payment of
the
voluntary severance pay.
However, in
Imperial
Cold Storage and Supplying Company Limited v Field
1993 14 ILJ
1221 LAC, a case decided under the 1956
Labour Relations Act, the
court at page 1229, paragraph A to F stated the following:
"The point remains
that to the extent that the fairness requires payment of a
retrenchment package over and above the
application of other
guidelines, including fair prior notice of retrenchment, there is no
reason why the Industrial Court should
not be able to determine this
and where appropriate, the amount of such severance package under the
unfairly practice jurisdiction."
This question was also
dealt with in the matter of
Burman Katz Attorneys v Brandt NO and
Others
2001 22 ILJ 128 LC. This case was referred to by the
applicant.
This case, however,
illustrates the fact that the commission cannot decide the dispute
concerning the severance pay. In my
view, whether that question
arises from the provisions of the Basic Conditions of Employment Act,
Section 196
of the
Labour Relations Act, or
arising from the
collective agreement, it does not matter.
The fact that the
Minister has the final say with regard to the granting of the VSP
does not mean that its decision cannot be challenged
in an unfair
practice is found to exist. The employee has a right not to
have an unfairly practice visited upon him.
In this case I also
refer to the
Imperial
matter referred to above at page 1228,
paragraph A-B.
In the light of what I
have said above the arbitrator can force compliance with the
collective agreement to resolve an injustice
perpetrated upon the
employee.
It is therefore my view
that the arbitrator was entitled to deal with this matter and deal
with the collective agreement that had
been entered into by the
parties.
Another point raised, was
the inconsistency. It was submitted on behalf of the applicant
that there was no evidence supporting
the inconsistencies and that
the second respondent considered that there were no inconsistencies.
The second respondent set
out the names of the people who were granted severance packages and
this was not disputed. The applicant,
however, has not
challenged the findings of the arbitrator regarding the
inconsistencies. Allegations were made that there
was no
evidence to support such a finding.
The examination of the
award shows that the inconsistency was found by the arbitrator on the
failure of the employer, the department,
to consult the employee.
It was submitted on behalf of the applicant that the consultation
was required if the
application for the severance
package was accepted, and therefore no consultation was required.
It was further submitted
that consultation with the respondent did take place. In my
view, these two submissions are inconsistent
with each other.
It can either be that consultation took place or did not take place.
There is no evidence that
the second respondent was consulted regarding his application before
it was refused and in fact, it was
not submitted on behalf of the
applicant that such consultation did take place.
The applicant, however,
submits that the consultation could take place after the granting of
the severance pay, whereas the arbitrator
is of the view that it
should take place as the application is considered.
This, in my view, is a difference
in the interpretation of the clause
of the agreement and it is therefore my view that the award cannot be
reviewed on the basis
of a wrong interpretation given by the
arbitrator on the clause relating to the consultation. Whether
the interpretation
is correct or wrong, it is not for the
court to decide.
Another reason for
finding inconsistency was that the first application was refused
on the basis that the respondent was not
close to retirement, when in
fact others were given severance package on the basis that they were
close to retirement and this
was not applied in respect of the second
respondent.
The second application
was refused because a new approach had been adopted which was in fact
a shifting of the goal post.
The respondent was not given any
reason for such a refusal. These reasons set out by the
arbitrator have not been challenged
by the applicant. In my
view, the arbitrator set out his reasons based on the evidence
presented. He concluded that
the conduct of the respondent was
arbitrary, inconsistent and unfair.
This conclusion has not
been challenged by the applicant in this review. I therefore
have to accept that the first respondent
gave fair reason for his
findings.
It was also argued that
there were no reasonable expectations given to the second
respondent. It was submitted that the Minister
did not promise
anything to the respondent. It was further submitted that there
is nothing in the agreement saying that people
nearing retirement
should be allowed the VSP.
This submission is
correct, but it overlooks the fact that the respondent was advised
that the others were granted SVP because they
were nearing retirement
and in fact, they did get VSP on the basis of this.
When it came to the
second respondent this did not apply. The respondent, in my
view, reasonably expected that when he was
nearing retirement he
would also be considered in granted a severance package. His
expectations were reasonable and were
created by the employer and
therefore the shifting of the goal post caused an unfairness on the
part of the second respondent.
I therefore cannot find
anything wrong in the arbitration award with regard to the reasonable
expectation found by the arbitrator.
Another point raised was
that the second respondent wanted a
mandamus
and that
the commissioner had no power to order it and also that there were no
requirements set out by the second respondent.
Again this point it was
never raised before the commissioner that the second respondent
wanted a
mandamus
which the commissioner could not grant.
Be that as it may, this
argument runs contrary to the pre-arbitration agreement reached by
the parties, that if the finding is made
in favour of the second
respondent, the respondent would be entitled to be granted the VSP.
I therefore fail to understand
the submission because it was agreed
that if such a finding is made against the applicant, the VSP would
then follow.
Why this was agreed if
the commissioner had no power to order it, escapes my mind. I
do not want to think that the applicant
was not
bona fide
when
it engaged in the arbitration proceedings. The commissioner, in
my view, ordered what the parties had agreed in the
pre-arbitration
agreement, in the event of a finding in favour of the respondent.
I therefore reject the
submission that the second respondent wanted a
mandamus
which
arbitrator could not grant. In my view, that was agreed by the
parties before the arbitration.
In the light of the
above, I cannot find any defect in the award. In my view, the
award is justified for reasons given.
The award may seem
unreasonable in the eyes of the applicant for reasons submitted.
It was contemplated by the law makers
that some awards may be
unreasonable but still be allowed to stand, as long as they are
justifiable for reasons given.
In the present case I am
satisfied that the reasons given by the arbitrator do justify
the award given. In
the circumstances the review
cannot succeed in respect of all the grounds raised by the
applicant.
I accordingly make the
following order:
The application for
review is dismissed.
The
applicant is ordered to pay the cost.
[COMMENT1]
BEGIN
DEUR 'N "HEADER" TE MAAK