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[2007] ZALCJHB 36
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Mashele and Others v General Public Service Sectoral Bargaining Council and Others (JR648/04) [2007] ZALCJHB 36 (10 January 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 648/ 04
In
the matter between:
S.
MASHELE
First
Applicant
M.
MESO
Second
Applicant
B.
HOWARD
Third
Applicant
F.
MUTHELO
Fourth
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First
Respondent
JOHAN
LE ROUX
N.O.
Second
Respondent
DEPARTMENT
OF FINANCE AND
ECONOMIC
DEVELOPMENT
Third
Respondent
JUDGMENT
REVELAS
AJ
[1]
The four applicants, all employees of the third respondent, seek to
set aside an award made by the second respondent (“the
arbitrator”), wherein it was held that the four applicants were
not entitled to certain acting allowances in terms of the
Public
Service Resolution 1 of 2002. The applicants had referred a dispute
about the non-payment of acting allowances to the General
Public
Service Sectoral Bargaining Council (“the Council”). The
dispute before the arbitrator was determined without
oral evidence
being led by the parties.
[2]
The applicants contended that the arbitrator failed to apply his mind
to the evidence and relevant issues before him, in accordance
with
the provisions of the General Public Service Sectoral Bargaining
Council (“the G.P.S.S.B.C.”) Regulations.
[3]
They argued that they were appointed in writing in higher posts as
from 11 September 2001 by Dr F W de Brandt, who was duly
authorised
(as the Director of Resource Management of the third respondent) and
when the Regulations came into effect, they were
still acting in
those positions and were entitled to an allowance.
[4]
The arbitrator summarised the following as being common cause in the
proceedings before him:
“
Background
and matters of common cause.
1.
The applicants were appointed to act in higher positions with effect
from 11 September 2001.
2.
At the time when they were appointed as such they were not entitled
to be paid an acting
allowance.
3.
On 1 April 2002 Resolution 1 of 2002 came into effect and determined
that upon the meeting
of certain requirements every employee acting
in a higher position would be entitled to be paid an acting
allowance.
4.
The applicants were still acting in a higher position on 1 April 2002
and were acting as
such untill July 2003.
5.
During this period they were not paid an acting allowance.
The
relevant clauses in Resolution 1 of 2002 (the resolution) read as
follows:
“
3.1.1
An employee appointed in writing to act in a higher post, by a person
who is duly authorised, shall be paid an acting allowance
provided
that –
(a)
the post is vacant and funded; and
(b)
the period of appointment is uninterrupted
and longer than six weeks.
3.1.2
The employee must accept the acting
appointment in writing.
3.1.3
…
3.1.4
…
3.1.5
…
3.1.6
…
3.1.7
An employee may not act in a higher post
for an uninterrupted period exceeding twelve months.
3.1.8
…
3.1.9
An employee who commenced acting in a
higher post
before
the implementation of this agreement, must be reappointed in such
post to qualify for the benefits under this agreement. The
twelve-month
period referred to in paragraph 3.1.6 above will run
from the date of appointment in terms of this agreement”.”
[5]
The evidence presented before the arbitrator was that none of the
applicants were reappointed and they in any event never accepted
such
a position in writing, as prescribed by clause 3.1.9 of the
Resolution. This was conceded by Mr Manoko who acted on behalf
of the
applicants. He argued that the provisions of clause 3.1.9 do not
preclude the applicants from being paid the acting allowance
because
the third respondent had a duty to reappoint them and failed to do
so. He argued that this is borne out by the words “must
be
reappointed” in the clause. This failure, he argued, resulted
in their inability to accept the offer in writing. The further
argument advanced on behalf of the applicants was that since they had
acted in the higher positions at the time of implementation
and
thereafter should be an indication that their respective positions
were “vacant” and their existence meant that
they were
“funded”.
[6]
The respondent was represented by Ms Mabiletsa who stressed the point
that it was the employer’s prerogative to appoint
employees and
since this was not done, the applicants did not qualify for the
benefits in terms of the clause in question. She
correctly argued
that the word “must be” did not place an obligation on
the employer to appoint, but suggested they
qualified the latter
point of the sentence. Put in practical terms, it means that in order
to qualify for benefits in terms of
the section, there must have been
a reappointment.
[7]
Ms Mabiletsa also drew the arbitrator’s attention to the very
important fact that the applicants had been made aware of
the correct
position throughout continuous consultations with them which finally
culminated in a workshop held on 16 May 2002.
[8]
The arbitrator found that in the absence of a duty to appoint on the
part of the third respondent, no unfair labour practice
had been
committed. The arbitrator interpreted the following part of clause
3.1.9: “An employee who commenced acting in a
higher post
before the implementation of this agreement must be reappointed in
such a post
to
(the arbitrator’s emphasis) to qualify for the benefits”.
He reasoned that if the intention was to reappoint all employees
who
acted in higher positions, then a full stop (period) would have been
inserted before the word “to”, which was used
in that
context to introduce the infinite by expressing a consequence. In
this regard the arbitrator relied on the definition of
“to”
in the 8
th
edition of the Concise Oxford Dictionary. The arbitrator upheld Ms
Mabiletsa’s reasoning. There is nothing irrational or
unreasonable about the arbitrator’s reasoning.
[10]
There was no duty on the third respondent to reappoint the
applicants. At best the applicants may have had an expectation to
be
reappointed, in which case they should first have established their
right to be reappointed or promoted and motivated it with
facts and
different argument. I am of the view that the operation of Resolution
1 can have unfair results, but I am not able to
interfere with
legislation.
[11]
Based on the evidence before the arbitrator, I find that he committed
no reviewable act, and, accordingly, the application
is dismissed. I
decline to make a costs order.
___________________
Elna
Revelas
Acting
Judge of the Labour Court
Date
of hearing:
27 September 2006
Date
of judgment:
10 January 2007
On
behalf of the Applicant:
Adv.
W J Hutchinson, instructed by Lebea and Associates
On
behalf of the Respondent:
The
State Attorney