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National Commissioner South African Police Service and Another v Cohen and Others (JR53/05) [2008] ZALCJHB 63 (23 October 2008)

80 Reportability
Labour Law
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Brief Summary

Labour Law — Unfair labour practice — Review of arbitration award — Applicant sought to set aside award finding unfair labour practice for failure to translate employee's position — Employee applied for translation of position supported by management, but was misinformed about availability of post — Commissioner found applicant failed to apply its mind to the application and directed retrospective translation — Applicant contended commissioner exceeded powers and failed to consider statutory provisions governing post translation — Court held that commissioner’s failure to apply relevant regulations constituted a mistake of law warranting review of the award, resulting in the award being set aside.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings were a Labour Court review application in which the applicants sought an order reviewing and setting aside an arbitration award issued under the auspices of the Safety and Security Sectoral Bargaining Council. The arbitration award was made by the first respondent (the commissioner) under case number PSSS 18-04/05 and dated 27 November 2004.


The applicants were the National Commissioner, South African Police Service, and the South African Police Service. The respondents were Cohen, Phillip N.O. (the commissioner who issued the award), the Safety and Security Sectoral Bargaining Council, and Bhengu N. (the employee), who was the successful party in the arbitration.


The matter arose from an employment dispute concerning the translation of the employee’s post/rank. The employee alleged that the applicants committed an unfair labour practice by failing to translate her position to a higher-graded post. After internal grievance processes did not resolve the dispute, the employee referred an unfair labour practice dispute to the bargaining council for conciliation and then arbitration. Following the arbitration award in the employee’s favour, the applicants instituted review proceedings in the Labour Court. The Labour Court hearing took place on 13 March 2008, and judgment was delivered on 23 October 2008.


Material Facts


The employee was employed as a senior administrative clerk when the dispute arose. She applied for her position to be translated into that of a provisioning administrative officer. The application was supported within the organisational chain. The unit commander supported the application and recorded that the employee was already performing the work of a provisioning administrative officer, and that translation would align the formal position with the factual work being done. The materials before the court also indicated that the Provincial Commissioner supported the process, and on 26 April 2002 advised the Provincial Head of Management Services to create a post to accommodate the employee’s translation. The post was then created and reserved for the employee.


Following this, the employee formed the impression that her translation to the higher post had effectively been secured and that no further steps were required. She was later informed on 13 May 2002 by the Area Head, Management Services that the post she sought was not available at Hillbrow Police Station and that she should apply for translation elsewhere. It was common cause in the court’s narration that this reason was incorrect, because the employee was not stationed at Hillbrow Police Station but at a sub-component of the Hillbrow FCS Investigation Unit based in Braamfontein, where the relevant post was located.


Because of difficulties in how the translation request was handled, the employee filed two grievances. The first grievance, lodged during September 2002, resulted in her being told that the position could not be translated because the post had never been advertised and because her job description was said not to be suitable for the post.


The employee filed a second grievance during October 2003. The outcome conveyed to her was that her application for rank translation would not be forwarded to National Office because “the rank translation was closed in December 2002”. The employee disputed that explanation and relied on a letter from the Provincial Head, Management Services dated 26 February 2003, indicating the post was reserved for her.


On 12 January 2004, the Section Head: Promotions and Awards (National Office) wrote to the Provincial Commissioner pointing out that the applicable policy made it compulsory to advertise posts before they could be filled. The employee’s version, as recorded in the judgment, was that this policy was first produced to her at a step 4 grievance meeting.


The grievance process failed to resolve the dispute. The employee referred an unfair labour practice dispute to the bargaining council for conciliation, which failed, and the matter proceeded to arbitration.


Legal Issues


The central issues before the Labour Court were whether the arbitration award was reviewable and, in particular, whether the commissioner committed reviewable irregularities in determining that the applicants’ failure to translate the employee’s post constituted an unfair labour practice.


A key question concerned the proper characterisation of “rank translation”: whether it was analogous to promotion for the purposes of an unfair labour practice dispute. This issue involved the application of legal concepts to the facts, because the categorisation affected whether the dispute fell within the statutory framework governing unfair labour practices.


A further legal question was whether the commissioner failed to consider the statutory and regulatory framework applicable to the creation and filling of posts within the South African Police Service, including the provisions relied on by the applicants relating to the National Commissioner’s powers and the obligation to advertise posts. This was treated by the Labour Court as a matter of law and legal interpretation, rather than a purely evidentiary dispute.


Additionally, the court had to determine whether the commissioner’s failure to consider the relevant regulations amounted to a gross irregularity sufficient to justify setting aside the award on review, and whether the relief granted (including compensation) exceeded statutory limits under the Labour Relations Act 66 of 1995.


Court’s Reasoning


The Labour Court addressed first the applicants’ contention that translation was not analogous to promotion. The court rejected that contention. It reasoned that translation, by its nature, entailed moving a person from one level to a higher level and generally carried an increase in salary. On the facts, the contemplated translation would have moved the employee from level 3 to level 7. The court considered this consistent with the judicial understanding of promotion as advancement to a higher rank or position, referencing the authorities cited to it.


The court then dealt with the complaint that the commissioner exceeded his powers by “reviewing” the applicants’ decision. Although it noted that the applicants appeared in argument to have abandoned this ground, the court nevertheless explained that it did not accept the premise that the commissioner had conducted an impermissible review. The commissioner’s statement that the applicants “failed to apply [their] mind” was understood as a conclusion drawn from the facts about how the applicants handled the translation process, and as part of the commissioner’s function in deciding whether an unfair labour practice had occurred.


In relation to PSCBC Resolution 7, the court held that the commissioner’s conclusion could not be faulted. The commissioner had reasoned that Resolution 7 came into effect after the employee had already submitted her translation application. The court accepted that, on the facts as approached by the commissioner, the resolution did not apply, and it further observed that retrospective application would ordinarily be unfair.


However, the critical defect identified by the Labour Court was that the commissioner did not apply his mind to the South African Police Service Employment Regulations, specifically regulations 17 and 38. Unlike Resolution 7, the employment regulations were already in operation at the time the employee applied for translation, having been promulgated on 14 April 2000 (and amended in August 2001 and June 2002). The applicants had relied on section 28 of the South African Police Service Act 68 of 1995, as well as regulation 17, to contend that post creation and filling were governed by specific conditions, including the evaluation of jobs and budgetary requirements, and that posts had to be advertised before filling.


The court rejected the argument advanced for the employee that the commissioner could not be faulted for failing to consider the regulations because no evidence about their existence had been led at arbitration. It treated the interpretation and application of the regulations as a legal issue, holding that commissioners have a duty to equip themselves with an adequate understanding of the legal framework applicable to disputes before them.


Having found that the commissioner failed to consider the employment regulations, the court characterised this as a failure to apply his mind and therefore a mistake of law. The court then applied the approach that not every mistake of law justifies interference on review. Interference is warranted where the mistake is so gross that it results in a party being denied a full and fair determination of the dispute. On the court’s evaluation, the failure to consider the employment regulations constituted such a gross irregularity, because those regulations formed part of the governing framework for assessing whether the refusal to translate the employee’s post could amount to an unfair labour practice.


The court also dealt with the relief granted. It held that the commissioner awarded compensation in excess of the statutory maximum of twelve months, acting contrary to section 194(4) of the Labour Relations Act 66 of 1995. This was treated as exceeding the commissioner’s powers and as a further gross irregularity.


On costs, the court exercised a fairness-based discretion and held that it would not be fair for costs to follow the result, because it was not unreasonable for the employee to have opposed the review application.


Outcome and Relief


The Labour Court reviewed and set aside the arbitration award issued by the first respondent.


The dispute was remitted to the Safety and Security Sectoral Bargaining Council to be reconsidered by a different commissioner.


No order as to costs was made.


Cases Cited


Mashegoane & Another v The University of the North [2007] ZALC 53; (1998) 1 BLLR 73 (LC).


Jele v Premier of the Province of KwaZulu-Natal & others (2003) 7BLLR 723 (LC); (2002) 3 Bllr 222 (LC).


Goldfields and Another v City of Johannesburg and another 1938 TPD 551.


Legislation Cited


South African Police Service Act 68 of 1995, section 28(1) and section 28(2).


Labour Relations Act 66 of 1995, section 186(2)(a), section 193(4), and section 194(4).


South African Police Service Employment Regulations, Gazette 21088 of 14 April 2000 (as amended), regulation 17 and regulation 38.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Labour Court held that rank translation is analogous to promotion because it entails advancement to a higher level and typically an increase in salary, and thus falls within the conceptual scope of promotion-related unfair labour practice disputes.


The court held that the commissioner’s failure to consider the South African Police Service Employment Regulations governing the creation and filling of posts, including regulation 17 (and regulation 38), constituted a failure to apply his mind to the legal framework. This amounted to a gross irregularity that denied the applicants a full and fair determination of whether their conduct constituted an unfair labour practice.


The court further held that the commissioner granted compensation beyond the statutory limit in section 194(4) of the Labour Relations Act 66 of 1995, thereby exceeding his powers and committing a reviewable irregularity.


LEGAL PRINCIPLES


A dispute about translation of a post/rank may, depending on its nature and effect, be treated as analogous to a promotion dispute because translation involves advancement to a higher rank or level and ordinarily carries increased remuneration.


An arbitration award may be reviewed where the commissioner commits a gross irregularity, including where a mistake of law is so material that it deprives a party of a full and fair determination of the dispute. The judgment applied the principle that not every legal error warrants review; the error must be sufficiently serious in its effect on the fairness of the proceedings or the outcome.


Commissioners are expected to determine disputes within the correct legal framework. Where applicable statutes and regulations govern the employer’s powers and processes (including post creation, evaluation, funding, and advertising requirements), a failure by the commissioner to consider and apply those legal instruments may constitute a reviewable irregularity.


In awarding compensation for an unfair labour practice, an arbitrator must act within the statutory limits prescribed by the Labour Relations Act 66 of 1995, including the maximum compensation threshold in section 194(4). An award exceeding that maximum is beyond the arbitrator’s powers and is reviewable.


In costs, the Labour Court may depart from the general approach that costs follow the result where fairness considerations justify a different order, including where it was not unreasonable for a party to oppose review proceedings.

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[2008] ZALCJHB 63
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National Commissioner South African Police Service and Another v Cohen and Others (JR53/05) [2008] ZALCJHB 63 (23 October 2008)

IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: JR 53/05
In
the matter between:
NATIONAL
COMMISSIONER
SOUTH
AFRICAN POLICE
SERVICE
1
st
Applicant
SOUTH
AFRICAN POLICE SERVICE
2
nd
Applicant
and
COHEN,
PHILLIP N.O.
1
st
Respondent
SAFETY
AND SECURITY
SECTORAL
BARGAINING COUNCIL
2
nd
Respondent
BHENGU
N.
3
rd
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application in terms of which
the applicant seeks an order to review and set aside the arbitration
award issued by the
first respondent (the commissioner) under case
number PSSS 18-04/05 dated 27 November 2004. In terms of the award
the commissioner
found that the applicant had committed an unfair
labour practice in not translating the position of the third
respondent, who is,
in this judgment is referred to as “the
employee.”
Background
facts
[2]
The employee who at the time the dispute in
this matter arose was employed as a senior administrative clerk
applied to have her
position translated into provisioning
administrative officer. Because of a number of problems that arose in
the manner in which
the applicant handled the application the
employee ended up having to file two grievances.
The
first grievance
[3]
The applicant’s application was
supported by the unit commander who in a letter to the Area
Commissioner, Human Resource Management,
indicated that the employee
was doing the work of provisioning administration officer and that
the translation, if granted, would
merely align the legal position
with the factual position. This application seems to have had the
support of the Provincial Commissioner
because on 26 April 2002 he
addressed a letter to the Provincial Head of Management Services
advising him to “
create a post to
accommodate the official’s translation”
.
The post was created and reserved for the employee.
[4]
Arising from this the employee was of the
impression that she was successful in attaining a higher post and
that nothing further
would be required. She was however, informed
later on 13 May 2002, by the Area Head, Management Services that the
post which she
requested to be translated into was not available at
the Hillbrow Police Station and that she should apply for translation
elsewhere.
This was incorrect as the employee was never stationed at
the Hillbrow Police Station, but at a sub-component of Hillbrow FCS
Investigation
Unit, based in Braamfontein where the post she applied
for was based.
[5]
Subsequent, to the above advice the
employee lodge a grievance during September 2002. The outcome of the
grievance was that the
employee was informed that her position could
not be translated because the post was never advertised and that her
job description
was not suitable for the post she had applied for.
The
second grievance
[6]
The employee filed the second grievance
during October 2003 and the outcome thereof was that her application
for rank translation
would not be forwarded to National Office for
consideration because “
the rank
translation was closed in December 2002”
.
The employee disputed this and contended that this was incorrect
because the letter of the Provincial Head, Management Services,
dated
26 February 2003, indicated that the post was reserved for her.
[7]
On 12 January 2004, the Section Head,
Promotions and Awards, National Office addressed a letter to the
Provincial Commissioner in
which it was pointed out that the policy
applicable within the second respondent made it compulsory to
advertise posts before they
could be filled. This policy was
according to the employee produced and given to her for the first
time at the step 4 (four) meeting
which dealt with her grievance.
[8]
The grievance meeting having failed to
resolve the issue raised, the employee referred the unfair labour
practice to the second
respondent for conciliation. The dispute was
then arbitrated, the conciliation having failed to reach a settlement
of the dispute.
The
grounds for review and the arbitration award
[9]
The commissioner found that in failing to
translate the post of the employee to that of provisioning
administrative clerk retrospective
to 09 January 2002, the applicant
failed to apply its mind to the employee’s application and
accordingly committed an unfair
labour. The commissioner then
directed that the applicant be given the translation retrospectively.
[10]
The applicant contended that the award of
the commissioner exceeded his powers in reviewing the decision of the
applicant not to
translate the post of the employee. This contention
is based on the finding of the commissioner that the applicant
“
failed to apply its mind”
in not granting the employee the translation she had applied for.
[11]
The applicant further contended that the
decision of the commissioner was reviewable because he failed to take
into account the
statutory regime that governed the process of
translating posts. In this regard the applicant relied on the
provisions of section
28(1) of the South African Police Service Act
68 OF 1995 (the Police Act) which gives the power to determine
uniform recruitment
policy to the National Commissioner. The power to
appoint staff is in terms of section 28(2) of the Police Act the
responsibility
of the National Police Commissioner (the national
commissioner). To this extent regulation 17 of the south African
Police Service
Employment Regulations Gazzette 21088 of 14 April 2000
(the employment regulation) as amended provides:
“
Before
creating a post for any newly defined job, or filling any vacancy,
the National Commissioner must -
(a)
satisfy herself or himself that she or he requires the post to meet
the objectives of the Service;
(b)
in the case of a newly defined job, evaluate the job in terms of the
job evaluation system;
(c)
in the case of a vacant post linked to salary range 9 and higher,
evaluate the job
unless the specific job has been evaluated
previously; and
(d)
ensure that sufficient budgeted funds, including funds for the
remaining period
of the medium-term expenditure framework, are
available for filling the post.”
[12]
The applicant in further support of its
argument contended that the national commissioner was obliged to
advertise all positions
before they could be filled. The conditions
upon which the national commissioner may create a post are set out in
the employment
regulations.
[13]
In the supplementary affidavit the
applicant contended that the commissioner failed to determine whether
he had jurisdiction in
that he does not in his award deal with
whether the alleged unfair labour practice fell within the provisions
of section 186(2)
(a) of the Labour Relations Act 66 of 1995 (the
Act). The applicant contended that there is no indication in the
award whether
the alleged unfair labour practice related to
promotion, demotion, probation or training.
[14]
The last complain of the applicant relates
to the relief granted by he commissioner. The applicant contended
that the commissioner
was obliged to follow the provisions of both
sections 193(4) and 194(4) of the Act.
Evaluation
of the award
[15]
The applicant’s complaint that the
rank translation is not analogous to promotion bears no merit in
that, translation by its
very nature entailed promoting a person from
one level to the next and this included invariably an increase in
salary. In this
instance had the translation been effected the
employee would have moved from level 3 (three) to level 7 (seven). In
my view this
is in line with the authorities and in particular,
Mashegoane & Another v The
University of the North
[2007] ZALC 53
;
(1998) 1 BLLR 73
(LC) at 73,
where the court held that promotion is “
advance,
or preferment, raise to a higher rank or position, advancement in
position or preferment.”
See also
Jele v Premier of the Province of
KwaZulu- Natal & others (2003) 7BLLR 723 (LC)
(2002) 3 Bllr 222
(LC).
[16]
In the heads of argument the applicant
seems to have abandoned the complaint that the commissioner exceeded
his power by reviewing
the decision of the applicant relating to the
issue of translation of the employee’s post. In any case even
if this point
was to be pursued, I do not, with due respect, agree
with the interpretation given by the applicant that the commissioner
conducted
a review, for which he did not have the power to do,
arising from the conclusion that the applicant “
failed
to apply its mind.”
This phrase
was used in the context where the commissioner was drawing a
conclusion on the facts and the circumstances relating
to the conduct
of the applicant concerning the manner in which it dealt with the
issue of translating the position of the employee.
This conclusion
was in the proper keeping of the exercise of the powers and function
s of the commissioner in the determination
of whether or not an
unfair labour practice had been committed.
[17]
The commissioner’s conclusion in
relation to the provisions of the resolution 7 of the Public Service
Coordinating Bargaining
(PSCBC) cannot be faulted. The commissioner
reasoned that the provisions of resolution 7 came into effect after
the applicant had
already submitted her application.  It would
seem that even if it was to be concluded that the provisions of
resolution 7
was already operative or may be applied retrospectively
(which ordinarily would be unfair) they would not apply to the facts
of
the present case.
[18]
The third respondent argued that resolution
7 could not have been a bar to the application of the employee
because that resolution
envisages a different situation to that of
the employee. The situation envisaged under resolution 7 relates to
“the filling
posts under normal circumstances.”
Resolution 7 envisages a situation where a post is advertised and
either external or internal
(employee of the applicant) candidates
who whish to be considered for the post apply. In the present
instance the employee applied
to have rank translated to a post which
was not advertised.  It is apparent from the reading of the
arbitration that the commissioner
did not apply his mind to the
provisions of the employment regulations, in particular regulation
17.
[19]
It is apparent from the reading of the award that the commissioner
did not apply his mind the provisions of regulations 17
and 38 of the
employment regulations. Unlike resolution 7 of the PSCBC, the
employment regulations were already operational at
that time the
application for translation was made by the employee. The regulations
which were amended in August 2001 and June,
2002, were promulgated on
the 14 April 2000.
[20]
I do not accept the argument of counsel for the respondent that the
commissioner cannot be faulted in as far as the regulations
were
concerned because no evidence was lead during the arbitration hearing
regarding their existence. The interpretation and application
of the
regulations is a legal rather than a pure factual issue. It is a duty
of the commissioners to familiarize and equip themselves
with a full
understanding and appreciation of the legal framework within which
they consider disputes.
[21]
Failure to consider the provisions of the employment regulations by
the commissioner amounted to failure on his part to apply
his mind to
the issues before him and in the result he committed a mistake of
law. I am aware of the authorities that have held
that a mistake of
law is not necessarily an irregularity to attract interference by the
Court. It is only when the mistake is so
gross that the affected
party is denied a full and fair determination of the issues that the
Court would be entitled to interfere.
See
Goldfields  and
Another v City of Johannesburg and another
1938 TPD 551
.
[22]
In the present instance, it is my view that by failing to consider
the implication of the employment regulations which also
forms part
of the legal frame-work governing employment issues, the commissioner
committed a gross irregularity resulting in the
applicant being
denied a full and fair determination of whether or not the refusal to
translate the post of the employee was conduct
which constituted an
unfair labour practice.
[23]
In relation to the relief, the commissioner, contrary to the
provisions of section 194(4) of the Act, awarded compensation
in
excess of the maximum of twelve months. In granting compensation as
he did the commissioner exceeded the maximum prescribed
by section
194 [4] of the Act, and thereby exceeded his powers and also
committed gross irregularity.
[24]
In the circumstances of this case it was not unreasonable for the
respondent to have opposed the review application. It would
therefore
not be fair to allow the costs to follow the results.
[25]
In the premises the following order is made:
a.
The arbitration award issued by the first respondent is reviewed and
set aside.
b.
The matter is remitted back to the second respondent to be considered
by a commissioner other than the
first respondent.
c.
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing      :
13
th
March 2008
Date
of Judgment  :
23
rd
October 2008
Appearances
For
the Applicant   :
Adv Hulley
Instructed
by          :

The State Attorney
For
the Respondent:         Adv
Mooki
Instructed
by          :

Cheadle Thompson & Haysom Inc

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