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[2009] ZALCD 20
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South African Revenue Services v Commission for Conciliation Mediation And Arbitration and Others (D426/07) [2009] ZALCD 20 (27 March 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
D
426/07
Reportable
In
the matter between
SOUTH
AFRICAN REVENUE
SERVICES
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
FIRST RESPONDENT
MATHE
NHLANHLA
N.O.
SECOND RESPONDENT
BESS
PILLEMER
N.O.
THIRD RESPONDENT
E.A.
JANSE VAN
RENSBURG
FOURTH RESPONDENT
CHANELLE
OOSTHUIZEN
FIFTH RESPONDENT
JUDGMENT
Cele
J
Introduction
The applicant seeks to
have two orders issued under the auspices of the first respondent
reviewed and set aside in terms of sections
158 (1) (g) and 145 of
the Labour Relations Act 66 of 1995 (“the Act”). The
first application is directed against
a jurisdictional ruling dated
24 March 2007 issued by the second respondent. The second is
directed against the arbitration award
dated 21 June 2007, issued by
the third respondent. Both orders were issued in favour of the
fourth and fifth respondents who
opposed both applications.
Background
Facts
The fourth and fifth
respondents are in the employ of the applicant. They commenced their
employment as Typists. The fourth respondent
joined the applicant on
1 July 1992 while the fifth joined sometime in 1996. There are two
other employees of the applicant whose
circumstances are relevant in
these proceedings. They are Ms Gouws who commenced employment with
the applicant on 8 September
1997 and Ms Moodley who joined the
applicant on 25 September 1996. They too were employed as Typists
and all four are on a permanent
employment.
The applicant is a
statutory body established in terms of the provisions of section 2
of the South African Revenue Services Act
34 of 1997. On 1 January
1999 the applicant introduced a process called the Hay Grading
System (‘the grading system’).
The purpose of the
grading system was to determine all the employees’ grades
within the applicant’s employment.
Certain of the
applicant’s employees received back pay in March 2002 as a
result of the placement system. The news of such
back pay came to the
attention of the fifth respondent through a news flash that was
issued concerning such back pay. She took
the matter up with the
applicant, by lodging a grievance. In 2002 all grading results were
reviewed in order to ensure consistency,
fairness and equity across
the board. A National Review Committee (the “Review Committee”)
was established. An employee
who had lodged a grievance but was not
satisfied by the appeal process was to complete a prescribed
questionnaire for consideration
by the Review Committee. In terms of
the questionnaire, the employees had to give a description of the job
he or she performed
after 1 January 1999. The fourth and fifth
respondents gave a description of their employment prior to and after
1 January
1999.
As a consequence of the
review process, the fourth respondent was placed on grade 3B, in the
minimum salary level, with effect
from 1 October 2000. the fifth
respondent was similarly placed but this was with effect from April
2000. However, Ms Gouws and
Ms Moodley although also placed in 3B
grade, it was with retrospective effect from 1 January 1999. All
four were in grade 3A
as on 7 December 2001. The consequence of the
differential treatment was that Ms Gouws and Ms Moodley were placed
at grade 3B
which was payable on the mid-level backdated to 1
January 1999 whereas the fourth and fifth respondents were appointed
on the
minimum level of grade 3B and without a backdated payment. In
terms of work experience, Ms Gouws had less years of service than
both respondents. Ms Moodley had the same years of service as Ms
Oosthuizen and four years less service than fourth respondent.
The applicants grading
system provided
inter alia
that:
Ø to be
remunerated at the grade 3B mid-level, an employee needed to be in
the position as at 1 January 1999.
Ø any
movement after 1 January 1999 qualified for payment at the minimum
level.
A Mr A Wybenga, a
Manager within the employ of the applicant, considered the
representations made by the fourth and fifth
respondents and he made
submissions dated 31 January 2005 to the applicant recommending that
the fourth and fifth respondents’
positions be adjusted to the
mid-point of grade 3B retrospectively, to the date of grade
allocation. He found that a number of
personal assistants in the KZN
region of the applicant were on the mid-point or higher although
they were not performing that
job on 1 January 1999. The applicant
did not accept his recommendation. The rejection of his
recommendation did not go down well
with him. He then wrote and
issued an e-mail dated 27 February 2003. It reads:
“
I accept that my
submission was not approved, but what about the cases in that area
(KwaZulu-Natal) that were appointed at mid and
even max though we for
a fact know that there was no proper motivation for the cases. We
cannot recover from them as they were
physically made that job offers
and signed contracts. Why are some people appointed above the minimum
and others not. Are we starting
to become a corrupt organisation?
Two wrongs do not make a
right, but ten wrongs are starting to become a right (tendency).
What is good for the
goose is good for the gander.”
The recommendation to
move the earnings of the fourth and fifth respondents to the
midpoint of the grade were not approved by
the applicant in that:
1. According to the Hay
Grading Policy (HGS), no employee of the Applicant including the
fourth and fifth respondents could automatically
move to the midpoint
value of the grade. Only employees who were already in the job with
effect from 01 January 1999 were taken
to the midpoint of the grade
as part of the implementation of the HGS. If an employee moved to a
different job after 01 January 1999, the employee would be
placed on the minimum value of the grade.
2.
Ad hoc
salary
adjustments can only be considered if exceptional performance can be
motivated or as a retention strategy.
3. As both the fourth and
fifth respondents were Personal Assistants, it is submitted that
their skills or knowledge cannot be classified
as key skills within
the Applicant.
4. Any motivation for a
salary adjustment must be made by the branch or centre manager and
recommended by the relevant general manager.
On 8 March 2002 the
Human Resources Department of the applicant released a newsflash on
the Hay grade update. The first page of
the newsflash reads:
“
Hay grading
process
·
The Hay grading system was introduced in 1999 to replace the Public
Sector
grading system.
·
The initial grades allocated to employees was based on the grading of
selected
benchmark jobs within SARS (sic)
·
A review of the grades was conducted during 2000 under the banner of
the
‘Woodmead Exercise’
·
Due to concerns raised with the grades an appeals process was
undertaken
during 2001 and culminated in the National Grading Review
which was finalised in January 2002.
·
The National Review resulted in at least 3171 jobs being upgraded and
1206
being downgraded with the balance retaining their grades.
·
All employees were advised in writing of their final grade applicable
for
the period 1 January 1999 to 1 October 2000 incorporating any
changes.
·
Employees have the option to consider arbitration as the final
determinant
of their grade. The terms of reference for the
arbitration process will be finalised with the trade unions.
a. Back
pay
Eligibility for backpay
·
The following category of employees will receive backpay:
·
Employees whose grades have gone up relative to the orginal exercise
and/or
the ‘Woodmead exercise’ and who were earning less
than the midpoint for their grade from 1 January 1999 or the
applicable
later date before 1 October 2000. This excludes all
categories of employees who are considering arbitration.
Process followed to
determine Backpay
·
Following the issuance of letter to all employees stating their final
grade,
detailed lists were forwarded to all offices specifying the
January 1999 starting position to determine and incorporate any grade
changes that may have occurred during the period 1 January 1999 to 1
October 2000.
·
Managers and empoyees were required to sign off and confirm the
information
on the list.
·
The actual current pay for every month in the review period was
extracted
from the payroll system to establish a basis for
comparison.
……
…
...”
The fourth and fifth
respondents challenged the applicant’s failure to place them
on the mid-point of grade 3B. They referred
an unfair labour
practice to the first respondent, the CCMA, for conciliation and
arbitration. An arbitration award dated 6 March
2005 was issued in
their favour. The applicant applied for the review and setting aside
of that arbitration award. At least three
grounds of review appear
to have been relied upon, namely:
(i)
that the CCMA had no jurisdiction to arbitrate the dispute,
(ii)
that the arbitrator misdirected himself by disregarding the
explanation
proffered by the applicant on why it differentiated the
case of the two respondents from that of Ms Moodley and Ms Gouws.
(iii)
That the arbitrator went beyond the terms of his reference, which
were
confirned to determining the fairness of the practice with
effect from 1 April and 10 October 2000.
This court per Pillay J,
found that the CCMA had the requisite jurisdiction to arbitrate the
dispute and that the arbitrator did
take into account the fairness
of the practice as he was entitled to, due to a request by the
fourth and fifth respondents. However
the court found that the
arbitrator misdirected himself by disregarding the explanation given
by the applicant on why it treated
the fourth and fifth respondents
differently from their two colleagues by not applying its grading
policy consistently. The arbitration
award was reviewed and set
aside with the matter remitted to the CCMA to be arbitrated anew by
a different commissioner. Five
issues were identified by court in
relation to which the arbitrator should have, but did not apply his
mind to, namely:
1. the
nationality of the applicant’s differentiated pay policy;
2. the
reason for appying the policy to the circumstances of the employee;
3.
whether the application of the policy to the circumstances of the
employees was consistent with is application
to other similarly
situated employees;
4.
whether the reasons for refusing to pay the employees the higher
remuneration were rational and factually substantiated;
5.
whether the employees met the criteria for back-pay as set out in the
news flash.
When the matter resumed
for the arbitration hearing, the applicant raised the jurisdictional
objection again. The matter was before
the second respondent who
found that the CCMA had the necessary jurisdiction to arbitrate the
dispute. The third respondent was
subsequently appointed to
arbitrate the dispute. He declared the applicant’s failure to
deal with the fourth and fifth
respondents in the same manner as it
dealt with Ms Gouws and Ms Moodley, to place them on the midpoint of
grade 3B, to be unfair.
He directed the applicant to amend the
grading of the fourth and fifth respondents so that they were
reflected as being on the
midpoint of grade 3B retrospective to 1
January 1999. The applicant had to pay them the difference between
the remuneration they
would have earned had they been so graded and
the remuneration they have in fact earned since then, the fourth
respondent until
October 2005 and the fifth respondent until the
date of the award. The applicant was aggrieved by the finding and
the order and
hence the present applications.
The
review of the jurisdictional ruling
The applicant abandoned
the review application launched against the second respondent’s
ruling of 24 March 2007 in its replying
affidavit. It stated that it
was therefore no longer necessary for this court to entertain issues
pertaining to the aforesaid
arbitration ruling. In the applicant’s
heads of argument the jurisdictional ruling issue was also not
canvassed. However
when Mr Lengane presented the case of the
applicant before me, he revived the issue.
The backdating of the
placement of Ms Gouws and Ms Moodley led to them getting backpays.
This alone meant that their placement
from grade 3A to 3B mid-point
effectively raised their positions at work. Their placements brought
with it, a differentiation
in the remuneration they had been
receiving prior to such placement. The only reasonable conclusion to
draw from these facts
is that they were indeed promoted. The fourth
and fifth respondents were aggrieved by this differential treatment.
Their case
is therefore that when the applicant promoted them, it
treated then differently than it had done when promoting Ms Gouws
and
Ms Moodley. Their dispute accordingly falls within the ambit of
an unfair labour practice as it relates to a promotional issue.
The
ruling of the second respondent should therefore stand.
The
review of the arbitration award
Chief
findings by the third respondent
The third respondent
found three reasons rendered by the applicant to explain the
distinction in how it treated the fourth and
fifth respondent from
Ms Gouws and Ms Moodley as being:
1. The
decision of the grading committee was based on information supplied
by line management.
2. The
applicant was unable to place the fourth and fifth respondents in mid
point of grade 3B because to do so
would not accord with the Hay
Grading System, which required that they be in the positions on 1
January 1999.
3. The
grading committee’s decision was based on the questionnaire
completed by the employee.
The third respondent
pointed out, in respect of the first reason, that the applicant’s
representative only mentioned the
reason in his opening adress but
that the reason was not persued further in the closing argument. She
found the third reason
to be an arbitrary approach tendered for the
first time, that the applicant was relying on questionnaires
completed by the respondents
and not upon the actual factual
situation. Her further findings are that:
1. The
respondents were regarded as typists, grade 2 on 1 January 1999, and
only promoted to Grade 3 some time
thereafter. On the agreement with
the Trade Unions and on the implementation of the Hay Grading System
a person promoted after
1 January 1999 moves into the minimum of the
new grade. On that basis they were put on the minimum. This is all
well and good,
seen in isolation, but the real issue is why they were
treated differently from others in an identical position where the
employer
is adamant they have been dealt with properly.
2. No
evidence was led on what evidence was placed before the grading
committee that considered whether employees
should be placed on the
midpoint or on the minimum scale. The fact that managers did not sign
or perhaps even scrutinise the questionnaires
of the employees who
were successfully placed on the midpoint underscrores the arbitrary
nature of the process if it was based
solely on the employee’s
response to the questionnaire. It was also not clear what information
had been entered by the employees
themselves or what was added later.
Ms Gouws and Ms Moodley did not complete the questionnaires fully
(signatures were also not
obtained by their managers) and there were
unexplained manuscript inserts.
3. The
factual situation is that all were typists in the typing pool in 1999
and subsequently became PAs. If the
differentiation in teatment was
based on questionnaires apparently not completed properly then this
is arbitrary and unfair. The
format of the questionnaires, the record
to which Mr Nkwana representing the applicant refers, confused the
situation further.
The questionnaire does not ask what the employee’s
position was before and until 1 January 1999, but asks for a
description
of the job perfomed after that date. The Respondents gave
a description of their employment prior to and after 1 Janaury 1999,
while Gouws and Moodley made reference only to positions after that
date, giving rise perhaps to the false assumption that they
were in
those positions prior to 1 January 1999. The date of appointment was
another confusing element of the questionnaire. Did
the question mean
the day the employee was initially employed by the Applicant, or the
commencement date of new position held by
the employee after 1
January 1999?
4.
Since it is accepted that Ms Gouws and Ms Moodley will be retained in
the position of midpoint Grade 3B, i.e,
they will not be moved to the
minimum grade, justice and fairness dictate that their colleagues,
the two respondents, in an identical
position, but who perhaps filled
in the forms more accurately, should not be prejudiced for having
done so, and as a matter of
fairness should be treated in the same
way as their colleagues.
5. The
applicant had not provided a “rational and consistent”
reason for the different treatment of
the four. [She referred to the
e email issued by Mr Wybenga on 27 February 2003.] From the e mail it
appeared that the applicant
had made mistakes during the regrading
process, a huge undertaking, at the time, and that is probably what
happened in this instance.
The “Report on Hay Grading Process
in SARS” mentions that a total of 6500 jobs were reviewed.
6. The
behaviour of the applicant in refusing to place the two respondents
on the midpoint of grade 3B, having
placed Ms Gouws and Ms Moodley on
that level, when there was no proper basis for differentiation,
constituted an unfair labour
practice. The applicant provided no
rational explanation as to why it treated the two respondents
differently to Ms Gouws
and Ms Moodley.
7.
Although the outcome might create an anomaly, in the peculiar
circumstances of this case, where four people
were in exactly the
same position, and two received unduly favourable treatment, fairness
dictated that the two who did not, should
also be treated in the same
way as their more fortunate colleagues.
Grounds
for review
The third respondent is
said to have committed misconduct and/or gross irregularity and/or
exceeded her powers and or failed to
appreciate the true nature of
the dispute before her and/or misconstrued evidence and/or reached a
decision or finding which
is irrational or unjustifiable and/or
committed a reviewable irregularity in terms of the Act. Various
submissions were made
by the applicant to substantiate its grounds
for review. A number of these submissions tend to overlap with one
another. Some
of the submissions will be outlined hereafter.
The Third Respondent’s
criticism of the format of the questionnaire is unjustifiable in
that the questionnaire is a product
of collective bargaining and the
(National Grading Review Committee) NGRC did not find it difficult
or complicated, as the commissioner
finds it, to deal with
respective information received and that was the issue for the NGRC
to consider and decide upon, which
they did.
The finding is
unjustifiable in that Ms Gouws and Ms Moodley were not appointed to
any post after 1/1/99 but the applicants were.
The decision by NGRC
to confirm Ms Gouws and Ms Moodley to be on 3B minimum was based on
the HGS policy which required that any
move after 1/1/99 an employee
should be placed on the minimum of the salary band. The third
respondent miscomprehended the enquiry
the HGS policy and this
resulted in an unfair finding being made by the second respondent.
The Third Respondent
further failed to appreciate that the HGS was the product of
collective bargaining in terms of which the
unions and the
applicant’s representatives agreed to regrade employee’s
jobs. If the parties to the HGS agreed, as
they did, that any
appointment after 1/1/99 should be placed on minimum of the salary
band that cannot be held to be unfair in
that, as stated above, it
was by agreement with the unions which also represented the third
and fourth respondents.
There is therefore no
basis for the third repsondent to require similar treatment for the
third and fourth respondents and Ms
Gouws and Ms Moodley in that
their situation is not the same. Overwhelming evidence had been
placed before the third respondent
that the two groups did not have
similar situations.
The finding that the
applicant did not provide a rational and consistent reason for the
treatment of the two groups is unjustifiable
and unsupported by
evidence. The Third Respondent failed to comprehend the issues
before her. The primary determination in terms
of the HGS, was
whether an employee was moved to any position after 1/1/99 and if
so, that employee would be placed on the minimum
of the grade. This
the third respondent failed to do in that, had she made such a
proper determination, in terms of the HGS whether
an employer was
moved to any position after 1/1/99, she would have to find that that
employee would be placed on the minimum
of the grade. This the third
respondent miscomprehended in that had she made such a proper
determination, she would have established
that the two groups’
circumstances were not similar.
There was no evidence
nor submissions made that Mr Arri Wybenga was appointed to
investigate any grievance. The findings by the
third respondent that
Mr Arri Wybenga was so appointed is unjustifiable and not supported
by evidence. She failed to comprehend
that Mr Arri Wybenga was
merely stating his personal views on the matter and there is no
proof to support any conclusion that
the email contained correct
information.
For the third respondent
to conclude on the basis of the email of Mr Arri Wybenga that the
applicant made mistakes during the
grading process is irrational.
The mistakes, if any, can only be attributed to the HGS committees
which, as submitted, included
the unions, including one that
represented the third and fourth respondents.
Again the finding that
the fourth and fifth respondents’ grading retrospectively be
amended so that they are reflected as
Grade 3B retrospectively to 1
January 1999 is unjustifiable. The third respondent overlooked
evidence to the effect that at the
time of the declaration of the
dispute the respondents were already on Grade 3B. The award that the
fourth and fifth respondents
be paid the difference between
remuneration they would have earned had they been so graded is
reviewable in that the third respondent
ignored evidence that the
grading is not referring to the salary payable but merely the
employee’s level within the applicant.
The issue which the
third respondent failed to deal with is whether applicant committed
an unfair labour practice in placing
the fourth and fifth
respondents on minimum salary band due to their appointment after
1/1/99 and not whether the applicant committed
an unfair labour
practise in placing the third and fourth respondents on grade 3B.
This failure renders the entire arbitration
award reviewable in that
such determination was primary to the third respondent’s
findings and award.
The third respondent
exceeded her powers in ordering that the fourth and fifth
respondents be placed on Grade 3B retrospective
to 1/1/99 in that
the parties agreed in the pre-trial minutes that the two respondents
accept their grades as 3B. I am advised
that the Commissioners are
bound by the pre-trial minutes agreed to between the parties.
The third respondent
misdirected herself in determining the issue of promotion in that
the proper approach was to ask herself
whether the applicant failed
to promote the fourth and fifth respondents when it had to do so.
Put differently, whether the applicant
failed to promote the fourth
and fifth respondents where they merited promotion. This she failed
to do.
Fourth
and fifth respondents’ submissions
The submissions of the
applicant made in support of the grounds for review were placed in
dispute. It was submitted that the applicant
failed to produce any
fair, rational or lawful explanation for why Ms Gouws and Ms Moodley
should have been treated differently
from that of the two
respondents. The respondents said that it was further apparent that
the applicant still did not comprehend
its own policy which required
appointments after 1 January 1999 to be placed on the minimum salary
scale in circumstances when
the two respondents were in the same
boat as Ms Gouws and Ms Moodley, having been appointed post 1
January 1999.
In respect of requiring
similar treatment for the two respondents and Ms Gouws and Ms
Moodley, the respondents said that it was
a trite principle that
employees on the same level doing the same jobs have the right to be
treated equally. All the more so
in the circumstances where the
applicant is an organ of state and is obliged to act rationally.
The third respondent was
said to have noted that the findings concurred with that of one of
the applicants Human Resources Team
Leaders who comprehended the
fact that the decisions in respect of the two respondents was
irrational. It was said that Mr Wybenga
was authorised by his
manager and that in any event, his conclusions were clearly correct
as the differences between the two
respondents and Ms Gouws and Ms
Moodley were glaringly obvious and unfair.
Analysis
This application is
premised on section 145 of the Act. The relevant provision reads:
“
(1) Any party to a
dispute who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply to
the Labour Court for an order
setting aside the arbitration award.-
…
.
…
.
(2) A defect referred to
in subsection (1) means:-
(a) that the
commissioner-
(i) committed misconduct
in relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross
irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the
commissioner’s powers; or
(b) that an award has
been improperly obtained.”
In
Sidumo &
Another v Rustenburg Platinum Mines Ltd & Others
[2007] 12
BLLR 1097
(CC), Navsa AJ said the following in relation to the
standard of review:
“
To summarise,
Carephone
held that s 145 of the LRA was suffused by the then
constitutional standard that the outcome of an administrative
decision should
be justifiable in relation to the reasons given for
it. The better apporach is that s 145 is now suffused by the
constitutional
standard of reasonableness. That standard is the one
explained in
Bato Star:
Is the decision reached by the
commissioner one that a reasonable decision maker could not reach?
Applying it will give effect not
only to the constitutional right to
fair labour practices, but also to the right to administrative action
which is lawful, reasonable
and procedurally fair.”
The enquiry before me is
therefore whether or not the third respondent has commmitted any
defect as comtemplated in section 145
(2) of the Act and further,
whether the decision she reached in this matter is one that a
reasonable decision maker could not
reach.
The date 1 January 1999
is critical in the resolution of issues in this matter. It was used
by the applicant as a point of reference
in the application of its
placement policy. Those terms of the policy that are relevant in
this matter are clear and easy to
apply. They were duly arrived at
in consultation between the applicant as an employer and
representatives of the employees. A
differential pay policy
consequent upon the application of the Hay Grading Process is, in
the circumstances, reasonable. The
applicant was therefore entitled
to use the differential pay policy when placing all of its
employees, to the extent that it
was applicable, with due regard to
a number of other factors such as consistency, fairness,
impartiality, tranparency and without
bias – see in this
regard
Coop & Others v SABC & Others
[2005] 2 BLLR
179
(W). The applicant may, after all, be described in general
terms, as an organ of State which is therefore constitutionally
bound
to promote high standards of ethics and good human resources
management.
On 1 January 1999 Ms
Gouws, Ms Moodley and the two respondents were all employed by the
applicant as typists. Up until the end
of 1999 therefore none of
them had moved from their positions of being typists to take
positions of Personal Assistants and Secretary
which happened
thereafter. All four therefore occupied the same or similar status
within the applicant’s workplace, with
the exception that some
had longer work experience than others. All four subsequently moved
from the typist positions which had
become redundant to take new
positions.
In terms of the Hay
Grading Process therefore all four employees ought to have been
given the minimum salary of the band as opposed
to midpoint salary
of that band. The first reason proferred by the applicant to explain
the differentiation among them was clearly
an untruth. Ms Moodley
and Ms Gouws were appointed to other positions after 1 January 1999
and the applicant knew about it or
subsequently came to know of it.
According to the newsflash of 8 March 2002, 1206 jobs were
downgraded. The applicant chose not
to downgrade the payband of Ms
Gouws and Ms Moodley. By denying that Ms Gouws and Ms Moodley did
move after 1 January 1999, the
applicant denied itself an
opportunity to explain the resultant disparity between the payband
of the two respondents and that
of Ms Gouws and Ms Moodley. The
consequence is that the applicant acted inconsistently and with
unfair results to some of its
employees who even had much longer
experience than one of the benefactors of the inconsistency.
The second explanation
for differentiation equally applied to Ms Gouws and Ms Moodley and
therefore provides no comfort to the
inconsistent application of the
grading policy. The third explanation amounts to no explanation at
all. The applicant, at least
with subsequent developments to the
initial grading, came to be possessed of the true facts in respect
of Ms Gouws and Ms Moodley
and could have redressed the situation
but it chose not to. The reason to refuse to pay the two employees
the higher remuneration
after the applicant had chosen not to
downgrade the pay band of Ms Moodley and Ms Gouws, was in the
circumstances unreasonable.
By choosing to keep the
status quo
ante
in respect of Ms Gouws and Ms Moodley the applicant had to
ameliorate the resultant disparity to the two respondents by placing
them in the mid-point of their salary band. Had it done so, it would
have shown an impartial and transparent approach in the
resolution
of the dispute.
The applicant was called
upon to engage in ad hoc adjustments as this was clearly a case of
exceptional situation as opposed to
exceptional performance of an
employee. The question of skills or knowledge of the two respondents
was irrelevant in the circumstances.
How the case of the two
respondents could be motivated by branch or centre managers of the
applicant, was an issue best left
to the applicant. One of its
managers, a Mr Wybenga had already made a very important
contribution in this regard.
The result which I have
consequently arrived at is very similar to the decision reached by
the third respondent in this matter.
For that reasons, it can not
reasonably be said that the third respondent committed any of the
defects as are comtemplated in
section 145 of the Act. Nor can it be
said that the decision reached by the third respondent is a decision
which a reasonable
decision maker could not reach.
I am guided by the law
and fairness applicable in this matter to conclude that the costs
will follow the results.
Accordingly, the
following is an appropriate order, in the circumstances:
1. The
application to review and set aside the:
·
jurisdictional ruling dated 24 March 2007 issued by the second
respondent in
this matter and
·
arbitration award dated 21 June 2007 issued by the third respondent,
in this
matter is dismissed.
2. The
applicant is ordered to pay the costs of this application.
____________
Cele
J
Date:
27 March 2009
Appearances:
For
the Applicant: Adv Kabelo Lengane instructed by Masermule
Attorneys
For
the Respondent: B. Macgregor – Macgregor Erasmus Attorneys