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[2010] ZALCCT 10
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Insurance And Banking Staff Association v Commission For Conciliation Mediation And Arbitration and Others (C47/2009) [2010] ZALCCT 10 (19 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NUMBER: C47/2009
DATE:
19 MAY 2010
In
the matter between:
INSURANCE
AND BANKING
STAFF
ASSOCIATION
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
PIET
VAN STADEN N O
Second
Respondent
OLD MUTUAL LIFE
ASSURANCE
COMPANY
LIMITED
Third
Respondent
OLD
MUTUAL HEALTCARE (PTY)
LTD
Fourth
Respondent
J U
D G M E N T
DE
SWARDT, AJ
:
The
applicant in this matter approached the CCMA in a dispute which was
alleged to concern the interpretation and application of
a collective
agreement. The dispute between the applicant and the third and
fourth respondents arose from the manner in which
the third and
fourth respondents applied a performance management system.
What had occurred is that the performance management
system had been
applied in a certain manner. More particularly, it had been the
custom for the employer to sit down and to discuss
an employee’s
performance with him or her and they would mutually agree on a
performance rating.
What
then occurred, is that the employer changed its practice and
subsequently, i.e. after a certain assessment or standard had
been
agreed with the affected employee, moderated the result that had been
obtained. The applicant was aggrieved by this
and alleged that
it had acquired the right, pursuant to a collective agreement that
had been entered into between itself and the
third and fourth
respondents, to be consulted when its members’ rights were
affected.
When
the matter came before the CCMA, the second respondent, who had been
appointed as the Commissioner to deal with the matter,
as a point of
departure had regard to the terms of the written collective
agreement, which was referred as ‘the Omdaba agreement’.
In
a very well reasoned award, the Commissioner carefully considered the
applicable law, more particularly the parol evidence rule,
which
provides that when parties have reduced their contract to writing,
the written instrument stands as the memorial of their
agreement and
that in principle, no extrinsic evidence is allowed as to its
meaning.
The
award which has been provided by the second respondent in this case
is indeed as Mr Steenkamp, who appeared for the third and
fourth
respondents, submitted, a model award. It is quite clear that
the Commissioner applied his mind to the issues that
were before him,
that he applied his mind to the prevailing law and that he then
applied the law to the facts that were before
him as he saw these,
and to the agreement that he was called upon to construe and
interpret.
The
Commissioner found that the performance management system, which was
applied by the third and fourth respondents, was not governed
by the
Omdaba collection agreement. The applicant was aggrieved by
this finding and approached this Court in terms of
section 145
of the
Labour Relations Act 66 of 1995
for a review of the arbitration
award.
The
manner in which this Court is called upon to deal with an arbitration
award on review, was the subject of a great many different
judgments
in this court and in the Labour Appeal Court. It has, however,
now finally been settled that when this Court is
called upon to
review an award in terms of
section 145
aforesaid, it must assess
whether or not the award that was made by the Commissioner, was one
which a reasonable Commissioner,
could or could not have reached on
the facts and the evidence which served before him or her. In
this regard I refer to the
well known decision of
Sidumo
v Rustenberg Platinum Mines Limited and Others
2008 (2) SA 24
(CC)
.
There
is a difference between an appeal and a review. Where one has a
right of appeal, it is sufficient to establish a case
that the
decision appealed against was wrong in one way or another. That
is not the test in a review. It might be so
that from time to
time an arbitration award or a judgment that is taken on review, is
wrong in some respect, but as long as the
decision is one that could
have been reached by a reasonable decision-maker, there is no room
for interference with such award
or judgment on review. A
review is aimed not at correcting something which is patently
incorrect, but at an irregularity
in the proceedings; something which
occurred that had the result that the decision was not fair and was
not properly arrived at.
On
a conspectus of this case, it does not appear to me that the
Commissioner was in any way at fault. The parties advanced
lengthy arguments to him and he, quite rightly, approached the matter
on the basis that he had to look at the agreement itself
in order to
determine what the parties had intended when they concluded it and
that is what he proceeded to do.
Mr
Jacobs, who appeared for the applicant, argued that it was implicit
in the agreement itself that the parties had not intended
it to be
the sole memorial or sole source of contractual rights which the
applicant had acquired on behalf of its members.
In this
regard, Mr Jacobs relied on a clause in the agreement, which is at
page 35 of the indexed bundle of documents.
The clause
appears under the main heading ‘employee rights’.
Immediately below that clause 1, under the subheading
‘general’
reads as follows:
‘
Employee
rights are those rights which the employee can enforce in law.
The source of these rights is either statutory or
contractual or
through practice.
’
Under
the subheading ‘contractual rights’ at the foot of page
35, the following appears:
‘
These
are the terms and conditions of employment and include:
(a)
Contractual rights which are agreed upon, either written or verbal,
or established by custom and practice
and which are binding in law
.’
On
the strength of that clause, Mr Jacobs argued that the Commissioner
was not only wrong, but that he had acted unfairly, in disallowing
the applicant the opportunity of providing evidence as to the
practice which had been adopted in the past with regard to the
performance
management system and its application.
If
one goes back to the agreement itself, one sees that it regulates a
variety of rights which the applicant has and which it exercises
on
behalf of its members in dealings with the third and fourth
respondents. It is, however, well established that it is very
much management’s prerogative to conduct performance
assessments and to choose how such performance assessments are
conducted. As Mr Steenkamp has submitted, it would indeed
be totally extraordinary if one could construe a collective
agreement
in such a manner that an employee or an employees’ trade union
or organisation could acquire the right to prescribe
to an employer
how it ought to do a performance management assessment or how it had
to apply such an assessment.
It
would appear to me that the decision which the arbitrator reached in
this regard, is one which a reasonable arbitrator could
have reached
and that there is no reason to interfere with the arbitration award.
I
might add that it appears to me that the applicant misconceived the
nature of the relief to which it might have been entitled.
If
the manner in which management had applied the performance assessment
results had the result that the applicant’s members,
or any of
them, were unfairly affected in regard to their future promotion, or
were unfairly demoted, it would appear to me that
the union would
have been able to rely on the unfair labour practice jurisdiction of
the CCMA in terms of
section 186(2)
of the
Labour Relations Act.
Section
186(2)(a) provides in terms that an unfair labour practice
means, inter alia, any unfair act or omission that arises between an
employer and an employee, involving ‘
unfair
conduct by the employer relating to the promotion, demotion,
probation or training of an employee, or relating to the provision
of
benefits to an employee
.’
As
the agreement stands, there is nothing to indicate that the applicant
would not have the right to take up the cudgels in terms
of
section
186(2)
, and there is also nothing in the agreement to indicate that
the applicant would be precluded from adopting a different route to
obtain the result that it seeks. That route has been alluded to by Mr
Steenkamp in his argument when he said, quite rightly so,
that if the
applicant were to demand that it be consulted in regard to the manner
in which performance assessments are conducted
or implemented, it
could ask management to do so. If management refused, it could
declare a dispute and if that dispute remained
unresolved and the
particular provisions of the act were complied with, it could
eventually embark on a strike.
There
is nothing in the Omdaba agreement to indicate that the employers’
rights to conduct performance management assessments,
has been
curtailed or circumscribed. There is similarly nothing in the
Omdaba agreement to indicate that any change in the
manner in which
such an assessment is performed, has to be consulted with the
applicant. The applicant founded its relief
on an incorrect
cause of action and that is why it has come short at the end of the
day.
In
these circumstances, the applicant’s application for the review
of the arbitration award made by the second respondent
on 22 December
2008 under case number WE5212-08 is dismissed and the arbitration
award is confirmed. The applicants are ordered
to pay the costs
of the third and fourth respondents.
_____________________
DE
SWARDT, A J
For Applicant:
Mr Willem Jacobs of Willem Jacobs & Associates Attorneys
For Respondent:
Mr A J Steenkamp of Bowman Gilfillan
Date of Hearing:
19 May 2010
Date of Judgment
19 May 2010