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[2010] ZALCD 1
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Health & Other Services Personnel Trade Union of SA (HOSPERSA) and Another v Member of the Executive Council for Health, KwaZulu-Natal and Another (D102/08) [2010] ZALCD 1 (5 February 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
DURBAN
REPORTABLE
CASE
NO:
D102/08
In
the matter between:
HEALTH & OTHER
SERVICES PERSONNEL TRADE UNION OF SA ("HOSPERSA")
First Applicant
ROBIN GARTH
WESTWOOD
Second Applicant
and
THE MEMBER OF THE
EXECUTIVE COUNCIL FOR HEALTH, KWAZULU-NATAL
First Respondent
DEPARTMENT OF
HEALTH, KWAZULU-NATAL
Second Respondent
JUDGMENT
CONRADIE
AJ
INTRODUCTION
1.
In this matter the Applicants have approached this court for an order
in the following terms:
1.1.
“
That the decision to advertise the post of Chief
Technical Advisor: Engineering Advisory Service in Respondents’
Infrastructure
Development Component is set aside.
1.2.
That Respondents are ordered to appoint Second Applicant to
the said post of Chief Technical Advisor: Engineering Advisory
Service.
1.3.
Alternatively to paragraph 1.2 above, that Respondents are
ordered to act in terms of Chapter 1, Part V C.6 of the Public
Service
Regulations, and exercising the power conferred by that
regulation, to continue to employ Second Applicant in his present
post,
the name of which has been changed to “Chief Technical
Advisor: Engineering Advisory Service” without
advertising
the post or holding any selection and appointment
procedures.
1.4.
Alternatively to paras 1.1, 1.2 and 1.3 above, granting
Applicants such further and or alternative relief as to the above
Honourable
Court may seem fitting.
1.5.
Ordering Respondents to pay Applicants’ costs of this
application.
That pending the final
determination of the rule nisi, Respondents are:
1.6.
restrained and interdicted from continuing with the
advertising, selection, and appointment process in respect of the
said post
of Chief Technical Advisor: Engineering Advisory
Service;
1.7.
restrained and interdicted from retrenching Second Applicant;
1.8.
restrained and interdicted from removing Second Applicant from
his presently held job.”
BACKGROUND
2.
The Applicant has been employed with the Second Respondent since
March 1991, with the exception of a period of three years when
he was
employed by the Provincial Health Authorities in the Western Cape.
3.
The Applicant is of the view that since taking up his employment in
March 1991 he has faithfully and diligently served the Second
Respondent and has given it more than satisfactory service.
4.
During the period 1991 to 1995 the Applicant held the post of Chief
Works Inspector. After returning from the Western Cape
he took
up the post of Control Works Inspector (Electrical and Mechanical)
with the Second Respondent and held this post until
November 1999.
5.
In December 1999 the Applicant was appointed to his present post of
Deputy Manager: Engineering Services although at that
point in
time the post had the title of Deputy Director: Works
Inspections. At the time of his appointment to the post
it was
a level 11 post. However, in 2003 the post was upgraded to
level 12.
6.
The Applicant is of the view that he has performed more than
satisfactorily in the post. In respect of the four quarters
of
the assessment period 1 April 2006 to 31 March 2007, he received
performance assessments of 72%, 80%, 76% and 84% respectively
resulting in an average of 78%. This score is apparently
considered superior performance in terms of the performance
assessment
system used by the Second Respondent. It is
according to the Applicant also above the level of satisfactory
performance which
is attributed to scores in the range from 60% to
74%. It is not in dispute that the Applicant’s
performance in his
current post has been consistently at this level.
7.
At some point the Second Respondent advertised a position of Chief
Technical Advisor: Engineering Advisory Service at level
13.
The Applicant contends that this post was created as part of a
“purported” restructuring of the Second Respondent.
It appears that the job descriptions for the two posts are identical
with the only change being to the name and salary levels.
The
Applicant is of the view that he has effectively been performing the
functions, carrying out the duties and bearing the responsibilities
of the post of Chief Technical Advisor: Engineering Advisory
Service ever since he was appointed to the post Deputy Manager:
Engineering Services in December 1999. He further claims that
he was not consulted about the decision to re-arrange the structure
in the manner that it has been.
8.
The Applicant is of the view that although he is entitled to apply
for the post of Chief Technical Advisor: Engineering
Advisory
Service, it is highly unfair that he should be required to apply for
what is in effect his own job, and is the job that
he has been doing
to the satisfaction of the Second Respondent for approximately 9
(nine) years.
9.
The Applicants also rely on the provisions of Chapter 1, Part V, C.6
of the Public Service Regulations, which they argue enables
the
Respondents’ to appoint the Second Applicant directly to the
“vacant post” of Chief Technical Advisor: Engineering
Advisory Service. The Second Applicant is of the view that he
meets all the requirements referred to in the regulation in
that he
performs the duties of the post; has received a more than
satisfactory rating in his most recent performance assessment
and is
quite prepared if appointed to start at the minimum notch of the
salary range for level 13.
10.
Chapter 1, Part V, C.6 of the Public Service Regulations states as
follows:
10.1.
“
If an executing authority increases the salary of a
post as provided under regulation V C.5, she or he may continue to
employ the
incumbent employee in the higher-graded post without
advertising the post if the incumbent –
(a)
already
performs the duties of the post;
(b)
has
received a satisfactory rating in her or his most recent performance
assessment; and
(c)
starts employment
at the minimum notch of the higher salary range
.”
11.
The Applicants contend that the Second Applicant meets the
requirements of (a) and (b) and is quite prepared to be remunerated
at the minimum notch of level 13. It is therefore within the
Respondents power to leave him in the post, the title of which
has
simply been changed to Chief Technical Advisor: Engineering
Advisory Service.
12.
According to the Applicants, if the post is to be advertised and a
selection exercise done and the Second Applicant is not appointed
to
the post after having applied for it, this would result in him losing
the position in which he had diligently served the Respondents
for
many years. He would also be liable to lose his employment
altogether. If not appointed to the post following the
advertisement and the subsequent selection process, he will then fall
into a pool of employees who are in excess to the department’s
needs. If no suitable alternative post can be found for him, he
will be retrenched.
13.
The Respondent’s version is that the restructuring process “
has
been decided upon and there is an agreement that no employee will be
redundant and/or possibly retrenched
.” Reference is
made to a circular, which the Respondents’ say took the form of
an agreement, which provides the
following in respect of
restructuring:
(a)
“
Any
employee occupying a post, that is similar to the duties of a newly
created post, but is on the same post level, may be absorbed
into the
new post;
(b)
Any
new post created, which is of the post level, higher to an existing
post, must first be advertised internally, and if not filled,
be
advertised externally;
(c)
There
will be no retrenchments as a result of restructuring, as no employee
will be made redundant;
(d)
All
excess employees will remain in their current post levels;
(e)
The
agreement supersedes the previous guidelines that provide for
retrenchment.”
14.
Insofar as the Applicants’ allegation that the posts are
identical is concerned, the Respondents submit that the new post
has
a range of duties that is substantially different to the Second
Applicant’s present position. In his present position
his
duties are essentially to manage and control the existing
infrastructure within the engineering and maintenance divisions.
To this end the Second Applicant was expected to provide technical
expertise and support to facilitate the provision of facilities
at
all institutions in the province of KwaZulu-Natal. The new post
however is substantially different in that, over and above providing
technical expertise in the existing infrastructure, the incumbent is
required to manage the process to develop specialized specifications
for proposed development initiatives. The incumbent is also
required to develop innovative engineering solutions in
identification
of deficiencies. It is obvious that the new post
is focused on more than just providing technical assistance, but is
aimed
at development. The incumbent must therefore have
engineering / technical experience and expertise in the area of
development
and the environment of the health industry. It is
for this reason that the post was evaluated at a higher level and
fell
in the category of Senior Management Services (SMS). The
Respondents are therefore obliged to advertise the post as required
by
the regulations and the Second Applicant is welcome to apply for
the post.
15.
Further, the process is not unfair in that the Second Applicant is
given an opportunity to apply for a post on a higher post
level like
any other person who wishes to apply. There can be no prejudice
to the Second Applicant as he will have the full
opportunity to
express and display his capability, capacity and suitability for the
post.
16.
The Respondents also submit that as the new post is regarded as a SMS
post it is subject to Chapter 1, Part VII, C.2.3. of the
Public
Service Regulations. This provision is peremptory in that any
vacant post in the SMS must be advertised nationally.
The
Second Applicant is therefore not entitled to be absorbed into the
new post.
17.
The Respondents are also of the view that in the event that the
Second Respondent feels that an injustice has occurred after
the
selection process, he has remedies available to him. Further,
that it may very well be that the Second Applicant is appointed
to
the new post after due process is followed. As the Second
Applicant has not followed this route this application may be
premature.
Regulation
C.6 of Part V
18.
At the heart of this dispute is whether or not Regulation C.6 of Part
V should be applied in this case. This will depend
on whether
or not the Second Applicant’s post has indeed been upgraded.
19.
Regulation C of Part V of the Public Service Regulations of 2001 is
focused on the issue of grading and remuneration.
Regulation C
envisages circumstances in which an executing authority, following on
a job evaluation exercise, decides to increase
the salary of a post
to a higher salary range in order to accord with the job weight as
determined by a job evaluation.
20.
In the present matter the Applicants argue that the position of Chief
Technical Advisor: Engineering Advisory Services
is in effect
the same post which the Second Applicant currently occupies (Deputy
Manager: Engineering Services). As
far as the Applicants
are concerned the Second Applicant’s post has merely been
renamed and the level increased from 12 to
13. On this basis
the argument is that the Second Applicant’s post has merely
been upgraded and as such the provisions
of Chapter 1, Part V, C.6
should apply.
21.
The Respondents however dispute that the Second Applicant’s
post has been upgraded but rather argue that the post of Chief
Technical Advisor: Engineering Advisory Services is a newly
created post. The Respondents argue that the new post is
a
substantive post, which, although similar in some respects to the
duties of the Second Applicant’s present post has a managerial
component, related to development, attached to it. In other
words the new post requires a higher level of managerial skill
in the
area of development. This is not a requirement in the Second
Applicant’s present position. The establishment
of the
new post was not an arbitrary decision and has been subjected to a
rigorous evaluation process.
22.
In support of their position that the old post has not simply been
renamed the Respondents indicate in their affidavits that
the new
post was created as a result of a rigorous evaluation process.
Qualified job analysts were required to evaluate the
proposed posts
and attach appropriate weight levels to such posts. These
analysts are experts and the recommendations are
not arbitrary in
nature.
23.
The Respondents further submit that the new post is described as a
SMS post and as such is subject to the provisions of the
Public
Service Regulations Chapter 1, Part VII, C.2.3. The Answering
Affidavit filed on behalf of the Respondents does not
provide any
detail which assists the court in understanding the circumstances in
which this position was upgraded or newly created
as the case may
be. While there are references to restructuring and certain
respects in which the new post differs from the
old post, there is no
explanation as to the context in which the new position was created.
Was the position created along
with other positions as part of a
restructuring? When was the decision taken to create the new
position? What were
the reasons for the need to create the new
position? Such information would have assisted the court in
determining whether
or not this is in fact a newly created post on
the Respondent’s establishment as opposed to an upgraded one.
If this
conclusion could be reached then it may have been possible
for the Respondents to argue that the provisions of Chapter 1, Part
V, C.6 do not apply in this instance. In respect of the
Founding Affidavit of the Second Applicant, the Respondents have
simply not pleaded to any of the allegations contained in that
affidavit leaving his version undisputed.
24.
Based on the papers before me it therefore appears that the Second
Applicant’s post was in fact upgraded to that of Chief
Technical Advisor: Engineering Advisory Service. This is
however not the end of the matter in the sense that the Second
Applicant can’t merely lay claim to the post as requested in
the Notice of Motion.
25.
In the case of
South
African Police Service v Public
Servants Association
2007 3 SA 521
CC the Constitutional Court,
in dealing with the equivalent provisions under the SAPS regulations
to that contained in Chapter
1, Part V, C.6, held that the Police
Commissioner has a discretion to either advertise the post or to
retain the incumbent in the
post. This discretion is, however,
qualified in the sense that the executing authority must exercise the
discretion in a
manner which does not place an incumbent who is
performing satisfactorily in jeopardy of loosing his or her job in
the public service
simply because his or her post has been upgraded.
The executing authority in this case will therefore have to exercise
his
or her discretion as to whether or not to advertise the position
or to retain the Second Applicant in the post.
26.
I do not agree with the Respondent’s argument that the post
must be advertised because it is a SMS position. Chapter 1,
Part VII,
C.2.3 states that “
any vacant post in the SMS shall be
advertised nationwide.
” The fact that a post after
being upgraded results in that post now becoming a post on the SMS
cannot mean that the
executing authority now no longer needs to
decide between advertising the post and retaining the incumbent and
may simply proceed
to advertise the position. Chapter 1, Part
V, C.6 applies to all upgraded posts in order to protect the
incumbents of such
posts against possibly losing their employment.
It would be arbitrary to exclude posts at levels 13 and above on this
basis
and there is nothing in the regulation which supports such an
interpretation. To interpret the regulation on this basis would
exclude SMS employees from protection against job losses as a result
of their posts having been upgraded which would be contrary
to the
decision of the Constitutional Court in the
SAPS
case.
27.
In the circumstances, I make the following order:
27.1.
The Respondents are called upon to show cause, if any, before this
Court, on a date to
be determined by the Registrar, why an order
should not be made in the following terms:
(a) That the decision to
advertise the post of Chief Technical Advisor: Engineering
Advisory Service in Respondents Infrastructure
Development Component
is set aside;
(b) That the Respondents
are ordered to act in terms of Chapter 1, Part V, C.6 of the Public
Service Regulations by either advertising
the post of Chief Technical
Advisor: Engineering Advisory Service or by retaining the
incumbent in the post;
(c) The Respondents are
to pay Applicants’ costs of this application.
28.
Pending the final determination of the rule
nisi,
Respondents
are:
28.1.
Restrained and interdicted from continuing with the advertising,
selection, and appointment
process in respect of the post of Chief
Technical Advisor: Engineering Advisory Services;
28.2.
Restrained and interdicted from retrenching Second Applicant;
28.3.
Restrained and interdicted from removing Second Applicant from his
presently held post
_________________
Conradie AJ
Date of hearing
1 December 2009
Appearance for
Applicants
P J Blomkamp
instructed by Llewellyn Cain Attorneys
Appearance for
Respondents
N G Winfred instructed
by the State Attorney
Date of judgment
5 February 2010