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[2011] ZALCJHB 25
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Department of Health and Social Development (Limpopo Province) v Nzadi and Others (JR747/08) [2011] ZALCJHB 25; [2011] 10 BLLR 986 (LC) (2 February 2011)
IN THE LABOUR
COUORT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case number:
JR747/08
In the matter
between:
DEPARTMENT OF
HEALTH AND SOCIAL
DEVELOPMENT
(LIMPOPO PROVINCE)
…...................................
Applicant
And
DR MWANABUT JOHN
NZADI
….............................................
1
st
Respondent
DR KINZONZIBIEMO
…...............................................................
2
n
Respondent
EXECUTOR OF
DECEASED ESATATE
OF DR MALANDU
…...................................................................
3
rd
Respondent
PHSDSBC
…...................................................................................
4
th
Respondent
SAMUEL NEGOTA
N.O.
….........................................................
5
th
Respondent
Judgement
Molahlehi J
Introduction
The applicant in
this matter seeks to review both the certificate of outcome of the
conciliation proceedings and the arbitration
award which were issued
under cases number
PHSHS 197-01/08 and PHSHS 179-07/08
respectively.
The applicant has also applied for condonation for
the late filing of the review application. The applicant further
claims that
the respondent waived their rights to be promoted in
terms of circular 72 of 2003 because they participated in interviews
under
circular 176 of 2004.
The review
application arose mainly from the arbitration award which was issued
by the sixth respondent (the arbitrator) in terms
of which she found
the applicant to have committed an unfair labour practice in not
promoting the first to the third respondents
(the respondents). The
arbitrator further ordered that the respondents be translated to the
senior positions of senior medical
officers with effect from the 1
st
November 2007.
Background facts
The first and the
second respondents are employed as medical practitioners by the
applicant. The third respondent has since the
issuance of the
arbitration award passed away. He is in these proceedings
represented by the executor of the deceased estate
of Dr Malundu.
The issue that gave
rise to the dispute between the parties concerned the promotion of
medical officers to a higher salary levels.
The promotion process
was initially regulated by circular 72 of 2003 (resolution 72) which
had been issued by the head of the
department during 2003. In terms
of that resolution one of the criteria for promotion to a higher
salary position was prior experience.
The one challenge
of the process set out by circular 72 was that the skills and the
actual experience was not taken into account
in evaluating whether
or not a medical officer qualified for promotion. In order to
address the issue of experience in the assessment
of whether or not
a medical officer should be upgraded to a higher salary level the
head of the department issued circular 176
of 2004. The two main
things that this circular did, was to withdraw the provisions of
circular 72 and introduce interviews in
the assessment of whether or
not a medical officer should be promoted.
The respondents
were during October 2004 recommended by their manager for promotion
to the positions of chief medical officers.
The recommendation was
then sent to the head office of the applicant by the chief executive
officer (the CEO). The applicant
declined to upgrade the
respondents.
The respondents
were unhappy with the decision not to upgrade them and accordingly
addressed a memo to the applicant during August
2006, complaining
that despite the decision not to promote them some of their
colleagues had been promoted. The applicant says
that the
respondents were not promoted because they were not suitably
qualified for promotion despite their years of service.
The grounds for
review
The applicant
contends that at the time the respondents addressed their memorandum
of grievances regarding refusal to promote
them, circular 72 of 2003
was no longer in operation it having been withdrawn and replaced by
circular 176 of 2004. The applicant
further contends that the
arbitrator lacked jurisdiction because the alleged unfair labour
practice was declared after the prescribed
90 days as required by
the law.
The other issue
raised by the applicant is waiver. In this respect the applicant
contends that the respondents waived their rights
to claim the right
to be promoted under circular 72 because they applied and
participated in interviews for promotions under
circular 176 during
2006.
As concerning the
arbitration award the applicant contends that it is clear from the
summary of the evidence by the arbitrator
that respondents became
aware of what had happened regarding the decision not to promote
them during 2004 but did nothing about
it until when resolution 72
was withdrawn and rendered inoperative. It is on the basis of this
that the applicant contends that
the arbitrator exceeded his powers.
In other words the arbitrator is alleged to have made an award based
on a non existing circular.
The applicant further contends that the
arbitrator committed an error of law in translating the respondents
to the positions
of PMO when they had in fact been unsuccessful in
their interviews for those positions. The arbitrator is also accused
of having
committed a gross irregularity by failing to appreciate
that the respondents did not discharge their burden of showing that
an
unfair labour practice had been committed.
The arbitrator’s
award
The arbitrator
concluded that the applicant had committed an unfair labour practice
on the basis of the following findings:
That despite
saying that the translation of the other two doctors were
erroneously made, it was not disputed that their translation
was
made on the basis of circular 72.
That the
applicant failed to show that the respondents’ promotion was
not covered by the period of circular 72 and that
they were
competent and satisfied that the required period of experience for
them to be promoted.
That resolution
176 which was intended to withdraw resolution 72 only came into
effect on the 1
st
January 2005.
That the
applicant violated the rights of the respondents’
Constitutional right and that violation was not mitigated
by the
invitation for them to attend the interviews for the vacant posts
during 2007.
Evaluation
The first issue for
consideration in this matter is whether or not the applicant has
made out a case for the condonation for the
late filing of its
review application. If unsuccessful in the condonation application
that would be the end of the applicant’s
case. If successful
then the issue for determination would be whether the award of the
arbitrator is reviewable for unreasonableness
or gross irregularity.
In order to succeed
the applicant had to satisfy certain interrelated factors which have
been firmly established by our courts.
Those are the factors which
the court has to take into account in exercising its judicial
discretion weighing whether or not
condonation should be granted. In
exercising its discretion whether or not to grant condonation for
the late filing of the review
application the factors which the
court takes into account are: (a) the degree of lateness or
non-compliance with the prescribed
time frame; (b) the explanation
for the lateness or the failure to comply with time frames; (c) bona
fide defence or prospects
of success in the main case; (d) the
importance of the case; (e) the respondent's interest in the
finality of the judgment; (f)
the convenience of the court; and (g)
avoidance of unnecessary delay in the administration of justice (see
Foster v Stewart Scott Inc
(1997) 18
ILJ
367 (LAC) and
Melane v Santam Insurance Company Limited
1962 (4) SA 531
(AD). However the two factors that tilt the scale significantly in
weighing the above factors are
the reasonableness of the explanation
and the prospects of success.
The applicant in
its review application is seeking to review and set aside both the
certificate of outcome of the conciliation
and the arbitration
award. It therefore means that the explanation for the delay has to
deal with the period from the time the
certificate of outcome was
issued and that of the arbitration award.
The certificate
of outcome
As indicated the
applicant is seeking to review and set aside the certificate of
outcome of the conciliation proceedings. This
review is patently and
excessively late. The only explanation that the applicant seems to
proffer for the delay in reviewing
the certificate of outcome is
that although its representative, Mr Ngoasheng attended the
conciliation meeting, he did not “
handle it
” (the
conciliation). In this respect Mr Ngoasheng says the following:
“
I
did
not handle the conciliation process. I attended the conciliation
meeting. I did not raise the issue of jurisdiction or condonation.
This was a serious omission on my part. The applicant did not waive
its right to object
to
jurisdiction.
It never came to my mind that the referral was out of time. I also
refer the Court to the grievance rules for the
public service which
deals with the procedure to lodge a grievance . . . According to
annexure "H" the grievance must
be dealt with
within
30
days. This means that if it is not, the employee must refer the
dispute
to
the bargaining council. According to the doctors, they lodged
internal
grievance
in 2004. They were supposed to have referred the dispute to the
bargaining council after 30 days from the date they lodged
the
grievance
and no response forthcoming from the employer. They did
not.”
Mr Ngoasheng goes
further to say:
“
I
was
in
fact alerted by the legal representatives of the applicant during
consultation for purposes of the review that the dispute that
was
arbitrated l
apsed
in
2004 when the doctors failed to refer it to conciliation then. The
doctors'
internal
grievance was finalised in 2004 when they were told that they will
not
be promoted. The doctors could not have had the dispute
conciliated
without
an application for condonation. Otherwise the bargaining council
lacked jurisdiction to conciliate. The conciliation certificate
must
be set aside.”
In my view, the
above does not provide an explanation as why the applicant did not
file its review application of the certificate
of outcome timeously.
In a sense Mr Ngoesheng statement amounts to admission of gross
negligent and dereliction of duty. If for
any reason the statement
of Mr Ngoesheng was to be regarded as an explanation it is extremely
poor and should for that reason
be regarded as being weak and
unacceptable for the following reasons: In the first instance Mr
Ngoasheng does not take the court
in his confidence by explaining
who is the person who represented the applicant at the conciliation
proceedings and why did that
person not raise the issue of
jurisdiction. In the heads of argument the applicant says that the
respondents were one and half
year late but does not explain why it
seeks to review the certificate of outcome only now. It is further
stated in the applicant’s
heads of argument that the dispute
could be arbitrated only if dispute had been referred to
conciliation on time. This argument
is unsustainable in the light of
the authority set out by the Labour Appeal Court in the case of,
Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others
[2000] 12 BLLR 1389
(LAC). In that case the Court in considering
a situation similar to the present case had the following to say:
“
In
my view the language employed by the legislature in section
191 is such that, where a dispute about the fairness of a
dismissal
has been referred to the CCMA or a council for
conciliation, and, the council or commissioner has issued a
certificate in terms
of section
191(5) stating
that
such dispute remains unresolved or where a period of 30 days has
lapsed since the council or the CCMA received the referral
for
conciliation and the dispute remains unresolved, the council or the
CCMA, as the case may be, has jurisdiction to arbitrate
the dispute.
That the dispute may have been referred to the CCMA or council for
conciliation outside the statutory period of 30
days and no
application for condonation was made or one was made but no decision
on it was made does not affect the jurisdiction
to arbitrate as long
as the certificate of outcome has not been set aside. It is the
setting aside of the certificate of outcome
that would render the
CCMA or the council to be without the jurisdiction to arbitrate.”
The Labour Appeal
Court then quoted with approval what was said by the Court a quo in
that case when it said:
“
If
the administrative act of certification is invalid, even then it must
be challenged timeously because, if not, public policy
as expressed
in the maxim omnia praesumuntur rite esse acta, requires that after a
reasonable time has passed for it to be challenged,
it should be
given all the effects in law of a valid decision...”
Essentially the
decision in
Fidelity Guards Holdings (supra)
is based on the
general principle of our law that a decision or an administrative
decision is valid until set aside. In other
words on the facts of
this case the certificate of outcome was valid until set aside on
review. On the basis of this principle
and the decision in
Fidelity
Guards Holdings
the arbitrating commissioner in this matter was
entitled to assume that the certificate outcome was valid and more
particularly
because its validity was not even raised. Whilst these
considerations are important, the critical issue in this matter is
the
fact that the review of the certificate of the outcome of the
conciliation is extremely late and no satisfactory explanation has
been tendered as to its lateness. The condonation application whose
details are considered later deals only with the reasons
for the
delay in filing the review application of the arbitration award. For
these reasons the application that seeks to review
and have the
certificate of outcome of the conciliation set aside stands to fail.
I now turn to deal
with the reasons proffered by the applicant for the late filing of
the review application. The reasons for
the delay in filing the
review application according to the applicant was because of the
following reasons:
The
arbitration award was received on 13 December, which was the
beginning of the festive season.
The procedure
that needs to be followed in deciding whether or not to review an
arbitration award. At the time the arbitration
award was served on
the applicant it was not brought to the attention of the Labour
Relation Department, which is also attributed
to the festive season.
Adv Rawutlu
needed to be notified and be briefed about the arbitration award.
In my view the two
main factors upon which this matter turns on are; the reasonableness
of the explanation and the prospects of
success. It is common cause
that the delay was two and half months. The first reason given for
the delay is that the arbitration
award was received during December
when most employees had already left for the festive season
holidays. The other reason is
that the arbitration award had to be
referred to the senior legal manager of the applicant.
The applicant does
not tender any explanation as why it took a month for both the
senior legal manager and the general manager
to finalise on the
decision to review the arbitration award. In my view the delay of
two months is excessive if regard is had
to the unsatisfactory
explanation tendered by the applicant. The weakness in the
explanation is not compensated for by the prospects
of success.
It is common cause
that the case of the respondents concerned an unfair labour practice
in terms of s186 of the Labour Relations
Act 66 of 1995 (the LRA).
Section 186 of the LRA reads as follows:
“
Unfair
labour practice” means 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
(excluding disputes about dismissals for a reason
relating to
probation) or training of an employee or relating to the provision
of benefits to an employee;
unfair
suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee;
a failure or
refusal by an employer to reinstate or re-employ a former employee
in terms of any agreement; and an occupational
detriment, other than
dismissal, in contravention of the Protected Disclosures Act, 2000
(Act No. 26 of 2000), on account of
the employee having made a
protected disclosure defined in that Act”.
It is also common
cause that the arbitrator considered the respondents’ case on
the basis of the circular 72 of 2003. The
relevant provisions of
circular 72 reads as follows:
"
1.1.1
On appointment and subject to
furnishing of proof of previous experience appropriate recommendation
should be submitted to the provincial
office for appointment at a
level other than the entry level depending on the number of years of
previous appropriate experience,
e.g. 3 years appropriate experience
could serve as recommendation for appointment at the next level or
senior and 6 years at the
principal level where the previous
framework provided for this rank level. "
.
A note under
clause1.1.1 reads as follows:
“
NB:
Recommendation for consideration of experience on appointment should
be
done in such a manner that serving personnel with the same number of
years of experience are not disadvantaged"
At clause 1.2.1 the
circular provides that:
"Since
the facing out of the ranks/leg promotion provision movement to the
next level/grade is by open competition, i.e. through
adverts of
positions in that grade."
And at clause 1.2.2
the circular reads as follows:
"Within
the framework provided for in public service regulation, 2001
(Chapter 1 Part V/C3) and in an effort to both attract
and retain
critical skills, it is directed that serving personnel who had
performed satisfactorily and who have served for continuous
3 years
be recommended for translation to senior level, and to principal
level in respect of 6 years where the previous framework
provided for
rank levels up to this level."
The essence of the
respondents’ complaint at the arbitration hearing was that
they were unfairly treated as concerning their
promotion because
they satisfied the requirements set out circular 72 and that in
addition the applicant was inconsistent in
applying its policy in
that two of their colleagues were promoted in terms of that
circular.
The applicant does
not dispute the inconsistent application of its policy but states
that the promotion of the other two doctors
was in error. It is
apparent that that error was not corrected at the time this matter
came before the arbitrator. It is also
apparent that the arbitrator
in assessing the fairness of the treatment of the respondents by the
applicant took into account
both the unfair treatment arising from
the inconsistent application of the policy concerning promotion and
compliance with the
requirements of circular 72. It should be
recalled that whilst the applicant had discretion in terms of
whether or not to promote
a medical officer, it can never be that
the fairness would permit that such discretion be exercised
unfairly. The discretion
had to be exercised by having regard to the
provisions of the requirements of circular 72 and it be exercised in
an objective
and fair manner. In this respect the arbitrator in
finding that the applicant committed unfair labour practice took
into account
the requirements of circular 72 and the fact that there
was no evidence of complaints against the respondents more
particularly
regarding their work performance.
The essence of the
arbitrator’s finding is that the applicant did not provide any
justification or reasonable explanation
for its decision not to
promote the respondents in the face of the requirements of circular
72 having been satisfied. It is also
clear that the arbitrator did
not accept as justification or as an acceptable explanation by the
applicant that it made an error
in promoting the other two doctors.
It is undisputed that qualification for promotion of medical
officers was based on years
of experience in terms of circular 72
unlike in the case of circular 176 where promotion was based on
having to be interviewed
before being promoted. In dealing with the
differentiated treatment between the respondents and the other two
doctors, the arbitrator
says the following:
“
It
must be noted that the posts that the respondents contested for were
the same posts of Chief Medical Officers. It must be noted
that the
appointment of the two doctors being Dr Nara and Dr Tshiani were done
by mistake. Apart from that those appointments were
done before
Circular No 72 of 2003 was withdrawn. Their appointments were done in
2004. . . .”
In my view there
exist no prospects of success in as far as the applicant was
required to show that the arbitrator was unreasonable
in arriving at
the conclusion that the applicant committed an unfair labour
practice. The decision of the arbitrator is in line
with what
circular 72 envisaged. The case which was before the arbitrator was
based on the cause of action that arose when circular
72 was still
in place. In other words the cause of action upon which the
respondents’ case was based had already arisen
at the time
circular 176 was introduced.
I am also of the
view that it cannot be said that the arbitrator committed gross
irregularity in the approach he adopted. The
applicant has not, in
my view, satisfied the requirements of proving gross irregularity as
set out in
Telcodia Technologies v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA).
In the first instance it cannot be said that the
arbitrator did not appreciate the task he had to deal with in
resolving the
issues that the parties had presented to him. He
clearly understood that the issues concerned the dispute that arose
during the
period when circular 72 was still in place. The effective
withdrawal of that resolution only took effect during January 2005
and not during 2004, the time when the dispute arose. It can thus
not be said that the arbitrator misconceived his mandate to the
extent that it can be said that applicant was denied a fair hearing.
See Goldfields Investment Ltd and another v City Council of
Johannesburg and another
1938 TPD 551.
Similarly it cannot be
said that the arbitrator exceeded his powers because on the evidence
before him he performed his duties
within confines of the mandate as
defined by the cause of action.
Waiver
The other basis
upon which the applicant challenged the arbitration award is based
on the contention that the respondents had
waived their rights to
assert their claim under circular 72 by participating in the
interviews of their promotion as envisaged
in circular 76.
In my view the
applicant has not made out a case that the respondent by
participating in the interviews under circular 176 did
so with the
full knowledge and with the view to waiving their rights under
circular 72.
In the light of the
above discussion it is my view that the applicant’s
application for condonation stands to fail. I see
no reason in law
and fairness why the costs should not follow the results.
In the premises the
following order is made:
The applicant’s
application for both condonation and the review applications are
dismissed with costs.
_______________
Molahlehi
J
Date of Hearing: :
23 September 2010
Date of Judgment : 2
February 2011
Appearances
For the Applicant: W
R Mokhare instructed by the State Attorney
For the Respondent:
N B Sibeko for the union
13