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[2011] ZALCJHB 240
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Minister of Correctional Services v Mbada NO and Others (J 2458/08, JR 2646/08) [2011] ZALCJHB 240 (30 September 2011)
VAN NIEKERK J
Not reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J 2458/08; JR
2646/08
In
the matter between:
MINISTER
OF CORRECTIONAL SERVICES
..............................................
APPLICANT
and
MIKE
MBADA N.O
............................................................................
1
ST
RESPONDENT
GENERAL
PUBLIC SERVICES
BARGAINING
COUNCIL
..................................................................
2
ND
RESPONDENT
MOKONEHATSE
RD
........................................................................
3
RD
RESPONDENT
TSIRI
MC
...........................................................................................
4
TH
RESPONDENT
TAU
TS
..............................................................................................
5
TH
RESPONDENT
SIHLANGU
SL
.................................................................................
6
TH
RESPONDENT
KHUMALO
JJ
..................................................................................
7
TH
RESPONDENT
FRENCH
C
........................................................................................
8
TH
RESPONDENT
Date
of application: 25 August 2011
Date
of judgment: 30 September 2011
JUDGMENT
VAN
NIEKERK J
Introduction
[1] There are two
applications before the court. The first is an application to review
and set aside an arbitration award made by
the first respondent (‘the
arbitrator’) on 29 September 2008; the second is an application
in terms of s 158 of the
Labour Relations Act to have the award made
an order of this court. The arbitrator’s award was made after
the referral of
an unfair labour practice dispute to the bargaining
council by the third to eighth respondents (‘the individual
respondents’).
In their referral, the individual respondents
contended that the applicant had committed an unfair labour practice
in relation
to promotion by failing to adjust their salaries from
date of appointment as opposed to the date of approval of the
promotion.
The factual circumstances of the claim are discussed
below.
The factual background
and the arbitration award
[2] The relevant facts
can be distilled to the following. directorate code enforcement (DCE)
and the departmental investigating
unity (DIU) were established in
terms of
s 95
of the
Correctional Services Act, 111 of 1998
, to
combat corruption in the department. The DIU was established to
investigate corruption, theft and fraud; the DCE was established
to
prosecute officials in internal disciplinary hearings. The individual
respondents are members of the DCE.
[3] Following approval by
the national commissioner on 6 September 2006, the salaries of
officials in the DCE were adjusted on the
basis that assistant
directors be placed on level 10 (from level 9) and that deputy
directors be placed on level 12 (from level
11). The salaries of
officials in the DCE were subsequently adjusted, with effect from the
date of approval.
[4] Officials in the DIU
had previously requested approval for the salaries of assistant
directors to be adjusted to level 10. This
request was approved in
terms of a memorandum dated 10 February 2005, with effect from the
date of assumption of duty of the officials
concerned.
[5] The DCE thereafter
requested clarity regarding the implementation dates of the salary
adjustment. The memorandum that had resulted
in the promotions of DCE
officials being approved was prepared on 24 August 2006 by Paxton,
the director of the DCE. The memorandum
recommended that the salaries
of officials in the CDE be adjusted (assistant directors from level 9
to level 10, deputy directors
from level 11 to 12) and that “
The
same procedure and principle that were followed and applied when
adjusting salaries for DIU officials be used in this regard.
”
As I have noted, this recommendation was accepted by the national
commissioner on 6 September 2006.
[6] The department
implemented that part of the recommendation that concerned the
promotion of DCE officials, but refused to apply
the salary increases
consequent on their promotion with retrospective effect. The union
declared a dispute about the disparity
in treatment of the DIU
officials (who had their salary increases paid retrospective to their
dates of appointment) and the DCE
officials, whose increases were
paid only with effect from date of approval, i.e. without
retrospective effect.
[7] The issue before the
arbitrator was whether the department had committed an unfair labour
practice by failing to promote the
applicants with effect from the
date of their assumption of duty.
[8] The arbitrator found
that the national commissioner had approved the retrospective
promotion of the affected DCE officials,
and that there was no
evidence to the effect that the commissioner acted wrongly in doing
so. In other words, the terms of the
approval, and in particular the
reference in it to the DIU officials and the terms on which they were
promoted, required the department
to treat the DCE officials
similarly. In the absence of any justification for the disparity
between officials of the DIU and DCE,
the arbitrator held that the
department had acted unfairly when it failed to implement the
national commissioner’s recommendation.
He ordered the
department to promote the individual respondents with effect from the
dates of their assumption of duty at the DCE
and to pay them the
value of increases to which they were entitled given the
retrospective effect of their promotion.
Grounds for review
[9] The applicant
contends that the arbitrator misdirected himself with regard to the
facts and the law by finding that the respondent
had acted unfairly
when it failed to promote the individual respondents with effect from
the date of assumption of duty. In particular,
the applicant contends
that there was no evidence before t arbitrator on the principles
followed and applied when adjusting the
salaries of DIU officials,
and that the arbitrator ought to have enquired into this matter
before drawing the conclusion he did.
This submission overlooks the
content of the pre- arbitration minute. The fact that the DIU
officials received were promoted and
retrospective effect of that
promotion was never in issue – paragraph 2.7 of the minute
records that their promotions were
implemented from date of
assumption of duty. What was in issue before the arbitrator was not
any principle that may have underpinned
that decision – the
individual respondents’ complaint was that their disparity in
treatment in circumstances where
they were similarly situated to DIU
officials, a similarity that had been recognised by the terms of the
approval. There is therefore
no merit to this ground of review.
[10] In so far as the
applicant contends that the arbitrator committed an error of law by
finding as he did, while it is correct
that certain regulatory
provisions regarding the payment of salaries were introduced into the
arbitration proceedings, it was not
in dispute that the national
commissioner had the authority to promote the affected officials with
retrospective effect.
[11] In so far as the
applicant attacks the justifiability of the arbitrator’s
decision, the applicant contends that it was
obliged only to adjust
the salary levels of officials attached to the DCE to be on a par
with those engaged in the DIU, and that
it had therefore complied
with the terms of the approval of the national commissioner. This
submission overlooks the nature of
the dispute before the
commissioner. The commissioner was not called on, in a narrow sense,
to determine whether the terms of the
national commissioner’s
approval had been implemented. He was called on to decide whether the
department’s refusal
to apply the approval with retrospective
effect was an unfair labour practice. He decided, for the reasons
that he recorded, that
the applicant’s conduct was unfair. In
particular, he found that the terms of the commissioner’
approval extended to
the individual respondent’s retrospective
promotion and that the department had acted arbitrarily when refusing
to implement
that approval.
[12] The basis on which
an award can be set aside is well –established. The court may
interfere if and only if the decision
to which the commissioner came
was so unreasonable that no reasonable person could have come to that
decision (
Sidumo & another v Rustenburg Platinum Mines &
others
[2007] 12 BLLR 1097
(CC)). In my view, the commissioner’s
decision (i.e. that the applicant had acted arbitrarily by failing to
implement the
national commissioner’s recommendation) is not
one that is so unreasonable that it falls outside of the band of
decisions
to which reasonable people could come on the available
evidence. For these reasons, there is no basis on which this court is
entitled
to interfere with the arbitrator’s award. There is
also no reason why the award should not be made an order of this
court
in terms of
s 158(1)(c)
of the Act.
[13] Finally, there is no
reason why costs should not follow the result. I accordingly make the
following order:
The application is
dismissed.
The first respondent’s
arbitration award issued on 27 September 2008 is made an order of
court.
The applicant is to pay
the costs of these proceedings.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
Appearances:
For the applicant: Adv
TAN Makhubele, instructed by the state attorney
For the third to eighth
respondents: Adv J Basson, instructed by Grosskopf Inc