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[2011] ZALCCT 40
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Department of Justice and Constitutional Development v Johnson NO and Others (C36/2010) [2011] ZALCCT 40 (11 May 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
not
reportable
Case
No: C36/2010
In
the matter between:
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
….........................................................
Applicant
And
CARLTON
JOHNSON
N.O.
…................................................................
First
Respondent
PUBLIC
SERVANTS ASSOCIATION OBO H CILLIERS
…...........
Second
Respondent
PUBLIC
SERVICE CO-ORDINATING
BARGAINING
COUNCIL
….................................................................
Third
Respondent
Date
of hearing : 11 May 2011
Date
of judgment :
JUDGMENT
VAN
VOORE AJ
This
is an application in terms of section 145 of the Labour Relations
Act 66 of
1995
(the LRA) to review and set aside an arbitration award (the award) of
the second respondent (the commissioner). The application
is opposed.
The applicant is the Department of Justice and Constitutional
Development (the Department). The Department seeks,
inter alia
,
an order reviewing and setting aside the commissioner’s
arbitration award and further substitution of that award with an
order of this Court.
The
further order sought is that this Court makes an order that it deems
appropriate
in the event that the commissioner’s arbitration award is
reviewed and set aside.
Mr
H Cilliers (Cilliers) is employed by the Department of Justice and
Constitutional
Development as an office manager at the Vredenburg Magistrates
Office. In this capacity Cilliers is in charge of
administration,
finances, staff and general management duties. Cilliers has been
employed by the Department since the later part
of 1978. During 1995
Cilliers developed ‘heart related problems’. It appears
that Cilliers’’s ill-health
continued or recurred.
Cilliers applied for temporary and permanent disability leave.In the
ordinary course the Department receives
and considers such an
application in accordance with the Department’s processes,
procedures and/or policies. Those processes,
procedures and/or
policies include Resolution No. 7 of 2000, being a collective
agreement concluded between the Department and
various trade unions
in the Public Service Co-ordinating Bargaining Council (the
bargaining council).
Cilliers
made a number of applications for temporary and permanent disability
leave.
Paragraph
7.5 of Resolution No. 7 of 2000 provides as follows:
“
7.5
Disability
Management leave:
7.5.1
Temporary
Disability Leave
(a) An employee
who’s normal sick leave credits in a cycle have been exhausted
and who, according to the relevant practitioner,
requires to be
absent from work due to disability which is not permanent, may be
granted sick leave on full pay provided that:
His or her
supervisor is informed that the employee is ill; and
A relevant
registered medical practitioner and/or dental practitioner has duly
certified such a condition in advance as temporary
disability except
where conditions do not allow.
(b) The employer
shall, during 30 working days, investigate the extent of inability to
perform official duties, the degree of inability
and the cause
thereof. Investigations shall be in accordance with item 10 (1) of
Schedule 8 in the
Labour Relations Act of 1995
.
(c) The employer
shall specify the level of approval in respect of applications for
disability leave.
7.5.2
Permanent
Disability Leave
:
(a) Employees whos
degree of disability has been certified as permanent shall, with the
approval of the employer, be granted a maximum
of 30 working days
paid sick leave, or such additional number of days required by the
employer to finalized the process set out
in (b) and (c) below.
(b) The employee
shall, within 30 working days, ascertain the feasibility of:
Alternative
employment; or
Adapting duties or
work circumstances to accommodate the disability.
(c) If both the
employer and the employee are convinced that the employee will never
be able to perform any type of duties at his
or her level or rank,
the employee shall proceed with application for ill health benefits
in terms of the Pension Law of 1996.”
Cilliers’
medical condition cannot be reversed but can be controlled and
treated
through
medicine and indeed surgery. Over a period of time Cilliers submitted
a number of applications for temporary incapacity
leave, totaling 9.
It took the Department some time to consider Cilliers’ second
application for incapacity leave. Whereas
clause Resolution 7 of 2000
contemplates a period of 30 days, it took the Department 11 months to
consider the application. However,
it is not in dispute between the
parties that the processes, take much longer than the 30 day period.
Cilliers was informed that
the Department had declined his
application for temporary or permanent incapacity leave and he was
required to return to work.
Cilliers returned to work on 27 December
2007.
The
period of his absence was regarded by the Department as unpaid leave
and
was
treated as such. Cilliers took issue with this and informed the
Department that he considered its actions to be unfair. The
Public
Servants Association, on behalf of Cilliers, referred a dispute to
the bargaining council. The dispute referred to the bargaining
council concerns the interpretation or application of a collective
agreement, Resolution No. 7 of 2000.
In
the arbitration award the commissioner records the issue in dispute
as
follows:
“
The
issue in dispute
3.
I must decide whether the Respondent had improperly exercised its
discretion by declining the applicant’s application for
temporary incapacity leave.”
1
Further,
and at paragraph 15 of the arbitration award the Commissioner writes
the
following:
“
15. In
terms of Resolution 7 of 2000 an employee who’s normal sick
leave credits in a cycle have been exhausted and who, according
to
the relevant practitioner, requires to be absent from work due to
disability which is not permanent, may be granted sick leave
on full
pay under certain conditions. The employee must inform the
employerthat he/she is ill and a relevant registered medical
practitioner should certify such a condition in advance as a
temporary disability. For the Applicant to succeed with this
application
he must prove that the Respondent did not apply its mind
when it considered the leave application for incapacity leave.
…
16…The onus is on the
Applicant to prove that HRM had failed to exercise its discretion in
a fair and reasonable manner.”
2
Furthermore,
and in debate with Cilliers’’ representative during the
arbitration
proceedings,
the commissioner has the following to say about the dispute before
him:
“
COMMISSIONER:
I just want to say to the record,
Mr Adams, my understanding of this dispute is whether the discretion
to grant or not to grant
the temporary incapacity leave was exercised
fairly, properly, objectively and judicially. In other words, what
I’m saying
is that, although the background and all of these
facts is important and in terms of the deductions and all of that,
ultimately
I have to interpret the collective agreement in as far as
whether the exercise of that power has been done properly and fairly.
Okay. So if I can just maybe direct – and also for the other
party in terms of their questions to the witness, I am focusing
on
that, you know, focusing on whether they had the facts, they had XYZ
facts before them, they looked at the facts, and I’ve
got to
decide whether they’ve reasonably and fairly exercised that
discretion in terms of the collective agreement. I do
understand that
there are obviously financial implications for the Applicant in terms
of processes, but ultimately those things
will only come into play if
I find that they have unfairly exercised their discretion. And
obviously then I have the right to remedy
the situation in a manner
that is prescribed by the collective agreement.”
3
In
the result, the commissioner, and in relation to the issue in
dispute made the
following
finding:
“
In had
fairly and reasonably exercised its discretion.”
4
Moreover
the commissioner goes on to find as follows:
“
19. I
accept without reservation that the Applicant’s medical
condition is serious. However, this is not the issue I am required
to
decide. I must decide whether at the time of considering the
application for temporary incapacity leave, HRM had exercised its
discretion fairly and reasonably. The fact that the Applicant’s
medical condition had deteriorated further in the weeks before
the
arbitration, is irrelevant. The question is whether the delegated
authority had at the time exercised its discretion fairly.
As
arbitrator I must decide the present dispute on the basis of the
information that served before the delegated authority when
it
exercised its discretion. In this regard I find no evidence that HRM
had acted unfairly or arbitrarily. It is important to take
cognizance
that employees are not entitled to temporary incapacity leave.
The resolution merely provides
employees with the right to make an application for such leave. In
the circumstance I find that Applicant
has failed to prove that HRM
had unfairly exercised its discretion, when it declined the
application for temporary incapacity leave.”
5
The
review grounds
The
Department contends that the commissioner exceeded his power as
contemplated
in
section 145
of the LRA. It is the Department’s case that the
issue in dispute before the commissioner was whether it had fairly
and lawfully
exercised its discretion in deciding to decline
Cilliers’ application for temporary incapacity leave. The
Department contends
that in awarding that it should credit Cilliers
with a 151 working days in respect of temporary incapacity leave, the
commissioner
exceeded his powers and ‘acted outside the
parameters of the issues to be decided’.
Having
found that the Department fairly exercised its discretion, that
ought to
have
been the end of the matter. The commissioner had correctly summarized
the issue in dispute before him. Having concluded that
the Department
had fairly exercised its discretion when it declined Cilliers’
application for temporary incapacity leave,
there was nothing more
for the commissioner to do in relation to the dispute before him. The
Department is understandably troubled
by the commissioner’s
further findings and the award that it credits Cilliers with a 151
working days in respect of temporary
incapacity leave.
In
the matter of
Le
Roux v CCMA & Others,
6
the
Court held that:
“
In
terms of
section 145(2)(a)(iii)
an arbitration award is reviewable if
the award was one which exceeded the commissioner’s powers. One
must not be mislead
by the use of the word “exceeded”. It
does not mean that an award can only be set aside under this section
if what
is awarded is greater than that which can permissibly be
awarded. It simply means that if the award made is one which the
commissioner
had no power to make then it falls to be set aside as an
award in excess of the commissioner’s powers.”
Cilliers
be credited with a 151 working days in respect of temporary
incapacity leave falls outside the limits of the issue in
dispute
and accordingly the commissioner had no proper authority to make
that award. In this respect the commissioner did indeed
exceed his
powers as contemplated under
section 145
of the LRA and the
arbitration award falls to be reviewed and set aside.
18
The approval or indeed non-approval of leave, whether a 151 days or
more or
indeed
less, formed no part of the dispute referred to the bargaining
council. Accordingly, the commissioner did not have authority
to
determine a dispute not before him. In the circumstances, the
commissioner did indeed exceed his powers. Accordingly, I make
the
following order.
The
arbitration award of the First Respondent is reviewed and set aside
and is remitted back to the Third Respondent for determination
before an arbitrator other than the First Respondent.
The
Second Respondent is ordered to pay the Applicant’s costs.
_______________________
VAN
VOORE AJ
Appearances:
For
the Applicant : Adv R Nyman
Instructed
by : The State Attorney
For
the Respondent : Adv K Allen
Instructed
by : Adams & May Attorneys
1
Arbitration
award, paragraph 3
2
Arbitration
award, paragraph 15 and 16
3
Transcript
lines 2 – 22, page 58
4
Arbitration
award paragraph 18
5
Arbitration
award, paragraph 19
6
[2000]
6 BLLR 680
(LC)