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[2011] ZALCCT 77
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Minister of Correctional Services v Public Health and Social Development Sectoral Bargaining Council and Others (C121/2010) [2011] ZALCCT 77 (27 September 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
NOT REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C121/2010
THE
MINISTER OF CORRECTIONAL
SERVICES
Applicant
and
PUBLIC
HEALTH & SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
First
Respondent
C
MBILENI
N.O.
Second
Respondent
DENOSA
obo M M
VOSLOO
Third
Respondent
Heard:
21 September 2011
Delivered:
27 September 2011
JUDGMENT
STEENKAMP J:
1.
The applicant applies to review and set
aside an arbitration award (“the award”) issued by the
second respondent (“the
arbitrator”) under the auspices
of the first respondent (“the bargaining council”). The
applicant also seeks
condonation for the late delivery of the review
application.
2.
The arbitrator found that the Department
was in breach of paragraph 3.2.5.3 (iii) of the applicable collective
agreement, Resolution
3 of 2007; and ordered it to “translate”
the third respondent, Ms Vosloo, to “the appropriate salary
scale”
attached to Operational Manager Nursing (Primary Health
Care) managerial level, ie PN-B3, retrospectively.
THE
APPLICANT’S CONDONATION APPLICATION
3.
The application for review was filed about
a month after the statutory six-week time limit had expired.
4.
An
applicant for condonation seeks an indulgence from the court, which
entails the exercise of the court’s discretion upon
a
consideration of a number of factors. These factors include: the
length of the delay, the explanation for the delay, the applicant’s
prospects of success in the main action and the importance of the
case. Ordinarily these factors are interrelated.
[1]
5.
Where,
however, the applicant does not advance a reasonable and acceptable
explanation for its delay, the other factors are immaterial
and
condonation should be refused without more.
[2]
6.
The minimum requirements of an explanation
were set out in
Silber v Ozen
Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) 353 where it was said that:
“…
the
defendant must at least furnish an explanation of his own default
sufficiently full to enable the Court to understand how it
really
came about, and to assess his conduct and motives.”
7.
There
are compelling considerations in the labour relations context as to
why a court should be slow to condone non-compliance with
the dispute
resolution time periods laid down in the Labour Relations Act 66 of
1995 (“the LRA”) and the rules.
[3]
The Constitutional Court and the Supreme Court of Appeal have
recently called for a reform of what has been referred to as
“systemic
delays” in resolving labour disputes.
[4]
Requiring strict compliance with the dispute resolution time periods
forms part of this much-needed reform.
8.
It is well-established that this is not
sufficient to merely blame one’s legal representatives for a
delay. The relevant principles
were set out in
Saloojee
& Another v Minister of Community Development
1965
(2) SA 135
(A) 141B-E:
“
There
is a limit beyond which a litigant cannot escape the results of his
attorney’s lack of diligence or the insufficiency
of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the Rules of this Court. Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. … The
attorney, after all, is the representative whom the litigant
has
chosen for himself, and there is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the
litigant
should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the failure
are.”
[5]
9.
In
NEHAWU v
Vanderbijlpark Society for the Aged
[2011]
7 BLLR 690
(LC), a trade union blamed the delay in filing a statement
of case on its lengthy internal processes. The court noted that the
thrust of the explanation was that “
a
large multi-layer organisation cannot easily comply with the time
limits of the LRA”
. In rejecting
this explanation, the court, per Lagrange J, held that (para 9):
“
The
LRA has been in existence for more than fifteen years, and the time
limits governing referrals have not changed in that time.
It is
reasonable to expect that trade unions ought to be well aware of the
need to act timeously in the interests of its members
and would adapt
their internal procedures to accommodate those time limits, not vice
versa.
The scale of an
organisation cannot serve as a justification for delays.
On the contrary, it is reasonable to expect that larger
organisations, be they trade unions or businesses ought to be able to
see to it that they are organised to deal with disputes of this
nature in a systematic [manner] to ensure that they do not fall
foul
of the time limits in the LRA. Where handling such disputes is a core
function of the organisation, this should go without
saying.”
(emphasis added)
10.
As will be elaborated upon below, these
principles are equally apposite in the present matter.
The
extent of delay
11.
The award was issued on 17 December 2009.
The 6-week time limit for bringing a review application elapsed on 28
January 2010. The
review application was delivered on 25 February
2010, approximately one month out of time. In the context of the
6-week time limit
contained in the LRA, a one month delay is
substantial.
The
explanation for the delay
12.
The explanation for the delay that was
placed before the court may be summarised as follows:
12.1.
The deponent to the founding affidavit is
Annelize Malan, the Department’s Regional Co-ordinator, Legal
Services. She says
that “there is often a time delay” at
the applicant’s corporate services department. This is
why it took
5 weeks (until 21 January 2010) for her superior to
authorise the launching the review application. Ms Malan ascribes
this delay
to the “
sheer volume of
[the corporate services department’s] workload”
.
There is no confirmatory affidavit from her superior, nor any
official in the corporate services department.
12.2.
Ms Malan instructed the state attorney to
prepare the review application on 21 January 2010. It would have been
apparent to Ms Malan
– who says that her duties entail
representing the Department in labour disputes, as well as matters of
a litigious nature
-- and the state attorney that the 6 week time
period was due to elapse on 28 January 2010. (There is certainly
nothing to indicate
the contrary in the papers). Despite this,
consultations with counsel only took place on 1 February 2010.
Neither Malan nor the
state attorney explained why it was necessary
to brief counsel.
12.3.
There is no explanation tendered whatsoever
for the further 25 day delay until the launching of the application.
The founding affidavit
itself consists of 5 pages of substantive
content, most of which is devoted to the condonation application.
13.
The “explanation” tendered
really amounts to no explanation at all. The applicant in essence
seeks to be treated differently
from ordinary litigants on account of
its size and alleged above-average volume of workload. In keeping
with the above-cited dictum
in
Vanderbijlpark
Society for the Aged
, the scale of an
organisation cannot serve as a justification for delays. On the
contrary, the departments responsible for labour
litigation within
the applicant’s structures are under an obligation to see to it
that disputes of this nature are dealt
with in a systematic manner to
ensure that they do not fall foul of the time limits in the LRA.
14.
With regard to the 25 day delay in
launching the application following the receipt of the instruction to
proceed, this delay is
entirely unexplained. The deponent appears to
be of the view that condonation is merely a formality which is there
for the taking,
a notion of which she should be strongly disabused.
And neither Malan, who purports to have legal expertise in labour
matters,
nor the state attorney explained why it was necessary to
brief counsel to prepare a simple review and condonation application.
15.
In light of the patent insufficiency of the
explanation tendered, I would refuse condonation on this ground
alone, and, in line
with the authorities referred to above, it is not
strictly necessary to consider the merits of the application. But in
any event,
the applicant does not enjoy realistic prospects of
succeeding in the review application, for the reasons that follow.
THE
REVIEW APPLICATION: PROSPECTS OF SUCCESS
The
test on review
16.
The
applicant seeks to attack the merits of the arbitrator’s
findings.
It
is therefore necessary to consider whether the award satisfies the
threshold of reasonableness posited in
Sidumo
& Another v Rustenburg Platinum Mines Ltd & others
(2007)
28
ILJ
2405 (CC), namely: is the award one which a reasonable decision maker
could not reach?
[6]
17.
The stringency of the
Sidumo
test was highlighted by Willis J in
Thebe Healthcare v NBC, Road Freight
Industry
2009 (3) SA 187
(W) 201D-E:
“
As
the famous saying goes, ‘Quot homines, tot sententiae’.
Opinions, even among reasonable men and women, may differ
and, at
times, quite markedly. If the test in a challenge to an
administrative decision is whether the decision was one that no
reasonable decision maker could reach, it will, in practice, be very
difficult to succeed.”
(footnote
omitted)
Background
18.
On 10 September 2007, a collective
agreement was concluded under the auspices of the council between the
state as employer and various
trade unions, including DENOSA, the
third respondent. The agreement was headed “Resolution 3 of
2007: Agreement on Implementation
of an Occupational Specific
Dispensation (OSD) for Nurses” (“the OSD agreement”).
19.
The OSD agreement marked a substantial
restructuring of the terms and conditions of employment of
professional nurses who fell within
the council’s registered
scope. The OSD agreement provided for
inter
alia
:
19.1.
Career pathing;
19.2.
Pay progression;
19.3.
Grade progression;
19.4.
Recognition of appropriate experience;
19.5.
Increased competencies; and
19.6.
Performance,
with
a view to attracting and retaining nursing professionals in all the
identified occupations to the public health sector.
20.
The
agreement included various “translation measures” in
terms of which employees would be “translated”
from the
existing dispensation to appropriate salary scales under the OSD
agreement. One of the principles underpinning the translation
process
was the following:
[7]
“
A
Professional Nurse (Registered Nurse) who is managing a nursing
speciality unit, and who is not in possession of a post-basic
clinical nursing qualification listed in Government Notice R212, as
amended, but who has been performing these duties of managing
the
speciality unit satisfactorily on 30 June 2007, shall be translated
as a once-off provision to the appropriate salary scale
attached to
the corresponding management level.”
21.
In
terms of annexure A to the OSD agreement, which set out
inter
alia
career streams and salary scales, there was a substantial difference
in salary applicable to the job titles of Operational Manager
Nursing
(General Unit) (PN-A5)
[8]
and
Operational Manager Nursing (Primary Health Care) (PN-B3).
[9]
22.
As at the relevant date, 30 June 2007, the
third respondent’s member, Vosloo, managed the nurses at the
Buffeljagsrivier correctional
services institution.
23.
As a result of the OSD process, Vosloo was
translated to the position of Operational Manager Nursing (General
Unit). However, the
Buffeljagsrivier facility was a primary health
care unit, not a general unit. On a correct application of the OSD,
Vosloo ought
to have been translated to the Primary Health Care
(PN-B) salary scale, not the General Unit (PN-A) salary scale. This
was the
crux of the dispute that formed the subject matter of the
arbitration proceedings under review.
24.
It is significant that, prior to the
arbitration proceedings, the applicant recognised that Vosloo managed
the Buffeljagsrivier
facility. That is why she was translated to the
post of Operational Manager. The error made by the department was
that it incorrectly
appointed Vosloo on the “general”
stream, whereas in fact she should have been appointed on the
“primary health
care” stream. Vosloo merely sought her
translation to be corrected to reflect the true nature of the
facility which she managed.
25.
At the arbitration, for the first time, the
department appeared to take issue with the fact that Vosloo was an
Operational Manager
at all. This stance was irreconcilable with the
fact that Vosloo had been appointed as the Operational Manger
(General) by the
department on its application of the OSD process.
26.
After hearing evidence from both sides, the
arbitrator found in Vosloo’s favour and concluded that on a
correct application
of item
3.2.5.3(iii) of
the OSD agreement, Vosloo should have been translated to the
appropriate salary scale attached to the Operational
Manager Nursing
(Primary Health Care), i.e. PN-B3.
Was
the outcome of the award one at which no reasonable decision maker
could have arrived?
27.
As set out above, the department at all
material times acknowledged that Vosloo was employed at Operational
Manager level. The only
question was whether the Buffeljagsrivier
facility was a General or Primary Health Care institution.
28.
Vosloo testified that the department had
confirmed in February 2008 in writing that DCS (the Department of
Correctional Service)
was a primary health care institution. This was
not challenged in cross-examination. On the contrary, the
department’s witness
and its area commissioner, Ms VV Maputuma,
confirmed that Vosloo performed supervisory duties in a primary
healthcare centre.
29.
In light of the fact that Vosloo was
actually translated by the department to an Operational Manager post
(albeit mistakenly on
the “General” stream as opposed to
the “Primary Health Care” stream) it is difficult to pay
any credence
to the department’s proposition that Vosloo did
not manage the Buffeljagsrivier facility as at the relevant date. In
any
event, Vosloo gave clear evidence to this effect. Her version was
corroborated by Maputuma.
30.
In light of the evidence before him, the
arbitrator reasonably concluded that Vosloo had been satisfactorily
managing a nursing
speciality unit as at 30 June 2007 and that the
other requirements of item
3.2.5.3(iii)
were met. He accordingly ordered the department to translate Vosloo
to the post of Operational Manager Nursing (Primary
Health Care) at
level PN-B3.
31.
Mr
Van der
Schyff
, for the applicant, argued that
a managerial post in which Ms Vosloo could have acted, did not exist
on the establishment at the
Buffeljagsrivier facility, and that,
therefore, the relevant prescript did not apply. But the evidence at
arbitration was clear
– Vosloo did fulfil managerial functions.
And paragraph 3.2.5.3(iii) of the collective agreement only requires
that the person
“who is managing a nursing specialty unit”
and “who has been performing these duties” must be
translated.
That is a question of fact, and on the evidence before
him, the arbitrator reasonalbly found that, as an objective fact, Ms
Vosloo
was managing the unit.
32.
For the reasons set out above, the outcome
of the award was eminently reasonable. It certainly cannot be
described as an outcome
at which no reasonable decision maker could
have arrived.
Applicable
salary scale
33.
The applicant takes issue with the award on
an additional, narrow point, namely that the arbitrator failed to
specify precisely
which salary scale should be applied to Vosloo.
34.
The arbitrator ordered the department to
translate Vosloo to the post of Operational Manager Nursing (Primary
Health Care) at salary
level PN-B3. It is correct that there are 5
different salary scales applicable to a PN-B3 post, ranging from R235
659 to R265 236
per annum.
35.
It is common cause that Vosloo has applied
to the arbitrator for quantification of the award based on the lowest
of the five salary
scales (i.e. R235 659). In argument, the
department could offer no
bona fide
objection to the lowest PN-B3 salary
scale being applied. In the premises, the third respondent submitted
that it would be appropriate
to order that the applicable salary
scale is R235 659. I agree. In the interests of expeditious dispute
resolution, it would serve
little purpose to remit this issue to the
arbitrator for clarification.
CONCLUSION
36.
In the premises:
36.1.
The applicant’s application for
condonation is refused.
36.2.
The review application is dismissed.
36.3.
The applicant is ordered to adjust the
salary scale applicable to the third respondent, Ms Vosloo, to the
lowest PN-B3 salary scale
with effect from 1 July 2007, together with
interest thereon from 1 July 2007 to date, and all other increases
and allowances applicable
to post level PN-B3.
36.4.
The applicant is ordered to pay the third
respondent’s costs.
___________________________
AJ
STEENKAMP
Judge
APPEARANCES
Applicant:
J van der Schyff, instructed by the State Attorney.
Third
respondent: GA
Leslie, instructed by Chennels Albertyn.
[1]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) 532C-F.
[2]
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) 765C-D;
Mziya
v Putco Ltd
[2002] ZACC 30
;
[1999]
2 BLLR 103
(LC) 107A-B;
Darries
v Sheriff, Magistrate’s Court
1988
(3) SA 34
(SCA) 41C-D. These principles were confirmed in
National
Entitled Workers Union v Sithole & Others
(2004)
25 ILJ 2201 (LAC) paras 23-27, albeit that on the exceptional facts
of that matter, less weight was given to the unexplained
delay than
would usually be the case.
[3]
See for example,
National
Union of Mineworkers v CCMA & Others
(1999)
20 ILJ 2092 (LC) paras 22-24.
[4]
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & Others
(2010)
31 ILJ 273 (CC) paras 46-47;
Equity
Aviation Services (Pty) Ltd v CCMA & Others
[2008] ZACC 16
;
2009
(1) SA 390
(CC) para 52;
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & Others
[2009]
6 BLLR 517
(CC) paras 1 and 12;
Strategic
Liquor Services v Mvumbi NO & Others
(2009)
30 ILJ 1526 (CC) paras 12-13.
[5]
This principle has been routinely applied by the Labour Court. See,
for example:
Waverley
Blankets Ltd v Ndima & Others
(1999)
20 ILJ 2564 (LAC) para 10;
Swanepoel
v Albertyn
(2000)
21 ILJ 2701 (LC) paras 19-20;
Mkhize
v FNB
[1998]
11 BLLR 1141
(LC) paras 20-23;
Rustenburg
Transitional Local Council v Siele NO
(1999)
20 ILJ 2935 (LC) para 19;
Parker
v V3 Consulting Engineers (Pty) Ltd
(2000)
21 ILJ 1192 (LC) para 17;
Mokoena
v Naik
[1997]
12 BLLR 1543
(LAC) 1544I;
Khan
v Cadbury South Africa (Pty) Ltd
[2010] ZALC 175
(C965/2008, 17 November 2010).
[6]
(2439F).
[7]
Item
3.2.5.3(iii).
[8]
Item
1.5.
[9]
Item
3.3.