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[2012] ZALCJHB 29
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Makau v General Public Service Sectoral Bargaining Council and Others (JR 1638/2010) [2012] ZALCJHB 29 (10 March 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
CASE
NO: JR 1638/2010
Of interest to other judges
In the matter between:
T V MAKAU
Applicant
and
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
First Respondent
ZODWA MDLADLA (
N.O.
)
Second Respondent
THE MINISTER: DEPARTMENT OF TRADE AND INDUSTRY
Third Respondent
Heard
:
4 May 2011
Delivered
:
10 March 2012
Summary:
(Review- unfair labour practice - jurisdiction).
judgment
LAGRANGE, J
Introduction
This is an application to review and set aside an jurisdictional
ruling by the second respondent, an arbitrator appointed by
the
General Public Service Sectoral Bargaining Council (‘the
GPSSBC’ or ‘bargaining council’) to arbitrate
over
an unfair labour practice dispute referred by the applicant.
The essential question before the court is whether the arbitrator
was wrong or right in her assessment that the disputes which
were
referred to arbitration did not fall within the jurisdiction of the
bargaining Council to determine an unfair labour practice
claim as
described in section 186 (2)(a). This in turn resolves itself into
the determination of two issues. Firstly, whether
or not the
applicant actually referred all the issues above under his unfair
labour practice claim to the bargaining Council.
Secondly, were
those issues that were referred as part of the unfair labour
practice dispute, matters which can indeed be decided
under the
unfair labour practice jurisdiction of the bargaining Council.
The applicant objected to the late filing of the respondent’s
heads of argument. The respondent filed its heads on 15 April
2011,
less than five court days before the hearing set down originally for
20 April 2011. The hearing in fact took place on 04
May 2011. The
respondent was clearly in breach of the directive issued on 21
October 2010 to file its heads of argument. However,
a second
directive was issued on 17 March 2011 requiring the respondent to
file heads five days before the hearing on 20 April
2011. It filed
them only three court days prior to the hearing on 20 April 2011.
However, for reasons which are not apparent
from the file, the
matter was removed to the roll on 04 May 2011. The effect of this is
that the applicant and the court had
more than five court days to
peruse the respondents heads of argument and were not prejudiced by
the late filing thereof. In
the circumstances, the late filing of
the respondent’s heads of argument is condoned.
The jurisdictional ruling
The arbitrator concluded that the bargaining council did not have
jurisdiction to consider the applicant’s dispute because
the
dispute that was referred was not an unfair labour practice in terms
of section 186 (2) of the Labour relations act 66 of
1995 (‘the
LRA’).
The arbitrator's factual summary of the dispute in outline was that:
The applicant had lodged a grievance against his line manager and
chief director complaining about the way in which they conducted
themselves as managers including abusing their authority, behaving
in a discriminatory manner and inconsistency in applying
policies
and guidelines.
The applicant had been subjected to abusive behaviour by his line
manager.
The Deputy director-general who dealt with the grievance
recommended that the applicant should be transferred from the
position
as a Deputy Director: Monitoring and Complaints to being
Deputy Director: Investigations.
The applicant was not content with this outcome and felt the matter
should have been referred to the Head of Department for
further
investigation. Nonetheless, he was transferred in terms of the
recommendation.
The applicant declared an unfair labour practice dispute in which
he alleged that the employer had failed to comply with the
grievance procedure by not referring his complaint to the head of
Department. He also complained that he had not been paid
his
performance bonus for the financial period ending 2008/2009 and
that he should have received an increase in his salary
and benefits
in order to be on a par with other deputy directors in his unit.
In determining whether the bargaining council had jurisdiction to
arbitrate the applicant's dispute, the arbitrator reasoned
as
follows:
Section 186 (2)(a) of the LRA defines an unfair labour practice as
an unfair act or omission that arises between an employer
and an
employee involving unfair conduct by the employer relating to
promotion, demotion or training of an employee or relating
to the
provision of benefits to an employee.
The applicant’s dispute with the respondent over the matters
summarised in paragraph 4.5 above did not fall within the
definition in section 186 (2) (a).
Instead of complaining of an unfair labour practice, the applicant
ought to have referred the alleged failure of the respondent
to
comply with the grievance procedure as a dispute about the
interpretation and application of the collective agreement dealing
with the grievance procedure. Similarly, his claim over the failure
to pay the performance bonus and salary increase also concerned
the
interpretation and application of the collective agreements
governing those issues.
Lastly, in so far as the applicant complains that the respondent
failed to fulfil its constitutional obligations and continued
to
harass and victimise him, those are disputes that should have been
referred to the High Court or the Constitutional Court
as the case
may be.
When the applicant referred this dispute over his unresolved
grievance to the bargaining Council, he described it as one
concerning
a unilateral change to terms and conditions of employment
and an unfair labour practice relating to the provision of benefits.
In expanding on the details of the dispute he complained that
firstly the outcome of the grievance had been determined by the
director of the Employment Relations Unit even though "she was
neither involved to investigate the grievance nor authorised
in
terms of the rules to decide on the matter (grievance)." In
setting out the facts of the dispute he complained that:
he had been singled out and treated increasingly unfairly by his
supervisor making his working environment and conditions
unbearable.
He had been victimised for lodging the grievance against his
supervisor and chief director and that no steps had been taken
to
discipline his supervisor.
The procedure for investigating the grievance outlined in the
grievance policy was not followed and the actions taken to
supposedly resolved it made the procedure defective, apart from the
fact that it was not impartially applied.
He had been victimised with the threat of disciplinary action for
lodging the grievance.
As an outcome he wanted the bargaining Council to accept the
referral of the grievance and confirmed that the employer had
committed an unfair labour practice. Apart from this he wanted
appropriate action taken against people whom he had complained about
and compensation for entry of feelings suffered by him as a result
of his treatment. He also sought the reversal of his transfer
to the
directorate: investigations unless his salary and working conditions
were reviewed.
Further on in the referral form he identified certain special
features of the dispute. It is here that he expanded on what he
perceived to be his unequal treatment by the employer which required
him to continue performing his previous functions in contravention
of the Labour Relations Act and the Public Service Act. He states
that he is not being paid the same as other Deputy Directors
in the
Investigations section, and that his transfer was imposed on him to
protect the people he had lodged grievance against.
Attached to the
referral was his grievance which he lodged with the employer. The
causes of complaint set out in the grievance
were concerned almost
exclusively with the treatment he claims he suffered at the hands of
his supervisor and the failure of
the employer to address his pleas
regarding that treatment.
In his founding affidavit in the review application, the applicant
summarises the unfair labour practices he complains of in
the
following terms:
"(i) Non-compliance with Public Service Grievance Handling
Rules,(ii) Non-payment of performance bonus,(iii) Differentiation
in
Salary-Principle of equal salary for work of equal value not
applied,(iv) Applicant expected to perform in terms of two job
descriptions,(v) Harassment in terms of attitude, behaviour and door
incident, (vi) Harassment in terms of an acceptable working
relationship,(vii) Unilateral Change on conditions of
employment,(viii) Ongoing victimisation,(ix) Failure to execute
constitutional
obligations and (x) Prejudice suffered by applicant."
Further on in the founding affidavit, the applicant sets out the
actions of the employer which he believes constitute an unfair
labour practice in more detail in these terms:
‘
59.11.1 there has been non-payment of
applicants performance bonus for the financial period 2008/09 which
act or omission committed
by the third respondent constitutes an
unfair labour practice in terms of section 186 (2) of the Labour
Relations Act.
59.11.2 there have been gross acts of non-compliance with the
Public Service Grievance Handling Rules committed by the third
respondent.
The outcome of the investigation of the grievance was
decided by individuals not supposed to be involved in the
investigation of
the grievance.
59.11.3 I have been subjected to a situation of, until to date,
having to perform my duties in terms of two job descriptions for
the
positions deputy director: monitoring and complaints and deputy
director: investigations.
59.11.4 there is a differentiation of salaries for the deputy
directors: investigations in view that the principle of equal salary
for work of equal value is not being applied by the DTI/third
respondent to all deputy directors: investigations,
59.11.5 I have been harassed in terms of the following, namely
attitude, behaviour, door incident and unacceptable working
conditions
perpetrated by the line manager and chief director,
59.11.6 there has been unilateral change in conditions of
employment of applicant and ongoing victimisation an applicant has
been
unfairly affected by such conduct or act; and
59.11.7 there has been gross substantive unfairness, procedural
unfairness and the grossly unreasonable decisions as taken by the
DTI/Third Respondent which impacted negatively on my own rights to
fair labour practice as contemplated in terms of the Labour
Relations
Act and section 23 of the Constitution.
59.11.8 there has been existence of unfair conduct on the part of
DTI/Third Respondent in terms of not upholding their Constitutional
obligations to fair labour practice."
The certificate of outcome issued on 9 December 2010, described the
dispute as one concerning a “unilateral change to conditions
and unfair labour practice (benefits).”
The merits of the review application
The applicant nominally identified five grounds of review, though
most of them contain more than one basis for attacking the
arbitrator's ruling. It will also be apparent from the analysis
below that there is also considerable repetition and overlap
of the
grounds of review raised by the applicant.
The first ground of review
The applicant complains that the arbitrator acted irregularly and
ultra vires
in not dealing with his preliminary complaint and
preliminary issues raised by the employer. The applicant’s
preliminary
issue was that the employer had failed to provide
information he had requested to prove his case. The employer’s
preliminary
complaints concerned to jurisdictional questions and
whether it had received various documentation. The applicant claims
that
the Commissioner acted beyond their powers by not considering
all the points and only considering the jurisdictional ones.
In principle, I cannot see anything wrong in principle with the
arbitrator only addressing jurisdictional questions if the answer
to
those questions might render other issues irrelevant.
However, the applicant further contends that the arbitrator should
not have entertained the
in limine
objections of the
respondent because the respondent had not objected to the
certificate of the outcome when it was issued nor
at any time
thereafter. Further, the arbitrator ought to have allowed the
applicant to address her on the statement of his claims
before
making her ruling. As a result of these actions, he claims the
arbitrator effectively altered the conditions on which
the
certificate of outcome was issued to be altered. He reasoned also
that because the employer had not challenged all the statements
of
claim in the applicant's bundle of documents, the arbitrator ought
to have accepted that there was no objection to those matters
being
dealt with under the unfair labour practice jurisdiction.
It is well established that a jurisdictional issue can be raised at
the arbitration stage even if it was not raised previously.
An
exception to this principle is if the referral was late and the
employer party only raises an objection to this after conciliation
has taken place.
1
In such a case, an employer may be barred from raising such an
objection unless it applies to set aside the certificate. However,
where the objection concerns the nature of the dispute, because
description of the dispute in the certificate of outcome is only
indicative and not determinative of the nature of the dispute
2
,
there is no reason why an objection based on lack of jurisdiction on
account of the nature of the dispute cannot be raised at
the
arbitration proceedings.
Moreover, even if the employer had not raised the issue, the
arbitrator was obliged to consider whether or not she had
jurisdiction
in the matter, as she could not assume the power to
arbitrate over anything before her merely because parties were
silent on
issues relating to her jurisdiction. The scope of her
power to arbitrate is determined by the LRA, irrespective of what
the parties
say or do not say.
Second ground of review
The arbitrator referred to the applicant’s statement of his
case set out in his bundle of documents, even though there
was a
dispute whether or not that bundle had been properly served on the
respondent, and despite the fact that he neither gave
evidence based
on the bundle nor was he cross-examined on it. According to the
applicant, the arbitrator was not entitled to
rely on his bundle of
document in these circumstances. Under this ground of review, the
applicant repeats his complaint about
the arbitrator acting beyond
her powers in ‘altering’ the certificate of outcome. In
particular, he criticises her
for not investigating why the
conciliator issued the certificate, and for not validating the
employer's claims that jurisdictional
issues were raised in the
conciliation proceedings against the record of the conciliation
proceedings.
The applicant is correct that the arbitrator does not have the power
to review the actions of her predecessor who handled the
conciliation proceedings. Nevertheless, she must be satisfied of her
own jurisdiction to hear the matter, particularly in the
absence of
a ruling on jurisdiction having been made at the conciliation stage.
As mentioned, the description of the dispute
in the certificate of
outcome does not amount to a ruling on jurisdiction.
Conciliation proceedings are confidential and evidence of what
transpired during those proceedings may not be disclosed unless
the
parties agree to this in writing.
3
It may well be the case that jurisdictional issues were debated in
the conciliation, but there is no evidence that the parties
actually
requested the conciliator to make a ruling on jurisdiction at that
stage. In the absence of such a written ruling, the
arbitrator was
entitled to consider the matter of jurisdiction afresh.
Third ground of review
The primary attack on the arbitrator’s approach under this
ground of review is that she made the jurisdictional finding
on the
basis of the statement of the applicant’s claim set out in the
bundle, without hearing the parties’ representations,
and
without conducting a factual enquiry into the issues set out in the
statements of claim. The applicant also criticises her
for not
complying with her own ruling because she had undertaken to set the
matter down for further deliberation once she had
made a ruling on
the
in limine
points raised by both parties.
The applicant provided a transcript of the proceedings. Although the
proceedings were relatively short, it is apparent that the
arbitrator focussed her attention on trying to clarify the issues in
dispute. The parties made a number of oral submissions in
this
regard. It is true that the applicant wanted to lead evidence of his
various complaints which he claimed fell under his
unfair labour
practice referral and that the arbitrator declined to hear such
evidence.
Was the arbitrator obliged to hear evidence for and against the
existence of the facts on which the applicant based his complaint?
In most respects I think not. The applicant and his representative
had ample opportunity to articulate the nature of the dispute.
It
was only when the arbitrator remarked that it appeared that the
dispute did not appear to fit with the requirements of section
186(2) that the applicant then sought to make further submissions on
each aspect of the dispute. At that preliminary stage of
proceedings
the arbitrator was not concerned with whether or not the applicant
was able to prove his claims. Rather, she had
to determine if his
claims fell within the scope of the unfair labour practice
definition. This is what she did, and I cannot
find anything wrong
with her approach to determining the jurisdictional issue, with one
exception.
The exception relates to her determination of her jurisdiction over
his complaint about the unfairness of not receiving a performance
bonus. While it was not necessary for her to have heard evidence on
this dispute as such, she ought to have enquired into whether
the
applicant was claiming the bonus as an automatic entitlement or
whether he was complaining of the employer’s alleged
unfair
exercise of a discretion to pay the bonus. It was not sufficient to
determine whether or not it related to an unfair labour
practice
dispute based solely on the label attached to the supposed benefit.
Fourth ground of review
The applicant attacks the arbitrator’s evaluation of the
evidence before her. In particular, the applicant claims that
it is
clear that the arbitrator misconstrued the evidence before her and
failed to properly consider the evidence. In support
of this ground
the applicant identifies approximately 16 instances of conclusions
drawn by the arbitrator in her ruling, which
he alleges demonstrate
these defects. These are considered below.
The first complaint is that the arbitrator misidentified
representatives in the hearing. Nothing material hangs on this
error,
and it does not constitute grounds for setting aside her
ruling.
The applicant’s second and third complaints are that the
arbitrator did not characterise the dispute correctly. He contends
that the correct description of the dispute he referred is set out
in paragraph [9] above.
Assuming that his description is correct, do his different claims
constitute claims under section 186(2)(a) ?
The first claim relating to non-compliance with Public Service
Grievance Handling Rules appears most obviously to be a complaint
about compliance or the application of the collective agreement
containing such rules.
The differentiation in salary-principle of equal salary for work of
equal value, at best for the applicant, might have been
raised
under the EEA but not as an unfair labour practice under the LRA.
The dispute about whether or not he was required to perform two
jobs simultaneously is not a dispute that resorts under section
186(2)(a), but more properly is a dispute about contractual
entitlements and obligations.
Likewise, the claims of harassment relating to his working
relationship with his supervisor are not ones that find a remedy
under the unfair labour practice jurisdiction.
A dispute about unilateral changes to conditions of employment is a
dispute that either can lead to strike action or it might
be
resolved by means of an order for specific performance but it is
not remotely described by the provisions of section 186(2).
In so far as the complaint of victimisation is simply one of being
unfairly singled out, there is no assistance to be obtained
from
the LRA.
If, on the other hand, the complaint of victimisation relates to
the applicant’s claim that the non-payment of the bonus
was
linked to hisresolute pursuit of his grievance, then that is a
matter dealt with in terms of section 5 and 9 of the LRA,
which is
discussed in paragraph [36] of this judgment. However, the
consequence of those provisions is that it is a matter
for this
court to deal with, not an arbitrator.
The unfair labour practice jurisdiction of the LRA is not simply a
catch-all category for any constitutional rights the applicant
might have. It only deals with the Constitutional right to fair
labour practices to the extent described in section 186(2).
Lastly, prejudice or disadvantage as such is not the basis for an
unfair labour practice claim. At best it is just an element
of such
a claim, but the prejudice suffered must be one that the
legislature has determined should be prevented.
The fourth complaint is that the arbitrator mischaracterised what
transpired with his grievance. The arbitrator said that the
Deputy
director-general had investigated and recommended that he be
transferred. He objects to this and emphasises that the
recommendation was only made on the basis that he would accept such
a transfer and form clearly indicated that the grievance was
not
resolved. I do not see his expanded description of the grievance as
contradicting what the arbitrator stated.
He further takes objection to the arbitrator characterising the
recommendation of the Deputy director-general as an ‘outcome’
of the grievance and therefore a resolution of the matter. I do not
understand the arbitrator to have made a finding that the
grievance
was resolved. Although she does use the term ‘outcome’
to describe the Deputy directors’ recommendation,
she clearly
acknowledged that he was not satisfied with that result, so it
appears that she was alive to the fact that the recommendation
was
unsatisfactory from his point of view.
Whether or not the arbitrator described the dispute over the failure
to comply with the grievance procedure in as much detail
as the
applicant would have liked, and whether or not she used terminology
more loosely than she might have, correcting these
discrepancies
would not have had a material impact on her analysis from a
jurisdictional perspective. Consequently, I do not
regard them as
reviewable errors on her part.
The applicant also criticises the Commissioner’s
characterisation of his complaint about the employer’s failure
to comply with the grievance procedure. She described the complaint
as being about the fact that “... the grievance was
not
further referred to the head of Department after he was dissatisfied
with the recommendation by the DDG." The applicant
points out
that he mentioned in the referral form that both the Head of
Department and Executive Authority were approached to
address the
grievance but failed to do so and the dispute concerned their
failure to resolve the matters. It seems that the applicant
is
correct in this criticism, in that the arbitrator did not seem to
appreciate his claim that the executive authority and head
of
Department had both been approached about the grievance.
However, I do not believe this error affects the classification of
the dispute in any meaningful way. In essence, this aspect
of the
dispute remains one about the failure of the employer to comply with
the grievance procedure. The details of that failure
are a matter
for evidence if the matter proceeds.
The applicant accuses the arbitrator of not applying her mind to the
nature of his complaint about the non-payment of his performance
bonus for the 2008/2009 financial period. He contends that his
dispute did not simply concern the non-payment of the bonus, but
the
fact that the non-payment was an instance of a discriminatory
practice and inconsistent application of the performance management
policies of the employer and these were issues that were something
apart from remuneration and fell within the definition of
the unfair
labour practice.
The arbitrator said that part of the applicant’s complaint was
that he should have received an increase in his salary and
benefits
in order to put him on a par with other deputy directors in his
unit. The applicant claims that this description ‘contradicts’
the arbitrator’s own statement that he lodged a grievance
alleging discriminatory practices and inconsistent application
of
policies and guidelines. He then goes on to explain that the
criteria used for the determination of the salary of the position
of
the deputy director: investigations were not applied to him when he
was transferred to the position, and the salary differentiation
which he experienced amounted to direct and indirect discrimination
and therefore an unfair labour practice.
To the extent that he links this discriminatory treatment to
anything, it seems to be that he is of the view he was being
victimised
for pursuing his original grievance and hence the
differential treatment. But if it was for that reason then that
concerns an
alleged infringement of section 5(2)(b) or (3) of the
LRA which state:
“
(2) Without limiting the general
protection conferred by subsection (1), no person may do, or threaten
to do, any of the following-
(a) …
(b) prevent an employee or a person seeking employment from
exercising any right conferred by this Act or from participating in
any proceedings in terms of this Act;
(3) No person may advantage, or promise to advantage, an employee
or a person seeking employment in exchange for that person not
exercising any right conferred by this Act or not participating in
any proceedings in terms of this Act. However, nothing in this
section precludes the parties to a dispute from concluding an
agreement to settle that dispute.”
The enforcement of that right does not resort under the unfair
labour practice remedy but in a referral to the Labour Court under
section 9(4) of the LRA.
As mentioned previously, the applicant also contends that the
arbitrator was wrong in deciding that the parties agreed that the
jurisdictional issues had not been addressed by the conciliator. He
reiterates his view that the certificate of outcome, which
stated
that two issues were to be arbitrated namely the alleged unilateral
change of terms and conditions of employment and the
unfair labour
practice relating to benefits, effectively disposed of the
discussion of jurisdictional points at the conciliation.
The applicant claims that the commissioner erred in entertaining the
employer’s jurisdictional challenge, when the respondent
did
not challenge what was set out in his statements of claim showing
that the dispute fell within the ambit of the unfair labour
practices jurisdiction. This point essentially covers the same
ground dealt with in paragraphs [15] to [17] above. The applicant
makes a similar point in relation to the arbitrator's citation of
section 186 (2) (a).
The applicant also finds fault with the arbitrator’s finding
that the conduct summarised in paragraph 6 of her award does
not fit
within the meaning of an unfair labour practice. The applicant says
that in reaching this conclusion the commissioner
showed a lack of
knowledge of the legal principles and decided cases which she ought
to have considered but did not.
He takes issue too with the Commissioner's conclusion that the
employer's alleged failure to comply with the grievance procedure
is
a dispute about the interpretation or application of that procedure.
The applicant says that this conclusion is at odds with
the
arbitrator’s finding that the complaints of the applicant do
not fit the meaning of an unfair labour practice. He contends
that
this demonstrates that the commissioner did not understand his
complaint and he has been prejudiced thereby. The applicant’s
criticism is difficult to understand. Indeed, if the applicant says
that a procedure has not been complied with, that is
prima facie
a dispute about the employer’s failure to apply the
grievance procedure and not an unfair labour practice matter.
In a similar vein, he takes issue with the arbitrator's conclusion
that a dispute over the payment of a performance bonus and
a salary
increase also concerns the interpretation and application of a
collective agreement. He reiterates that the non-payment
issues
concern discrimination and the inconsistent application of
performance management policies and guidelines. Once again
he
emphasises that performance bonuses and merit awards are matters
falling within the definition of benefits in terms of section
186
(2) of the LRA, and that the Commissioner committed a gross
irregularity in not applying her mind to this issue. These two
issues are addressed in paragraphs [53] to [55] of the judgment.
In relation to the arbitrator’s finding that the failure of
the employer to execute its constitutional obligations and
ongoing
victimisation and harassment should be referred to the High Court
and Constitutional Court, the applicant argues that
this contention
was never raised in the hearing and he had no opportunity to present
evidence on these issues. Accordingly he
argues that there is
nothing to suggest that the arbitrator considered supporting
evidence in his statement of claim on these
issues. This criticism
is curious in the light of the applicant’s more general
complaint that the arbitrator should not
have had regard to his
bundle without evidence being led.
Be that as it may, it does seem that the arbitrator simply assumed
that victimisation and harassment are matters for the High
Court. In
relation to the applicant’s complaint about his supervisor’s
alleged conduct which led him to submit a
grievance it appears that
the applicant is not arguing a case of victimisation as described in
section 5 of the LRA, which addresses
prejudice suffered by
employees at the hands of an employer for exercising their
employment rights. The applicant seems to mean
that he has simply
been the victim of prejudicial treatment without justification.
Section 186(2) of the LRA does not extend
to cover such conduct, and
other than pursuing it as a grievance to the full extent of the
grievance procedure, there is no obvious
legal remedy, unless the
discrimination was based on an unacceptable reason, such as race,
religious belief or similar personal
qualities.
I have no doubt the applicant feels deeply aggrieved about the
conduct he claims he was subjected to, and if his claims could
be
substantiated that conduct might have been grounds for claiming
constructive dismissal. It might also have been the basis
for
obtaining an order interdicting conduct which prevented him from
performing his duties. However, the applicant’s claim
of
unjustified bad treatment, cannot be squeezed into the narrow
definition of what constitutes unfair labour practices in terms
of
section 186(2)(a). Labour law does not provide a legal solution to
every form of grievance in the form of a final adjudication
of
rights.
Thus, even though the arbitrator may have been wrong in assuming
there are available remedies in the forums mentioned, it does
not
assist the applicant because the absence of such remedies does not
mean the issues can therefore be dealt with by default
under the
unfair labour practice jurisdiction of the LRA. To the extent that
the constitutional right invoked by the applicant
relates to the
right to fair labour practices, then the first hurdle the applicant
must overcome is to demonstrate that his complaints’
fall
under section 186(2), failing which he must make out a cogent
argument why his constitutional right not to be subject to
unfair
labour practices ought to be more widely interpreted than the scope
of practices described in section 186(2).
The applicant also tackles the arbitrator's conclusion that the
bargaining Council did not have jurisdiction to entertain the
dispute because it did not concern an unfair labour practice. He
claims that this conclusion has no rational connection to the
evidence before her in his bundle, which the employer did not object
to. As discussed below, the determination of jurisdiction
by the
arbitrator is either correct or not. It is not a matter which is
assessed by the standard of reasonableness. Accordingly,
this line
of criticism does not warrant further consideration.
Fifth round of review
Lastly, the applicant attacks the reasonableness of the ruling in
that he says the arbitrator:
failed to apply her mind to the evidence and issues concerning his
complaint about the respondent's nondisclosure of information
and
unreasonably and irregularly took account of his bundle of
documentation when making her ruling;
also failed to consider the evidence that he had been performing
the job description of two directors for some time and
misunderstood the issues in this regard thereby prejudicing him,
which amounted to a gross irregularity on her part, and
ahe did not apply her mind to the issue of the non-payment of the
performance bonus and merit awards and failed to appreciate
that in
terms of the case of
SAPU obo Louw & Others v SAPS
(2004) BALR (1) 22
the non-payment of those items had been
held to constitute an unfair labour practice.
The first issue mentioned in the previous paragraph does not require
consideration for the reasons mentioned above, namely that
a review
of a jurisdictional ruling is not a matter of assessing the
reasonableness othe arbitrator’s decision.
The second issue, I understand relates to the applicant’s
claim that he was not paid on the principle of equal pay for
work of
equal value. This court has recognised such a claim, provided that
the basis on which the differentiation is claimed
to be unfair is on
some or other prohibited ground, such as race or sex. In that case,
the claim might be entertained by the
Labour Court in terms of the
provisions of the Employment Equity
Act 55 of
1998 (‘the EEA’). In this regard see
Mangena
& Others v Fila SA (Pty) Ltd & Others
(2010) 31
ILJ
662 (LC) at 668-9, [5]-[7]
. It might be
argued that the definition of prohibited grounds in section 6(1) of
the EEA ought to extend to include differentiation
for an arbitrary
reason, and thereby include a simple failure to pay equal wages for
work of equal value without a rational justification,
though the
cogency of this argument is by no means certain.
4
However, the unfair labour practice as described in section 186(2)
of the LRA certainly does not embrace such disputes.
The third issue raised by the applicant is a theme which runs
through more than one of his points of review mentioned above .
5
In relation to whether or not the dispute over the fairness of not
awarding the applicant a performance bonus and merit award
is
concerned, the arbitrator in
Louw’s
case held that:
“
26. Having decided that the matter
before me is not one concerning interests, I now have to turn to the
definition of “benefit”.
27.
Both parties have referred me to some views on what would be
included in and excluded from the concept of “benefit”.
It is apparent that, apart from a few clearly established principles,
arbitrators have different views in this regard.
28. In my view the starting point would be to determine what a
benefit is not. As I understand the authorities –
28.1 remuneration in
return for services rendered such as a salary or wage or commission
or overtime pay is not a benefit (Schoeman
& Another v Samsung
Electronics (SA)
[1997]
10 BLLR 1364
(LC));
28.2 depending on the circumstances, any other term and condition
of employment may or may not be a benefit (Schoeman-case);
28.3 a claim for leave pay is nothing other than a claim for
remuneration for work rendered (Gaylard v Telkom South Africa
[1998]
9 BLLR 942
(LC); and
28.4 a claim for an acting allowance is similar to a salary or
wage issue and is not a claim for a benefit (Hospersa case).
29. The next question is what a benefit is or could be. My
understanding of the authorities is the following :
29.1 A benefit
constitutes a material benefit such as pensions, medical aid, housing
subsidies, insurance, social security or membership
of a club or
society – there must be some monetary value for the recipient,
and it is something arising out of the employment
relationship
(Sithole v Nogwaza & Others
[1999]
12 BLLR 1348
(LC)).
29.2 A benefit is something extra or apart from remuneration
(Schoeman-case).
29.3 The concept “would seem to include . . .
discretionary (performance related bonus . . . and the
like”
(Basson and others Essential Labour Law volume 1 (1ed) at
252).
29.4 The dictionary meaning is broad, with synonyms including
“extras” and “fringe benefits”, and it seems
to refer to “additional matters” (Du Toit and others
Labour Relations Law 4ed at 467).
30.
In
my view participation in or potential participation in an incentive
or performance recognition or bonus scheme is something extra
or
apart from remuneration, is material and has monetary value, and is
not typical remuneration in return for services rendered
,
and
I am satisfied that the subject matter of the dispute before me does
concern a benefit as contemplated in
section
186
of the LRA.”
6
(emphasis added)
By contrast, Musi, AJ, as he then was took a different approach in
Department of Justice & Constitutional Development v Van
der Merwe NO & Others
(2010) 31
ILJ
1184 (LC)
:
“
[31] The applicant's
second argument, ie that performance bonuses and pay progression
awards are not benefits,
is also compelling.
[32] It is common cause that the union members
did not have a right ex contractu (in terms of their employment
contracts or the collective bargaining agreement) or ex lege to
performance bonuses and pay progression
.
The commissioner
correctly, in my view, found that those rewards were given annually,
to those who qualified, at the discretion
of the applicant
. An
employee cannot utilize his/her right not to be subjected to unfair
labour practices where the employee believes that he/she
ought to
enjoy certain benefits which the employer is not willing or unable to
give to him/her, to create an entitlement to such
benefit through
arbitration in terms of the LRA.
Likewise if an employer is not
willing or able to spend an amount, on bonuses , in excess to that
contractually agreed upon, the
employees cannot create an entitlement
thereto by way of arbitration. Section 185(b) sought to bring under
the definition of unfair
labour practice, as defined in s 186(2),
disputes about benefits to which an employee is entitled ex contractu
or ex lege.
[33] Remuneration is defined in s 213 of the LRA
as 'any payment in money or in kind, or both in money and in kind,
made or owing to any person in return for that person working for any
other person, including the state and remunerate has a corresponding
meaning'.
[34] The
LRA does not define benefits . In Schoeman & another v Samsung
Electronics SA (Pty) Ltd
(1997)
18 ILJ 1098 (LC)
at 1102-3 it was said that:
'Remuneration
is different from benefits. A benefit is something extra apart from
remuneration. Often it is a term and condition
of an employment
contract and often not. Remuneration is always a term and condition
of the employment contact.'
[35] Todd
AJ correctly states that the court in Schoeman v Samsung was
concerned that if the notion of benefits
is interpreted too widely,
this would in effect give parties the right to refer to arbitration
disputes that are in essence disputes
about remuneration. This would
obviously preclude industrial action over a range of disputes over
remuneration that properly fall
within the realm of collective
bargaining. See Protekon (Pty) Ltd v CCMA & others
(2005)
26 ILJ 1105 (LC)
;
[2005] 7 BLLR 703
(LC) at para 18. The rationale for this is clear
that where a dispute is an interest or remuneration dispute it cannot
be arbitrated
under the guise of a benefits dispute because that
would subvert collective bargaining.
[36]
Performance bonuses and pay progressions
are not given arbitrarily or to every employee irrespective of
performance. The performance
of the individual employee is assessed
over a fixed period of time. If the performance of the employee is
good, 61% to 79% of the
performance objectives met, or outstanding,
80% and more of performance objectives met, that employee
qualifies to be rewarded
by way of merit and/or pay progression
.
[37]
These awards are clearly a quid pro quo
for good and outstanding services rendered. It is nothing else but
remuneration for services
rendered. It is therefore remuneration and
not a benefit
.
[38]
The complaint is not that the performance
awards or pay progressions were unfairly given to a select few or
unfairly taken from
others. The unfairness or otherwise of the
process was not an issue
.
[39] The commissioner's ruling that he had
jurisdiction to adjudicate the dispute is clearly wrong. He has no
jurisdiction
to adjudicate an interest dispute.”
7
(Emphasis added)
From the two decisions above, it is apparent that the determination
of whether an unfair labour practice claim concerning non-payment
of
a bonus seems to depend to a significant extent on whether the bonus
is not part of normal remuneration and where there are
grounds for
believing that the employer did not exercise its discretion properly
when deciding who would and would not get the
bonus. Whether the
appearance of discretion is in fact illusory because the bonus is
always paid according to a consistent and
pre-determine formula and
therefore a claim for a portion of remuneration due to an employee
arising in contract or in statute,
is a matter that requires
investigation of the type of bonus the employee is claiming.
This is not something the arbitrator in this instance appears to
have considered. It required her to do more than simply look
at the
label of the entitlement under consideration.
However, in relation to his salary dispute, that is not a dispute
about a benefit, but an interest dispute which the unfair labour
practice cannot resolve. On the other hand if the dispute is simply
one about what he is entitled to as a salary, that is plainly
a
remuneration dispute regulated by statute and contract, and cannot
be construed as a benefit dispute under section 186(2)(a).
Conclusion
In short only one of the applicant’s grounds of review
succeeds, namely relating to the classification of the performance
bonus dispute as an unfair labour practice dispute in terms of
section 186(2)(a). By not probing the basis for this claim in
more
depth with the parties, the arbitrator failed to canvass sufficient
submissions for making a determination of the type of
claim she was
dealing with.
Order
The award is reviewed and set aside only in respect of the
arbitrator’s finding that the applicant’s dispute over
the non-payment of his performance bonus in the 2008/2009 financial
year was not an unfair labour practice.
The matter is remitted back to the first respondent to set it down
before another arbitrator other than the second respondent,
to
determine if the dispute concerning the non payment of a performance
bonus to the applicant for the 2008/2009 financial year
was a
dispute over a benefit in terms of section 186(2)(a) of the LRA,
after hearing further submissions and, if necessary, evidence
on
this issue.
In the event the arbitrator appointed to determine this question
finds that the dispute falls within the provisions of section
186(2)(a), the arbitrator must proceed to arbitrate the merits of
the applicant’s claim on this issue.
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: In person
FIRST RESPONDENT: M Mphaga
Instructed by the State Attorney (Pretoria)
1
See
Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others
(2000) 21
ILJ
2382 (LAC)
2
Strautmann
v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast &
Others
(2009) 30
ILJ
2968 (LC)
at 2972-3,[8]
3
Rule
16(1).of the CCMA Rules
4
Section
6 of the EEA prohibits unfair differential treatment based on a
number of specified grounds , but those grounds do not
constitute a
closed list, viz :
“
6 Prohibition
of unfair discrimination
(1)
No person may unfairly discriminate, directly or indirectly, against
an employee, in any employment policy or practice,
on
one or more grounds
,
including
race, gender,
sex,
pregnancy, marital status, family
responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status,
conscience, belief, political opinion, culture, language and birth.”
(emphasis added)
5
See
paragraphs [34] and [42] of the judgment
6
At
27-28
7
At
1192