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[2012] ZALCJHB 124
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Oosthuizen v National Commissioner of the South African Police Service and Others (JR 3108/04) [2012] ZALCJHB 124 (23 October 2012)
Not reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case
no: JR 3108/04
In the matter between:
FRANCOIS C OOSTHUIZEN
Applicant
and
THE NATIONAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE SERVICE
First
Respondent
SAFETY AND SECURITY SECTOR
BARGAINING COUNCIL
Second
Respondent
F J VAN DER MERWE (
N.O.
)
Third
Respondent
R GROBLER
Fourth
Respondent
Heard
:
08 February 2011
Delivered
:
23 October 2012
Summary:
(Review – condonation of ostensibly late filing
of grievance refused – internal procedures completed when
employer refused
to consider grievance further – no need to set
aside employer’s refusal to grant condonation for late filing
of a grievance
before a referral of unfair labour practice to
bargaining council).
JUDGMENT
LAGRANGE, J
Introduction
The applicant joined the Police Service in December 1990. By June
1996 he was promoted to the rank of inspector on the basis
of his
qualifications. In 1997 he obtained a National Diploma: Purchasing
Management from Technicon S. A. That qualified him
to be promoted to
the rank of captain provided that a vacant position existed. Until
January 2001 there were no vacant positions.
In 1997 and 1998 a
process of restructuring took place in the SAPS, which was known as
the “En Masse” process. This
provided opportunities for
promotion for certain ranks in the service.
The applicant claims that he made enquiries to have his designation
changed to Provisioning Administration Occupational Class,
which
would have made him eligible for promotion to the rank of Captain.
However, on making enquiries in December 1997 he was
told by a human
resource management official that only officers with the rank of
Captain to Superintendent could benefit from
the En Masse process.
He did not take the matter further at that time because he accepted
that the information was correct.
When vacant positions became available for non-commissioned officers
and P. S. A. personnel to apply for vacant positions he
did so but
was unsuccessful. He also applied for vacant positions in 2002
similarly without success. It was in September 2003
that his hopes
for promotion were revived when he read an article in a trade union
paper concerning three members who obtained
retrospective promotion
after an arbitration award in their favour. All three of them had
the same qualifications as the applicant
and similar experience in
Provision Administration according to the applicant. The applicant
believed that the three persons
mentioned had obtained an advantage
in relation to promotion that he and others in similar positions had
not been given.
On 28 October 2003 the applicant lodged an official grievance.
According to his grievance the three members were appointed as
non-commissioned officers under the Police Act on 1 December 1997.
At that time they had the same experience as he did in provisioning
administration and had obtained their National diploma on the same
date as himself. When they were translated naturally to the
police
service they retained their civil ranking in the clerical division
of PAS Provisioning Administration. As a result of
the arbitration
award they were promoted to the rank of officer. In the light of
this he felt that the advice he had been given
at the time was at
odds with what he was entitled to be therefore sought relief in the
form of retrospective promotion to December
1998 with the same
financial benefits which the three members obtained.
The personnel division commenting on the grievance took the view
that the applicant's complaint was distinguishable from the
three
members he sought to compare himself with. Firstly, they pointed out
that no written application for transfer to the PAS:
Provisioning
Administration Officials could be found in his file. Secondly, they
stated that in terms of the interim promotion
policy which applied
at the time, that is before 1 June 2001, a member seeking promotion
from Provisioning Administration official
to Senior Provisioning
Administration official in terms of the applicable pay PAS a member
had to serve two and a half years,
or three years, depending on the
promotion report, before they could be promoted to the next rank
level. The applicant was also
horizontally translated to the
occupational category: Provisioning Administration Officials without
any disadvantage on 1 July
2002 when all non-commissioned officers
were translated to the correct occupational category, which might
not have happened if
he had been translated on one December 1997.
The grievance was unresolved at the conclusion of step three of the
grievance procedure and accordingly on 15 January 2004 was
referred
for a meeting in terms of step 4. It was at this stage that the
employer took issue with the date when the grievance
was lodged.
From a letter written by the Section Head: Promotions and Awards it
appears that he was of the view that the grievance
should have been
filed within 180 days from the time when the applicant first
qualified for translation to assistant Provisioning
Administration
official (level VI) from 1 December 1997. The relevant paragraph of
the grievance procedure annexed to collective
agreement 5/99 read:
"The grievance procedure may be invoked by any grievant
within 180 days after the date upon which the grievance became aware
of the grievance or might reasonably have been expected to become
aware of the grievance. Provided the National Commissioner or
his or
her delegate may in his or her discretion and in exceptional
circumstances where the interest of the service so require,
permits a
grievant to invoke the grievance procedure after such period."
Accordingly, the Section Head was of the view that the applicant
should have applied for condonation for the late filing of the
grievance. The initial response of the applicant's union on his
behalf was that no application for condonation was necessary
because
he only became aware in August 2003 of what he perceived to be his
disadvantageous treatment when the magazine article
was brought to
his attention. The Promotions Subsection Head, Kemp, strenuously
objected to the contention that the applicant
could only have become
aware of the alleged bad advice he had received when he read the
article mentioned. He points out that
in the union's own letter it
made reference to a circular dated 24 February 1998 in which it was
said that any logistical work
experience would apply on translation
between occupational groups. This he said, was at odds with the
advice he said he had received.
Accordingly, the applicant could
reasonably have been expected to have been aware of this in February
1998.
Moreover, Kemp pointed out that another head office directive dated
28 August 1998, made it clear that various personnel, who
did not
qualify to participate in the En Masse process, had qualified in the
meantime under the general and horizontal mobility
rules to be
translated to occupational categories where vacant posts existed. In
the absence of any evidence that the applicant
made any enquiries
about these arrangements, he was of the view that the applicant
could not blame the employer for his own failure
to obtain clarity
about these arrangements. He also added that the arbitrations which
the applicant referred to concerned the
promotion and not the
translation of the affected members.
In reply, SAPU claimed that the applicant only became aware of the
head office circular of 28 August 1998 when he received Kemp's
letter. It further contended that it was the employer's
responsibility to see that the content of circulars was communicated
to employees and the applicant was unaware of the contents of the
circulars referred to. Nonetheless, and under protest, the
applicant
filed a condonation application for the ostensible five and a half
year delay. He reiterated his explanation for this
delay as being
due to his ignorance of his rights regarding promotion until he
learnt of the arbitration award, after which he
took action to
launch his grievance.
The condonation application was dismissed on 30 May 2004. Having
failed to advance his complaint to the final step of the grievance
procedure, the applicant referred an unfair labour practice claim to
the Safety and Security Sectoral Bargaining Council (‘the
SSSBC’), by 22 June 2004, less than thirty days after this
decision. However, the applicant's attempt to advance his dispute
by
means of this referral ground to a halt, when the respondent raised
an
in limine
objection to the matter proceeding.
The employer’s objection was that step four of the grievance
procedure had not been exhausted and therefore the SSSBC had
no
jurisdiction to hear the matter. The objection was based on clauses
3.2 and 3.5.1(b) of the bargaining council dispute procedure.
According to the arbitrator, clause 3.2 stated that prior to any
dispute of right being referred to the council, the aggrieved
employee must have exhausted all internal procedures. Clause
3.5.1(b) stated that a dispute sent to conciliation-arbitration
must
have been referred to the council within 30 days of all internal
procedures having been exhausted.
Thus, having prevented the applicant from advancing his grievance
further by refusing to condone what it contended was the late
lodging of the grievance, the respondent now sought to rely on its
own refusal to admit his grievance to the final stage of the
internal grievance procedure, as a bar to the applicant’s
access to external remedies provided for by the LRA. Added to
this,
the respondent further contended that if the applicant was
dissatisfied with the condonation decision he ought to have
applied
to review that decision instead of pursuing an unfair labour
practice dispute.
The applicant sought a variety of forms of relief, namely an order:
Declaring that he had lodged his grievance within 180 days of the
date he became aware of it;
Reviewing and setting aside the National Commissioner’s
decision to refuse his application for condonation for the late
filing of the grievance (on the assumption that the first prayer
for relief was not granted);
Reviewing and setting aside the jurisdictional ruling of the third
respondent;
Directing the National Commissioner to convene a step 4 meeting in
terms of the dispute procedure.
Evaluation
The third respondent accepted both in limine arguments advanced by
SAPS and ruled that he did not have jurisdiction to hear the
unfair
labour practice dispute because in his view to exhaust all the steps
in the grievance procedure required that the procedure
must have
commenced and must have been completed ‘within the confines of
the procedure/policy itself’. He also found
that even if he
disagreed with the National Commissioner’s decision refusing
condonation, he could not set it aside because
he had no
jurisdiction over an administrative decision which would have to be
taken on review if the applicant wanted to set
it aside.
Rather than consider the applicant’s claim for relief in
respect of the National Commissioner’s decision, it makes
more
sense to first consider if the arbitrator was correct in his
jurisdictional finding and then to consider the other claims
if
necessary. The pivotal question is whether or not all the steps in
the grievance procedure had been exhausted when the applicant
was
barred from proceeding to step 4 by the employer’s refusal to
condone what was perceived to be his late filing of the
grievance.
When the National Commissioner decided not to grant the applicant’s
conditional condonation application, he
effectively put an end to
the applicant’s ability to complete all steps in the grievance
procedure, and thereby his attempts
to resolve the grievance with
his employer.
It is true the applicant might have that decision set aside on
review, but the fact remains that as long as the commissioner’s
decision on condonation stands, the last step in the grievance
procedure cannot be completed. The commissioner’s decision
effectively disposed of the applicant’s grievance at the
internal level. As such it was as final in effect as if no
resolution
to the grievance could be found at a step 4 meeting.
From the applicant’s perspective, there was nothing more he
could do to trigger the last step in the grievance procedure.
He had
requested a step 4 meeting, as the grievance procedure required him
to, after he had followed all the previous steps,
but he was refused
the meeting on the basis of not obtaining condonation for the late
filing of the grievance. That decision
halted the advancement of the
grievance and made it impossible for the applicant to access the
final step in the process.
To all intents and purposes the grievance procedure was exhausted
when the respondent refused to allowed the matter to proceed
to the
final stage, by closing the door to the step 4 process in the
procedure. It was disingenuous of the employer to say on
the one
hand to the applicant he could not refer his grievance to the
bargaining council because it had not held a step 4 meeting
with him
despite his request for one, and in same breath refuse to hold such
a meeting, because in its view the applicant was
inexcusably late in
filing his grievance.
The bargaining council acquires jurisdiction to entertain the
dispute if it is referred within 30 days of all internal procedures
being exhausted. If the employee has done all that is required of
him or her to invoke all the steps in the procedure but the
employer
refuses to entertain it beyond a certain stage, then the grievance
cannot be resolved under the procedure, and the procedure
is
exhausted as an internal dispute resolution mechanism.
The arbitrator was correct in finding that he did not have the power
to set aside the National Commissioner’s decision
not to
condone the late filing of the grievance, but that is a distinct
issue from whether or not all the steps in the grievance
procedure
were effectively exhausted before the applicant referred his unfair
labour practice dispute.
In the circumstances, I am satisfied that the arbitrator erred in
finding that he had no jurisdiction to entertain the applicant’s
unfair labour practice, and that ruling must be set aside. Given
that the bargaining council does have jurisdiction, there is
no
reason why the matter cannot be referred to conciliation-arbitration
before another arbitrator.
It is not necessary for the purposes of this outcome to make any
finding or comment on the substantive merits of the applicant’s
unfair labour practice claim and therefore I refrain from doing so.
In the light of this decision it is also not necessary to
consider
the other relief the applicant sought in respect of the National
Commissioner’s decision on condonation or the
convening of a
step 4 meeting.
Order
The decision of the third respondent that he had no jurisdiction to
conciliate and arbitrate the applicant’s unfair labour
practice claim under case number PSSS 161-04/05 is set aside.
The applicant’s unfair labour practice claim under case number
PSSS 161-04/05 must be set down by the second respondent
for
conciliation-arbitration before an arbitrator other than the third
respondent, within 45 days of the date of this judgment.
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: R Venter instructed by Vierbergen Attorneys
FIRST RESPONDENT: T Makhubele instructed by the State Attorney,
Pretoria