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[2012] ZALCJHB 126
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Minister of Labour v Mathibeli and Others (JR38/10) [2012] ZALCJHB 126; (2013) 34 ILJ 1548 (LC) (23 October 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR38/10
In the matter between:
MINISTER OF LABOUR
.................................................................................
Applicant
and
NTSANE ERNEST
MATHIBELI
.........................................................
First
Respondent
MARTIN SAMBO N.O
...................................................................
Second
Respondent
THE GENERAL PUBLIC
SERVICE
SECTORAL BARGAINING
COUNCIL
..................................................
Third
Respondent
Heard:
24
February 2012
Delivered:
23
October 2012
Summary: Review of an
award - the retention, without increased benefits, of an incumbent on
a newly upgraded post, does not have,
as its consequence, the same
substantive outcome as a promotion- dispute is of interest and not of
right – award reviewed
and set aside.
_________________________________________________________________
JUDGMENT
CELE, J
Introduction
[1] This is an
application in terms of section 158 (1) (g) of the Act
1
to review and set aside
an arbitration award dated 23 November 2009 in this matter, issued by
the second respondent, as an appointed
arbitrator of the first
respondent.
Factual background
[2]
During December 2007,
the applicant embarked on a job evaluation process, wherein all the
positions within Legal Services of the
applicant were evaluated. At
the time,
the first respondent was employed as a
Senior Legal Administration officer on salary level 10. The job
evaluation committee recommended
that all Senior Legal Administrative
posts (Assistant Manager posts) in Legal Services be upgraded from
salary level 10 to salary
level 11, and this recommendation was
approved by the Director General of the Applicant on 01 September
2008.
[3] On 31 December 2008,
Mr Ramabulana, employed as a Senior Legal Administrative
officer on salary level 10 resigned and Mr Latola was appointed to
act
in his position on 15 January 2009. Mr Latola was employed in
Occupational Development of the applicant at salary level 10 before
being appointed to act in the post vacated by Mr Ramabulana in legal
services. Mr Latola acted at a post which had just been upgraded
by
the Director General of the applicant on 01 September 2008 from
salary level 10 to salary level 11.
[4] On 23 January 2009,
an approval was sought from the applicant to implement
the recommendations of the evaluations committee. Such approval was
only
granted on 24 February 2009. The applicant submitted that the
then Acting Chief Financial Officer gave approval which could only
be
implemented in the next financial year, beginning on 1 April 2009.
Also, in January 2009, the applicant advertised the post
of Mr
Ramabulana at salary level 11 with the salary of R344 052 per annum.
Upon seeing the advertisement, the first respondent
wrote to the
applicant on 12 January 2009 requesting the outcome of the job
evaluation. No response was given to him. The Chief
Director in Legal
Services, Advocate N Pasha advised the staff, including the first
respondent, in a meeting held at the Unemployment
Insurance Fund that
the posts that we occupied in legal services had been upgraded and he
provided them with a copy of the approved
organisational structure
dated 24 February 2009.
[5] In the meantime, and
on 26 March 2009, the applicant received a circular from the
Department of Public Service and Administration
(DPSA) advising the
applicant not to not to proceed with any job evaluations or grading
of any positions occupied by legally qualified
personnel. Job
evaluation and the implementation of the recommendations of the
evaluation committee were consequently abandoned
by the applicant.
According to the applicant, none of the employees whose positions
were evaluated and upgraded were paid and/or
benefited from the job
evaluations and /or upgrading of positions. The DPSA circular
provided that:
‘
Departments
are cautioned that as paragraph 24 and 25 of the Minister of Public
Service and Administration’s (MPSA) determination
dated 29
April 2008, all legal post must with effect from 1 May 2008 be
advertised and filled in terms of the OSD. Furthermore
since the
grading of all posts in the OSD has been centrally determined by the
MPSA, departments may not job evaluate or upgrade
any legal post.’
[6] On 31 March 2009, the
first respondent wrote another letter to the applicant advising that
he was aware that the post that he
occupied had been upgraded to
salary level 11, requesting payment of his salary to be in accordance
with the approved salary level
11. Again, no response was given to
his letter by the applicant. On 04 May 2009, he wrote another letter
requesting the applicant
to pay him a salary in accordance with the
approved salary level 11. He was not favoured with any response by
the applicant, as
a consequence of which on 06
May 2009 he lodged a formal grievance with the applicant. Mr
Bongani Yika, a Director in Occupational Development of the
applicant,
provided the first respondent with a copy the Director
General’s approval of the recommendations of the job evaluation
committee
on 11 May 2009 confirming, in the e-mail and in the
approval, that the post of Assistant Manager, being the Legal
Administration
Officer, had been upgraded from salary level 10 to
salary level 11 on 01 September 2008.
[7] On 2 June 2009, the
applicant through a letter issued by Mr Bheki Gama, advised the first
respondent that the job evaluation
was abandoned and that Mr
Ramabulana’s post was incorrectly advertised on salary level 11
and that it has in the meantime
been re-advertised on the correct
level. The applicant attached to that letter a copy of the directive
from the Department of Public
Service and Administration dated 26
March 2009. The attached directive, which was only brought to the
first respondent’s
attention on 02 June 2009 and in response to
his grievance, provided that:
‘
since the grading of all posts
in the OSD has been centrally determined by the MPSA departments may
not job evaluate or upgrade
any legal post.’
[8] The first respondent
was not satisfied with the response from the applicant and he
declared an unfair labour practice dispute.
The second respondent was
appointed to arbitrate the dispute between applicant and the first
respondent. He had to consider,
inter alia
,
what
happens to the incumbent if a post is upgraded, that is, whether the
incumbent is automatically elevated to that higher level.
In this
respect, the witness called by the first respondent, Mr Latola
expressed himself thus:
‘
it would not
make sense to separate the post from the person as that person is
functioning in that post. The Department would need
to answer. How
the Department will deal with the upgrading is up to them. His
opinion is that the two cannot be separated.’
[9] Mr Gama testifying
for the applicant on the same issue said that:
‘
In terms of
the Public Service Regulation, Chapter 1 paragraph C.6 and C.7
(Bundle C page 21), if an executing authority increases
the salary of
the post as provided under regulation V C.5, (s) he may continue to
employ the incumbent employee in the higher graded
post without
advertising the post if the listed conditions are met. This means the
executing authority has discretion. This requirement
could not be
stuck to due to a collective agreement that led to OSD... with
reference to Bundle C page 21 paragraph C.8, the fact
that SR 10 does
not appear does not make it mandatory that it must exist. The
executing authority had the discretion to transfer
the Applicant
somewhere else’.
[10] On 20 November 2009
he issued the assailed award with the chief findings that:
‘
The onus to
prove the fact on which an allegation of an unfair labour practice
falls on the applicant. In this case the Applicant
indicated through
documents and oral testimony that his post was upgraded as a result
of the job evaluation from salary level 10
to salary level 11 with
effect from the 1
st
of September 2008… From the facts presented before me, what is
clear is that there was a job evaluation exercise which led
to the
upgrading of posts from salary level 10 to salary level 11 in the
Legal Services Section of the Respondent. The Applicant
was in that
section at salary level 10.
The Applicant led evidence that
indicated that with effect from the 1
st
of September 2008
the post at the Legal Services were graded at the salary level 11 and
level 12. Although the Respondent disputes
that the Applicant was
from that time functioning at level 11, there was no evidence
submitted to prove the Applicant was functioning
at level 10 or to
dispute that level 10 ceased to exist as from 1
st
September 2008. The applicant proved this through an approved
memorandum by the Director General, the Persal Printout, the approved
organogram document of the Section and the advertised post of a
former colleague Mr Ramabulana. The Respondent did not dispute
that
evidence and the fact that the Applicant continued to function in the
Legal Services. The Applicant therefore contends that
his post has
been upgraded. On the balance of probability I am of the view that
the applicant’s post was upgraded or the
Applicant has been
functioning in the upgraded post from 1
st
of September
2008.
The next question is what happens to
the incumbent if a post is upgraded. In response to whether if a
person’s post is upgraded,
it is automatic for one to be
elevated, the Applicant’s witness Mr Latola testified…
By implication, from the above
prescripts, once a post is upgraded it does not automatically mean
the incumbent is promoted. There
are conditions to be met. I agree
with the Respondent’s contention that the Applicant cannot
claim this is a right. However,
it is also clear from the above
prescripts that once the post is upgraded, the Respondent has three
options namely, to transfer
the incumbent somewhere else, or to
advertised the post or continue to employ the incumbent in the higher
graded post. From evidence
presented before me, the Applicant was not
transferred and neither was the post advertised. Whether he met the
conditions or not
is clear that the Applicant continued to function
in a higher grade from 1
st
September 2008.
…
If it was I
would agree with the Applicant that an employee benefited from the
Job evaluation. However, my view is that in all fairness,
even if no
employee benefited, the Respondent has benefited in utilising or
employing the Applicant in a higher graded post but
paying him a
lower salary.
Job Evaluation was abandon as a result
of the OSD circular from the DPSA which stated in paragraph 4, page
40 of Bundle A that “
Departments are cautioned that as
paragraph 24 and 25 of the Minister of Public Service and
Administration’s (MPSA) determination
dated 29 April 2008, all
legal post must with effect from 1 May 2008 be advertised and filled
in terms of the OSD. Furthermore
since the grading of all posts in
the OSD has been centrally determined by the MPSA, departments may
not job evaluate or upgrade
any legal post.”
What I grapple to understand, is not
the argument of the respondent, but the timing at which it was
brought to the Applicant. The
Applicant wrote several letters to the
Respondent from January 2009 until may 2009 requesting results of the
Job Evaluation and
that he be paid according to his upgraded post but
was not given a response. The First response he got was in June 2009
after he
lodged an official grievance with the Respondent. The
response was informing him that Job Evaluation was abandoned as a
result
of the OSD circular from the DPSA. The circular is dated the
3
rd
of March 2009 and speaks of a determination made in
April 2008. The Applicant was only informed in June 2009. The
Respondent then
further says it did not have authority to approve the
upgraded post on the 1
st
September 2008 and wrongly
advertised the SR11 post in the Legal Services in January 2009. It is
clear that the Respondent negligently
conducted a Job Evaluation
exercise, upgraded post, advertised the post and failed to inform its
employee despite being asked.
The Respondent further neglected to
inform its employees of the DPSA circular. It was only able to
conceptualise this in June 2009.
I find this to be unfair. The
respondent cannot embark on processes with such furious implications
and later, due to its negligence
not take responsibility for its
actions or prejudice its employees as a result.
From the circumstances detailed above,
the respondent has committed an unfair labour practice as set out in
section 186(2) (a) of
the Labour Relations Act 66 of 1995 (`the
LRA`)’.
Grounds for review
[11]
The submission by the applicant is that the conclusion reached by the
second respondent was not a conclusion a reasonable arbitrator
in his
position could have reached, having regard to the evidence and the
material presented to him.
The
applicant submitted that the second respondent’s finding that
the third respondent had jurisdiction to adjudicate a dispute
was
unreasonable. The contention was that a dispute relating to upgrading
did not amount to a promotional issue but rather to a
mutual interest
issue and therefore that the third respondent lacked the necessary
jurisdiction to arbitrate disputes of interests.
[12] Further, it was
contended that the second respondent committed a gross irregularity
and /or misdirected himself and/or exceeded
his powers:
1. in the findings he
made which included that:
- The dispute between the
first respondent and the applicant was one of unfair labour practice;
- The first respondent
proved on a balance of probability that the applicant committed an
unfair labour practice;
- The first respondent
had been functioning in an upgraded post since 1 September 2008;
- When a post is upgraded
the applicant has three options, namely to advertise the post or to
transfer the incumbent or to continue
to employ the incumbent in a
higher graded post;
- The post in which Mr
Latola acted was an upgraded post and that an employee benefited from
the job evaluation;
- Though no employee
benefited from the job evaluation, the applicant benefited in
utilising or employing the first respondent in
a higher graded post
but paying him a lower salary, thus conveniently disregarding the
applicant’s evidence that once a post
is upgraded, the
incumbent is not automatically elevated to a higher salary level;
- The applicant
negligently conducted a job evaluation exercise, upgraded posts,
advertised posts and failed to inform its employees
despite being
asked;
- The applicant neglected
to inform its employees of the DPSA circular.
2. In that he:
- Conveniently failed
and/or neglected and / or omitted to mention that the first
respondent was not yet assessed or had not received
a satisfactory
rating in his most recent performance assessment and was not
automatically entitled to be elevated to the higher
salary;
- Read the approval of an
organogram to be the same as an approval for the implementation of
the recommendations of the evaluations
committee;
- Backdated the
applicant’s approval for the implementation of the
recommendations of the evaluations committee to 1 September
2008;
- Elevated the first
respondent to a higher salary level, contrary to the regulations;
- He directed the
applicant to pay the first respondent an amount of R93 300 75,
being the difference between salary level
10 and salary range level
11 with effect from 1 September 2008 until 31 May 2009.
Opposing grounds
[13]
The first respondent submitted inter alia that
the grounds
under which an arbitration award could be reviewed and set aside are
found in section 145)(2)(a) of the Act and that
those were the only
grounds under which an arbitration award made in terms of the
Labour
Relations Act could
be reviewed and set aside. He contended that the
applicant had not established grounds of review as contemplated in
section 145(2)(a)
of the Act and that the applicant could not rely on
any other grounds in common law or under section 33 of the
constitution because
the conduct of arbitrations under the Act did
not constitute administrative action.
[14] He said that to
upset the award, the applicant was required to show that there were
gross irregularities in the conduct of
the proceedings which
prevented a fair trial of the issues, to show that the second
respondent had exceeded his powers or obligations
imposed on him by
the Act, and to establish facts which amounted to misconduct on the
part of the second respondent. The submission
was that the applicant
had not established any of those grounds of review and that, in any
event, the conclusion reached by the
second respondent was the
conclusion that a reasonable arbitrator could have reached given the
weight of the evidence that the
first respondent presented before
him.
[15] In respect of the
classification of the issue, the first respondent submitted that the
third respondent had the necessary jurisdiction
to adjudicate the
dispute between himself and the applicant in that upgrading did
amount to promotion as contemplated in section
186(2) of the Act.
Evaluation
[16] To the extent
relevant in this matter section 186 (2) of the Act reads:
‘
Unfair
labour practice means any unfair act or omission that arises between
an employer and an employee involving–
unfair conduct by the employer
relating to the promotion, demotion, probation (excluding disputes
about dismissals or a reason
relating to probation) or training of
an employee or relating to the provision of benefits to an employee”
[17]
In his closing submissions the first respondent, who appeared in
person, referred me to various court decisions, for which
I thank
him.
In
Mahango
v MEC, Department of
Roads and Transport, Limpopo Province and Another,
2
the court considered the
implications of upgrading a post and held:
‘
In
my view, the events leading to the upgrading of the post, and the
subsequent downgrading thereof, fall inside the ambit of an
"unfair
labour practice" as defined. Even if this was not a "promotion"
or "demotion" on any interpretation,
the events still, in
my opinion, "relate to the provision of benefits to an employee"
as included by the definition prescribed
in
section 186(2)(a)
of the
Labour Relations Act
("the LRA").’
[18]
Also, in
National
Commissioner of the South African Police Service v SA Police Union
and Others
3
court similarly
considered the effect of re-grading a post and said:
‘
Expatiating on his submission,
Mr Lüderitz argued that chapter V of the regulations related
neither to appointments nor promotions.
Accordingly, so the
submission went, 'the achievement of a representative service' as
also the other guiding principles such as
'employment equity',
'fairness' and 'affirmative action' find no application in the
filling of a higher graded post. I cannot agree.
The retention, with
increased benefits, of an incumbent on a newly upgraded post, has as
its consequence the same substantive outcome
as a promotion
.
’
[19]
Then in
National
Commissioner of the SA Police Service v Potterill NO and Others,
4
court held:
‘
In my view,
regulation 24
requires one to draw a distinction between a decision to re-grade a
post and a decision to allow the incumbent employee in the
regraded
post to continue to occupy that post. Where the incumbent employee is
permitted to continue to occupy the regraded post
and is afforded the
appropriate higher salary, the employee is, in my view, "promoted".
In my view such a situation falls
within the first meaning given for
the word "promote" in the Concise Oxford Dictionary 9
th
ed, namely: "Advance
or raise (a person) to a higher office, rank, etc".’
[20] What is clear from
the decisions referred to above is that the retention, with increased
benefits, of an incumbent on a newly
upgraded post, has as its
consequence the same substantive outcome as a promotion. Put
differently, where the incumbent employee
is permitted to continue to
occupy the re-graded post and is afforded the appropriate higher
salary, the employee is promoted.
[21] It must follow
necessarily then, that the retention, without increased benefits, of
an incumbent on a newly upgraded post,
does not have, as its
consequence, the same substantive outcome as a promotion. Where,
therefore, the incumbent employee is permitted
to continue to occupy
the re-graded post and is not afforded the appropriate higher salary,
the employee is not promoted. The re-grading
of a post may bring with
it new essential requirements for the population of that post, which
the current incumbent may not be
possessed of. There is therefore a
need to draw a distinction between a decision to re-grade a post and
a decision to allow the
incumbent employee in the re-graded post to
continue to occupy that post.
[22] Clause C.5 of
Part V
of the Public Service Regulations provides that:
‘
An executing authority may
increase the salary of a post to a higher salary range in order to
accord with the job weight, if;
(a) the job weight as measured by the
job evaluation system indicates that the post was graded incorrectly;
and
(b) the department’s budget and
medium-term expenditure framework provide sufficient funds”.
[23] While clause C.6 of
the Regulations provides that;
‘
if an executing authority
increases the salary of a post under regulation V C.5, She or He may
continue to employ the incumbent
employee in the higher-graded post
without advertising the post if the incumbent:
(a) already performs the duties of the
post;
(b) he received a satisfactory rating
in her or his most recent performance assessment; and
(c) starts employment at the minimum
notch of the higher salary range.’
[24]
The
Public Service Regulations contain conditions that are a precursor to
the population of a re-graded post. By the mere re-grading
of a post
therefore, the incumbent of that post does not acquire a right to be
promoted to the newly created status level of the
post. A dispute
arising between the employer and the employees, in its work place,
would accordingly not be one of right but one
of interest, for which
the employees might be entitled to strike.
[25] The second
respondent therefore lacked authority to issue the award as the third
respondent had no jurisdiction to be seized
with this matter for
arbitration purposes. In any event, the third respondent did not even
lead any evidence to show that he met
all the set requirements for
the population of the upgraded post. The DPSA circular added yet
another complication for the third
respondent, which consideration is
no longer of any consequence, due to the findings already made.
[26] Accordingly the
following order will issue:
the
arbitrati
on award dated 23 November 2009 issued by the second
respondent in this matter is reviewed and set aside, for lack of
jurisdiction;
No costs order is made.
____________
CELE J
JUDGE OF THE LABOUR COURT
APPEARANCES
:
For
the applicant: Mr Mtsweni
Instructed
by: The State Attorneys, Pretoria
For
the third respondent: In person.
1
The
Labour Relations Act Number
66 of 1995.
2
[2009]
JOL 23293
(GNJ) at para 34.
3
(2004)
25 ILJ 203 (T) at para 20.
4
(2003)
24 ILJ 1984 (LC) at para 16.