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[2013] ZALCJHB 13
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Regional Commissioner of Correctional Services, Free State and Northern Cape v Wolfaardt and Others (JR 557/08) [2013] ZALCJHB 13; [2013] 7 BLLR 717 (LC) (6 February 2013)
THE
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
Of interest to other judges
Case no:
JR
557/08
In the matter between:
THE REGIONAL COMMISSIONER
CORRECTIONAL
SERVICES, FREE STATE AND NORTHERN
CAPE
................................................
Applicant
and
WOLFAARDT
...............................................................................................
First
Respondent
WATKINS C H
.........................................................................................
Second
Respondent
Du PLESIS B C
...........................................................................................
Third
Respondent
LUBBE W P F
...........................................................................................
Fourth
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
.............................................................................
Fifth
Respondent
M C VAN AARDE N. O
................................................................................
Sixth
Respondent
Heard: 26 July 2012
Delivered: 06 February 2013
Summary: Review interpretation and
application of Resolution 7 and 8 of 2000 the PSCBC. Application of
the affirmative action in
the placement of employees in terms of the
restructuring as provided for in Resolution 7.
JUDGMENT
MOLAHLEHI J
Introduction
This is an application
to review and set aside the arbitration award made by the sixth
respondent (the arbitrator) under case
number PSGA 203-04/05. In
terms of the arbitration award, the arbitrator interpreted the
provisions of Resolutions 7 and 8 of
the Public Service Bargaining
Council (the PSCBC) in favour of the first to the fourth respondents
(the respondents) and ordered
that they be promoted to positions
higher than those they occupied prior to the matching and placement
process.
The late filing of the
heads of arguments was at the beginning of the hearing condoned.
The first to the fourth
respondents in this matter are employees of the applicant, the
Correctional Services Department: Free
State and North Cape (the
department).
Background facts
The brief history of
this matter is that the PSCBC introduced, during 2002, the
transformation programme for the entire public
service through
Resolutions 7 and 8 of 2002.
In terms of Resolution
7, in order to chief the transformation objectives each department
including the applicants were required
to redeploy, retrain
alternatively employ excess employees in the public service. In this
respect, each department, including
the applicant, were required to
identify the profiles of each employee and to match them with the
requirements of the corresponding
positions for the purpose of
placement.
The other requirement
was that the department had to incorporate into its transformation,
affirmative action policy and plans,
which it had to implement in
order to address the issue of underrepresentation of certain groups
in the department.
The individual
respondents were dissatisfied with the manner in which the applicant
interpreted and implemented the provisions
of the resolutions with
regard to their positions, in particular in relation to the matching
and placement. It was for this reason
that they referred a dispute
to the fifth respondent (the bargaining council), the outcome of
which is the subject of this review
application.
The case of Mr
Wolfaardt
At the time, the dispute
was declared Mr Wolfaardt occupied the position of Correctional
Officer level 1, which position he occupied
consequent to the
earlier restructuring process. That post, according to him in the
statement of case, was upgraded to Senior
Correctional Officer.
Mr Wolfaardt contends
that the upgrading of his post was done in terms of category 2 of
the matching and placement criteria document
and therefore, he was
entitled to be promoted because he was the incumbent in the
position. It is common cause that he was not
promoted.
Mr Wolfaardt, further,
contends that, despite the appointment of the outsider, he continued
after the appointment to perform the
same duties as he did before
i.e his duties and job description remained the same. His other
contention is that in addition he
had a satisfactory level of
performance of his duties.
In what appears to be a
prayer in the statement of case, Mr Wolfaardt, states the following:
‘
It
is respectfully requested that the Commissioner make an Order in
terms whereof Mr Wolfaardt be promoted to the Level of SCO and
from
the 1
st
of April 2003, together with all the benefits, increments, salary
adjustments and other remuneration which would have accrued to
him
since the aforementioned date.’
The applicant did not
file his statement of case as was directed by the arbitrator in the
ruling dated November 2007. However,
it contends in its heads of
argument that Mr Wolfaardt did not qualify for a promotion for a
number of reasons. The reasons are
briefly stated as follows:
He did not qualify
because of the equity plans being white male.
No job evaluation was
done in terms of the Public Service Regulations Part V paragraph C5
He did not qualify
because of the requirements of relevant policies, including the
provisions of resolution 7.
[13] During the hearing
before this court, it was argued that there is nowhere the arbitrator
indicated that the resolution has
been incorrectly interpreted.
[14] The essence of the
arbitrator’s finding is that the resolutions were incorrectly
interpreted and applied by the applicant.
The other essential finding
of the arbitrator is that promotion was automatic on restructuring
and upgrading of any position.
[15] The specific factors
relating to the decision not to appoint Mr Wolfaardt, and the query
that he raised in that regard appears
briefly from the record as
follows:
‘
After
the upgrading of the post, and the matching and placement was done,
Mr Wolfaardt lodged a complaint indicating his dissatisfaction
and
requested that the issue be placed before the Departmental Task Team
for consideration.’
[16] On 11 April 2003, Mr
Wolfaardt received a letter from the Commissioner of the Provincial
Management Task Team advising him
as follows:
‘
The
implementation of the framework agreement on the restructuring and
transformation of the public service bears reference.
The
Management team has intensively studied the details of your personnel
file, and accordingly placed you in the position of SH
Centre
Management at Goedemoed Med B in the Free State and Northern Cape
Region.’
[17] Another letter was
addressed to Mr Wolfaardt by the Convener: Provincial Management Team
during June 2000, wherein Mr Wolfaardt
was advised as follows:
‘
1
Your memorandum in the above-mentioned regard has reference.
2
Kindly be informed that after careful consideration of the matter,
the Management Team has reaffirmed their initial decision concerning
your placement. It is not possible to place officials in upgraded
positions in terms of the current phase of Matching and
Placement-process.
3
If you are not satisfied with the response of the Management Team you
may make written representation to the Provincial Monitoring
Committee stating the grounds for your non-acceptance of the
placement by the Management Team.’
[18] On 30 August 2004,
the Regional Commissioner: Free State and Northern Cape addressed a
letter to Mr Wolfaardt advising him
that his representation was
considered and it was not sustained.
[19] In support of his
contention that he qualified for promotion, Mr Wolfaardt relied on
two performance moderating report wherein
it was indicated that for
2002/2003, his grand total in terms of performance assessment was
80.42% and for 2004/2005 was 84.71%.
The case of Mr Watkins
[20] The record reveals
that during April 2003, Mr Watkins received a letter informing him
that he was placed as HR Administrator
at Goedemoed Prison. He
responded in a memorandum which he addressed to the area manager,
wherein he accepted the placement. He
further indicated that
according to the new establishment, the post of DH Personnel and
Maintenance was upgraded to an ASD. He
further contended that, having
served in the position of DH Personnel Maintenance since 1993 and
having received good performance
score allocation in terms of the
criteria of matching and placement he was convinced that he met the
requirements for upgrading
in terms of resolution 7 and 8 of the
PSCBC.
[21] In response, the
Management Task Team affirm their earlier decision which they
recorded in a letter dated 29 April 2003 and
stated that:
‘
1
Your memorandum in the above-mentioned regard has reference.
2
Kindly be informed that after careful consideration of the matter,
the Management Team has reaffirmed their initial decision concerning
your placement. It is not possible to place officials in upgraded
positions in terms of the current phase of Matching and
Placement-process.
3
If you are not satisfied with the response of the Management Team you
may make written representation to the Provincial Monitoring
Committee stating the grounds for your non-acceptance of the
placement by the Management Team.’
[22] Mr Watkins,
respondent to the above letter on 28 May 2003 and
inter alia
stated the following:
‘
3
According to the feedback it is indicated that the Management Team
reaffirmed their initial decision and they cannot place a person
in
an upgraded post, I took note thereof.
4
The following aspects is my concern and need to be notified of a
satisfactory explanation.
The
contents of HR Management’s Job description is based on Persal
and Personal Administration. My service experience is
actually only
related to the aforementioned. Was it considered as stated in my
PPF?
According
to the criteria for the Matching and Placement, Category 5 was
applied to my placement. Could my placing be considered
in a new
post as it should have been advertised.
According
to my understanding of the DCS’s Category 2, should there be
applied in my position in conjunction with the implication
of Public
Service regulation Part V.5 to C.7.
The
current Head Corporate service has been placed in the post of HR
Management, was according to records I have been utilised
in the
position of Resource Management since 1993…
According
to Management Team they cannot place an Official in a higher
position during the current phase. Is it not the task to
evaluate a
person's experience in order to place him/her in a suitable position
to comply with the Commissioner’s statement
as quoted in the
Intranet.’ What is happening and will be happening in our
Department is unprecedented. It follows as an
opportunity to ensure
that each and every staff member is properly placed an optimiser
utilise to assist the delivery of the
better Correctional Service.”
This means placing staff members in positions where they can make a
difference in line with
their interest, skills, qualifications and
experience. That is what the main and sole objective of this process
is...’
[23] On 15 September
2003, the applicant addressed a letter to Mr Watkins confirming his
initial placement. As concerning his performance
assessment, Mr
Watkins was informed that for 2003/2004 his rate was 74.65%.
The case of Mr Du
Plessis
[24] Mr Du Plessis was,
prior to the restructuring, employed as the secretary of the Parole
Board. The post was upgraded to the
senior correctional officer and
thereafter advertised. He was unsuccessful in the interviews.
The case of Mr Lubbe
[25] At the time of the
restructuring, Mr Lubbe was employed as a work-study official. He was
retained in that position after the
restructuring
The applicant’s
case- grounds for review
[26] The applicant raised
a number of grounds of review against the arbitration award. In this
respect, the applicant contended
that:
‘
(a)
That
the commissioner committed misconduct in relation to the duties of
the commissioner.
(b)
That he committed gross irregularity in the conduct of the
arbitration;
(c)
That the commissioner exceeded his powers.’
[27] In substantiating
the above grounds of review, the applicant complains that the
arbitrator committed misconduct in relation
to his duty in that he
failed to apply his mind to the evidence before him, resulting in the
incorrect interpretation of the resolutions.
[28] The arbitration
award is also criticised for unreasonableness and that is based on
the allegation that the arbitrator failed
to consider all the
evidence presented for the purposes of the interpretation of the
resolution.
[29] The arbitrator is
further criticised for having ordered the promotion of the individual
respondents without determining the
salary levels to which the
promotion had to be effected and thus making it impossible to effect
the implementation of the award.
The respondents’
case, in defence of the arbitration award
[30] The
respondents, arguing in defence of the arbitration award, contended
that it could not have been in the spirit of the collective
agreement
to “manufacture” positions for designated groups to the
disadvantage of the incumbents who were already in
those posts and
performing the same function. According to the respondents, the
approach of “manufacturing” posts for
members of the
designated groups is irrational and overlooks the constitutional
imperatives based on the requirements of maintaining
public service
efficiency. In support of their argument, the respondents relied on
the following cases;
Eskom
v Hiemstra NO and Others
,
1
Coetzer and Others v
Minister of Safety and Security and Another
2
and
Public
Servants Association of SA and Others v Minister Justice and Others
.
3
[31] In the
Eskom
matter, the arbitrator
was faced with having to deal with whether the employer's decision of
failing to appoint the employee in
the post of vending controller
constituted an unfair labour practice in terms of item 2(1)(a) or
item 2(1)(b) of schedule 7 to
the LRA 1995. The arbitrator found that
the employer had indeed committed an unfair labour practice and
ordered that the employee
should be retained in her post.
[32] The employer being
dissatisfied with that outcome launched a review in terms of section
33(1) of the Arbitration Act 42 of
1965. The employer contended that
the arbitrator failed to consider the question whether the
discrimination between a black employee
and a white employee was
prima facie unfair.
[33] The court in the
Eskom matter, in upholding the decision of the arbitrator, reasoned
that:
‘
[32]
[A]s a general rule, an employer commits an unfair labour practice if
that employer decides not to promote an employee on the
grounds of
his or her race, gender or for some other arbitrary reason.' (At
572G.)
An
employer who stoops to racial discrimination in the course of
conducting relations with his or her employees will unfairly affect
the employment opportunities, including the aspirations, of the
employees so victimized and the relationship between the employer
and
the employees will be detrimentally affected by the intrusion of
racial criteria into the relationship.’
(At 572G-H.)
[34] In
Coetzee
matter, the applicants,
white males who were inspectors in the explosives unit of the SA
Police Service were ignored in the promotional
posts because they did
not belong to the designated groups despite their specialised
training. The applicants were excluded from
the promotion on the
basis of the affirmative action programme of the SAPS.
[35] The forensic science
laboratory, the business unit in which the bomb squad fell, did not
have its own employment equity plan,
which it was required to have in
terms of the general SAPS employment equity plan. In the absence of
an employment equity plan
and an affirmative action plan for the
forensic science laboratory, it had to be determined whether the
general SAPS employment
equity plan could be relied on by the SAPS to
justify its discrimination against the applicants.
[36] The Court found that
in terms of the Constitution a balance need to be struck between
affirmative action and other Constitutional
imperatives including the
need for the SAPS “to discharge its responsibility effectively’
in terms of section 205 (2)
of the Constitution. The balance between
the two imperatives, the Court held, has to be rational.
[37] On the facts, the
Court found that the decision of the SAPS Commissioner not to promote
the employees was not justified for
two reasons. The first reason,
according to the Court, was that the SAPS did not have a specific
affirmative action plan applicable
to the explosives unit and
secondly that in refusing to promote the employees the Commissioner
overlooked the imperative of efficiency
for the SAPS.
[38] In the
Public
Service Association
matter,
the applicants challenged the appointment of candidates in the office
of the state attorney which was done on the basis
of the affirmative
action programme. The applicants contended that the implementation of
the affirmative action programme was discriminatory
against them.
[39] The Court found that
the employer being the sponsor of the affirmative action programme
had the duty to show that the discrimination
introduced by the
programmes was fair. Similarly, the Court found that it was
imperative that the affirmative action programme
was balanced with
“fair and equitable principle” and promotes an efficient
public service” in terms of section
212(2) of the 1993
Constitution. The Court further found that the affirmative action
measures introduced by the employer ‘were
haphazard, random and
overhasty.’
[40] In
Solidarity
obo Barnard,
4
the Court per Pretorius
AJ followed a similar approach to the above. In dealing with the
issue of employment equity, the Court in
that case summarised the
principles that formed the basis for its decision as follows:
‘
25.1
The provisions of the
Employment
Equity Act and
an
Employment Equity Plan must be applied in accordance with the
principles of fairness and with due regard to the affected
individual’s
constitutional right to equality. It is therefore
not appropriate to apply, without more, the numerical goals set out
in an Employment
Equity Plan. That approach is too rigid. Due
consideration must be given to the particular circumstances of
individuals potentially
adversely affected. In this regard the need
for representivity must be weighed up against the affected
individual’s rights
to equality and a fair decision made.
25.2
Obviously (and this was not an issue in the trial) individuals from
non-designated groups (and perhaps from designated groups
too) will
be adversely affected by the implementation of employment equity
plans. But both as a matter of substance and procedure
implementation
of employment equity plans should be effected with due regard not
only to the individual’s right to equality
but also to the
dignity of affected individuals. This is particularly so when it
comes to the application and effective use of
internal dispute
resolution procedures and statutory conciliation procedures.
25.3
Accordingly, the extent to which the implementation of employment
equity plans may discriminate or adversely affect individuals
is
limited by law. In this case at least the following considerations
are relevant. First, the terms of the
Employment
Equity Act require
the
application of its provisions to be done in a manner that is both
rational and fair. Second, due recognition must be given to
the
affected individual’s rights to equality. Third, in the
implementation of an employment equity plan, due recognition
must be
given to the right of affected persons to dignity.
25.4
Where a post cannot be filled by an applicant from an
under-represented category because a suitable candidate from that
category
cannot be found, promotion to that post should not
ordinarily and in the absence of a clear and satisfactory explanation
be denied
to a suitable candidate from another group.
25.6
There must be a rational connection between the provisions of the
Employment Equity Plan and the measures adopted to implement
the
provisions of that plan.
25.7
In appropriate circumstances at least, the efficient operation of the
Public Service or what is termed “
service
delivery
”
is
a relevant factor to be taken into account in the implementation of
an employment equity plan. (footnotes left out).
[41] The
issue of justifiability and rationality in the implementation of the
affirmative action received attention on appeal in
the
Solidarity
obo Barnard
5
matter. The Labour Appeal
Court per Mlambo JP, held that an employment equity plan is a measure
mandated by the Constitution. In
this regard, the Learned JP had the
following to say:
‘
[34]
An Employment Equity Plan is equally a measure, like the Employment
Equity Act, as contemplated in section 9(2) of the Constitution.
It
is therefore a constitutionally mandated tool in a designated
employer’s hands to ensure compliance with the injunction
to
ensure and achieve equitable employment practices and
representativity.’
[42] In dealing with the
issues of rationality and efficiency of the public service in
relation to the affirmative action, the Learned
JP held:
‘
[44]
I should also point out that the statement advanced by the Labour
Court that there must be a rational connection between the
equity
plan and its objectives was not raised as an issue requiring
determination. That issue arises if there is a legal challenge
to the
plan which was not before this Court. A reading, however, of the
appellant’s Employment Equity Plan demonstrates that
the plan
was crafted with due consideration of rationality and reasonableness.
It is a plan that was drafted with due regard to
the appellant’s
workplace dynamics and identifies the gaps requiring attention as
well as providing for a programme of action
that is time bound
regarding the closing of the gaps identified. The issue rather is
whether there is a rational connection between
the transformational
goal of promoting the achievement of equality by ensuring equitable
representation of designated groups in
all occupational categories
and levels in the appellant’s workforce on the one hand and the
means used to achieve that goal
on the other hand.
[46]
The Labour Court’s conclusion that the failure to appoint
Barnard compromised service delivery is also misconstrued.
The
National Commissioner is the accounting officer of the appellant and
is the only person who is answerable regarding service
delivery
matters. It is not open to a court to ‘second guess’ a
decision that not filling a post will or will not compromise
service
delivery. In this case the National Commissioner, as the responsible
accounting officer, decided not to fill the advertised
post which he
subsequently withdrew. In any event, I am of the view that the
National Commissioner was the only person well-placed
to determine if
service delivery would be compromised by the failure to fill the post
and his decision that this would not be so
is unassailable. Frankly
speaking that is his prerogative and should he be incorrect in so
deciding and imperil service delivery
as a result, he is answerable
to his accounting authority, being the Minister and ultimately to
Parliament. The National Commissioner
is similarly answerable in that
manner should he fail to achieve the targets set out in the
Employment Equity Plan. Our role as
courts is to determine if any
conduct, alleged to be based on an Employment Equity Plan, for
instance, is justifiable in terms
of that plan such as we have here.
It is not open to a court to dictate to the National Commissioner
that he is compromising service
delivery and should fill a post.’
The arbitration award
[43] The arbitrator
formulated the issue which he was to determine as follows:
‘
The
main issue in dispute relates to an Application in terms of the
Labour Relations Act 66/1995, section 63(1) re interpretation
and
application of Resolution 7/2000 read with Resolution 8/2002
regarding the placement or redeployment of certain members/applicants
to the dispute.’
[44] In his survey of
evidence and arguments presented before him, the arbitrator
summarises the background history of the dispute
and quotes in full
the document relating to the Matching and Placement Criteria
document. The arbitrator then summarises facts
in relation to the
individual respondents and the category that would in terms of the
matching and placement criteria document
would have applied. It is on
the basis of those findings that the arbitrator ordered the applicant
to promote all of the respondents
to positions higher than those they
had been placed in.
[45] I proceed to deal
briefly with the background of each individual applicant’s
case.
Evaluation
[46] It is apparent that
in seeking to facilitate the transformation of the public service at
the time, the parties agreed on a
broad frame work of how to go about
it. The specific details and criterion for achieving the
transformation goals were left in
terms of resolution 7, to the
various sectoral councils. The various sectoral councils were given
the powers to agree on the specific
details of the restructuring and
transformation.
[47] In the present
instance, in realising the objectives of resolution 7, the DCS
developed the criteria for matching and placement
for the
restructuring process. The validity of the criteria as developed and
set out in the frame work agreement, has not been
challenged. In
fact, the applicants rely on its provisions in supporting their
claim.
[48] It follows that in
the interpretation and application, in the context of the facts in
the present instance, Resolution 7, has
for that purpose to be read
with the provisions of the framework agreement and other related
legal frame work.
[49] In terms of the
preamble to the framework agreement, the matching and placement was
to arise, consequent to the newly developed
structure of the DCS. It
is further provided in the matching and placement that account is to
be taken of the provisions of several
legislative measures, which
include both Labour Relations and the Public Service.
[50] The preamble further
provides that in applying the criteria as set out in the framework
agreement, consideration is to be given
to the employment equity
plan. The frame work agreement provides for six categories. These
categories provide for certain threshold,
the meeting of which would
lead certain results. The main category on which the applicant relies
on their claim is category 2.
[51] It is apparent in
the reading of the first part of category 2 that the key requirement
in the matching and placement process
are:
the existing post has
been upgraded
the job content to have
remained the same.
[52] It is apparent, in
my view that the drafters of the matching and placement document
envisaged that the first part of category
2 would be read with the
provisions of the Public Service Regulations Part V C.5 and C.6. Part
V of the Public Service Regulations
reads as follows:
‘
C.5
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 the medium-term expenditure
framework provide sufficient funds.
C.6
If an executing authority increases the salary of a post as provided
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)
has 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.’
[53] I now proceed to
evaluate the cases of individual respondents.
Mr Wolfaardt
[54] In ordering the
promotion of Mr Wolfaardt, the arbitrator reasoned that:
prior to entering after
the restructuring the job content of Mr Wolfaardt’s position
was upgraded but his post remained
the same.
Category 2 placement
was applicable in the circumstances.
Mr Wolfaardt’s
performance was satisfactory.
[55] The arbitrator noted
the contention of the applicant, as to the reason for not promoting
Mr Wolfaardt, after upgrading the
post. The contention which the
arbitrator noted was that Mr Wolfaardt was not promoted because of
the requirements of the equity
plans of the applicant. The arbitrator
further noted the contention raised by the applicant that the job
evaluation for the position
in question had not been done as required
by the public service regulations.
[56] After noting the
issues raised by the applicant, the arbitrator proceeded to reason
why Mr Wolfaardt qualified for a promotion.
[57] It is apparent from
the reading of the arbitration award that the arbitrator does not
deal with the two critical issues raised
by the applicant. The issue
of the employment equity plan was critical in the interpretation and
application of resolution 7. It
was relevant when consideration is
given to clause 7.2 of the resolution, which is read as follows:
‘
In
deciding which employees should be placed in defined posts that their
profiles correspond with, a department must implement-
the
relevant affirmative action policy for designated groups;
representativity
targets; and
plans
to redress under representivity and advance persons in designated
groups. profiles, referred to in clause 6.2, correspond
with the
requirements of the defined posts bon an organisational structure of
the department…’
[58] In my view, in
failing to consider the issue of the employment equity, as was raised
by the applicant, the arbitrator committed
misconduct in his position
as an arbitrator.
[59] The arbitrator also
in not considering the issue of employment equity as raised by the
applicant failed to apply his mind to
critical and an important issue
in the resolution of the dispute between the parties and thus
committed a serious irregularity
that denied the applicant a fair
hearing.
[60] There is no
indication in the pleadings that the applicant’s equity plan
was challenged for its validity or for any other
reason. Thus had the
arbitrator applied his mind to the issue of the employment equity, he
ought to have found that the applicant,
in not promoting Mr
Wolfaardt, had interpreted and applied to the provisions of
Resolution 7 correctly. The approach adopted by
the applicant was in
line, more particularly, with the provisions of clause 7.2 of the
resolution.
Mr Watkins
[61] In the case of Mr
Watkins, the arbitrator dismissed his claim that he was entitled to
be promoted to the position of assistant
director level 9. However,
the arbitrator proceeded to order the applicant to do a formal job
evaluation of Mr Watkins’ job
content.
[62] The terms of
reference of the arbitrator was to consider the interpretation and
application of resolutions 7and 8 of the PSCBC
and nothing more or
less. There can be no doubt that in ordering the applicant to do the
job evaluation, the arbitrator exceeded
his powers. It is for this
reason that I find that the arbitrator committed gross irregularity
and accordingly, his arbitrator
award stands to be reviewed.
Mr du Plessis
[63] The arbitrator found
that the post occupied by Mr du Plessis, was during the restructuring
process upgraded to senior correctional
officer and that he (Mr du
Plessis) continued to perform the same duties as those of the senior
correctional officer.
[64] The applicant argued
that, at the time of the restructuring, the position had not yet been
subjected to a job evaluation. According
to the applicant, the job
evaluation was only done in 2004 and that was after the post was
advertised during August 2004. The post
was filled in 2005.
[65] It is apparent that
the arbitrator was confronted with the disrepute of fact in as far as
this matter was concerned. Mr du
Plessis’s contention was that
at the time the post was upgraded the provisions of resolution 7 were
still in place and therefore
he was entitled to the benefits provided
in that resolution. The applicant on the other hand argued that the
post was only upgraded
in 2004, way outside the life span of
resolution 7. After the upgrading, the post was advertised and the
successful candidate was
appointed.
[66] Clause 3 of
resolution 7 provides:
‘
This
agreement comes into effect on the date of signing, and remains in
force for twelve months. In the event that the terms of
this
Agreement have not been implemented in the period stipulated herein
in the duration of the Agreement will be extended by a
further three
months.’
[67] The resolution was
signed on 6 March 2002 and therefore it would have expired in March
2003 or if there was any extension by
June 2003. This means any
restructuring that happened in 2004, could not have been in terms of
resolution 7 because by then it
would have been of no force and
effect.
[68] The memorandum
signed by the deputy director: job evaluation, dated 21 April 2004
indicates that the position of the secretary
of the parole board was
upgraded on 19 March 2004. There is no evidence that this was
disputed by Mr du Plessis. On the facts,
the arbitrator ought
therefore to have found that the position was upgraded outside the
provisions of rule 7 and therefore Mr du
Plessis could not rely on
the provisions of that resolution.
Mr Lubbe
[69] Prior to the
restructuring process, Mr Lubbe occupied the position of work study
officer. His claim was that he was entitled
to be promoted because
the post he occupied was upgraded to that of a senior correctional
officer.
[70] The applicant on the
other hand contended that the position of the senior correctional
officer did not exist in March 2003,
and that it appears that a
handwritten insertion was made of the post in the diagram of the post
establishment. It was further
contended on behalf of the applicant
that the handwritten insertion does not indicate the relevant job
level.
[71] The arbitrator,
without providing reasons, rejected the version of the applicant. In
the absence of the reason for the rejection
of the version of the
applicant, the only reasonable conclusion to make is that there was
no basis for the rejection of the applicant’s
version. There is
also explanation for why Mr Lubbe’s version was preferred above
that of the applicant.
[72] The arbitrator was
clearly faced with two conflicting versions as to the existence or
non-existence of the senior correctional
officer’s position. It
is common cause that the arbitrator considered the matter on the
basis of motion proceedings. In that
regard, had the arbitrator
appreciated the issue that had arisen he would have realised that, in
the absence of referring the matter
to oral evidence the version he
had to accept, in terms of the established principles of the law, was
that of the applicant.
[73] The probabilities,
also favours the version of the applicant in that Mr Lubbe did not
provide evidence as to the circumstances
which led to the handwritten
insertion in the staff establishment document the original of which
did not have such insertion. It
has not in this regard been disputed
that the copy of the original post establishment structure was made
available to the arbitrator.
[74] In light of the
above discussion, I am of the view that the applicant’s
application stands to succeed. I do not, however,
believe that it
would be equitable to allow the cost to follow the results.
Order
[75] In the premises, the
following order is made:
The sixth respondent’s
arbitration award is reviewed and set aside.
The arbitration award
is substituted with an order to the effect that the applicant
correctly interpreted, applied the provisions
of resolutions 7 and
8 PSCBC and acted also in a fair manner in dealing with the
placement and deployment of the first to the
fourth respondents.
_____________
Molahlehi J
Judge of the Labour Court of South
Africa
APPEARANCES:
FOR THE APPLICANT: Advocate Venter
Instructed by: The State Attorney
For the Respondent:
Advocate S Grobler
Instructed by: C Dell Attorneys.
1
(1999)
20 ILJ 2362 (LC).
2
(2003)
24 ILJ 163 (LC).
3
(1997)
18 ILJ 241 (T).
4
Solidarity
obo Barnard v SAPS
2010 (10) BCLR 1094
(LC).
5
South
African Police Service v Solidarity obo Mrs R M Barnard
Case no:
JA24/2010.