About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 51
|
|
Minister of Labour v Public Servants Association of SA obo Masha and Others (JR2007/09) [2014] ZALCJHB 51 (25 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
JOHANNESBURG
JUDGMENT
Of
Interest to other Judges
Case no: JR 2007/09
In
the matter between:
THE
MINISTER OF
LABOUR
Applicant
and
PUBLIC
SERVANTS ASSOCIATION OF SA obo MASHA & 33 OTHERS First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL BARGAINING COUNCIL Second
Respondent
ADV
P H KIRSTEN
(N.O.) Third
Respondent
Heard:
16 September 2010; 7 December 2012
Delivered:
25 February 2014
Summary:
(Review- condonation application – poor or non-existent
explanation for significant delay – no prospects
on the merits
– power of arbitrator under unfair labour practice jurisdiction
sui generis – variation application concerning
alleged
contradictions not falling within the grounds of variation mentioned
in s 144 of the LRA – alleged contradictions
not ambiguities
requiring clarity).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
When
this matter was first set down for a hearing on 16 September 2010, I
was compelled to raise two issues with the parties. Firstly,
there
was a pending appeal before the Labour Appeal Court which was
obviously relevant to this matter because of the nature of
the
dispute, but had yet to be heard. Secondly, I had to advise the
parties that I had been one of the counsel representing the
appellants in that matter prior to leave to appeal been granted
against the judgement of the Labour Court. Although I suggested
that
both parties might wish this matter to be heard by another judge
because of my involvement as a representative of one of the
parties
in the earlier litigation, both parties were content for me to decide
the matter, and to wait for the LAC judgment before
this matter was
heard. In consequence, and the matter was postponed by agreement,
with costs being costs in the cause. After
the LAC judgment
[1]
was handed down on 12 April 2012, this matter was eventually
re-enrolled for hearing on 7 December 2012.
Background
[2]
This is an application to review and set
aside an arbitration award issued on 6 October 2008 by an arbitrator
on the panel of the
General Public Service Sectoral Bargaining
Council (' GPSSBC'), the third respondent. The review application was
only filed 9 September
2009, some 10 months late. Consequently, the
applicant seeks condonation for the late filing of the application.
Chronology
[3]
During November 2006 the Department of
Labour conducted a job evaluation for all assistant managers on SR9
and SR10 levels and managers
on SR11 and SR12 levels. The admitted
purpose of the evaluation was to upgrade the posts on those levels
with effect from January
2007. The individual respondents were
working at the office of the Unemployment Insurance Fund in the
capacity of assistant managers
or managers. Because the individual
respondents reported to the Commissioner of the UIF and not to the
Director-General of the
Department, the applicant excluded them from
the evaluation process.
[4]
The Director-General as the Executing
Authority of the Department approved the evaluation results in terms
of the Public Service
Regulations of 2001 and all those employees,
whom the applicant claims fell within his authority and reported to
him had their
salaries upgraded with effect from 1 January 2007.
Because of the applicant's differentiation between managers employed
in the
Department and managers employed in the UIF fund, the
individual respondents did not benefit from the upgrading.
[5]
It is common cause that employees working
in the UIF had always been part of the Department of Labour,
albeit
that the UIF section was an agency. During a workshop conducted in
August 2007 and in a written communiqué issued by the
applicant, it was stated that the UIF office would no longer be an
agency and that employment services inclusive of the UIF would
be
rendered in an integrated manner. It was only after this announcement
that the Department engaged in a process of evaluating
all the posts
of assistant managers and managers in the UIF division, which was
finalised in November 2007. The evaluations were
approved by the
director-general on 30 November 2007 and with effect from 1 December
2007. As a result, all the assistant manager
and managers posts in
the UIF division were upgraded from SR9 to SR10 and from SR11 to
SR12, respectively.
[6]
The individual respondents then lodged a
grievance complaining that the failure of the Department to upgrade
their posts simultaneously
with other managers in the Department with
effect from 1 January 2007 amounted to an unfair labour practice
relating to promotion
and, or alternatively benefits.
[7]
Clause 4.3 of PSCBC resolution number 3 of
1999 provides that:
[8]
The Department argued that no upgrading
could be implemented prior to the job evaluation having been
conducted and approved by the
Director-General in terms of the Public
Service Regulations. In particular, the department relied on
regulation C7 part V of the
public service regulations which states
that:
"The absorption of
the incumbent employee in the higher graded post as provided for in
Regulation V, C6 shall take effect on
the first day of the month
following the month during which the executing authority approves
that absorption."
[9]
Thus, according to the applicant the
upgrades could not be implemented retrospectively but could only be
implemented with effect
from 1 December 2007.
[10]
The learned arbitrator concluded:
"1.
The respondent committed an unfair labour practice with regard to
promotion in the
failure to move the applicants on Assistant Manager
level SR9 to SR 10 and the applicant's on a manager level SR 11 to SR
12 with
effect from 1 January 2007.
2.
The respondent must pay the applicants compensation equal to the
remuneration
the applicants would have received if:
2.1
The applicants on Assistant Manager level SR9 were moved to SR10 with
effect from 1 January
2007;
2.2
The applicant's on manager level SR11
were moved to SR12 with effect from 1 January 2007.
3.
Compensation referred to in paragraph 2 must be paid by the
respondent to the
applicant's was in 30 (thirty) days after the date
of this award. If the compensation amount needs to be quantified any
of the
parties can request the GPSSBC to set the matter down
accordingly."
[11]
Following receipt of the award, the
employer applied to vary the award claiming it was ambiguous and
contradictory. The nature of
this application will be discussed in
more detail below but for present purposes it is sufficient to say
that the alleged contradiction
complained of was that on the one hand
the arbitrator found that there was no unfair labour practice
relating to benefits but on
the other hand that there was an unfair
labour practice relating to promotion and that the calculation of the
method of quantifying
the award was unclear. The PSA and individual
respondents disputed the contentions raised by the applicant in
support of its application
to vary the award. In any event, no
variation of the award was issued despite requests by the applicant
to the arbitrator to do
so. However, it is also noteworthy that the
applicant took no steps to compel the arbitrator to make a decision
on the variation
application as it was entitled to have done. The
relevance of this outstanding issue will be addressed below.
[12]
At the same time as the applicant sought to
vary the award, the individual respondents applied for quantification
of the award.
As matters turned out, the parties agreed what the
payments should be, if the award was to be implemented, even though
the applicant
did not concede the merits of the award.
The
arbitration award
[13]
Apart from a dispute whether or not an
undertaking was given by the UIF Commissioner in a meeting to the
effect that the upgrading
of the individual respondents would be
effective from 1 January 2007, most of the material facts appear to
be common cause.
[14]
The arbitrator's reasoning on the claim
that the failure to implement individual respondents upgrading to the
new salary levels
with effect from 1 January 2007 amounted to an
unfair labour practice was crisp:
"It
is common cause that the Director-General of the respondent proved
the recommendations of the job evaluation panel committee
in relation
to the applicant's on 13 November 2007. According to the pre-scripts
the upgrading correctly took effect from one December
2007. As a
matter of law the applicant's are not entitled to what they now seek
to be effective from 1 January 2007. Therefore
the upgrading of the
applicants with effect from 1 January 2007 does not constitute an
unfair labour practice regarding a benefit.
See
HOSPERSA &
Another v Northern Cape Provincial Administration (2000) 21 ILJ
(LAC)
. During the arbitration the applicants' representative
conceded that the respondent must comply with the relevant
prescripts. The
only entitlement that the applicants may have to be
upgraded with effect from 1 January 2007 is an equity entitlement
based on
an unfair labour practice regarding promotion (see section
186 (2) (a) of the LRA)."
[15]
The arbitrator's reasoning in respect of
the unfair labour practice relating to promotion goes as follows:
"In the relevant
staff communiqué issued by the Human Resource management the
respondent confirmed the decision that
all Assistant Managers and
Managers should be paid equally. Staff communiqué further
states that the respondent believes
that the upgrading of posts will
result in increase[d] productivity levels and staff retrenchment. The
same mentioned value should
be applicable to all employees of the
respondent including the applicants. In the submission approved by
the director-general on
30 November 2007 the financial implication of
implementation with effect from January 2007 on the applicants was
explained. It
has further been noted in the submission that the UI F
has funds available to implement the recommendation of the Job
Evaluation
Panel that includes the financial implications
retrospective from 1 January 2007. The indication of the UIF acted as
an agency
and should conduct their own job evaluation was nullified
by the respondent at the workshop held in August 2007. Masha
testified
that the Commissioner (Seruwe) confirmed that the
implementation date for the applicants would be January 2007. The
mentioned version
of Masha was confirmed in an e-mail of Masha dated
7 December 2007. The content of the e-mail was at no stage denied by
Seruwe.
The respondents witness disputed the version of Masha
regarding Seruwe, but Seruwe himself did not deny the content of the
e-mail
or testified at the arbitration.Masha further indicated that
certain employees not employed that the UI F, but conducting UI F
work or indeed upgraded with effect from 1 January 2007. Having
regard to the above-mentioned issues there was an expectation created
to be upgraded from 1 January 2007. An expectation does not create a
substantive right but supports a moral and/or an equity entitlement.
The upgrading of the applicant's posts and the subsequent placement
of the applicants in the upgraded posts constitutes "promotion."
See
National Commissioner of the SA Police Service v Potterill NO
& Others (2003) 24 ILJ 1984 (LC)
paras [11] – [22]. The
relevant prescripts do not provide for the act that of an upgrade. An
arbitrator must observe the
limits and inclusions of the jurisdiction
conferred by an agreement or by statute under which an arbitrator
serves. I therefore
do not propose that the applicants’
upgrading be backdated but that they be compensated for the failure
of the respondent
to deal with the applicant's with effect from the
same date as their colleagues who benefited under the initial job
grading process."
Grounds
of review
[16]
The applicant set out its grounds of review
in the founding affidavit, which it did not supplement:
"29.1
The third respondent committed a gross irregularity when he found
that the failure to move the employees
to upgrade positions with
effect from 1 January 2007 constituted an unfair labour practice and
in ordering the applicant to pay
remuneration to the employees with
effect from the 1 January 2007 as such award is contrary to the
Public Service Regulations,
2001 and therefore unlawful.
29.2
The third respondent failed to take into account that it was common
cause between the parties that the Director-General
only approved the
upgrading of the posts on 30 November 2007 and the employees were,
therefore only entitled to be moved to the
upgraded posts from the 1
December 2007.
29.3
Alternatively, the third respondent failed to take into account the
aforesaid relevant fact in making his
award and considered irrelevant
facts. The third respondent therefore committed a gross irregularity
and his award is accordingly
reviewable.
29.4
The third respondent's award is contradictory and inconsistent with
the evidence led. The award effectively
backdated the upgrading of
the post to the 1 January 2007 thus resulting in a situation where
the upgrading of the posts took effect
before the evaluation thereof,
contrary to the provisions of the Public Service Act and the
regulations promulgated there under."
Evaluation
The
Significance of the Variation Application
[17]
The powers of arbitrators to alter their
awards are set out in section 144 of the LRA:
“
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may on
that commissioner’s own accord or, on the application of any
affected party, vary or rescind an arbitration award
or ruling—
(a) erroneously sought or
erroneously made in the absence of any party affected by that award;
(b) in which there is an
ambiguity
, or
an obvious error or omission
, but only to
the extent of that ambiguity, error or omission; or
(c) granted as a result
of a mistake common to the parties to the proceedings.”
(emphasis
added)
[18]
In
McDonalds
SA (Pty) Ltd v CCMA & others
[2003] 10 BLLR 1020
(LC)
De Swardt, AJ
made the following trenchant observations about the purpose of the
provision, contextualising it in the parallel
provisions of s 165 of
the LRA pertaining to the powers of the Labour Court and Rule 42 of
the Uniform Rules of the High Court:
“
In
dealing with an application for variation or rescission of a judgment
or order, the general rule is that once a court has pronounced
a
final judgment or order, it has itself no authority to correct, alter
or supplement it. It becomes functus officio; its jurisdiction
in the
case having been fully and finally exercised, its authority over the
matter has ceased (see West Rand Estates Ltd v New
Zealand Insurance
Co Ltd
1926 AD 173
at 176; Erasmus Superior Court Practice page
B1-309; Brassey Commentary on the Labour Relations Act page A7:68A).
Statutory bodies,
such as the CCMA, are also subject to this general
rule (see Mtshali v CCMA
[1999]
9 BLLR 961
(LC)
at
965G–I
).
In
Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298
(A) at 306G–307H the then Appellate Division
held that there
are a limited number of exceptions to this general rule. More
particularly:
(1)
the principal judgment or order
may be supplemented in respect of
accessory or consequential matters
such as, for example, costs or
interest on the judgment debt, which the court overlooked or
inadvertently omitted to grant;
(2)
the court may clarify its judgment or order if,
on a proper
interpretation, the meaning thereof remains obscure, ambiguous or
otherwise uncertain, so as to give effect to its true
intention,
provided it does not thereby alter “the sense and substance”
of the judgment or order
;
(3)
the court may correct a clerical, arithmetical or other error in its
judgment or order so as to give effect to its true intention.
This
exception is confined to the mere correction of an error in
expressing the judgment or order; it does not extend to altering
its
intended sense or substance;
(4)
where counsel has argued the merits of the case, but not the costs,
and the court has made an order regarding costs, it may
thereafter
correct, alter or supplement that order.
In
section
144
of
the Act the Legislature has conferred certain powers on a
commissioner of the CCMA to vary or rescind an arbitration award. In
terms of the section, a commissioner may, on his/her own accord, or
on application of any affected party, vary or rescind an arbitration
award or ruling:
“
(a)
erroneously sought or erroneously made in the absence of any party
affected by that award;
(b)
in which there is an ambiguity, or an obvious error or omission, but
only to the extent of that ambiguity, error or omission;
or
(c)
granted as a result of a mistake common to the parties to the
proceedings.”
The
provisions of
section
144
of
the Act which apply to the CCMA, are repeated in
section
165
of
the Act with reference to the power of this Court to vary or rescind
its orders. The provisions so enacted in sections 144 and
165 of the
Act in turn correspond with the provisions of rule 42 of the Uniform
Rules of the High Court.”
[2]
(emphasis
added)
[19]
Bearing in mind this summary of the
circumstances in which an order may be altered, it is apparent that
any attempt to alter the
substantive import of an award cannot be
achieved using the provisions of section 144 of the LRA.
[20]
In the application for variation, the
essential complaints of the applicant were that -
20.1
Having found that the applicant could not
be held to have committed an unfair labour practice regarding a
benefit by failing to
retrospectively implement the upgrading of the
individual respondents to 1 January 2007 because that was something
they were not
entitled to as a matter of law, the arbitrator
contradicted himself by then finding that the applicant had committed
an unfair
labour practice regarding promotion in failing to promote
the individual respondents to the new salary levels for managers and
assistant managers with effect from 1 January 2007.
20.2
Secondly, the award effectively grants the
individual respondents the same financial relief in the form of
compensation which the
arbitrator found they were not entitled to on
the basis that their posts could not be retrospectively upgraded to 1
January 2007.
20.3
Lastly, it is somewhat vaguely claimed that
it was unclear from the award how the applicant was supposed to
quantify the compensation
payable.
[21]
The last complaint does not warrant further
consideration as the quantification of the compensation was
determined jointly by the
parties and endorsed by the arbitrator in
his ruling of 24 April 2009. The applicant claims that it only became
aware of this ruling
on 12 June 2009.
[22]
Both of the other complaints mentioned in
paragraphs 20.1 and 20.2 above, which the applicant raised under the
guise of the variation
application have little, if anything, to do
with the variation of an award as envisaged by section 144 of the
LRA. They both concern
alleged contradictions in the award. The
applicant alleges the award contains contradictory findings on the
existence of an unfair
labour practice and also awards relief
apparently contrary to another finding that it would be unlawful to
make an award of financially
equivalent relief. These are not
complaints about ambiguities or uncertainties in the award, but
complaints about ostensibly clear
contradictions. As such they are
implicit complaints about the irrationality of the arbitrator's
reasoning and not requests for
clarification about what the
arbitrator meant to say, backed failed to articulate clearly enough.
[23]
Moreover, it must be said that only the
shallowest reading of the award could result in perplexity about what
it meant. It is clear
that the arbitrator found that the respondents
had failed to establish an unfair labour practice committed by the
applicant regarding
a benefit, but that the same facts was sufficient
to prove that the applicant had committed an unfair labour practice
regarding
promotion. Similarly, although the arbitrator was precluded
from making a finding that the individual respondents should be
upgraded
with is retrospective effect to 1 January 2007, he found he
was able to award financially equivalent relief in the form of
compensation.
[24]
As such, the issues raised by the applicant
under the variation application not ones that are capable of any
resolution by way of
a variation of the order was in the prescripts
of section 144. Accordingly, nothing hangs on the determination of a
variation application
that is stillborn, and I agree with the
respondents that it has no real bearing on the subject matter of the
review.
The
Condonation Application
The
degree of lateness and the explanation therefore
[25]
As mentioned above, the review application
is approximately 10 months late. The period of the delay itself is
about seven times
longer than the normal six-week period within which
review applications have to be filed. The main explanation for the
delay appears
to relate to the applicant's failure to get an answer
from the arbitrator to its application to vary the original award.
Although
the applicant does not say precisely when it launched its
application to vary the award, which it did by way of an affidavit,
it
appears that the affidavit was signed on 25 November 2008.
[26]
The applicant participated in determining
the quantification of the award by way of an agreement concluded
between the parties on
3 April 2009. On 24 April 2009, the arbitrator
made the agreement an arbitration award in terms of section 142 A of
the LRA. He
appears to have been of the view that this was tantamount
to making a settlement agreement an arbitration award, whereas in
truth
it was part of the unfinished business of the original award in
which the question of quantification had been deferred for later
determination.
[27]
In any event, there is no real dispute
about the status of this quantification order, on the common
understanding that it is ancillary
to, and contingent on, the
arbitrator's findings on the merits of the claim. Even if the date of
the quantification order is taken
to be the final date of the award
for the purposes of the condonation application, the applicant still
took seven weeks longer
than it should have to launch the review
application, meaning it took about thirteen weeks from the time it
knew of the quantification
of the award to galvanise itself. No
explanation at all is provided for this.
[28]
In conclusion, the applicant delayed
considerably in initiating these proceedings and its explanation for
the delay is weak and
in parts non-existent. I would be inclined to
dismiss the condonation application on grounds of the failure to
explain the delay
particularly after it was aware of the
quantification ruling, apart from its failure to take issue with the
merits of the arbitration
award, when it became aware of them.
The
prospects of success
[29]
The applicant's first ground of review is
that the arbitrator committed a gross irregularity when he found that
the failure to move
the employees to upgrade positions with effect
from 1 January 2007 constituted an unfair labour practice regarding
promotion and
ordering the applicant to pay compensation to the
individual respondents equivalent to the remuneration they would have
received
had they been upgraded because such compensation is in
conflict with the Public Service Regulations, which only permit the
prospective
implementation of upgrading. The second ground of review
relating to the arbitrator’s alleged failure to consider that
upgrading
was only permissible after the director-general approved
the same is simply an elaboration of the first ground of review.
[30]
Closely linked to the second ground is the
alternative claim that the arbitrator failed to take account of the
statutory limitations
on the retrospective implementation of
upgrading when deciding that the individual respondents were entitled
to compensation having
the same financial effect.
[31]
The last ground of review is foreshadowed
to some extent by the argument emerging from the variation
application. What it effectively
suggests is that the award is
contradictory, and presumably therefore irrational and unreasonable
because it has the effect of
backdating the upgrading of posts prior
to the evaluation contrary to the order of implementing upgrading
laid down in the Public
Service Regulations.
[32
]
Although not specifically pleaded, the
applicant sought in argument to extend its grounds of review central
to include the contention
that the arbitrator had acted beyond his
powers in making an award in conflict with the provisions of the
Public Service Regulations
governing job evaluation and upgrading.
[33]
The respondent's retort to these challenges
is that the arbitrator was effectively exercising the powers
available to him as an
arbitrator determining an unfair labour
practice claim relating to promotion and that even if the award he
made had a similar financial
effect to the retrospective
implementation of salary upgrades of the respondents to 1 January
2007, that was well within his competence
in performing that
function. On their argument, his award did not flout the provisions
of the public service regulations which
only provide for the
prospective upgrading of posts once approved by the executing
authority. According to the respondents, the
arbitrator was making a
determination based on what was equitable and was not required to
decide if the upgrading, as such, should
be retrospectively
implemented.
[34]
In
this respect, the decision of the LAC in the
NPA
matter is of some relevance. In that matter, a job evaluation and
upgrading exercise had been conducted for various posts in the
National Prosecution Authority. However, as insufficient funds had
been voted in the budget to implement all the salary upgrades
with
effect from the same date, the implementation of upgrading of some
posts was postponed. The PSA was also a party in that dispute
and
declared a dispute of mutual interest over the failure to implement
upgrading simultaneously for all posts that had been evaluated.
As
the employees in question were engaged in an essential service the
matter was referred to compulsory arbitration. The arbitrator
concluded that the matter was a mutual interest dispute and that the
applicant’s had a moral or equitable entitlement to
the relief
sought.
[3]
[35]
The LAC summarised the thrust of the
respective arguments of the parties on the powers of the arbitrator
to make an award compensating
the employees for the lack of
simultaneous upgrading of their posts, which he found they were
entitled to.
“
[25] The
appellants contended on appeal that the Labour Court erred in
rejecting the findings made by the arbitrator,
that he could issue an
award regarding unbudgeted funds. They also contended that the Labour
Court failed to appreciate the arbitrator's
reasoning regarding the
applicability of s 74.
It was submitted
in this regard that the court had failed to appreciate that an
arbitrator, acting in terms of s 74, exercises a
different power to
that of an executing authority in observing budgetary constraints
.
[26] On
the other hand,
the respondents
, supporting the Labour Court's
reasoning,
argued that the arbitrator did indeed misconceive his
powers in the context of s 74. Their further submissions went along
the following
lines: the regulations, the validity of which was never
challenged, properly understood disempowered the arbitrator from
undoing
the fiscal control mechanism found in the promulgated
requirement contained in regulation 5 in particular; that treasury,
having
rejected a request for an additional allocation, effectively
ended the appellants' options of having the upgrades effected
simultaneously
; that it was not open to the arbitrator to
second-guess treasury's decision as to how the national revenue was
to be spent and
that
the arbitrator had been misdirected in
regarding the regulation as not binding on him, seeing that these had
been put in place as
a deliberate 'control mechanism and defined
pertinent rights'
.”
(emphasis
added)
[36]
Although the regulatory impediment relied
on by the NPA as a limitation on the arbitrator's powers was a fiscal
one rather than
a procedural one as in this instance, the argument is
analogous in principle to the argument advanced by the applicant in
this
matter. In essence, the contention is that, the arbitrator could
not have made an order which had the effect of circumventing the
limitations on the retrospective implementation of a salary upgrade
because that amounted to an effective breach of those regulations,
which had to be complied with to give effect to any upgrade whether
determined by the relevant executing authority or by the arbitrator.
[37]
Mlambo, JP writing for the court held that:
“
[35]
The respondents' arguments are to my mind
premised
on a clear misconception of the regulations vis-à-vis the
powers of the arbitrator
when viewed in
the context of s 74...
[37]
Considered properly, the regulations and the unavailability of funds
presented no impediment to the arbitrator making an award
in the
terms he made.
The
regulations were put as a controlling measure against executing
authorities
.
”
[4]
(emphasis
added)
[38]
Despite the fact that the context of that
dispute was that it concerned a mutual interest dispute subject to
compulsory arbitration
under section 74 of the LRA, there is an
obvious parallel with the dispute in this matter in which the central
pillar of the applicant's
argument on review is that the arbitrator's
award had the effect of unlawfully breaching the public service
regulations preventing
the retrospective implementation of salary
upgrades. In this matter the powers exercised by the arbitrator
concerned his authority
to determine an unfair labour practice
dispute. Section 193(4) of the LRA states:
“
An
arbitrator appointed in terms of this Act may determine any unfair
labour practice dispute referred to the arbitrator,
on
terms that the arbitrator deems reasonable
,
which may include
ordering reinstatement, re-employment or
compensation
.”
[39]
The
nature of the power exercised by an arbitrator is one of making a
moral or value judgment.
[5]
Moreover, the remedial power of compensation is derived from the
provisions of s 193(4), and is a
sui
generis
remedy
originating in the LRA. It is not derived from remunerative
entitlements originating in and subject to pre-requisites being
met,
such as those governing the implementation of salary upgrades. The
fact that the arbitrator’s award of compensation
placed the
individual respondents in a similar financial position to what they
would have been in if their upgrades had been retrospectively
implemented is a consequence of the arbitrator exercising the
remedial power afforded by s 193(4) of the LRA, and is not contingent
on compliance with the regulations governing upgrading in the public
service.
[40]
In the circumstances, I am satisfied not
only that the applicant has poor prospects of success, but that it
would in fact fail on
the merits. The issues are crisp enough and
well defined enough for this to be obvious.
Prejudice
[41]
In this case the prejudice to both
applicant’s and respondent’s is financial but in view of
my assessment of the merits,
there is nothing beneficial the review
would yield for the applicant in any event, so this factor is of
little or no significance
in the matter.
Conclusion
[42]
On the above analysis, the applicant’s
condonation application for the late filing of its review application
must fail. Consequently,
it is not necessary to deal with the merits
of the review as such.
Order
[43]
The applicant’s condonation
application for the late filing of its review application is
dismissed and accordingly the review
application is also dismissed
[44]
The applicant must pay the respondents’
costs.
_______________________
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Adv Z Z Matebese instructed by the State Attorney
FIRST
RESPONDENT:
Adv F Van der Merwe instructed by
Bouwers (Roodepoort) Inc.
[1]
Reported
as
Public
Servants Association on behalf of PSA Members v National Prosecuting
Authority & another
(2012)
33
ILJ
1831 (LAC)
.
[2]
At
1022-1023.
[3]
See
in this regard the judgment of the court
a
quo
in
National
Prosecuting Authority & others v Public Servants Association &
others (2009) 30
ILJ
1613
(LC)
at 1615-1616, par [18]
[4]
At
1844-1845
[5]
See
Engen
Petroleum Ltd v CCMA
[2007]
8 BLLR 707
(LAC) at par [77], and subsequently in
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC) at pars [73]–[79].