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 116
|
|
South African Post Office Limited Gungubele NO and Others (JR2947/2010) [2014] ZALCJHB 116 (25 February 2014)
REPUBLIC
OF SOUTH AFRICA
LABOUR OF SOUTH AFRICA
COURT, JOHANNESBURG
JUDGMENT
Not reportable
Case
no: JR 2947/2010
In the matter between
:
SOUTH AFRICAN POST
OFFICE LIMITED
Applicant
and
Q GUNGUBELE N. O
COMMISIONER K G
MNGEZANA
N.O First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
SOUTH AFRICAN POSTAL
WORKERS UNION
OBO WAYNE
COETZEE Third
Respondent
Date of hearing:
6 September 2013
Date of judgment:
25 February 2014
Summary:
Review application. Commissioner finding that acting allowance was a
benefit and the employer committed an unfair labour
practice.
Employee claiming payment of acting allowance after 14 months.
Benefit as envisaged in section 186(2) of the LRA defined
as
“
existing
advantage or privileges to which an employee is entitled as a right
or granted in terms of policy or practice subject to
the employer’s
discretion.”
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This
is an application to review and set aside an arbitration award made
by the first respondent (the Commissioner) under case number
GATW
10336-10 in terms of which the applicant was ordered to pay the third
respondent compensation for an alleged unfair labour
practice.
[2]
The
third respondent has applied for condonation for the late filing of
the heads of argument. The heads of argument were one day
late. It is
for that reason alone that I am of the view that interest of justice
supports the view that condonation should be granted.
[3]
The
unfair labour practice which was the subject matter of the dispute
concerned both the non-appointment and payment of the acting
allowance for the third respondent. The third respondent lodged the
grievance after the appointment of the incumbent on the basis
that
the applicant had committed an unfair labour practice in making him
to act in the managerial position for 14 months and further
that the
acting created an expectation that he would be promoted to that post.
[4]
The
third respondent referred the dispute to the CCM A after the
grievance proceedings failed to yield the results he expected.
The
Commissioner found that the applicant had committed an unfair labour
practice in terms of section 186 (2) of the Labour Relations
Act.
The grounds for review
[5]
The
applicant contends that the arbitration award is reviewable on the
grounds that the Commissioner:
a.
had
no jurisdiction to determine the dispute as the acting allowance was
not a benefit and therefore its non-payment, and could
not constitute
an unfair labour practice.
b.
committed
a gross irregularity and misconduct in determining the matter when
she did not have jurisdiction to do so.
c.
misconstrued
the issue before her in finding that the third respondent was
entitled to be paid an acting allowance on the basis
of a policy that
had been repealed.
The arbitration
proceedings
[6]
The
following were common cause facts during the arbitration proceedings:
a.
Mr
Coetzee was required to act as a manager for a period of 14 months.
b.
Mr
Xaba, also acted in the same position prior to Mr Coetzee and for the
same period.
c.
Both
Mr Coetzee and Mr Xaba were not paid any acting allowance for the
period that they acted as managers.
d.
The
position in which both Mr Coetzee and Mr Saba acted in was later
advertised externally and Mr Gaybba was appointed.
e.
The
applicant raised a point
in
limine
and contended that the CCMA did not have jurisdiction to entertain
the dispute as it did not fall within the provisions of
section
186(2) (a) of the Labour Relations Act of 1995 (the LRA).
[7]
In
dealing with the point
in
limine
raised by the applicant regarding jurisdiction, the Commissioner,
relying on the case of
Protekon
(Pty) Ltd v CCMA and Others
[1]
,
found that the concepts of "remuneration and benefits"
cannot be mutually exclusive.
[8]
The
Commissioner found on the facts that the non-appointment of the third
respondent did not constitute an unfair labour practice.
In relation
to the new policy which the applicant relied on in refusing to pay
the acting allowance for the third respondent the
Commissioner found
that the policy had not been circulated and communicated to the
employees.
Evaluation
[9]
The
CCMA derives its jurisdiction to determine unfair labour practice
from the provisions of section 185 read with section 186(2)
of the
LRA. In terms of section 185(b) of the LRA e
very
employee has the right not to be subjected to unfair labour practice.
The unfair labour practice concept is defined in section
186(2) of
the LRA reads as follows:
(2)
‘Unfair labour practice’ means an unfair act or omission
that arises between an employer
and an
employee
involving -
(a)
unfair conduct by the employer relating to the promotion, demotion,
probation (excluding
disputes
about dismissals for a reason
relating to probation) or training of an
employee
or relating
to the provision of benefits to an
employee’.
[10]
The
third respondent based his cause of action on two issues, namely
non-appointment to a senior manager’s position and non-payment
of the allowance for the 14 months that he acted as a manager. In
essence the complaint of the third respondent is that he should
have
been promoted to the position of a senior manager after he acted in
that position for a considerably long period. The dispute
as farmed
by the third respondent ordinarily falls within the jurisdiction of
the CCMA as it constituted a complaint about the
conduct of the
applicant in failing to promote the third respondent in the position
in question. The issue of promotion does not
arise in the present
matter as the Commissioner found that the third respondent failed to
make out a case of promotion.
[11]
The
third respondent framed the second issue of non-payment of the acting
allowance as a benefit which he claimed he was entitled
to in terms
of the policy of the applicant. The question of whether a benefit
exists depends on whether there is a right, a privilege
or an
advantage which the employee enjoys, either in terms the provisions
of a contract, policy or practice. In the present instance,
as stated
earlier the third respondent relied on the policy in asserting his
claim to payment of the acting allowance.
[12]
In
my view the two issues raised by the third respondent falls within
the definition of unfair labour practice as envisaged by the
above
definition quoted from section 186 (2) (b) of the LRA. It follows
that the CCMA did have jurisdiction to entertain the two
issues in
dispute referred to it by the third respondent. The Commissioner was
accordingly correct in entertaining the dispute
as formulated by the
third respondent.
[13]
As
indicated earlier the third respondent was unsuccessful with regard
to the non-appointment to the senior manager’s position.
He was
however, successful as concerning the issue of the acting allowance.
[14]
The issue that needs to be determined, having made the above
findings, is whether the Commissioner misconstrued the evidence
concerning the complaint that the third respondent was entitled to be
paid the acting allowance as a benefit.
[15]
In
dealing with what constitutes a “benefit,” Labour
Appeal Court in the recent
Apollo
Tyres South Africa (Pty) Ltd v CCMA and Others
,
[2]
held per Musi AJA that:
‘…
In
my view, the better approach would be to interpret the term, benefit
to include a right or entitlement to which the employee
is entitled
(
ex contractu or ex lege
including
rights judicially created) as well as advantage or privilege which
has been offered or granted to an employee in terms
of a policy or
practice subject to the employer’s discretion. In my judgment,
“benefit” in section 186(2)(a)
of the Act means existing
advantage or privileges to which an employee is entitled as a right
or granted in terms of policy or
practice subject to the employer’s
discretion. Insofar as Horspesa, G4S and Scheepers
(supra
)
postulate approach they are, with respect, wrong’.
[16]
The
version of the applicant, in the present instance, during the
arbitration proceedings was that the third respondent was not
entitled to the acting allowance in terms of policy and the
circumstances within which he was appointed to act in the senior
manager’s
position. In this respect Mr Kotse, the manager of
the unit in which the third respondent was employed in at the time,
testified
as to the circumstances within which the third respondent
was appointed to act.
[17]
Mr
Kotse testified that at the time of assuming the responsibility as
the manager of the unit he discovered that the position in
question
did not formerly exist. He thereafter with the assistance of the
third respondent and Mr Xaba developed the job profile
for the
position. They also worked on the job grading process for the
position.
[18]
After
the completion of the job grading he took a decision not to fill in
the position immediately because he wanted to afford the
managers in
the unit an opportunity to develop so that they could compete fairly
at the point of advertising the position. The
first person to be
appointed to act was Mr Xaba who acted for 13 months and thereafter
the third respondent. One of the managers
in the unit indicated that
he was not interested in acting in the position.
[19]
The
third respondent on the other hand testified that he acted in the
position in question for 14 months without being paid the
acting
allowance. He further testified that because of the length of time he
acted in the position he developed a legitimate expectation
that he
would be appointed into that position. He felt aggrieved when Mr
Gaybba, an outside, was appointed in the position. He
accordingly,
filed a grievance in terms of which he complained that he should be
appointed into the position as legitimate expectation
was raised in
making him act in the position for 14 months. He also demanded that
he be paid an acting allowance.
[20]
The
critical aspects which the Commissioner, with due respect, failed to
take into account when assessing the probabilities are
the
concessions made by the third respondent during cross examination. He
firstly conceded that the person to act in the position
before him
was Mr Xaba. He also conceded that he was aware that Mr Xaba was
never paid for the 13 months that he acted in the position.
The
probabilities in this regard supports the version of Mr Kotse that
acting arrangement was to afford the managers in the unit
the
opportunity to develop.
[21]
The
other point which the Commissioner failed, with due respect, to take
into account in assessing the probabilities, is the answer
given by
the third respondent why he waited for 14 months to claim payment of
the acting allowance if at all that existed as a
right, privilege or
a practice. The answer given by the third respondent was that but for
his non-appointment into the position
he would not have claimed
payment of the acting allowance.
[22]
The
above answer and the length it had taken the third respondent to
claim the acting allowance simply supports the view that he
knew that
he was not entitled to an acting allowance. This is even so when
account is taken of the fact that he failed to produce
the policy
that he sought to rely on in this regard. The probabilities in this
regard supports the version of applicant that acting
allowance was
not paid to people acting in managerial positions since 2000 and that
acting in a senior position was aimed at developing
managerial skills
for senior employees of the applicant.
Conclusion
[23]
In
my view, the decision of the Commissioner is one that no reasonable
Commissioner could have reached and thus rendering the arbitration
award reviewable. I do not however belief that it would, in the
circumstances of this case be proper to allow costs to follow the
results.
Order
[24
]
In
the premises, the following order is made:
1.
The
arbitration award made under case number GATW 10336-10 is reviewed
and set aside.
2.
The
arbitration award is substituted with the award to the effect that
the Applicant did not commit an unfair labour practice in
not paying
the Third Respondent an acting allowance.
_____________________
Molahlehi.J
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE
APPLICANT:
Adv Maunatlala
Instructed
by: Medupi-Lehong Inc
FOR THE THIRD
RESPONDENT:
Advocate Prinsloo
Instructed
by:Rooth Wessels Attorneys
[1]
(2005)
26 ILJ 1105 (LC).
[2]
[2013]
5 BLLR 434
(LAC).at para 50.