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[2014] ZALCCT 49
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Department of Health: WC v Wolfaardt and Others (C495/2013) [2014] ZALCCT 49 (27 August 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
(
WESTERN
CAPE LABOUR COURT, CAPE TOWN
)
CASE
NUMBER
: C495/2013
DATE
:
27 AUGUST 2014
In
the matter between:
DEPARTMENT
OF HEALTH: WC
Applicant
and
P
WOLFAARDT
1
st
Respondent
PUBLIC
HEALTH AND
SOCIAL
2
nd
Respondent
DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
J
LE F PIENAAR
N.O.
3
rd
Respondent
J
U D G M E N T
STEENKAMP,
J
:
This is an application to
have an arbitration award by the third respondent, Commissioner J le
F Pienaar, reviewed and set aside.
It arises from the demotion
of the first respondent, Mr Philip Wolfaardt, and a subsequent
referral to the Public Health and Social
Development Sectoral
Bargaining Council, the second respondent, of an unfair labour
practice dispute in terms of section 186(2)(a)
of the Labour
Relations Act.
The
arbitrator found that the Department of Health Western Cape, that is
the applicant, had committed an unfair labour practice
and ordered
the Department to restore Wolfaardt to his portfolio prospectively
with effect from 1 July 2013. He also ordered
the Department to
pay Wolfaardt compensation equivalent to ten months’
remuneration.
In
the review application the Department raises three grounds of
review. The first is that the arbitrator’s reliance
on
the judgment of the Labour Appeal Court in
Nxele
v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services and Others
2008 (29)
ILJ
2708 (LAC) was misplaced, or as Mr
O’
Brien
put it, that the Commissioner “erred” in following
Nxele
.
The second is that the arbitrator’s finding was unreasonable in
terms of the test set out in
Sidumo
[1]
and in
Herholdt
[2]
;and the third is that the Commissioner “erred” in
awarding compensation based on 10 months’ remuneration.
At
the outset we should remind ourselves that this Court on review need
not decide whether a Commissioner erred. That is not
the test.
The test is whether the decision reached by the Commissioner was so
unreasonable that no other reasonable arbitrator
could have come to
the same conclusion.
I
deal then firstly with the reliance on
Nxele
.
I must confess that I find it difficult to understand how an
arbitrator that relies on and follows the authority of the Labour
Appeal Court can be criticised for that, much less that that could be
stated as a ground of review. In fact, the Commissioner
should
be commended for following relevant and binding case law from the
highest court of appeal in labour matters other than the
Constitutional Court.
In
any event, the guidance in
Nxele
is clear. It is so that Zondo JP, as he then was, initially
stated in paragraph 42 of that judgment, after quoting the provisions
of section 186(2)(a):
“
In
my view section 186(2)(a) of the LRA places an obligation on an
employer not to engage in any unfair act ‘relating to [the]
demotion’ of an employee. The demotion of an employee
without his consent would, generally speaking, constitute an
unfair
labour practice in our laws.”
Mr
O’Brien
jumped on the significance of the clause “generally speaking”
to say that the arbitrator erred in relying on that authority
in the
case before him. However, in a case of demotion such as this,
which is very much analogous to that of the transfer
in
Nxele
,
the authority is quite clear and spelled out by Zondo JP in paragraph
89:
“
In
terms of the Labour Relations Act the demotion of an employee without
his consent would be unfair.”
That
could not be clearer. I agree with Mr
Leslie
that it could be envisaged that in circumstances such as a demotion
as a disciplinary sanction, then quite obviously consent would
not be
required; but in a case such as the one before me and such as the one
that served before the arbitrator, the arbitrator
not only reasonably
but correctly followed the authority of the Labour Appeal Court.
The
award is quite clearly not reviewable on that ground. Tempted
as one might be to agree with Mr
Leslie
that that is dispositive of the review application, I will
nevertheless deal with the other grounds of review.
Mr
O’ Brien
conceded in his argument that his reliance on a “process
related error” as set out in
Southern
Sun Hotel Interests v CCMA
[2009] 11
BLLR 1128
(LC) was misplaced as that case has been explicitly
overturned in
Heroldt
.
He nevertheless argued that the conclusion reached by the arbitrator
was unreasonable.
I
do not agree. The test, as the higher courts keep reminding us,
is a stringent one. For example, in
Goldfields
[3]
-- quoted, ironically by Mr
O’
Brien
-- the LAC pointed out that the enquiry is not limited merely to
whether the arbitrator had perpetrated a gross irregularity in
the
proceedings, but extends to whether the result was unreasonable or
whether the decision falls within a band of decisions a
reasonable
decision make could make. It is not whether the arbitrator
erred or whether this Court would have come to the
same conclusion.
And
in
Fidelity Cash Management Service v
CCMA
(2008) 29
ILJ
964 (LAC) at paragraph 100 the Labour Appeal Court again stated:
“
Whether
or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with
due
regard to all the evidence that was before the commissioner and what
the issues were before him or her. There is no reason
why an
arbitration award or finding or decision that, viewed objectively, is
reasonable should be held to be unreasonable and set
aside simply
because the commissioner failed to identify good reasons that existed
which could demonstrate the reasonableness of
the decision or finding
or arbitration award.”
And
the stringency of the
Sidumo
test was highlighted by Willis J in
Thebe
Health Care v NBC Road Freight Industry
2009 (3) SA 187
(W) 201d-e where he said:
“
As
the famous saying goes, ‘
Quot
homines, tot sententiae’
.
Opinions, even among reasonable men and women may differ, and at
times markedly. If the test in a challenge to an administrative
decision is whether the decision was one that no reasonable decision
maker could reach, it will in practice be very difficult to
succeed.”
And
so it is in this case. It is common cause that Wolfaardt was
demoted and that he lost a quantity that was somehow quantified
as
27,5% of his duties. It is common cause that it was without his
consent. The arbitrator took that into account and he
took into
account the test in
Nxele
.
He then took into account the evidence and the facts before him and
he came to the conclusion that that was unreasonable
and that it
constituted an unfair labour practice.
There
is nothing unreasonable in that conclusion. And even if this Court
had disagreed with the conclusion, it was not so unreasonable
that no
other arbitrator could have come to the same conclusion.
Mr
O’ Brien
further attempted to argue that the Commissioner should have taken
into account the reason for the demotion, and that is the operational
requirements of the Department. The problem with that argument
is that that is exactly what the Commissioner did. He
stated
pertinently in paragraph 34:
“
In
the alternative, should it be said that sections 186(2)(a) and 189 of
the LRA had tied the knot in marriage, and that the section
189 route
followed by the respondent, as clearly stated in its reply to the
applicant’s grievance to have been a decision
taken ‘in
the interest of meeting operational requirements’, was the
correct route, the procedures required by section
189 were not
followed.”
He
then took into account the evidence before him and noted that the
employee was faced with a
fait accompli
:
“
There
was no meaningful joint consensus seeking process as required in
terms of section 189 of the LRA.”
For
that reason also he came to the conclusion that the demotion was
unfair. That is not an unreasonable conclusion.
Lastly,
Mr
O’ Brien
took issue with the award of compensation. The arbitrator
specifically referred to section 194(4) of the LRA which provides:
“
The
compensation awarded to an employee in respect of an unfair labour
practice must be just and equitable in all the circumstances,
but not
more than the equivalent of 12 months’ remuneration.”
I
do not fully understand Mr
O’
Brien’s
attack on the award of
compensation amounting to the equivalent of 10 months’
remuneration based on
Minister of
Justice and Constitutional Development v Tshishonga
(2009) 30
ILJ
1799 (LAC). In that case the LAC stated in paragraph 15 that
the court
a quo
had appeared to conflate the award of compensation with an amount of
remuneration. The LAC then took into consideration various
factors pertinent to a
solatium
and awarded a more significant sum as compensation for the indignity
suffered by the employee in that case.
However, in the case
before me, the arbitrator took into account that the employee is
entitled to compensation:
“
...not
to compensate him financially, but to alleviate what he had to
endure, and to put the respondent on guard not to ignore the
rights
of its employees, even in pursuit of a greater good.”
It
is in that context that he exercised his discretion to award a
significant amount of compensation, but not the full amount capped
at
the equivalent of 12 months’ remuneration. Instead, he
considered compensation equivalent to 10 months’ remuneration
to be just and equitable. That is not an unreasonable exercise
of the wide discretion that he enjoys in terms of section
194(4).
He took into account the relevant facts and circumstances as I have
outlined and it is on that basis that he came
to the conclusion that
compensation equivalent to 10 months’ remuneration would be
just and equitable.
As
Mr
Leslie
pointed out in his heads of argument, the arbitrator has a wide
discretion and even on appeal an appeal court will not likely
interfere with the discretion exercised by the court
a
quo
; much less so on review. In
this regard I refer to
Masuku v Score
Supermarket
2013 (34)
ILJ
147 (LC) at paragraph 10 and
Numsa v
Fibre Flair cc t/a Kango Canopies
[2000] 6 BLLR 631
(LAC) at 634C.
The
award of compensation awarded by the arbitrator in his discretion is
not so unreasonable that no other arbitrator could have
made such an
award.
In
conclusion, the award is not open to review. Both parties asked that
costs should follow the result. I see no reason in
law and
fairness to differ.
THE APPLICATION IS
DISMISSED WITH COSTS.
___________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
S C O’Brien
Instructed
by
The State Attorney, Cape Town.
FIRST
RESPONDENT: G A Leslie
Instructed
by
Cliffe Dekker Hofmeyr Inc.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
(2007) 28
ILJ
2405 (CC).
[2]
Herholdt
v Nedbank Ltd
[2013] 11 BLLR 1074 (SCA).
[3]
Gold
Fileds Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).