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[2014] ZALCPE 41
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NUM obo Khaya and Others v Eskom Holdings SOC Limited and Others (P614/11) [2014] ZALCPE 41 (15 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P 614/11
In the matter between:
NUM obo GWANA KHAYA
AND6 OTHERS Applicant
and
ESKOM HOLDINGS SOC
LIMITED First
Respondent
COMMISSIONER DUMISANI
SONAMZI Second
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION Third
Respondent
Heard:
6
August 2013
Delivered:
15
October 2014
Summary:
The
Labour Court maintains the distinction between reviews and appeals
when adjudicating review applications.
JUDGMENT
LALLIE J
Introduction
[1] In
this application the applicant seeks an order reviewing and setting
aside an arbitration award of the second
respondent (‘the
commissioner’) in which he found that he lacked the necessary
jurisdiction to arbitrate the applicant’s
unfair labour
practice dispute. The applicant applied for condonation of the late
filing of the review application. Both applications
are opposed by
the first respondent.
Factual
background
[2] The
individual applicants were employed by the first respondent on
different dates as Assistant Officer Investigators
at level T09. The
applicant alleged that the first respondent committed an unfair
labour practice in relation to promotion firstly,
because Mr Koti
(“Koti”) the first respondent’s manager promised
the individual applicants that they would be
upgraded to level T12
before April 2010, thus creating an expectation that they would be
promoted. Secondly, they have in fact
been working as investigators
who are employed at level T12. Aggrieved by the first respondent’s
failure to upgrade the individual
applicants, the applicant referred
an unfair labour practice dispute in relation to promotion to the
third respondent. It was not
resolved at the conciliation stage. In
preparation for arbitration the applicant and first respondent
concluded a pre-arbitration
minute. As the first respondent had
raised a point in
limine
that the third respondent (‘the
CCMA’) lacked jurisdiction to arbitrate the dispute as it fell
outside the realm of
unfair labour practice related to promotion, the
applicant and the first respondent agreed that the point in
limine
be determined first. The commissioner upheld the point in
limine
prompting the applicant to launch this application to have the
commissioner’s decision reviewed and set aside.
Condonation
[3] The
explanation forwarded by the applicant for launching this application
outside the prescribed period of
six weeks is that the local official
of the applicant union had to seek the individual applicant’s
mandate to launch it.
He also had to go through the applicant union’s
procedures for enlisting the services of legal practitioners. When it
was
granted and after the documents were presented to their
attorneys, a need arose for consultation with some of the individual
applicants.
Opinion was sought from counsel and on its receipt
counsel was briefed to draft the founding papers which were filed out
of time.
The applicant submitted that it has good prospects of
success.
[4] Opposing
the application, the first respondent submitted that part of the
explanation provided by the applicant
does not justify the granting
of condonation because the applicant union is large and has
sufficient resources to enable it comply
with the time periods
prescribed in the Labour Relations Act 66 of 1995 (‘the LRA’).
It further submitted that the
applicant’s attorney was in a
position to draft the founding papers on time or within reasonable
time.
[5] The
review application is late by about a month. In its explanation for
the delay the applicant has disclosed
that, at all relevant times it
took active steps to pursue the review application. The first
respondent’s submission that
the applicant’s attorney
could have drafted the founding papers and filed the application on
time does not assist the first
respondent. The applicant has a right
to elect that its founding papers be drafted by counsel and the first
respondent may not
compel the applicant to change its election
especially when it does not result in unreasonable delay and
prejudice. The delay is
not excessive and its explanation is
reasonable. It did not prejudice the first respondent and the
applicant is not without reasonable
prospects of success. In the
premises, the condonation application must succeed.
Grounds
for review
[6] The
applicant mounted its attack on the award on two broad grounds,
namely, process related grounds and the
absence of the basis for the
conclusion that the commissioner had no jurisdiction to arbitrate the
dispute before him. The commissioner’s
decision was, according
to the applicant wrong.
The
award
[7] The
commissioner found that the reason the applicant perceived its
dispute to be one involving promotion is
that although they were
employed as Assistant Officers, Investigations, they were referred to
a Investigators and performed components
of Investigators’
duties. Their manager, Koti, promised them at the 2009 end of the
year function that they would be placed
on grade T12. All these facts
created an expectation that they would be graded at T12. The
commissioner found that the applicant’s
case was lacking in a
number of respects to fall within the realm of the unfair labour
practice disputes relating to promotion.
He cited the absence of the
advertisement for a position, selection and the appointment process
which would earmark the process
of promotion, selection criteria,
interview process or recruitment process which could be examined to
determine the fairness or
otherwise of the promotion and a successful
incumbent who had been preferred over the individual applicants. He
relied on authority,
which permit the CCMA to interfere in the
exercise of managerial prerogative in circumstance where the process
relating to promotion
is flawed. He found that the dispute stems from
the application or implementation of re-grading as the individual
applicants wanted
to be placed on grade T12 because they were doing
components of the T12 grade. The expectation created by Koti’s
promise
was found not to be legitimate because he was not acting on
the instructions of the first respondent. The promise was not a
product
of a resolution of a recognised structure like the Corporate
Job Evaluation Committee or Central Consultative Forum. He concluded
that the dispute fell outside the realm of unfair labour practice
relating to promotion and upheld the point
in limine
.
[8] The
first respondent submitted that the CCMA lacked jurisdiction to
determine the dispute on the basis that
the applicant referred the
dispute outside the period prescribed in section 191 of the LRA and
did not apply for condonation. The
applicant expressed the view that
the correct forum to entertain the issue of the CCMA’s
jurisdiction or lack thereof based
on the ground raised by the first
respondent is the CCMA. The applicant’s argument is consistent
with the decision in
Bombardier
Transportation (Pty) Ltd v Mtiya NO and Others
[1]
where
it was held as follows:
‘
In the absence of
any relevant and prior jurisdictional ruling made by a conciliating
commissioner, any party to a dispute referred
to arbitration may
raise any challenge to the CCMA’s jurisdiction at that stage,
and the challenge must be dealt with by
the arbitrating commissioner
in terms of section 138(1).’
[9] When
the first respondent formed the view that the applicant should have
applied for condonation of the late
referral of its dispute to the
CCMA, a duty arose on the first respondent to raise the issue clearly
with the commissioner for
him to make a ruling on the issue. I am not
convinced that this court is at liberty to determine the issue, which
has to be determined
by the CCMA in terms of section 138 of the LRA.
[10] The
test for review of jurisdictional rulings is whether the
commissioner’s ruling is correct. It is
an objective test
because a forum either has or lacks jurisdiction. It is expressed
thus in
SA
Rugby Players Association (SA RPA) and others v SA Rugby (Pty) Ltd
and Others; SA Rugby (Pty) Ltd v SARPU and Another
[2]
‘
The question
before the court a
quo
was whether, on the facts of the case,
a dismissal had taken place. The question was not whether the finding
of the commissioner
that there had been a dismissal of the three
players was justifiable, rational or reasonable. The issue was simply
whether, objectively
speaking, the facts which would give the CCMA
jurisdiction to entertain the dispute existed. If such facts did not
exist, the CCMA
had no jurisdiction irrespective of its finding to
the contrary’.
[11] The
applicant also sought to rely on the submission that the commissioner
made a number of errors in the conduct
of the arbitration which
rendered his award unreasonable.
[12] The
first respondent submitted that the commissioner’s ruling that
the CCMA lacked jurisdiction to arbitrate
the dispute before him as
it was not an unfair labour practice relating to promotion was
correct. It was argued on behalf of the
applicant that although the
individual applicants were employed as Assistant Investigators, they
were in fact employed as Investigators.
The position of an
Investigator is higher than that of an Assistant Investigator.
Awarding the individual applicants the positions
of Investigators
would constitute promotion. They were, in addition promised the
positions of Investigators by Koti. The applicant
relied on cases
which adopted a broader view of disputes which may be arbitrated
under the banner of the unfair labour practice.
They re-affirm the
view that the unfair labour practice definition is not confined to
existing rights conferred
ex
contractu
or
ex
lege
.
[3]
.
[13] It
was argued on behalf of the first respondent that authorities dealing
with disputes which may be arbitrated
under the jurisdiction of
unfair labour practice are inconsistent. However, in a number of
decisions the Labour Appeal Court has
adopted the narrow approach
which is expressed thus:
[4]
‘
It appears to me
that the legislature did not seek to facilitate, through item
2(1)(b), the creation of an entitlement to a benefit
which an
employee otherwise does not have. I do not think that item 2(1)(b)
was ever intended to be used by an employee, who believes
that he or
she ought to enjoy certain benefits which the employer is not willing
to give him or her, to create an entitlement to
such benefits through
arbitration is terms of item 2(1)(b). It simply sought to bring under
the residual unfair labour practice
jurisdiction dispute about
benefits to which an employee is entitled
ex contractu
(by
virtue of the contract of employment or a collective agreement) or
ex
lege
(the Public Service Act or nay other applicable Act).
[14] In
HOSPERSA
(supra),
the Court expressed the view that the
unfair labour practice jurisdiction was not created to grant what
employees have no right
to. The individual applicants entered
into contracts of employment in terms of which they were appointed as
Assistant Officer
Investigators at level T9 and at a particular rate
of remuneration. In terms of their contracts of employment they are
not entitled
to be Investigators and to be remunerated at the rate
due to Investigators. They did not rely on any document which created
a right
to be promoted to the positions of Investigators and be
remunerated accordingly. No reasons were forwarded by the applicant
for
this court to follow the wide approach adopted in the Labour
Court decisions instead of the narrow one adopted by the Labour
Appeal
Court. I have considered the
United National Public
Servants Association of SA (supra)
which the applicant sought to
rely on. In that matter the SCA expressed the view that remedies that
the LRA provide against conduct
that constitutes an ‘unfair
labour practice’ are not exhaustive of the remedies that might
be available to employees
in the course of employment. It was further
held that particular conduct might constitute both an unfair labour
practice and might
give rise to other actions. This decision does not
detract from the narrow approach. It provides that a remedy for
conduct which
may be perceived as an unfair labour practice may be
provided by legislation other than the LRA.
[15] The
applicant sought to rely on the promise made by Koti in 2009 that the
individual applicants would be promoted
to the positions of
Investigators before April 2010. The promise, so submitted the
applicant, created a legitimate or reasonable
expectation. The
applicant attacked the commissioner’s finding that their
allegation of legitimate expectation to be promoted
was without merit
on the basis that whether their claim was good or bad was irrelevant
to the question whether the CCMA had jurisdiction
to entertain the
merits of the dispute they had referred. The applicant relied on
Eskom v
Marshall and Others
[5]
where it was held that a spes can constitute an unfair labour
practice.
[16] The
first respondent submitted that the applicants could not make a
promise binding on the first respondent
in the face of clear rules
indicating that grading has to take place in terms of its policies.
The first respondent argued that
the commissioner correctly found
that the applicant could not rely on a promise made by a manager in
2009 without the necessary
authority. The first respondent relying on
Department
of Justice v CCMA and Others
[6]
,
argued that it was necessary for a post to be advertised before a
promotion dispute can arise.
[17] In
Eskom
(supra),
the Court explained that in labour law,
disputes are categorized as either disputes of rights or disputes of
interest. The LAC
in the
HORSPESA
case held that disputes of
right fall within the unfair labour practice jurisdiction while
disputes of interest are properly the
subject of negotiation on an
individual or collective basis. The Court expressed the following
view on disputes arising from a
spes:
‘
However, in my
view there is middle ground between the poles. This is the position
occupied by a spes as regards the enjoyment of
a benefit. This spes
could be described, in the word of E Riggs 1988 (36) American Journal
of Comparative Law 395, as a private
interest is a status less than a
legal right. The spes must be more than a hope or a wish. It must be,
in modern parlance, a legitimate
expectation to a benefit.
Importantly this benefit (some advantage or privilege as comprehended
by the normal concept of a benefit)
must be a concrete one which
exists. It must be an ascertainable advantage or privilege which has
been created by the employer
concerned; or one which the employer has
declared it will consider conferring upon employees’.
[21] Although legitimate
expectation is better known in the context of a fair hearing or
procedure in administrative law, it also
has application as regards
substantive matters. Corbett CJ in
Administrator Transvaal, &
others v Traub & others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 756 H-J quotes
the following remarks of Lord Fraser in
Council of Civil Services
Unions and others v Minister for the Civil Service
[1983] UKHL 6
;
[1984] 3 ALL
ER 935
(HL) at 943J-944A:
‘
As these cases and
the quoted extracts from the judgments indicate, the legitimate
expectation doctrine is sometimes expressed in
terms of some
substantive benefit or advantage or privilege which the person
concerned could reasonable expect to acquire or retain
and which it
would be unfair to deny such person without prior consultation or a
prior hearing; and at others times in terms of
a legitimate
expectation to be accord a hearing before some decision adverse to
the interests of the person concerned is taken.
As Prof Riggs put it
in the article to which I have referred (at 404):
‘
The doctrine of
legitimate expectation is construed broadly to protect both
substantive and procedural expectation.’
[18] The
following dictum in
Department
of Justice v CCMA and Others
[7]
is instructive:
‘
Counsel for the
Department
also submitted that a dispute such as the one in
the present matter was a dispute of interest and not a dispute of
right and that
item 2(1)(b) contemplated disputes of right and not
disputes of interest. The right he was referring to is a right
ex
contractu
or
ex lege
. He submitted that an unfair labour
practice is confined to disputes of right created
ex contractu
or
ex lege
. The answer to this argument is simply that item 2
of Schedule 7 is one of the statutory provisions that seek to give
content to
the constitutional right to fair labour practices which is
entrenched in the Constitution. It creates a statutory right not to
be subjected to an unfair labour practice that takes the form of
conduct spelt out therein. Item 2(1)(a) confers on both an existing
employee and an applicant for employment a right not to be subjected
to an unfair labour practice taking the form of unfair
discrimination.
Item 2(1)(b) confers on an existing employee a right
not to be subjected to an unfair labour practice that takes the form
of conduct
relating to promotion, demotion, training of an employee,
disciplinary action short of dismissal and that provision of benefits
to an employee.’
[19] Although
the
Department of Justice
decision
(supra
) is based on
the repealed Item 2 of Schedule 7 to the LRA it is of relevance to
the matter at hand as the provision governing unfair
labour practice
relating to promotion has not changed. Koti’s promise that the
individual applicants would be promoted constitutes
conduct relating
to promotion. It is therefore sufficient to bestow on the CCMA
authority to arbitrate the dispute in terms of
its unfair labour
practice jurisdiction. Jurisdiction is the authority to determine a
dispute. In terms of the
Department of Justice matter (supra
),
the individual applicant’s right not to be subjected to an
unfair labour practice has been conferred on them
ex lege
. The
question whether they will be successful in proving their case is of
no moment at this stage. Therefore, contrary to the first
respondent’s submissions, the dispute the applicant referred to
the CCMA is not a dispute of interest but a dispute of right.
As the
applicant’s referral is a dispute of right the CCMA is obliged
to arbitrate it in terms of the
HOSPERSA
decision (
supra).
[20] The
applicant submitted that the award stood to be reviewed and set aside
on the grounds that the commissioner
reached an unreasonable decision
in concluding that the individual applicant’s expectation of
promotion was unreasonable
as Koti had no authority to make it and it
was made in breach of the first respondent’s recruitment
policies. For purpose
of determining jurisdiction it was not
necessary for the commissioner to determine the reasonableness of the
expectation as such
enquiry would be relevant in determining whether
the applicant had proved that the first respondent had committed an
unfair labour
practice against the applicant. The enquiry whether the
CCMA has the power to determine the dispute is different from the
enquiry
whether the applicant proved their case of an unfair labour
practice.
[21] The
arbitration award could not stand the objective test for review of
jurisdictional awards in that it is
wrong.
[22] I
am not convinced that the first respondent acted unreasonably in
opposing this application. A costs order
is in the circumstances will
not be appropriate.
[23] In
the premises the following order is made:
23.1
The application for the late filing of the review application is
granted.
23.2
The arbitration award issued by the second respondent under case
number ECEL608/11 and dated 4 October 2011
is reviewed and set aside.
23.3
The matter is remitted to the third respondent for the issue of the
late referral of the dispute to the third
respondent and the issue
whether the third respondent has jurisdiction to determine the
dispute referred by the applicant to be
determined by a commissioner
other than the second respondent.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate
Eijen
Instructed
by: Wesley
Pretorius & Associates
For
the First Respondent: Mr Patel of
Cliffe Dekker Hofmeyr Inc
[1]
[2010]
8 BLLR 840
(LC) at 849 B-C
[2]
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at para 41.
[3]
IMATU
obo Verster v Umhlathuze Municipality
and
Others
[2011] 9 BLLR 882
(LC) at 887 H-888C
United
National Public Servants Association of SA v Digomo NO and Others
[2005] 12 BLLR 1169
(SCA) at para 4.
[4]
Horspersa
and Another v Northern Cape Provincial Administration
(2000)
21
ILJ
1066
(LAC) at para [9].
[5]
[2003]
1 BLLR 12
(LC) at paras 20 and 21.
[6]
[2004]
4 BLLR 297 (LAC)
[7]
[2004]
BLLR 297
(LAC) at para 53.