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[2014] ZALCPE 34
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Kala and Others v General Public Service Sectoral Bargaining Council (GPSSSBC) and Others (P 163/12) [2014] ZALCPE 34 (27 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
no: P 163/12
DATE:
27 NOVEMBER 2014
Not
Reportable
In
the matter between:
KALA
AND 18
OTHERS
...........................................................................
Applicant
And
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL (GPSSSBC)
........................................
First
Respondent
KELVIN
KAYSTER
N.O
..........................................................
Second
Respondent
MEMBER
OF EXECUTIVE COUNCIL
DEPARTMENT
OF ROADS & TRANSPORT
.............................
Third
Respondent
Heard:
8 October 2013
Delivered:
27 November 2014
Summary:
A change in the applicants’ job title only, does not constitute
demotion.
JUDGMENT
LALLIE
J
Introduction
[1]
In this application the applicants seek an order reviewing an
arbitration award of the second respondent (‘the arbitrator’)
in which he found that the change in the applicant’s job title
did not constitute an unfair labour practice.
[2]
This application was filed 47 days late. The reason for the lateness
is that it involves a substantial number of applicants.
The terms of
the insurance policy for the payment of their legal team’s fees
contributed to the delay. The explanation proffered
by the applicants
is reasonable. Their papers reflect their intention and effort to
pursue this matter. They have reasonable prospects
of success and
their application for condonation should succeed.
Factual
background
[3]
The applicants are employees of the third respondent. In May 2007,
they were promoted from the rank of Principal Provincial
Inspector
(PPI) with effect from 1 October 2002 to the rank of Chief Provincial
Traffic Officer (CPTO). In July 2009, the applicants’
rank was
changed to Principal Provincial Inspector (PPI) as a result of a
directive issued by the Department of Public Service
and
Administration (‘DPSA’). The applicants challenged the
decision which effected a change to their ranks as an unfair
labour
practice related to demotion at the first respondent. The arbitrator
found that the purpose of the change of the applicants’
rank
was common cause, it was to re-align and standardize the different
levels of traffic officers nationally. He recorded as common
cause
the fact that the applicants’ titles were changed but their
duties, basic remuneration, benefits and allowances were
not affected
by the re-alignment exercise. He found that the applicants did not
dispute that their trade unions were involved in
the re-alignment
process and concluded that they failed to prove that they were
demoted.
[4]
The arbitrator found it common cause that only the applicants’
job titles had changed. Part of the authority he relied
on provides
that a demotion occurs if the employee’s remuneration,
responsibilities or status is materially reduces. A change
in title
and placing an employee in a post involving slightly different work
was considered not to constitute demotion, especially
if that work
falls within the scope of the employee’s duties. He found that
the applicants had failed to prove that their
status, duties or
remuneration were affected by the change in their title. A further
factor which led the arbitrator to find that
the third respondent did
not commit an unfair labour practice was the applicants’
failure to dispute their trade union’s
involvement in the
re-alignment process.
Grounds
for review
[5]
The applicants submitted that the award is susceptible to review
because in rejecting their version that they had been demoted,
the
arbitrator stated that they failed to prove that their status, duties
or remuneration were affected. He, however, accepted
that demotion
means that at least something to which an employee is entitled to is
taken away or withdrawn and that which is taken
away can include
status as well as a condition of employment. Having found that the
rank of CPTO is in status more senior than
that of PPI and that the
latter is subject to supervision by the former, his decision was not
supported by evidence, thus committing
a gross irregularity. The
applicants based their application therefore on the arbitrator’s
unreasonable disregard for relevant
and material evidence and his
disregard for the authorities which consider as demotion, the
lowering of an employee’s status
or rank, responsibility of
conditions of service.
[6]
The test for review is trite. It is whether the decision reached by
the arbitrator is one that a reasonable decision-maker could
not
reach on the evidence before the arbitrator.
[1]
It was argued on behalf of the applicants that the arbitrator’s
decision that the change in their rank did not constitute
demotion
was unreasonable. The third respondent argued that the arbitrator’s
decision was correct as the change had no effect,
inter
alia
,
in the applicants’ job level and remuneration. In
Nxele
v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services and Others
[2]
,
the court confirmed that the status, prestige and responsibilities of
the position are relevant in determining whether or not transfer
in a
particular case constitutes a demotion. It was further submitted on
behalf of the applicants that the arbitrator emphasised
that the
applicants did not lose any remuneration or benefits as a result of
the change in their rank. The approach is attacked
on the grounds
that it failed to take into consideration that the applicants’
responsibilities were affected and their level
of authority, dignity
and importance was diminished in the process.
[7]
The respondent did not deny that the applicants were promoted from
the rank of PPI to CPTO. In the answering affidavit the respondent
denied that the applicants were never consulted about or consented to
the alteration of their ranks. It pleaded that the applicants’
trade unions were consulted and were involved in the process, a fact
which was supported by the record and recorded correctly by
the
arbitrator. The respondent’s version was not refuted in the
replying affidavit. As the allegation is not refuted and
is not
far-fetched I have accepted that the arbitrator’s finding that
the applicants were consulted and participated through
their trade
unions in the process which culminated in the alteration of their
ranks, cannot be faulted.
[8]
The applicants submitted that the arbitrator’s decision that
they failed to prove their demotion is grossly irregular
as it is
discordant with the evidence which served at the arbitration. The
applicant’s witness conceded under cross-examination
that his
salary level, authority, responsibilities and duties did not change
when his rank changed. It is only the name of his
title that changed.
The applicant further testified that the rank of PCTO is senior to
that of PPI in terms of remuneration and
authority. They submitted
that the change reduced their status. The record reflects that the
evidence of the respondent’s
witness was not refuted.
[9]
The arbitrator accepted the respondent’s version that the
purpose of the directive from the DPSA was to realign and standardize
ranks/levels nationally as discrepancies existed among provinces.
Unlike other provinces which had five levels of officers the
Eastern
Cape had six. Even duties performed by officers differed from
province to province. The realignment directive was issued
after the
DPSA had conducted a job evaluation exercise and matched jobs to
salary levels. Its intention was neither to promote
nor demote
officers but to standardize the rank structure.
[10]
The applicants sought to rely on
Solidarity
obo Kerns v Mudau NO and Others
[3]
and argued that they were not required to prove financial loss or
loss of benefits. Loss of status, job content, responsibility
and
prejudice to promotion prospects constitute demotion. It was argued
that loss of status was sufficient to prove demotion. In
their
efforts to prove their demotion the applicants submitted that Messrs
Kele and Grobler who were promoted with them from the
rank of PPI to
PCTO were not affected by the alteration of their ranks even though
they held the same status. They were instead
moved to level 10 after
the demotion. This argument is a double edged sword in that it also
demonstrates that in order to be a
PCTO an officer’s level had
to be elevated from that of PPI. It is also common cause that when
the applicants were promoted
to the rank of PCTO their
responsibilities and conditions of employment did not change. It
therefore, confirms the respondent’s
argument that by national
standards the rank the applicants are in is that of PPI. It is
also common cause that when the
applicants were promoted to the rank
of PCTO their responsibilities and conditions of employment did not
change. By national standards,
the applicants were not entitled to be
PCTO they therefore did not lose status they were entitled to when
they reverted to the
rank of PPI. The applicants did not refute the
respondent’s evidence that the Eastern Cape had six ranks while
the other
province had five. It is also common cause that the change
in the applicants’ rank effected a change to the name of their
rank only. The change was reached with the participation of their
trade unions.
[11]
The totality of the evidence before the arbitrator shows that he
considered the principal issue before him, evaluated the facts
presented at the arbitration and came to a reasonable conclusion. See
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[4]
.
As the arbitrator’s decision falls within bounds of
reasonableness no grounds exist for this Court to interfere with it.
[12]
The applicants did not act unreasonably in bringing this application.
It will therefore not be fair to grant a costs order
against them.
[13]
In the premises, the following order is made.
13.1
The late filing of the review application is condoned.
13.2
The application for review is dismissed.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate Simoyi
Instructed
by: Vapi Inc
For
the Third Respondent: Advocate Gqamana
Instructed
by: State Attorney
[1]
Sidumo
and Another v Runstenburg Platinum Mines Ltd and Others
2008 (2) SA (CC).
[2]
(2008) 29
ILJ
2708
(LAC) at 2739 G.
[3]
(2007) 28
ILJ
1146
(LC)
[4]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at page 25 E.