About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 161
|
|
Department of Public Works Limpopo v PSCBC and Others (JR2181/13) [2015] ZALCJHB 161 (26 May 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Of interest to other judges
C
ase
no: JR 2181/13
In
the matter between:
DEPARTMENT
OF PUBLIC WORKS
LIMPOPO
Applicant
and
PSCBC
First respondent
A
S
MUVHANGO
Second
Respondent
M
J
SELEMELA
Third
Respondent
PUBLIC
SERVANTS
ASSOCIATION
Fourth
Respondent
Heard
:
20 MAY 2015
Delivered
:
26 MAY 2015
Summary:
(Review – ambit of relief not
justified but intrinsic merit of award not unreasonable – award
set aside only in respect
of extent of relief)
JUDGMENT
R
LAGRANGE, J
[1] In
this matter, the applicant wishes to review and set aside an
interpretation of a clause in a collective agreement known as
Resolution 3 of 1999 in terms of which a bargaining Council
arbitrator decided that:
“
I
find that employees, including the applicant here in, who attained
improvements in the qualifications between 01 January 1999
and the
date of operation of any subsequent and current resolution dealing
with the matter, qualify for rewards as provided for
in Resolution 3
of 1999.”
[2] The
clause in question reads:
“
XXXIII
cash payments for additional qualifications:
If, as of January 1, 1999
1. An employee had entered into
studies for an additional or higher qualification, and
2. Item 14.0 of the Personnel
Administrative Standard that applied to him or her on that date
provided a cash award for completion
of those studies,
the employer shall pay the employee
the cash award when the employee complies with the requirements laid
down in the relevant Personnel
Administration Standard.”
[3] A
further resolution, Resolution 1 of 2012 also provided for the
payment of once off cash bonuses to employees who obtain improved
qualifications related to their scope of work, which enhanced the
employee’s performance.
[4] The
third respondent claimed the cash award on the basis that he obtained
a certificate in management in December 2007 and a
further
qualification in 2010. The central substantive issue in dispute was
not about the qualifications obtained by the third
respondent but
whether the cash benefit was payable in the case of someone like the
third respondent who had not registered for
the relevant studies on
or before 1 January 1999. The applicant believed that only such
persons qualified for the cash benefit,
whereas the third respondent
contended that on a proper interpretation of the provision it applied
to a qualifying employee who
registered on or after the date.
[5] The
arbitrator adopted the view that on a contextual and purposive
interpretation of Resolution 3 of 1999, the third respondent’s
interpretation was the correct one. Essentially, the thrust of the
arbitrator’s reasoning was that if the applicant’s
interpretation was correct it would mean that persons registering and
achieving qualifications after 1 January 1999 until Resolution
1 of
2012 came into effect would be prejudiced relative to those who
registered and qualified before or after that time period.
He
reasoned that it could never have been the intention to create such a
“vacuum” in the absence of an express intention
to do so.
[6] The
applicant raises a host of issues on review and I will confine myself
to considering the ones that were ultimately pursued.
Firstly, the
applicant contended that the arbitrator had no jurisdiction to hear
the matter because he had not made a ruling in
respect of a
condonation application made by the third respondent when the dispute
was referred to the bargaining Council. In reply,
the third
respondent contends that since the dispute was a referral of a
dispute over an interpretation and application of a collective
agreement and in respect of which no time limit for referral is
stipulated in the Labour Relations Act, 66 of 1995 (‘the
LRA’),
no condonation was required. I agree.
[7] The
applicant further contends that the claim had prescribed and should
not have been entertained, but prescription was never
pleaded by the
applicant in the course of the arbitration proceedings. Consequently,
the award could not be reviewed on that basis.
Thirdly, the applicant
claims that the third respondent ought to have joined the Department
of Public Service and Administration
and the award should be set
aside for non-joinder. However, the applicant could not establish
that the DPSA had a legal interest
in the outcome of the dispute
between the Department of Public Works (Limpopo) and the third
respondent. At best, the award might
be of some persuasive value but
could not be binding on non-parties to the award.
[8] A
related and more serious criticism is that the arbitrator purported
to make his award applicable to all employees in a similar
position
to the third respondent. It is patently obvious he was only called
upon to decide the dispute between the third respondent
and his
employer and consequently any portion of the award purporting to bind
non-parties or confer rights on them would be ultra
vires the
arbitrator’s powers.
[9] The
applicant further contends that it was illogical of the arbitrator to
reason that there ought not to have been a hiatus
during which
qualifications were not recognised. Essentially, this attack is on
the reasonableness of the arbitrator’s interpretation.
Clearly,
the arbitrator’s interpretation of the provision is not the
only plausible one, and indeed the applicant’s
own
interpretation may be the better one. However, it cannot be said that
the arbitrator’s interpretation is one that no
reasonable
arbitrator could ever have arrived at on the argument presented
before him. If the applicant had done more to enhance
its position
and presented a stronger argument on why its textual interpretation
was correct, and if the arbitrator demonstrably
failed to explain why
he dismissed such reasoning, it might well be arguable that that the
arbitrator’s interpretation would
be more vulnerable to an
attack based on unreasonableness. However, it is apparent that the
applicant’s argument in favour
of its interpretation was as
limited as the third respondent’s and I cannot find fault with
the arbitrator if he did not
delve deeper in interpreting the
provision than the parties themselves did.
[10] In
the circumstances, while the ambit of the award clearly needs to be
set aside and revised, the applicant has failed to persuade
me that
the arbitrator’s findings in respect of the case before him,
including his interpretation of the clause, were ones
that no
reasonable arbitrator could have reached.
Order
[11]
In light of the above,
11.1
The second respondent’s award in paragraph [E][1] of his
arbitration award dated 29 July 2013 under case
number GPBC 650-12/13
is reviewed and set aside and substituted with the following:
“
The
applicant, who obtained an improvement in his qualifications in 2007
and 2010, qualifies for cash awards for completing those
qualifications in terms of clause XXXIII of PSCBC Resolution 3 of
1999.”
11.2
No order is made as to costs.
___________________
R
LAGRANGE, J
(Judge of
the Labour Court)
Appearances:
For the
Applicant: Mr J Matladi of the State Attorney
For the
Third Respondent: M Desai
Instructed
by: AM Carrim Attorneys