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[2015] ZALCJHB 397
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Department of Education, Free State Province v General Public Service Sectoral Bargaining Council and Others (JR1175/2013) [2015] ZALCJHB 397 (13 November 2015)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/
Not
Reportable
Case no: JR 1175/2013
In the matter between:
DEPARTMENT OF EDUCATION, FREE STATE
PROVINCE
Applicant
and
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
COMMISSIONER SHIRAZ MOHAMED
OSMAN
Second Respondent
N P
CLOETE
Third Respondent
Heard:
30 June 2015
Delivered:
13 November 2015
Summary: Review – arbitration award.
Public Service – dispute regarding correct calculation of
acting allowance
for official of Provincial Department of Education.
Award reasonable and rational –no defect in proceedings.
Calculation
error corrected, but review application dismissed.
JUDGMENT
Bank AJ;
[1]
This is an application
for the review of an arbitration award issued by the Second
Respondent (“the Commissioner”) under
case number GPBC
4041/2012 dated 26 March 2013. At the heart of this dispute is the
question of whether the Third Respondent (“Cloete”)
was
paid the correct acting allowance by his employer, the Applicant
(“the Department”) for the period 6 February 2012
until
31 July 2012 and the manner in which this acting allowance was to be
calculated.
[2]
Noteworthy is the fact
that, by agreement between the parties, no witnesses were called to
testify during the arbitration proceedings;
rather, the matter was
determined by way of exchange of written arguments placed before the
Commissioner. The respective written
arguments form part of the
record in this matter.
[3]
There has never been
any dispute that Cloete was indeed entitled to be paid an acting
allowance for the period in question; the
only dispute is whether
that acting allowance had to be paid on salary level 11 or salary
level 12 and the exact calculation of
that amount.
[4]
The relevant
legislation providing the framework against which this dispute was
determined by the Commissioner is as follows:
4.1.
Clause 3.3.1(a) and (b)
of the General Public Service Sector Bargaining Council (“GPSSBC”)
Resolution 1 of 2002;
4.2.
Circular 2 of 2005
issued in terms of the Public Service Act, 1994 - in which a
“
Flexible
Remuneration Package System
”
was introduced;
4.3.
Clause 3.6.3.2 of
Public Service Co-ordinating Bargaining Council (“PSCBC”)
Resolution 3 of 2009;
4.4.
Clause 18.1 of PSCBC
Resolution 1 of 2012, which amended the abovementioned clause 3.6.3.2
of PSCBC Resolution 3 of 2009 to allow
employees whose posts were,
graded on salary levels 10 and 12 to be appointed on salary levels 10
and 12 respectively.
[5]
The arbitration award
which is the subject of this review details the respective written
submissions made on behalf of both the
Applicant (“the
Department”) and Cloete. It shows that the Commissioner
considered the Department’s submissions
to the effect that:
5.1.
the correct acting
allowance had already been paid to Cloete and, in particular, the
Department had no choice but to remunerate
Cloete at salary level 11
because the Applicant could not have been appointed on salary level
12
[1]
;
5.2.
PSCBC Resolution 1 of
2012 only came into operation on 31 July 2012, at the end of Cloete’s
acting period and could therefore
not be applicable to his
situation.
[2]
[6]
By the same token, the
Commissioner considered the submissions made on behalf of Cloete to
the effect that:
6.1.
Cloete had previously
been remunerated at salary level 12 in being awarded an
earlier acting allowance;
6.2.
the post of
Deputy-Director had also been advertised as carrying a
level 12 salary;
6.3.
the two previous
incumbents in the position were remunerated at level 12; and
6.4.
the present incumbent
appointed on 01 August 2012 was on a level 12 salary.
[3]
[7]
It is apparent that the
Commissioner spent the greater part of his arbitration award in
analysing these submissions before coming
to the decision that Cloete
indeed had to be paid his acting allowance according to salary level
12. In paragraphs [22] to [25]
of his award, he considers the various
methods of calculation of this acting allowance and notes the fact
that it is a non-pensionable
allowance which must be calculated at
60% of the total cost to employer, which would include pension and
other benefits.
[8]
I note that, in
paragraph [28] of the award, he interprets clause 18 of PSCBC
Resolution 1 of 2012 to mean that Cloete would be
entitled to be paid
the difference between his normal salary and that of the graded
position (at salary level 12) and does not
take into account the
actual commencement date of that amendment, being 31 July 2012. Even
if he was mistaken in this regard (and
I am not convinced that he
was), such an error cannot be deemed to be so gross and material that
it has led to an unreasonable
outcome which no reasonable arbitrator
could reach.
[9]
Added to this is the
fact that the Commissioner found that ‘…
it
is also not disputed that the previous two incumbents in the position
as well as the present Deputy Director are being paid at
level 12’.
[4]
This finding was never used to support a further ground of review in
the Department’s application. This in turn has the implication
that I cannot find that the Commissioner acted unreasonably in taking
this fact into account. I say this despite noting that, in
oral
argument before me, it was argued on behalf of the Department that it
did in fact dispute that this was indeed the case.
[10]
In oral argument it was
submitted to me on behalf of Cloete, that even though the award was
not reviewable (in that the Commissioner
had correctly found that the
acting allowance payable to Cloete was to be calculated at salary
level 12) the Commissioner had in
fact still made an arithmetical
error in finding that the amount of the acting allowance still
payable to Cloete at level 12 was
the amount of R49 08, 53 (less
statutory deductions). This figure ought rather to have been
calculated in accordance with annexure
“E2”.
[5]
I was handed clearer copies of these spreadsheet calculations during
the course of argument.
[11]
According to “E2”,
the calculation of the acting allowance had to be split into two
periods: the first period prior
to the increase of 1 May 2012
(covering the months of February through April 2012) and the period
after such increase (covering
the months of May through July 2012).
This calculation must be contrasted with the spreadsheet calculation
found as annexure “E1”
[6]
in which a similar calculation has been performed at salary level 11.
Regardless of which salary level is used, the actual amount
of R54
244, 47 paid as acting allowance to Cloete for the period 1 February
to 30 July 2012 must of course be deducted from the
total calculation
of acting allowance that ought to have been paid to him. According to
annexure “E2” this difference
reflects an amount of R88
022, 28 still owing to Cloete whereas, according to annexure “E1”,
that difference was R49
081, 53. It is this latter amount which the
Commissioner in fact ordered payable.
[12]
I am in agreement with
the submissions made on behalf of Cloete that there was a clear (but
understandable) arithmetical error and
that the Commissioner must
clearly have intended to refer to annexure “E2” in making
his award rather than annexure
“E1”. Such an error
is easily corrected by this Court.
[13]
In the circumstances, I
cannot find any defect in the arbitration proceedings or in the
arbitration award handed down by the Commissioner
amounting to a
gross irregularity as contemplated by
section 145(2)
(a)(ii) of the
Labour Relations Act, 66 of 1995
, based on all the material that was
before the Commissioner. Even if it be argued that the Commissioner
made a material error of
fact with regard to the implementation date
of the abovementioned 2012 resolution, this is not in itself
sufficient for a review
and setting aside of the arbitration award. I
do not find this to be erroneous, let alone materially so. In any
event, the outcome
of the award can never be said to be unreasonable.
[14]
Consequently, and in
the result, I find that there are no grounds for reviewing and
setting aside the arbitration award as there
is simply no material
irregularity or defect in this award. The review application falls to
be dismissed. I do, however, find that
the arbitration award ought to
be varied by the correction of the amount of the acting allowance
payable to Cloete to accord with
the amount shown in annexure “E2”
in that paragraph [34] of the award must have the correct amount
inserted therein
as discussed above.
[15]
As to costs, I find
this an appropriate matter in which each party ought to bear their
own costs.
[16]
In the result, I make
the following order:
1.
The review application
is dismissed.
2.
The arbitration award
dated 26 March 2013 is varied and corrected as follows:
2.1
by the replacement of
paragraph [34] thereof with the following:
‘
The
respondent, the Department of Education - Free State is ordered to
pay the applicant Mr M Cloete the outstanding acting allowance
based
on salary level 12 in the amount of R88 022,28 (eighty-eight
thousand, twenty-two rand and twenty-eight cents) only less
statutory
deductions’.
3.
Each party is to bear
their own costs.
________________
Bank AJ
Acting Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Advocate
TL Manye.
Instructed
by:
State Attorney
For
the Respondent:
Advocate LA Roux
Instructed
by:
Messrs Adrie Hechter Attorneys
[1]
Award, para 16
[2]
Award, para 17
[3]
Award, para 7
[4]
Award, para 29
[5]
Bundle, p58
[6]
Bundle p 57