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[2015] ZALCCT 6
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PSA obo Traut v Department of Correctional Services (Western Cape) and Others (C927/2013) [2015] ZALCCT 6; [2015] 5 BLLR 526 (LC); (2015) 36 ILJ 1911 (LC) (23 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C927/2013
DATE:
23 JANUARY 2015
Reportable
In
the matter between:
PSA (obo L
TRAUT)
...................................................................
Applicant
And
DEPARTMENT OF
CORRECTIONAL SERVICES
(WESTERN
CAPE)
.......................................................
First
Respondent
PUBLIC HEALTH
AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
...............
Second
Respondent
COLIN RANI
N.O
......................................................
Third
Respondent
Date
heard: 9 October 2014
Delivered:
23 January 2015
Summary:
Unfair labour practice referral
res judicata
in the extended
sense; Arbitrator bound to decide jurisdictional issue of which he
was aware; award set aside and substituted.
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review and set aside an arbitration
award under case number PSHS400-12/13. The third respondent
(the
arbitrator) dismissed a claim of demotion pursuant to section 186(2)
(a) of the LRA.
[2]
Traut applied for a position as a Pharmacist Supervisor Grade 1 in
March 2010. She was appointed to this position on 1 November
2010, at
a salary of R381 093 per annum. When the post was first
advertised, the salary scale was R349 263- R393 944
per annum,
and the applicant was offered a salary of R381 000, which she
accepted. The post was advertised before the implementation
of a
collective agreement signed inter alia between the applicant union
and the Department, the Occupational Specific Dispensation
(OSD). The
OSD came into effect on 1 April 2010. Traut contended that after the
introduction of the OSD, her salary was supposed
to be R423 846.
However, the Department offered her R 381 000 when she accepted the
job offer on 1 November 2010. Applicant alleged
that this was a
demotion and constituted an unfair labour practice.
[3] At the
arbitration proceedings, the Department relied on an arbitration
award under case number PSHS 605-11/12, which was issued
on 18 July
2012 (the first award) which related to a dispute between Traut and
the Department. The arbitrator in those proceedings
was required to
determine whether Traut was covered by the OSD and whether she was
“translated” correctly i.e. placed
into the correct wage
band in terms of the collective agreement. The award in the first
arbitration was that “Traut was not
covered by the OSD”.
The reason given for this was that at the time that she was appointed
to the post of Pharmacist Supervisor
grade 1, she was not working for
the and could not claim any rights in terms of the collective
agreement. This award was not taken
on review and stands as binding
on the parties.
[4] The case for
the applicant in this review application is that the OSD applied to
all employees of the Department, who were employed
just prior to the
implementation of the OSD, as well as future employees of the
Department. In other words, it submits that the
OSD is a uniform set
of conditions that apply to all employees of the Department,
irrespective of when they became employed. Therefore,
it is alleged
that the Department should have paid Traut, at the very least, the
minimum net salary for Pharmacist Supervisor according
to the OSD.
The applicant union submits that the failure to do so constitutes
unfair conduct and amounted to a reduction in Traut’s
status,
remuneration and benefits as specified by her letter of appointment
read with the OSD.
[6] In its
answering affidavit, the Department submits that the first Award,
irrespective of its merits or alleged demerits, remains
competent and
not challenged and is consequently binding on the parties and that
any attempt to have the same issue revisited via
this review
application is bad in law. It pleads in this review application that
the matter is
res judicata
.
[7] In as far as
the first arbitration award is concerned, it is submitted by the
applicant union that it is:
“
with
respect far from clear what, if anything, had been ruled upon by
Commissioner Ndzombane, but it cannot be the case that he
had made
rulings that disposed of any part of the case PSA and Traut
subsequently referred to the arbitrator in this matter. In
other
words, the question of res judicata does not arise.” This
submission needs to be considered.
[8] In
Smith
v Porritt and Others
[1]
Scott JA summarised the law as follows:
'[10]
Following the decision in Boshoff v Union Government
1932 TPD 345
the
ambit of the exceptio res judicata has over the years been extended
by the relaxation in appropriate cases of the common-law
requirements
that the relief claimed and the cause of action be the same (eadem
res and eadem petendi causa) in both the case in
question and the
earlier judgment. Where the circumstances justify the relaxation of
these requirements those that remain are that
the parties must be the
same (idem actor) and that the same issue (eadem quaestio) must
arise. Broadly stated, the latter involves
an inquiry whether an
issue of fact or law was an essential element of the judgment on
which reliance is placed. Where the plea
of res judicata is raised in
the absence of a commonality of cause of action and relief claimed it
has become commonplace to adopt
the terminology of English law and to
speak of issue estoppel. But, as was stressed by Botha JA in
Kommissaris van Binnelandse
Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 669D, 670J - 671B, this is not to be construed as implying an
abandonment of the principles of the common-law in favour
of those of
English law; the defence remains one of res judicata. The recognition
of the defence in such cases will however require
careful scrutiny.
Each case will depend on its own facts and any extension of the
defence will be on a case-by-case basis. (Kommissaris
van Binnelandse
Inkomste v Absa Bank (supra) at 670E - F.) Relevant considerations
will include questions of equity and fairness
not only to the parties
themselves but also to others. As pointed out by De Villiers CJ as
long ago as 1893 in Bertram v Wood
(1893) 10 SC 177
at 180, unless
carefully circumscribed, [the defence of res judicata] is capable of
producing great hardship and even positive
injustice to
individuals".'
[10] Commenting
on this dictum, Heher JA stated in
Janse
van Rensburg & others NNO v Steenkamp & Another v Myburgh &
Others
[2]
that it is apparent that the first duty of the court is to compare
the relevant facts of the two cases upon which reliance is placed
for
the contention that the cause of action (in the extended sense of an
essential element) is the same in both.
[11] The
applicant union’s case for an unfair demotion claim is based on
the submission that the OSD applied to Traut. This
is evident not
only from the record of the arbitration proceedings giving rise to
the award sought to be reviewed, but in the review
papers before me
[12] From the
record before me, it is evident that in the two arbitration
proceedings (between the same parties), the objective
of the dispute
taken up on behalf of Trout, and the relief sought on her behalf, was
to raise her remuneration consistent with
what it purportedly should
have been in terms of the OSD.
[13] The
application of the OSD to Traut was an “essential element”
in both arbitrations, although in the strict sense
of the meaning of
res judicata
, different causes of action were utilized by the
applicant in pursuit of the same relief against the department in
both. In the
first arbitration with reliance was placed on section 24
of the LRA and in the second arbitration, section 186. In my
judgment,
the arbitrator did not have jurisdiction to hear the second
arbitration as, in the extended sense, the dispute between the
parties
was
res judicata
when it came before him. The second
respondent appeared to realize this in his award when he said:
“
I
have also established that the applicant’s case was in essence
about the implementation of the OSD. Had the applicant conceded
that
this was an issue in dispute, I would have made a jurisdictional
determination first i.e. determined whether the PHSDSBC has
jurisdiction to hear this dispute. Firstly, in light of the fact that
the applicant’s dispute regarding her alleged demotion
hinges
on the implementation of the OSD, the pertinent question to answer is
whether the applicant was covered by the OSD. There
is a valid
determination in the form of an arbitration award that found that the
applicant was not covered by the OSD…..”
[14] The
arbitrator should have made the fundamental determination given that
it appeared to him that a jurisdictional issue fell
to be determined.
His failure to do so amounted to a gross irregularity of the latent
type, and as a result he undertook his enquiry
in the wrong
manner
[3]
. His award thusstands
to be set aside. Given my finding that the unfair labour practice
dispute was
res
judicata
,
the correct remedy is for this court to substitute the award. I note
that the applicant has stated that it is unclear as to whether
the
first award contained any ruling at all. The correct route for it to
have taken, in such circumstances, was to challenge that
award by
means of a review application.
[15] In all the
circumstances I make the following order:
Order
1. The award
under case number PSHS400-12/13 is reviewed and set aside and
substituted as follows:
“
The
referral is dismissed for want of jurisdiction”
2. There is no
order as to costs.
H.
Rabkin-Naicker
Judge
of the Labour Court
Applicant:
J Whyte of Cheadle Thompson & Haysom
Third respondent:
Adv Jerome van der Schyff instructed by C. Bailey of the State
Attorney
[1]
2008 (6) SA 303
(SCA) at 307J
[2]
2010(1)SA
649 (SCA)
2010 (1) SA 649
@ paragraph 25
[3]
Herholdt v Nedbank Ltd (COSATU as
amicus
curiae
)
(2013) 34 ILT 2795
(SCA)