About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2015
>>
[2015] ZALCCT 52
|
|
Dlulemnyango-Sopotela v General Public Service Sectoral Bargaining Council and Others (C188/13) [2015] ZALCCT 52 (5 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number C188/13
In
the matter between:
L.N.
DLULEMNYANGO-SOPOTELA
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
JOSEPH
WILSON THEE
N.O
.
Second Respondent
DEPARTMENT
OF EDUCATION
WESTERN
CAPE
Third Respondent
Date
heard: 17 February 2015
Delivered:
5 August 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number GPBC 242-12. In the award, the second respondent
(the
arbitrator) found that the third respondent (the Department) had not
committed an unfair labour practice in respect of an
alleged
demotion.
[2]
The applicant was previously employed in the position of Director:
Operational Support Unit. The Department was involved in
a
restructuring process it termed “modernisation”
between 2009 and 2011, with a specific focus on its head office
organisation. The scrapping of certain directorates and their
replacement by new directorates formed part of the modernisation
plan. One of the directorates scrapped under the plan was
Infrastructure, Transport, Equipment and LTSM, the post occupied by
applicant.
[3]
Two new directorates were established. First that of Director:
Infrastructure Planning and Management (the IPM post). In terms
of
the design this was not an educational post although the incumbent
would provide services to the Department. The job requirements
specified were an appropriate B degree or equivalent qualification in
architecture, engineering or quantity surveying. The incumbent
would
be required to facilitate the effective planning and delivery of
infrastructural capital projects.
[4]
The second post was Director:Institutional Resource Support
(including Library Services).The purpose of this function was to
plan
and manage the delivery of learning and teaching support material,
library services, learner transport schemes and equipment
to schools
in the Western Cape.
[5]
The applicant’s case at arbitration was that the Department
failed to comply with its rules, procedures and guidelines,
namely
the Modernisation Personnel Plan and the Human Resource Principles
document when it declared her in excess of its establishment.
The
department, she alleged, also took incorrect information into account
when it declared her in excess of the establishment.
The applicant
now functions as a Chief Education Specialist, a function she
performed for 5 years before she joined the Department,
she now
reports to a Director, whereas she previously reported to a Chief
Director. She no longer manages a budget, or has an office
or a
secretary. Her performance assessment is conducted at post level 12
instead of level 13 which she previously enjoyed.
[6]
The applicant submits that the arbitrator reached an unreasonable
result having failed to take into account the following evidence:
6.1
That the applicant was considered in a ‘matching and placing’
process.
This evidence was not disputed but was ignored by the
arbitrator;
6.2
That the matching and placing committee made mistakes when it
considered the
applicant for the new posts. The arbitrator
misconstrued the importance of this evidence and believed the
applicant was putting
forward a case for promotion;
6.3
That had the matching and placing committee taken into account the
correct considerations,
the applicant would have been matched and
placed. This evidence was misconstrued by the arbitrator.
[7]
In its answering affidavit, the Department avers inter alia the
following:
“
20.
The Applicant’s old post
was abolished.
21.
It is apparent that the meeting
of the matching and placing committee held on 29 October
2010 new
posts (into which current employees could not be lawfully placed via
absorption) came under the consideration of the committee
who seemed
to labour and the (sic) misapprehension that although these were
clearly new posts it might be possible to place suitable
internal
candidates into these positions without the posts being opened up to
competition from the public or other public servants
who were under
threat of being declared in excess.
22.
As it happened no placements via
absorption and the matching and placing process were made
into the
two posts that are under consideration in these proceedings. This
resulted in the legally correct outcome namely that
in each case the
post needed to be advertised.”
[8]
The minutes in question, part of the record before the arbitrator,
reflect that the decision to advertise some posts was based
on a
finding that certain senior managers, including the applicant, were
not considered suitable for placing in those positions.
The
arbitrator did not take into account whether this amounted to unfair
conduct. Secondly the arbitrator did not consider was
that other
senior managers were placed in new posts, by decision made in the 29
October 2010 meeting.
[9]
The record of the arbitration proceedings reflects the following
exchange during cross examination of the applicant:
“
MR
KAHANOVITZ: So what I think you are failing to understand is that
there are three cardinal principles that were applicable in
this
process. What it essentially says is if the new post is almost the
same as the old post ....it is classified as an unaffected
post and
it is only available then to the incumbent of the existing post. That
person then gets absorbed into the post on the new
organogram and by
no stretch of the imagination was that procedure that applied in your
case or could it have applied in your case.
Your comment if you wish
to.
LINDELWA
SOPOTELA: My comment would be then that is what I was asking or maybe
I should pose it this way. Then it means there were
inconsistencies
in the process, because the post of the new Chief Director Physical
Resource was a new post and that post was not
advertised but Mr Lewis
was placed in that post.
MR
KAHANOVITZ: Well I am not here to deal with what in respect of Mr
Lewis’ post…
LINDELWA
SOPOTELA: Okay.
MR
KAHANOVITZ: And I was not given any warning before today that we
needed to come here to prepare to answer about Mr Lewis case….”
[10]
The fact that the post of Chief Directorate Physical Resources (into
which Mr Lewis was placed at the meeting of 29 October
2010) was a
new directorate, was confirmed by the Department’s witness Ms
Louise Esterhuizen in her evidence in chief. This
evidence does not
seem to have been considered by the arbitrator whose analysis of the
case before him is contained in paragraphs
72-75 of the Award as
follows:
“
72.In
my assessment of this case I cannot find any evidence that makes the
respondent guilty of an ULP. I say this on the basis
that the
applicant was not the only employee affected by the restructuring. On
the evidence before me I find that the respondent
has followed a bona
fide process that was supported by the relevant stakeholders. The
applicant admitted that e was part and parcel
of the restructuring
process. I cannot ignore the respondent’s concern of what the
implications would be in the event that
every single employee in the
public sector challenges a displacement as a result of restructuring.
73.
It appears to me that the applicant only became aggrieved once she
realised that her position was at risk. More importantly
in assessing
the applicant’s challenge during her evidence in chief it
appears to me if she actually started to present a
case for
promotion. This became evident when the applicant argued that she was
erroneously overlooked by the selection panel.
74.
This clearly shows that she knew her post would be abolished and be
subjected to a competitive process. She applied for the
post and
willingly participated in the recruitment and selection
process. The applicant cannot have her cake and eat it.
Even if this
was the case I must point out that I do not have jurisdiction to
consider whether the selection panel has erred or
to make a
determination in this regard.
75.
Turning to the procedural fairness. The applicant contended that the
applicant failed to follow fair processes. The applicant
conceded
under cross-examination that the respondent had followed a procedure
in accordance with the modernisation principles.
I therefore find
that the applicant doesn’t have a credible argument on her own
admission. In my opinion this argument is
simply a fabrication of
what the real issue at hand is namely her non-appointment. This is
not an issue for the arbitrator to determine
as I do not have
authority to do so.”
[11]
The arbitrator went on to find that the applicant had failed to show
she was unfairly treated during the restructuring exercise.
In my
judgment the award stands to be reviewed given that the process of
implementing the restructuring vis a vis the applicant
demonstrably
involved unfair conduct. In the unreported case of
Makosana
v General Public Services Bargaining Council
[1]
which concerned the application of the ‘modernization process’
of the Department of the Premier of the Western Cape
the court held
as follows:
“
[26]
Whether a particular transfer results in a demotion will always be a
factually specific question and will not necessarily be
unfair. In
this instance, it is evident from the difficulty encountered in
deploying the applicant permanently that there seemed
little prospect
the transfer to a position in addition to the staff establishment was
going to be of a temporary nature. Where
the duration of such
appointment is demonstratively temporary its nominal character as a
demotion will no doubt be recognised.
Where as in this case placement
seems to be assuming an indefinite character, it will not be unfair
if the process by which it
was implemented was fair. In this
instance, the fairness essentially concerns one issue: whether the
applicant was afforded an
opportunity to consult over the measure
before it was implemented”
[12]
In this instance, the unfairness concerns the fact that Applicant,
unlike at least two other senior managers who were placed
into new
posts when such posts should have been advertised, was denied such
placement on the basis that she did not merit it, as
the minutes of
the October 29, 2010 meeting confirm. In such circumstances, her
chances of success in subsequent applications she
was able to make in
respect of the two posts (when advertised), along with other
candidates, were prejudices from the word go.
The record
reveals that members of the Matching and Placing Committee, including
its chairperson, who decided that applicant was
not suitable to be
placed in the positions at the meeting of October 29 2010, also sat
as members of the interview panel for the
posts which were
subsequently advertised.
[13]
Is the award reviewable? As the Labour Appeal Court held
[2]
,
per Zondo JP as he then was, there can be no doubt under
Sidumo
that
the reasonableness or otherwise of a commissioner's decision does not
depend - at least not solely - upon the reasons that
the commissioner
gives for the decision. In many cases the reasons which the
commissioner gives for his decision, finding or award
will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision maker
could or could not
reach. However, other reasons upon which the commissioner did not
rely to support his or her decision or finding
but which can render
the decision reasonable or unreasonable can be taken into account.
[14]
In my assessment of the award, for the reasons set out above, which
the arbitrator did not rely on to support his decision,
the
arbitrator’s decision is one that a reasonable decision-maker
could not reach. This matter has been heard on two occasions
under
the auspices of the first respondent. After the first arbitration an
award was reviewed and sent back for re-hearing. No
purpose will be
served in remitting it for a third time. The decision must be
substituted.
[15]
In my judgment the only practical remedy in this matter is the
awarding of compensation. The applicant has been the subject
of an
unfair labour practice. Her employer was aware that mistakes had been
made in relation to the matching and placing process
but only clearly
conceded as much in the review papers. I find it just and equitable
that the applicant be awarded a solatium in
terms of section 194(4)
of the LRA
[3]
.
Such a solatium is capped in terms of the sub-section with reference
to an amount equivalent to 12 months remuneration. In making
my order
of compensation I am mindful that the applicant has travelled a long
road in order to obtain redress for the unfair conduct
she has
suffered at the hands of her employer. Her remuneration package at
the time the second award was handed down in November
2012 was
recorded to be an amount of R600,000 per annum. The court was not
provided with any further information as to her current
remuneration
or legal costs incurred at arbitration. However, taking into account
the record of the arbitration and the papers
before me in this
application, I am mindful that the applicant has suffered an
infringement to her dignity given the circumstances
of the unfair
conduct I have dealt with above. I therefore make the following order
which includes the payment of compensation
which the court believes
to be just and equitable in all the circumstances of this case:
Order:
1.
The arbitration award under case number GPBC 1242-12 dated 25
November 2012 is reviewed and set
aside and substituted with the
following order:
1.1
The applicant has been subject to an unfair labour practice in
relation to demotion;
1.2
The third respondent is ordered to pay the applicant an amount of
R600,000 (Six hundred thousand Rand) as
compensation;
1.3
Third respondent is to pay the costs of this application
_
_______________________
H. Rabkin-Naicker
Judge of the Labour
Court
Appearances
:
For
the Applicant: Adv. Mangu-Lockwood instructed by Nongogo Nuku
Attorneys
For
the First Respondent: Adv Colin Kahanovitz S.C. instructed by the
State Attorney
[1]
C597/2012
dated 19 August 2012
[2]
Fidelity
Cash Management Service v Commission for Conciliation, Mediation &
Arbitration & others (2008) 29 ILJ 964 (LAC)
at paragraph 102.
[3]
Minister of
Justice & Constitutional Development & another v Tshishonga
(2009) 30 ILJ 1799 (LAC) at paragraph 15