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[2015] ZALCPE 42
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Member of the Executive Council, Department of Sport, Recreation, Arts And Culture, Eastern Cape v General Public Service Sectoral Bargaining Council and Others (P206/2013) [2015] ZALCPE 42; [2015] 12 BLLR 1224 (LC); (2015) 36 ILJ 2893 (LC) (26 June 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
PORT
ELIZABETH
Reportable
Case no: P 206 /2013
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF SPORT, RECREATION, ARTS AND CULTURE,
EASTERN
CAPE
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
W
F BENTZ
N.O
Second Respondent
TOZAMILE
CECIL KUZE
Third Respondent
Heard:
21May 2015
Delivered:
26 June 2015
Summary: Review
application. Unfair labour practice dispute relating to promotion.
True nature of dispute was upgrading of post
in the public service.
Public Service Regulations apply. Arbitrator misconstrued the nature
of the enquiry and made no findings
on the issue he had to decide.
Award is reviewed and set aside.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The Applicant (the Department) is seeking
to review and set aside an arbitration award issued on 7 December
2012 and to substitute
it with an order to the effect that the First
and Second Respondents did not have the jurisdiction to arbitrate the
dispute.
[2]
The
issue in dispute was whether the Department committed an unfair
labour practice relating to promotion, as provided for in terms
of
the provisions of section 186(2)(a) of the Labour Relations Act
[1]
(the Act).
[3]
The Second Respondent (the arbitrator)
ordered the Department to adjust the Third Respondent’s (the
employee) salary from
salary level 3 to salary level 5. The
arbitrator further ordered the Department to conduct an evaluation on
the post held by the
employee.
[4]
The Department filed an application for
condonation for the late filing of the review application, which was
filed 14 days late.
The application for condonation is not opposed.
[5]
The application for review is opposed and
the employee also filed an application for condonation for the late
filing of his answering
affidavit. The answering affidavit was to be
filed on 2 September 2013 but was only filed on 24 April 2014 and was
therefore filed
7 months late.
[6]
The employee also filed an application to
dismiss the review application on the basis of non-compliance with
the Rules of Court
and unreasonable delay, as well as an application
in terms of the provisions of section 158(1)(c) of the Act for the
arbitration
award to be made an order of Court.
[7]
Before this Court there are the following
applications to consider: a review application, condonation
applications from both parties,
an application to dismiss the review
application and a section 158(1)(c) application to make the
arbitration award an order of
Court.
[8]
I will deal with the applications in the
following manner: first the applications for condonation and then the
application to dismiss
the review application. If the application to
dismiss succeeds, that would be the end of the matter and there will
be no need to
further consider the application for review. If the
dismissal application fails, the review application will be
considered and
if the application for review succeeds, there will be
no need to consider the section 158(1)(c) application.
[9]
I have considered the applications for
condonation and without spending too much time on the merits of the
applications and the
principles applicable, it suffices to state that
I have considered the applications and I grant condonation for both
parties for
the late filing of their respective papers and the
remainder of the applications will be dealt with on an opposed basis.
Background facts
[10]
The brief history of this matter is as
follows:
[11]
The Applicant has employed the employee
since 1983 and since 2003 he is employed at Bayworld Museum as an
auxiliary services officer
(ASO). It appears that there were a number
of attempts to adjust the employee’s salary level to a level
that is commensurate
with the position he holds and the duties he
performs. The employee is remunerated at salary level 3.
[12]
Frustrated, and understandably so, the
employee referred an unfair labour practice dispute relating to
promotion to the First Respondent
(GPSSBC) on 12 June 2012. The
matter was set down for arbitration on 24 October 2012.
[13]
The employee presented no evidence at the
arbitration and the representatives for the parties merely addressed
the arbitrator.
[14]
It is evident from the transcribed record
of the proceedings that the Department sent a representative to
attend the arbitration
proceedings who was wholly unprepared and not
in a position to make any meaningful contribution to the process.
[15]
The arbitrator issued an award on 7
December 2012 wherein he ordered the Department to adjust the
employee’s salary from salary
level 3 to salary level 5 and for
the Department to conduct an evaluation on the post held by the
employee.
The Rule 11 dismissal
application
[16]
As already pointed out on 11 November 2014
the employee filed an application to dismiss the review application
on the basis of non-compliance
with the Rules of Court and
unreasonable delay in prosecution of the review application.
[17]
In consideration of the application to
dismiss the review application it is important to consider the
sequence of events. The arbitration
award was issued on 7 December
2012 and the review application was filed on 17 April 2013, 14 days
outside the prescribed six week
period.
[18]
The Department’s Rule 7A(8) notice
was filed on 21 August 2013. The employee had to file an opposing
affidavit within 10 days
thereafter and that was due on 2 September
2013. The employee did not file his opposing papers and on 4
September 2013 the State
Attorney on behalf of the Department wrote a
letter to NEHAWU indicating that it was awaiting the opposing papers.
Another letter
was written on 25 September 2013, indicating that no
opposing papers were received and NEHAWU was put on terms to file
opposing
papers within 5 days.
[19]
The employee’s opposing affidavit was
only filed on 24 April 2014 and was therefore filed 7 months late.
[20]
The Department’s replying affidavit
was filed on 29 April 2014 and on 18 July 2014 the State Attorney
requested that the matter
be enrolled on the opposed motion roll.
[21]
On 11 November 2014 the employee filed an
application to dismiss the review application. The application is
opposed and the Department’s
case is that the application is
mischievous and that it is incorrect to allege that the Department
was not prosecuting the review
application.
[22]
From the sequence of events alone it is
evident that the employee caused a 7 month delay in the matter by
filing his opposing affidavit
late. That alone is a longer and more
excessive period than any of the delays for which the Department
could be held responsible.
[23]
The record was filed at Court on 31 May
2013 and was transcribed and filed by the Department on 21 August
2013, less than three
months after it was filed at Court. The
Department filed its replying affidavit on 29 April 2014 and
requested that the matter
be enrolled on 18 July 2013, less than
three months after filing the replying affidavit. All these delays do
not amount to 7 months,
which was the delay the employee
singlehandedly caused by filing his opposing affidavit late.
[24]
The employee is not with clean hands before
Court insofar as the delay in the prosecution of the review
application is concerned.
[25]
In
Bezuidenhout
v Johnston NO and Others
[2]
the Court held that:
‘
I
f
applicant parties have unduly delayed prosecuting their applications,
and fail to provide acceptable reasons for the delays, the
ultimate
penalty of dismissing such applications should be used in appropriate
cases. This will hopefully help creating a culture
of compliance and
ensure that disputes are expeditiously dealt with.
At the same time, the
respondent party must not sit by idly and bide his time, waiting for
a particular undefined moment in time
when the applicant party's
delay may enable him to apply to have the delaying party barred from
seeking further relief, or to have
the matter dismissed, by reason of
delays in pursuing it. I am of the view that, if an applicant drags
his feet, the respondent
party also bears a responsibility to ensure
that disputes are resolved expeditiously. This obligation of a
respondent party
is in my mind a primary one in respect of ensuring
that the applicant party complies with time periods applicable to
it.’
[26]
In my view, the position in respect of undue delay
is as follows:
26.1 The practice when an
applicant has delayed unduly in prosecuting a review application is
for a respondent to bring an application
dismissing the review
proceedings under rule 11 of the Labour Court Rules;
27.1.
26.2 This Court
has a discretion to grant
an order to dismiss an application on account of an unreasonable
delay in pursuing it;
27.2.
26.3 In the exercise of its discretion, the Court ought to consider
three factors:
i.
the length of the delay;
ii.
the explanation for the delay; and
iii.
the effect of the delay on the other party and the prejudice that
that party will
suffer should the claim not be dismissed.
[27]
An application to dismiss a review application is a drastic
remedy and should not be granted unless the dilatory party has been
placed on terms, and when appropriate, after any further steps as may
have been available to the aggrieved party to bring the matter
to
finality, have been taken. This means that the conduct of the
aggrieved party is to be considered.
[28]
In casu
the
delay, insofar as the Department caused it, is not excessive. The
aggrieved party on the other hand contributed significantly
to the
delay and took no proper steps to place the Department on terms. In
view of the factors as stated above and applied in this
matter and
the employee’s own conduct, I am of the view that he is not
entitled to the relief he seeks to dismiss the Department’s
application for review.
The review application
[29]
What remains is to consider the application
for review.
[30]
The crux of the Department’s case is
that the arbitrator had no jurisdiction to adjudicate a dispute,
clothed as an unfair
labour practice dispute in respect of promotion,
which in actual fact was a claim for the adjustment of the employee’s
salary.
[31]
The dispute the employee referred to the
GPSSBC was an unfair labour practice dispute in relation to promotion
and as provided for
in section 186(2)(a) of the Act. The arbitrator
identified the issue to be decided as whether or not the Department
committed an
unfair labour practice relating to promotion.
[32]
The arbitrator however and despite
recording the issue to be decided, never made a finding in respect of
whether an unfair labour
practice relating to promotion was
committed. He merely ordered the Department to adjust the employee’s
salary from salary
level 3 to salary level 5 and to conduct an
evaluation on the post held by the employee.
[33]
The Department raised a number of grounds
for review.
[34]
Firstly, the Department submitted that the
GPSSBC lacked jurisdiction to arbitrate the dispute. Jurisdiction is
challenged on two
levels namely that the dispute was referred out of
time and no application for condonation was made or granted and
secondly that
the dispute was one of mutual interest that could not
be arbitrated.
Dispute referred out
of time:
[35]
Section 191(1)(a) and (b) of the Act
provides that an unfair labour practice dispute must be referred
within 90 days of the date
of the act or omission which constitutes
the unfair labour practice or of the date the employee became aware
of it.
[36]
The time frame for referring an unfair
labour practice dispute is set out in the Act and has to be adhered
to. The Act provides
that late referral may be condoned if good cause
is shown.
[37]
It is evident from the transcript that Mr
Vena who represented the employee at the arbitration submitted that
the case dated as
far back as 1999 and despite all attempts to
rectify and adjust the employee’s salary level, it was not done
and the employee
was still paid on salary level 3.
[38]
In the survey of evidence the arbitrator
found that documents were presented to support the employee’s
case dating back to
1999. The arbitrator accepted that the employee
obtained his senior certificate in July 2008 and that is the date
from which the
adjustment of his salary was ordered.
[39]
If the employee’s case, as on his own
version, dated back to 1999, or as accepted by the arbitrator dated
back to July 2008,
and an unfair labour practice dispute was referred
to the GPSSBC in 2012, it was evidently referred outside the
prescribed 90 day
period and an application for condonation was
required.
[40]
It is common cause that there was no
application for condonation.
[41]
The provisions of the Act are clear and
there can be no doubt that this matter was referred late and that
condonation was to be
applied for.
[42]
Without an application for condonation and
without condonation being granted, the matter was not properly before
the arbitrator
and he had no jurisdiction to arbitrate the dispute.
[43]
In
Pick 'n
Pay Supermarkets, Northern Transvaal (A Division of Pick 'n Pay
Retailers (Pty) Ltd) v Commission for Conciliation, Mediation
and
Arbitration and others
[3]
the
Court dealt with a matter where there was no condonation application
and held that it followed that the proceedings before the
CCMA,
commencing with the conciliation and culminating with the
arbitration proceedings, were void.
“
It follows
therefore on the undisputed facts before this court that there
was a late referral. It is now settled law that unless
there was
condonation granted, any dispute referred out of time is invalid and
renders subsequent proceedings invalid.”
[44]
The Department never raised this issue at the arbitration or
in its application for review. It was only raised as a point of law
at the hearing of the review application.
[45]
Although there is merit in this argument, I deem it prudent to
deal with the merits of the application for review and the grounds
for review raised by the Department.
Dispute cannot be
arbitrated
[46]
The Department’s case is that a
dispute in terms of section 186(2)(a) of the Act can only be used to
enforce existing rights.
A dispute about compensation and
remuneration is a dispute of interest and as a matter of mutual
interest it falls within the collective
bargaining structure as
opposed to arbitration.
[47]
The conditions of service for public
servants are governed by special legislation namely the Public
Service Act, 1994 (PSA) and
the Public Service Regulations (PSR)
issued in terms of section 41 of the PSA and collective agreements.
[48]
The Department’s case is that it is a
provincial arm of government and is part of the public service, where
the process of
job evaluation is regulated by the PSA, the PSR, the
‘Job Evaluation Policy of the Eastern Cape Administration’
and
the ‘Job Evaluation Manual’.
[49]
The process of promotion is also regulated
in the PSR. As the dispute the employee referred to the GPSSBC is one
of an unfair labour
practice relating to promotion, it is prudent to
consider the prescripts of the PSR in respect of promotion. Part VII
of the PSR
sets out the procedures for appointment, promotion and
termination of service. Item F of Part VII provides for promotion as
follows:
F.1
An executing authority may promote an employee to a vacant post
on the approved establishment
of the department if-
(a)
sufficiently budgeted funds, including funds for the remaining period
of the relevant
medium-term expenditure framework are available for
filling the vacancy; and
(b)
the vacancy has been advertised and the candidate selected in
accordance with regulations
VII C and D.
F.2
A promotion may not take effect before the first day of the
month following the month during
which the executing authority
approved it.
F.3
No employee has any right to promotion to a vacant post until the
promotion has been approved
in writing by the executing authority.
[50]
It is evident that ‘promotion’
relates to a vacant post on the approved establishment of the
Department, for which funding
is available and that has been
advertised and a recruitment and selection process followed.
[51]
It follows that a dispute relating to
‘promotion’ should be a dispute involving a vacant,
advertised position for which
the employee sought promotion to.
[52]
Part V of the PSR provides for the
compensation for employees and Item C deals with grading and
remuneration and the relevant portion
provides as follows:
C.5
An executing authority may increase the salary of a post to a higher
salary range in order to accord
with the job weight, if-
(a)
the job weight as measured by the job evaluation system
indicates that the post was
graded incorrectly; and
(b)
the department’s budget and the medium-term expenditure
framework provide sufficient
funds.
C.6
If an executing authority increases the salary of a post as provided
under regulation V C.5, she or
he may continue to employ the
incumbent employee in the higher-graded post without advertising the
post if the incumbent-
(a)
already performs the duties of the post;
(b)
has received a satisfactory rating in her or his most recent
performance assessment;
and
(c)
starts employment at the minimum notch of the higher salary range.
C.7
The absorption of the incumbent employee in the higher-graded post as
provided under regulation V C.6
shall take effect on the first day of
the month following the month during which the executing authority
approves that absorption.
[53]
It is evident that promotion is different
from job grading where the salary of the post is increased to accord
with the job weight
after a job evaluation process has been
conducted.
[54]
In casu
the
arbitrator stated that the issue in dispute was whether the
Department committed an unfair labour practice relating to promotion,
as provided for in terms of the provisions of section 186(2)(a) of
the Act.
[55]
In his ‘findings and reasons’
the arbitrator held that he was satisfied that sufficient justified
effort had been made
to rectify the employee’s salary level
with no success and other ASO’s are employed at salary level 4
or higher. The
arbitrator ordered the Department to adjust the
employee’s salary from salary level 3 to salary level 5 and to
conduct an
evaluation on the post held by the employee.
[56]
There are a number of difficulties with the
findings and the order made by the arbitrator.
[57]
Firstly, the arbitrator never made a
finding in respect of the unfair labour practice dispute relating to
promotion, which he had
to determine and which was a dispute that he
could arbitrate.
[58]
Secondly, he disregarded the provisions of
the PSA, the PSR and the principles set out in decided cases when he
treated a claim
for the adjustment of the employee’s salary as
an unfair labour practice dispute in respect of promotion.
[59]
In
Polokwane
Local Municipality v SA Local Government Bargaining Council and
others
[4]
the employee referred a dispute regarding an unfair labour practice
to the bargaining council
inter
alia
regarding
the failure to upgrade her post from level 8 to level 6 and
compensating her accordingly. The arbitrator found in the
employee's
favour but on review, the court agreed with the municipality that the
arbitrator had committed a fundamental error in
law by failing to
distinguish between a dispute of rights and a dispute of interest.
The complaint of the employee was that her
position should be
evaluated and that she be placed on level 6. The employee’s
post was never evaluated and she sought an
upgrade of her post and
salary without any form of job evaluation. In this regard she was
seeking to create a new right of being
placed and paid a salary at a
higher position. The court held that the grading or evaluation
of a post was a matter of mutual
interest.
“
In failing to
distinguish between a dispute of right and of interest in as far
as the issue of upgrading of the position from
level 8 to 6, the
commissioner committed a fundamental error in law. The grading or
evaluation of a post is a matter of mutual
interest…”
[60]
In
Minister
of Labour v Mathibeli and others
[5]
the
public service post occupied by the employee was re-graded, but
he was not given the salary increase of the re-graded post.
His
dispute with the employer was referred to the GPSSBC where the
arbitrator found that the employee had continued to function
in the
upgraded post and that this amounted to a promotion. The employer had
therefore committed an unfair labour practice
relating to
promotion in terms of s 186(2)
(a)
of the Act by not paying the employee at the rate applicable to the
re-graded post. On review, the principal question for determination
by the Labour Court was whether the upgrading of the post amounted to
a promotion as contemplated in s 186(2). By merely re-grading
a post
the incumbent does not acquire a right to be promoted to the newly
created status level of the post, as it has to be determined
whether
he or she meets the essential requirements for the post. The Court
accordingly found that a dispute relating to upgrading
was not
a promotional issue, but rather an issue of mutual interest, and
the bargaining council lacked jurisdiction to determine
the matter at
arbitration.
[61]
The
Labour Appeal Court however held a different view
[6]
.
The Labour Appeal Court addressed the jurisdictional question, which
had been the basis upon which the Labour Court had set aside
the
award. Despite agreeing with the Court
a
quo
that being the incumbent of an upgraded post did not give an employee
a right to promotion, the Labour Appeal Court held that this
was not
sufficient to construe the dispute as a dispute of interest. The
employee had in fact claimed that he was occupying
a grade 11
post, but was being incorrectly paid in that post. Referring to an
earlier Labour Court decision (
National
Commissioner of the SA Police Service v Potterill NO and
others
[7]
)
concerning
'the unravelling of the facts to discern the true dispute in a matter
concerning money claims in relation to job upgrades'
the Labour
Appeal Court adopted the dictum that 'a claim for a higher salary as
a matter of right is not an "interests dispute"'
and held
that the employee had in fact referred a rights dispute to the
council. However, the employee's claim had been without
merit both on
the facts and in the law and by reference to the PSR and ought to
have been dismissed.
[62]
In casu
the
facts are distinguishable from the
Mathibeli
matter. There was no evidence adduced
that a job evaluation of the employee’s post was done and that
approval was granted
for the upgrading of his post and that he was
incorrectly paid at a lower salary level in an upgraded position. The
employee was
simply seeking to upgrade his salary level. In my view
and in the absence of a job evaluation, the issue of job grading
remains
a matter of mutual interest.
[63]
Be that as it may and even if I am wrong in
this regard, the facts
in casu
and
the provisions of the PSR do not support a claim for an unfair labour
practice dispute relating to promotion. The provisions
of the PSR
cannot be ignored.
[64]
A claim for adjustment of salary is not a
promotion dispute and cannot be arbitrated as an unfair labour
practice dispute as provided
for in section 186(2)(b) of the Act.
[65]
Thirdly it is trite that in an unfair
labour practice dispute relating to promotion the onus is on the
employee to show that a higher
post existed for which he or she was a
contender and that the employer refused or failed to promote the
employee to the post for
an unfair reason.
[66]
In casu
no
shred of evidence was adduced and the arbitrator based his findings
on nothing but the statements made by the representatives
of the
parties. There was no agreement between the parties that the matter
would be presented and should be considered as a stated
case and how
the dispute could be decided without any evidence, is inconceivable.
[67]
There was no evidence adduced to show that
the employee’s post was evaluated and that approval for an
upgrade was granted.
The arbitrator failed to consider the applicable
prescripts of PSR and discounted the fact that there was no evidence
placed before
him.
[68]
It appears that the arbitrator accepted
that the facts of another dispute he arbitrated namely that of S
Kolokolo (case number GPBC3493/2011)
were similar to the employee’s
case and the outcome of the Kolokolo matter to some extent
manipulated or directed the outcome
of this dispute.
[69]
In
The
South African Social Security Agency v NEHAWU obo Malizo Punzi and
others
[8]
the
Court was faced with a review application in respect of an unfair
labour practice where no evidence was adduced and the case
was
decided on the papers only. The Court held that it was
incomprehensible how a dispute that hinges on the fairness of the
conduct
of an employer can be decided (in the absence of a stated
case) without parties giving oral evidence. It was held that:
“
In
the absence of such a stated case, oral evidence should be led on the
material facts in dispute at arbitrations in terms of the
LRA.
Commissioners and arbitrators should not condone an agreement between
parties that no oral evidence be led unless such a stated
case has
been agreed, and on which they may draw legal conclusions. Although
parties may regard submitting documents and argument
as a fast way of
resolving a dispute on the day of arbitration, it in fact renders the
award issued susceptible to review. In the
result, the principle of
speedy resolution of disputes is ultimately sacrificed.”
[70]
Fourthly the arbitrator, in conflict with
the clear provisions of the PSR, ordered the Department to adjust the
employee’s
salary from level 3 to 5, with effect from July
2008. The arbitrator evidently exceeded his powers by making this
order.
[71]
However, the arbitrator did not stop there.
He further ordered the Department to conduct an evaluation on the
post held by the employee.
Not only should this order have indicated
to the arbitrator that the true nature of the dispute is not
promotion, but job evaluation
that should be done within the confines
of the provisions of the PSA and PSR, it is also non-sensical. What
purpose would be served
to evaluate a post he had already upgraded to
level 5? The arbitrator not only exceeded his powers but has also put
the cart before
the horses. It seems logical to first evaluate a post
to determine the level it should be graded and remunerated on and
once the
level is determined, to upgrade the post to the appropriate
level and it seems illogical to do it the other way around.
[72]
This dispute was arbitrated in the GPSSBC,
a tribunal specifically dealing with labour disputes in the public
service. One would
expect arbitrators presiding over matters in the
GPSSBC to understand and appreciate the legislation and regulations
that apply
to public servants.
[73]
It is unacceptable that arbitrators in the
GPSSBC adjudicate disputes where there is a demand for the upgrading
of posts as if those
were unfair labour practice disputes relating to
promotion. Such conduct disregards not only the provisions of the PSA
and PSR,
but also the provisions of section 186(2)(a) of the Act and
judgments of this Court that have to be followed and applied.
The test on review
[74]
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable is well established and has been
rehashed
innumerable times since
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[9]
.
It
is ultimately a test of reasonableness. The arbitrator's decision
must fall within a range of decisions that a reasonable decision
maker could make.
[75]
In
Goldfields
Mining South Africa v Moreki
[10]
the
Labour Appeal Court held that:
“
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
[76]
The
Labour Appeal Court recently held in
Head
of the Department of Education v Mofokeng and others
[11]
that
the arbitrator must not misconceive the inquiry or undertake the
inquiry in a misconceived manner and that there should be
a fair
trial of the issues.
“
To
repeat: flaws in the reasoning of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant considerations
or
the ignoring of material factors etc. must be assessed with the
purpose of establishing whether the arbitrator has undertaken
the
wrong enquiry, undertaken the enquiry in the wrong manner or arrived
at an unreasonable result.
Lapses in lawfulness, latent or
patent irregularities and instances of dialectical unreasonableness
should be of such an order (singularly
or cumulatively) as to result
in a misconceived inquiry or a decision which no reasonable
decision-maker could reach on all the
material that was before him or
her.”
[77]
These are the principles this Court should apply in consideration of
the review application.
Analysis and
conclusion
[78]
In reviewing the arbitration award, the grounds
for review as raised by the Applicant must be assessed with the
evidence that was
before the arbitrator as well as the findings he
made.
[79]
The arbitrator recorded that the issue in
dispute was whether the Department committed an unfair labour
practice relating to promotion,
as provided for in terms of the
provisions of section 186(2)(a) of the Act. Glaringly absent from the
arbitration award is a finding
on the issue which the arbitrator had
to determine.
[80]
The arbitrator instead made findings, not on
whether an unfair labour practice dispute was committed, without a
shred of evidence
being adduced. In his analysis of the ‘evidence’
the arbitrator recorded that much of the ‘evidence’ in
the matter was the same or similar to that which was presented in the
arbitration of Kolokolo.
[81]
In his ‘findings and reasons’
the arbitrator held that he was satisfied that sufficient justified
effort had been made
to rectify the employee’s salary level
with no success and he ordered the Department to adjust the
employee’s salary
from salary level 3 to salary level 5 and to
conduct an evaluation on the post held by the employee.
[82]
The
applicable principles
[12]
require only the following:
“
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?”
[83]
A decision made in the way the arbitrator did
in
casu
cannot but mean that this Court
must answer all these questions in the negative.
[84]
The
Labour Appeal Court held in
Mofokeng
[13]
that:
“
The reviewing
judge must then have regard to the general nature of the decision in
issue; the range of relevant factors informing
the decision; the
nature of the competing interests impacted upon by the decision and
then ask whether a reasonable equilibrium
has been struck in
accordance with the objects of the LRA. Provided the right question
was asked and answered by the arbitrator
a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity or
error material to the determination
of the dispute may constitute a
misconception of the nature of the inquiry so as to lead to no fair
trial of the issues with the
result that the award maybe set aside on
that ground alone. The arbitrator however must be shown to have
diverted from the correct
path in the conduct of the arbitration and
as a result failed to address the question raised for determination.”
[85]
Viewed cumulatively, and in line with
Mofokeng,
the
arbitrator’s failure to apply his mind to issues, which as
demonstrated above, were material to the determination of the
dispute, led him to misconceive the nature of the enquiry. The
arbitrator failed to address the issue he had to determine, namely
whether
the Department committed an unfair labour
practice relating to promotion.
[86]
The findings the arbitrator made were disconnected
from the issue he had to determine and
reflect not only on the
arbitrator’s failure to address the issue he had to determine,
but also that he made a decision which
no reasonable decision maker
could have made, principally because he wholly misconstrued the
nature of the enquiry before him and
his duties in connection
therewith. But for these material irregularities in the award, the
arbitrator would have and should have
arrived at a different result.
It cannot therefore be said that the Applicant was given a fair
hearing or that the arbitrator’s
decision was one that a
reasonable arbitrator could have reached on the full conspectus of
all the facts before him. More so as
no evidence was adduced.
[87]
Based on the above, I am persuaded that this award
cannot stand and should be interfered with on review. It follows that
the application
in terms of section 158(1)(c) of the Act to make the
arbitration award an order of Court fails.
[88]
The submissions made during the arbitration seem
to show that the Department made attempts to rectify the employee’s
salary
level and it even tendered to adjust the employee’s
salary level to level 4, which tender the employee rejected. It is
inexplicable
why the issue about the employee’s salary level is
not addressed internally and the treatment the employee received from
the Department is a far cry from constructive to resolve the issue
that could have been resolved internally. Understandably it caused
frustration and led to the referral of his dispute. Unfortunately for
the employee he was crying at the proverbial wrong funeral.
[89]
This is a case where the interests of justice and
fairness would be best served by not making a cost order.
Order
[90]
In the premises I make the following order:
90.1 Condonation is
granted for the late filing of the Applicant’s review
application;
90.2 Condonation is
granted for the late filing of the Third Respondent’s opposing
affidavit in the review application;
90.3 The application for
the dismissal of the application for review is dismissed;
90.4 The application in
terms of section 158(1)(c) of the Act to make the
arbitration award an order of Court is dismissed;
90.5 The
arbitration
award issued on 7 December 2012 under case number GPBC2718/2012
is
reviewed and set aside;
90.6 There is no order as
to costs.
______________
Connie
Prinsloo
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Advocate L Ntsepe
Instructed
by:
State Attorney, Port Elizabeth
For
the Third Respondent:
Advocate N Ali
Instructed
by:
Moposho Attorneys
[1]
Act 66 of 1995.
[2]
(2006) 27 ILJ 2337 (LC) at paras 31-32.
[3]
(2000) 21 ILJ 234 (LC).
[4]
(2008) 29 ILJ 2269 (LC)
[5]
(2013)
34 ILJ 1548 (LC)
[6]
Mathibeli v Minister of Labour (2015) 36 ILJ 1215 (LAC)
[7]
(2003)
24 ILJ 1984 (LC)
[8]
Labour Court case number C233/14.
[9]
2007 28 ILJ 2405 (CC) at para 110.
[10]
(2014) 35 ILJ 943 (LAC).
[11]
(2015) 1 BLLR 50 (LAC).
[12]
As
per Gold Fields Mining at paragraph 20
[13]
(2015) 1 BLLR 50
(LAC).