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[2015] ZALCD 28
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Nxele and Others v Department of Correctional Services and Others (D942/11) [2015] ZALCD 28 (22 May 2015)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
JUDGMENT
Not Reportable
Case no: D942/11
In the matter between:
THAMSANQA SELBI
NXELE
First Applicant
SITHEMBILE HYCYNTHIA GLENROSE
NXELE
Second Applicant
and
DEPARTMENT OF CORRECTIONAL
SERVICES
First Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
(GPSSBC)
Second Respondent
ARBITRATOR DR R
MACCAIN
Third Respondent
Heard: 30 October 2014
Delivered: 22 May 2015
JUDGMENT
Nkutha-Nkontwana AJ
Introduction
[1]
This is an application to review and set
aside an award in terms of which the Third Respondent (“
the
Arbitrator”
) held that the
demotion of the Applicants was substantively fair but procedurally
unfair. The Arbitrator held further that
owing to the
irregularity of the Applicants’ promotion to level 6, the First
Respondent was entitled to reverse the said
promotions and to deduct
any money overpaid due to the said appointments. Despite having
found that demotions were the procedurally
unfair, the arbitrator
dismissed the application without any relief to the Applicants.
Factual background
[2]
The Applicants, who are now married, joined
the First Respondent’s employ on 5 October 2000 probationally
at salary level
3 subject to successful completion of a 6 months
training programme. At the end of the six months training programme,
the Applicants
were permanently appointed as Correctional Officer
Grade, at salary level 5, with effect from 1 November 2001.
[3]
However, it is common cause that Applicants
were not eligible to be appointed to permanent positions as they did
not successfully
complete their training programme due to one
outstanding module. The First Respondent became aware of this
irregularity sometime
in 2003. As a result, the Applicants were sent
back to the training college and successfully completed the
outstanding module.
Their permanent appointments were never set aside
or their salaries deducted.
[4]
On 7 November 2005, the Third Respondent
internally advertised vacancies for Correctional Officer Grade 2 at
salary level 6. The
job requirements for that position were
matriculation, 4 years’ experience in the employ of the First
Respondent, 3 years’
experience at salary level 5 and an
average performance assessment of 65 for that particular year.
[5]
Both Applicants applied for the above
vacancies and were found to be eligible and promotable. In essence,
the Applicants were promoted
from Correctional Officer Grade 3 at
salary level 5 to Correctional Officer Grade 2 at salary level 6.
Even though they were notified
of their appointments on 10 March
2006, their promotions were effective as of 1 February 2006.
[6]
In June 2006, the First Respondent
conducted an internal audit. The context thereof is not clear, save
to state that it revealed
that the Applicants and 50 other
Correctional Officers were incorrectly appointed to permanent
positions in 2001 as they had not
successfully completed the basic
training as per the requirements.
[7]
It is common cause that the Applicants were
not aware of the said investigation. As such, they were never
afforded an opportunity
to make representation during the said
investigation. Notwithstanding the above, the First Respondent
unilaterally concluded that
the Applicants had been irregularly
appointed to permanent positions on 1 November 2001.
[8]
Consequently, on 4 December 2007 the
Applicants were served with identical letters notifying them of their
demotion back to Correctional
Officer Grade 3 at salary level 5 and
that their salaries would be reduced from R75 411.00 per annum
to R68 955.00 per
annum with effect from 1 January 2008. In
March 2008 they received another set of letters which confirmed they
would be demoted,
however, to a new lower notch of R70 341.00
per annum and were further notified that the overpayment in salaries
would be
recovered by deductions from their salaries.
Grounds of review
[9]
This application is premised mainly on the
following grounds of review:
9.1 The Arbitrator
committed a gross irregularity in failing to realise that once he
makes a finding that there was
procedural irregularity of the extent
proven in this matter, then the legal authority compelled him to set
aside the demotions;
9.2 The Arbitrator
committed gross irregularity in holding that there was substantive
fairness in the promotion
where the facts prove the arbitration
showed that there was no good reason for the demotions; and
9.3
The Arbitrator exceeded his powers and accordingly issued an
arbitration which is unreasonable.
Legal principles and analysis
[10]
It is
trite that
Section 145
of the
Labour Relations Act
66
of 1995
as amended
(“LRA”)
provides limited grounds for review and is suffused by constitutional
standard of reasonableness.
[1]
In
Goldfield
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & Others
[2]
the application of the test for review is stated as follows:
“
[18]
In a review conducted under
s145(2)(a)(c)(ii)
of the LRA, the review court is not required to
take into account every factor individually, consider how the
arbitrator treated
and dealt with each of those factors and then
determine whether a failure by the arbitrator to deal with one or
some of the factors
amounts to process-related irregularity
sufficient to set aside the award. This piecemeal approach of dealing
with the arbitrator’s
award is improper as the review court
must necessarily consider the totality of the evidence and then
decide whether the decision
made by the arbitrator is one that a
reasonable decision-maker could make.”
Demotion
[11]
The genesis of this dispute is the
appointment of the Applicants as Correctional Officers Grade 5 in
November 2006. That appointment
was absolutely irregular, a fact
conceded by the Applicants in these proceedings. Whether or not the
deviation from the requirements
when appointing the applicants had
been sanctioned by powers that be remains cryptic. I say so because
the appointing executives,
Messrs Diedericks and Smith, were never
called to take the witness stand and explain the rationale behind
such appointment, especially
given the number of affected officials
revealed by the audit.
[12]
The manner in which the Arbitrator dealt
with the omission to call Messrs Diedericks and Smith is very
superficial. Their evidence
was critical in order to establish
whether their conduct had been endorsed so as to determine the
appropriateness of the First
Respondent’s corrective action. It
is more so in the light of the Applicants’ undisputed evidence
that during that
era some of the requirements for eligibility to be
permanently appointed as a Correctional Officer had been relaxed. One
of the
examples given was the appointment of Correctional Officers
who had criminal records for minor offences, a state of affairs that
could not have happened, but for the indulgence that prevailed at
that particular time.
[13]
The mere fact that a conduct is irregular
does not necessarily mean that same is unauthorised as a room for
deviation or condonation
for none compliance exists in every
prescript. This takes me to the main point in this regard.
[14]
The First Respondent’s response when
it became aware of the said irregularity in 2003 is essential.
Instead of demoting the
Applicants or deducting allegedly
overpayments in salaries, the First Respondent allowed the Applicants
to go back to the training
college to complete the outstanding
module. Therefore, by successfully completing the outstanding module,
the Applicants’
appointments were regularised without affecting
their seniority.
[15]
It is my view that the above response
adequately resolved the problem of irregularity of the Applicants’
appointments. I agree
with the Applicants’ counsel that by the
time the decision to promote them in 2007 was made, the underlying
irregularity
had fallen away. As such, the experience they had gained
could not be ignored.
[16]
The Arbitrator misconstrued the issues to
be determined and consequently came to a conclusion that a reasonable
arbitrator could
not have made.
Therefore, on this ground
alone the review application should succeed.
However,
I deem it appropriate to deal with the procedural challenge as well.
The
audi
alteram
partem
rule
[17]
The
Applicants also had qualms with the First Respondent’s failure
to afford them the opportunity to be heard before the decision
to
demote them was made. Granted, the Arbitrator was spot on in his
finding that the First Respondent did not comply with
audi
alteram partem
rule (“
audi
rule”).
However, he completely
miscomprehended
the legal import of his finding when he failed to give effect to it
and dismissing the application solely on the
basis of his finding on
substance.
[18]
In
Nxele
v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services & Others
,
[3]
dealing with the issue of a transfer that offended the
audi
rule
, the Labour Appeal
Court stated the following:
[61]
In our law, the general rule is that, where a body or state
functionary is obliged to observe
the audi rule in a particular case,
it is required to observe that rule before it can take the decision
in issue (see Administrator
of the Transvaal & others v Traub &
others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 750C). In Traub’s case, the
learned Chief Justice explained the rationale for the requirement
that the audi rule should,
generally speaking, be observed before an
adverse decision is taken against a subject. He said at 750C:
“
.
. . that is, while [the body or official or functionary who is to
make such a decision] still has an open mind on the matter.
In this
way, one avoids the natural human inclination to adhere to a decision
once taken.”
[19]
Accordingly, the
honourable Judge President, as was then, found that a decision
to
transfer (demote in this instance) the employee
that is not preceded by
audi
rule
is
unlawful,
invalid and of no legal effect and can be set aside.
[4]
Congruently,
section 193(4)
of LRA enjoins the arbitrators to
determine any unfair labour practice dispute on terms that the
arbitrator deems reasonable, which
may include ordering
reinstatement, re-employment or compensation.
[20]
I agree with the Applicants’ counsel that the approach
adopted by the Arbitrator is fundamentally flawed in that he failed
to appreciate that, pursuant to his finding that the First Respondent
flouted the
audi
rule, the decision to demote the Applicants
was illegal and of no legal effect and stood to be set aside.
Therefore even on this
ground alone the review application should
succeed.
[21]
In the
light of the finding above
,
it is not necessary to deal with the legality of deductions
from
the Applicants’ salaries in order to recover the allegedly
overpaid salaries
in terms of
section 38 of
the Public Service Act.
Conclusion
[22]
I conclude that the Applicants’ demotion from positions
of Correctional Officer Grade 2, salary level 6, to Correctional
Officer
Grade 3, salary level 5 is unlawful and invalid and
constitutes an unfair labour practice.
The
Arbitrator clearly misconceived the nature of the inquiry and as a
result arrived at an unreasonable conclusion that a reasonable
arbitrator could not reach on all the material that was before the
arbitrator.
Relief
[23]
It would serve no purpose to remit this dispute to the Second
Respondent. It is patent, from my reasoning
above, that the
Applicants’ demotion is illegal and as such constitutes an
unfair labour practice.
[24]
On the issue of costs, there is no reason
to depart from the usual rule that costs follow the result.
Order
[25]
In the circumstances, I make the following
order:
1.
The arbitration award dated 11 September
2011 issued under case number PSGA1216-07/08 is reviewed and set
aside.
2. The award is
replaced with the following award:
“
1. The
demotion of the Applicants is both procedurally and substantively
unfair.
2. The First Respondent is ordered to
reinstate the Applicants to the position of Correctional Officer
Grade 2 at salary level 6
with retrospective effect and without loss
of remuneration and benefits.
3. The First Respondent is
ordered to reimburse the Applicants all the monies that were deducted
from their salaries
owing to their unlawful and invalid demotions.
4. The
First Respondent is ordered to pay costs.”
3.
The First Respondent is ordered to pay
costs of this application.
__________________
Nkutha-Nkontwana AJ
Judge of the Labour
Court of South Africa
APPEARANCES:
FOR THE APPLICANT:
Advocate M Pillemer SC
INSTRUCTED
BY:
Jafta Incorporated
FOR THE FIRST
RESPONDENT:
Advocate S Jakdud
INSTRUCTED BY
:
State Attorney
[1]
Sidumo & Another v
Rustenburg Platinum Mines Ltd & Others
[2007] 28 ILJ 405 (CC) at para 108
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 18
[3]
[2008] 12 BLLR 1179 (LAC).
[4]
Ibid para 69.