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[2015] ZALCD 36
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Sithole and Others v South African Local Government Bargaining Council and Others (JR1940/12) [2015] ZALCD 36 (12 June 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Not Reportable
Case no: JR1940/12
In the matter between:
JACKSON SITHOLE AND 12
OTHERS
Applicants
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL First
Respondent
MMAMAHLOLA
GLORIA RABYANYANA N.O
Second Respondent
CITY OF JOHANNESBURG
Third
Respondent
Heard:
05 November 2014
Delivered:
12 June 2015
JUDGMENT
Nkutha-Nkontwana
AJ
Introduction
[1]
In
this application the Applicants seek to review and set aside an award
in terms of which the Second Respondent (“
Arbitrator”
)
held that they were never demoted. The Third Respondent is opposing
the application.
Condonation
[2]
The
applicants served and filed their Notice of Motion late by almost
five months despite having filed their founding affidavit
on time. In
their application for condonation, which is unopposed, the Applicants
furnished an adequately reasonable explanation
for the delay. The
need to consider the prospects of success at this stage is
accordingly obviated.
[3]
Therefore,
I deem it fair and just to grant the indulgence.
Factual
background
[4]
The
Applicants were employed as security guards in the then Security
Department of the Third Respondent. In 2001, at the dawn of
Johannesburg Metro Police (“
JMPD
”),
the Security Department assimilated into JMPD. Consequently, the
Applicants were transferred to the By-law Management
Unit (“
BMU
”)
of the JMPD.
[5]
According
to the Applicants, the migration process to JMPD meant that they were
automatically placed as Law Enforcement Officers
(“LEOs”).
In essence, since there was no position called security guard in the
JMPD organogram, they became LEO’s,
so they assert.
[6]
Whilst
in transition, the Applicants were requested by Mr Maila, their
supervisor and sole witness during the arbitration proceedings,
to
assist JMPD breakdown section on voluntary basis. The volunteers were
assured that they would return to their positions as LEO’s
once
the vacancies at the breakdown section had been filled. The
Applicants agreed to the transfer to breakdown section as transients
solely to assist the JMPD.
[7]
It
would seem that nothing changed in terms of the Applicants’
titles and benefits they were transferred with from the old
structure. To this end, their pay slips still reflect their
designations as “guards” despite the reality that those
positions no longer exist. The said state of affairs persisted
without any challenge up until June 2008.
[8]
In
June 2008, the Third Respondent entered into a collective agreement
with South African Municipal Workers Union (“
SAMWU
”)
pursuant to employees’ salaries were adjusted, subject to the
years of service. Accordingly, employees who had 6
to 12 years’
experience were moved to median range of the Third Respondent’s
salary scale. Whist those employees who
were in the employ of the
Third Respondent for more than 12 years were moved to the maximum
salary scale.
[9]
The
Applicants, still “assisting” at the breakdown section at
that time, were treated as breakdown drivers who were
placed at the
lower salary scale of junior operators and their salaried were
adjusted as such. The Applicant, however, asserts
that they ought to
have been treated as LEO’s for purpose of salary adjustments.
To bolster that assertion, the Applicants
referred to one colleague,
Mr Muthaphuli, who is also in the breakdown section as a volunteer
but correctly paid as an LEO.
[10]
Accordingly,
the Applicants avowed that the Third Respondent demoted them by
designating them as breakdown drivers as oppose to
LEO’s.
Grounds of review
[11]
This
application is premised mainly on the following grounds of review:
11.1 The Arbitrator
committed a reviewable irregularity by finding that Muthaphuli was
not confronted with allegation that he volunteered
alongside with the
Applicants and is correctly paid as a LEO;
11.2 The Arbitrator
committed a reviewable irregularity in rejecting Maila’s
evidence in relation to chief of police
under the circumstances where
the chief of police was called not to testify; and
11.3
The Arbitrator committed a reviewable irregularity in accepting that
the applicants are still designated as guards whilst
the Third
Respondent’s organogram does not provide for guards, yet not
finding that the Applicants were LEO’s.
Legal principles and
analysis
[12]
In
Herholdt
v Nedbank Ltd
[1]
the
SCA stated that it would be justifiable in terms of the
Sidumo
[2]
test
to ‘set aside an award on review if the decision is ‘entirely
disconnected with the evidence’ or is ‘unsupported
by any
evidence’ and involves speculation by the commissioner’.
Whilst in
Goldfield
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & Others
[3]
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.”
[13]
In
this instance, it is common cause that Applicants were transferred to
the breakdown section and are paid salaries which are less
than what
LEO’s are paid. In fact, the record of arbitration clearly
shows that the transfer was consensual between the Applicants
and the
Third Respondent. Therefore, the issue that the Arbitrator was seized
with is whether or not the Applicants’
transfer
to the breakdown section resulted in material reduction of the
remuneration, responsibilities and status, which, if proven,
constitutes demotion.
[4]
[14]
The
commissioner started her inquiry on a correct footing by seeking to
establish the Applicants’
status
quo ante
.
To this end, she states that:
“
In
determining whether the applicants were demoted I must establish and
be convinced that they were LEO’s. The onus is on
the
applicants to prove that they were LEO’s and later demoted to a
lower grade of breakdown.”
[15]
As
stated above, it would seem that the Applicants took no issue with
their transfer to the breakdown section prior to June 2008
when the
collective agreement on salary adjustments was concluded. Their
status remained as was with the erstwhile department and
it would
seem that their salaries were never adjusted to be in line with those
of LEO’s. In essence, for 9 years of their
transfer to JMPD
they blissfully worked at the breakdown unit despite their adamant
assertion that they were transients.
[16]
The
Third Respondent disavowed that the Applicants were ever appointed as
LEO’s. In that regard Ms Maribe gave the following
detailed
explanation on eligibility and job responsibilities of a LEO
position:
“
Law
enforcement officers do exactly what their designations say. They
enforce the law. They enforce bylaws of the city, they work
jointly
with the Metro Police Officers because Metro Police officers are also
law enforcement officers it is just that their
ranks are
different in terms of levels. So, they are jointly responsible for
crime prevention, bylaw enforcement and traffic law
enforcement…
LEO’s like Metro Police
Officers must be trained in all the bylaws of the city. That includes
the writing of files, the citation
that goes with relevant
infringement because if somebody contravenes a bylaw of the city an
LEO must give that person a fine...They
also get trained on basic
law, like criminal law so that they understand various crimes…
[T]hey also get
trained on police ethics because they are also dealing with the
community, customer care and what we call
point duty, just to be able
to control traffic…And after that they get certificate to the
effect that they completed the
law enforcement course.”
[5]
[17]
On
the contrary, the Applicants failed to submit any proof that indeed
they had been appointed and trained as LEO’s. Mr Maila
gave
equivocal answers when challenged on this issue. To make matters
worse, the Applicants could even not explain the source of
their
appointments as LEO’s. Mr Maila fudged this issue. He gave
glaringly contradictory evidence to the effect that the
transfers and
appointment of the Applicants as LEO’s was pursuant to the
agreement between the Third Respondent and unions.
But under
cross-examination he changed tune and testified that the transfers
were done in accordance with the Council resolution
which he failed
to produce in any event. In my view, that was the demise of the
Applicants’ case.
[18]
Furthermore,
the Applicants never led any evidence to prove that they did assumed
responsibilities as LEO’s in 2001. It is
clear from the record
of the arbitration proceedings that they were greeted by breakdown
driver positions when they transferred
to JMPD. Even though as
transients initially, so they asserted, they are still in that
section to date. For that reason, it does
not avail the Applicants to
now argue that the Arbitrator ought to have found that they are LEO’s
simply because the job
titled security guard no longer exists.
[19]
It
follows that the Arbitrator was spot on in her finding that the
Applicants failed to prove that they were ever appointed as LEO’s.
There is nothing unreasonable in that conclusion.
[20]
What,
in essence, triggered the whole dispute is the salary adjustment that
took place in 2008. Hence, it is obvious from the way
the Applicants
crafted their case and the relief sought that they are only
interested in being remunerated as LEO’s even
if they remain in
the breakdown section. Much was made in argument of Mr Muthaphuli’s
pay slip and the fact that the Third
Respondent was, in any event,
arbitrarily paying him as the LEO whereas he was also a breakdown
driver. That argument cannot be
sustained since nothing turns on that
evidence in light of my finding above. However, if it is anything to
go by, then the Applicants’
dispute is all about salary
adjustment which can only be promotional since they were never
appointed as LEO’s.
[21]
In
view of the above, this is an ill-starred application, but the
Applicants can still avail themselves to other recourses at their
disposal.
Conclusion
[22]
In
the circumstances,
the
Arbitrator’s
arbitration
award constitutes a reasonable finding and I find no reason to set it
aside.
[23]
On
the issue of costs, on account of a continuing relationship between
the parties, I am of the view that the requirements of law
and
fairness dictate that no order as to costs should be made in this
matter.
Order
[24]
In
the circumstances, the application is dismissed with no order as to
costs.
__________________
Nkutha-Nkontwana AJ
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT:
Advocate L Segeels
Briefed by Hogan Lovells
Attorneys
FOR THE FIRST
RESPONDENT:
Advocate H Viljoen
Briefed
by Mcedisi Ndlovu & Sedumedi Attorneys
[1]
Herholdt v Nedbank Ltd
[2013]
34 ILJ 2795
(SCA)
at para 13.
[2]
Sidumo & Another v Rustenburg Platinum
Mines Ltd & Others
[2007] 28 ILJ
405 (CC) at para 108.
[3]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 18
[4]
Gorgan
Work Place
law
9
th
Ed, at 256; and
Nxele v Chief
Deputy Commissioner, Corporate Services, Department of Correctional
Services & Others
[2008] 12 BLLR
1179
(LAC) at paras 81 to 82.
[5]
See page 103 of the transcribed record lines 15
to 25; and page 105 lines 1 to 25.