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[2015] ZALCD 57
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Department of Correctional Services v Mathenjwa and Others (D165/2013) [2015] ZALCD 57 (13 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not Reportable
Case no: D165/2013
DEPARTMENT OF
CORRECTIONAL SERVICES
Applicant
and
THEMBINKOSI MADALA
MATHENJWA
GENERAL PUBLIC
SERVICE SECTORAL BARGAINING COUNCIL
BHEKI KHUMALO
First Respondent
Second Respondent
Third
Respondent
Heard: 14 August 2014
Delivered:
13 August 2015
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1]
The
applicant seeks to review and set aside the arbitration award dated 3
December 2012, issued under case number GPBC1591/2012
by the third
respondent (Arbitrator), acting under the auspices of the second
respondent (GPSSBC).
[2]
The
dispute before the arbitrator related to the interpretation and
application of the OSD Resolution 2 of 2009 of the GPSSBC. The
main
issue was whether Mathenjwa was entitled to an adjustment from salary
level 9 to salary level 10 consequent upon his migration
from
non-centre based to a centre-based correctional service facility
[1]
.
The arbitrator had found in Mathenjwa’s favour, and ordered the
applicant to correct his migration by aligning his salary
structure
to salary scale or notch CB5 (salary scale 10) retrospective from 1
July 2010.
Condonation
application:
[3]
The
applicant seeks condonation in respect of the late filing of its
supplementary affidavit and amended Notice of Motion. In this
regard,
the delay was about 9 days, which delay was explained as being
attributable to the non-availability of the applicant’s
Counsel
to draft the supplementary affidavit.
[4]
The
application for condonation was not strenuously opposed. I have had
regard to the length of the delay, and even though the unavailability
of Counsel cannot be a valid excuse, I am satisfied that further
having had regard to the applicant’s prospects of success,
the
importance of the case to both parties, the interests of justice, and
other factors pertinent to such applications, the late
filing of the
supplementary affidavit and amended Notice of Motion should be
condoned.
Background:
[5]
Mathenjwa
had following an application in terms of the OSD Resolution 2 of
2009, migrated from a non-centre based correctional service
facility
to a centre based facility with effect from 1 July 2010. Prior to his
migration he was employed as an Assistant Director
at level 9 salary
scale. After the migration, he currently occupies the position of
Assistant Director, Centre Coordinator, Operational
Support at
Qalakabusha Correctional Centre in Empangeni.
[6]
The
applicant’s contention is that the position to which Mathenjwa
migrated to was on salary scale level 10. Mathenjwa had
nevertheless
lodged a grievance, contending that despite being a salary level 10,
his salary had not been adjusted accordingly
to be commensurate with
the new position.
[7]
The
grievance had reached the Area Coordinator Corporate Services and the
Area Commissioner, and according to Mathenjwa, both had
recommended
that his salary be adjusted accordingly. The Regional Office however
refused to make the necessary adjustments. A dispute
was then
referred to the GPSSBC, and when it remained unresolved, it came
before the Arbitrator for arbitration.
The arbitration
proceedings and the award:
[8]
Mathenjwa’s
evidence at arbitration was essentially that he was entitled to a
salary notch level 10 by virtue of his migration
to a post that was
at that level. He further submitted that the applicant had
misinterpreted and wrongly applied the provisions
of the OSD by
failing to adjust his salary to level 10.
[9]
The
applicant’s case at the arbitration proceedings as presented by
its human resources manager, Mr. Ian Shelembe and its
representative,
Chamane, was that in terms of the OSD, migration required that an
employee should be translated at minimum requirements.
In this case,
Mathenjwa was correctly migrated at salary level 9 according to
minimum requirements, and was therefore not entitled
to a salary
adjustment. Evidence was further led to the effect that the OSD did
away with salary levels and introduced scales linked
to the posts for
all employees appointed in terms of the Correctional Services Act.
The salary level claimed by Mathenjwa was applicable
to non-centre
based employees employed in terms of the Public Service Act, and
also, the OSD was not meant to be a promotion.
[10]
The
Arbitrator upon the interpretation of the OSD concluded that there
was no maximum or minimum translation or migration according
to the
OSD, and that upon the migration, Mathenjwa’s salary scale or
level should have been aligned to CB5 according to “Translation
Key”, which provided for salary level 10 and related to CB5
scales which had since been reviewed with effect from 1 May 2012.
The
Arbitrator also found that upon migration, the ‘discrepant
salary notch’ of Mathenjwa should have been aligned
to salary
level 10 and related to CB5 appropriate scale taking into account the
guiding principles and his experience.
The grounds of review:
[11]
The
applicant complains in general that the arbitrator’s conclusion
in the light of the evidence before him was irrational;
had failed to
properly apply his mind to the issue in dispute, and that his award
is not one that a reasonable arbitrator would
make.
[12]
In
particular, the applicant complains that the arbitrator in the award
stated it as being common cause that the post to which Mathenjwa
migrated was at salary level 10 and not 9, and further that by
reference to Annexure “B1” as being the translation
key
for the OSD which formed the basis for the conclusions. The applicant
contends that this was never common cause between the
parties at the
arbitration hearing, as the post of Centre Coordinator and Head of
Correctional Centre in Medium Institution fell
within salary scale of
CB5 and previously contained personnel in salary level 10 or 9 as
evident from annexure “B1”.
[13]
It
was further pointed out that before Mathenjwa was transferred, his
salary as Assistant Director at a non-centre based correctional
service facility on salary level 9 was R175 977.00. This was
increased to R210 267.00 after 1 July 2009 with the transfer still
on
level 9, and again to R232 344.00. A further salary adjustment to
R249 771.00 took place on 1 July 2010, which according to
the
applicant, fell within the previous salary level 10 as evident from
annexure “B” To this end, it was submitted
that Mathenjwa
had been upgraded to salary scale 10; that he was not in any event
entitled to be paid at salary level 10 by virtue
of his migration,
and that the OSD was not a promotional policy.
[14]
Lastly,
it was submitted that despite such evidence being placed before the
arbitrator, he had nevertheless still found that Mathenjwa
had not
been properly translated in accordance with the OSD and the
translation key.
[15]
The
heads of argument submitted on behalf of Mathenjwa appears to be a
cut and paste job in that in the introduction, reference
is
made to an “…
Order
reviewing and setting aside the arbitration of the 1
st
Respondent who dismissed her referral to the 2
nd
Respondent and found that her dismissal was fair”
(Sic). Thereafter, five pages are dedicated to reference to
authorities.
[16]
In
regards to the merits of the application, it was submitted on his
behalf that the award was unassailable as it was consistent
with the
evidentiary material before him, and that the arbitrator had not
misconstrued the Resolution.
[17]
It
was however conceded that Mathenjwa’s salary was adjusted upon
his translation to the centre based post and that salary
levels 9 and
10 fell within salary scale CB5. It was nevertheless submitted that
salary level 10 was inherently higher than salary
level 9 scale.
The legal framework in
respect of review applications:
[18]
The review
test is as set out in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2]
is whether
the
decision reached by the commissioner is one that a reasonable
decision-maker could not reach. The Supreme Court of Appeal in
Herholdt
v Nedbank Ltd
[3]
held
further that whether there is a defect in the conduct of the
proceedings which amounts to a gross irregularity as contemplated
by
s 145(2) (a) (ii) involves an enquiry as to whether the
arbitrator misconceived the nature of the inquiry or arrived at
an
unreasonable result.
[4]
[19]
The
net effect of the interpretation of the
Sidumo
test in
Herholdt
is that even where the reasons given by an arbitrator may be wrong
and there has been some irregularity, the decision may not
necessarily be set aside, if on the basis of the material placed
before the commissioner, the outcome was a reasonable one. However,
in accordance with the
Sidumo
test, there will be cause to set aside the award on review, if that
decision was “entirely disconnected with the evidence”
or
is “unsupported by any evidence” and involves speculation
by the arbitrator
[5]
.
[20]
When
dealing with awards emanating from a referral in terms of section 24
of the Labour Relations Act, the
Sidumo
test is still applied. Significant however for the purposes of the
review application before the Court, and further in view of
the basis
upon which the award is attacked, is that the pertinent question to
be posed and answered is not whether the award in
issue was correct
or not, but whether the arbitrator acted fairly, and considered and
applied his mind to the issues before him
[6]
.
Evaluation:
[21]
Having
had regard to the purpose of the Resolution, the relevant clauses as
shall be pointed out below, the interpretation to be
imputed to those
relevant clauses and annexure “B1” to the Resolution, I
am in agreement with the applicant that the
arbitrator arrived at a
decision that no reasonable arbitrator could have come to on the
material placed before him. In essence,
the arbitrator in coming to
his conclusions did not act fairly, nor did he consider and apply his
mind to the issues before him.
These conclusions are based on the
following;
[22]
The
purpose of section 24 is to resolve disputes where a party to an
agreement is in breach of the provisions of that agreement
by failing
to apply its terms either correctly or at all
[7]
.
In
Western
Cape Department of Health v Van Wyk and Others
[8]
the Labour Appeal Court re-emphasised that;
“
In
interpreting the collective agreement the arbitrator is required to
consider the aim, purpose and all the terms of the collective
agreement. Furthermore, the arbitrator is enjoined to bear in mind
that a collective agreement is not like an ordinary contract.
Since
the arbitrator derives all his/her powers from the Act he/she must at
all times take into account the primary objects of
the Act...”
[25] Central to
Mathenjwa’s dispute is that having been migrated to a centre
based post (ASD: CC Operational Support: Qalakabusha
Correctional
Centre: Empangeni Area) with effect from 1 July 2010, his salary was
not accordingly adjusted to be in line with the
level or salary scale
commensurate with the position in terms of the OSD. As I understand
the argument, despite his migration to
post level 10 as approved on 1
July 2010, he remains being remunerated at post level 9. These
contentions are made despite it being
conceded on his behalf that his
salary was adjusted upon his translation to the centre based post and
that salary levels 9 and
10 fell within salary scale CB5.
[26] Clause 1 of the
Resolution provides that the agreement gives effect to the PSCBC
Resolution 1 of 2007 in providing an Occupational
Specific
Dispensation for Correctional Officers. The objectives of the
Resolution as found in clause 3.1 provide
inter alia
that:
“
3.1
To introduce an Occupational Dispensation (OSD) for Centre Based and
Non-Centre Based Correctional Officials that provide
for:
3.1.1 a unique salary structure
3.1.3 pay progression
3.1.4 grade progression based on
performance
3.1.8 introduction of differentiated
salary scales for the different categories of Correctional
Officials.”
[27] Clause 6.1
Translation Measures
“
6.1.1 Centre
Based and Non Centre Based Correctional Officials, as defined in this
agreement shall translate to OSD, which shall
provide for the
following:
(1)
Unique Remuneration Structure
The introduction of
a unique implementation structure, with 3% increments between
notches.
(2)
Differentiated Dispensation
Differentiated salary structures for
Centre Based and Non Centre Based Correctional Officials attached as
Annexure A1 (Centre Based)
and Annexure A2 (Non Centre Based) and as
summarized hereunder.”
A
table is then provided which links the OSD Band with the Occupational
Bands. Insofar as this pertains to Mathenjwa, he had migrated
to CB5
in relation to the OSD band and by virtue of his position as
Assistant Director, Centre Coordinator, Operational Support,
he falls
under occupational group C.
Clause
6.1.1 (3) provides that:
“
Centre Based
Correctional Officials shall translate to the appropriate salary
scales in accordance with
Annexure
B1
”
Clause
6.1.1(4) provides that;
“
Non-Centre
Based Correctional Officials shall translate to the appropriate
salary scales in accordance with
Annexure
B2
”
[28] Clause 7 makes
provision for the translation measures for correctional officials,
and clause 7.1 provides the principles under
which translation to the
OSD for correctional officials shall be subject to. Clause 7.2
provides that:
“
Correctional
officials shall translate to the
appropriate
salary scales in accordance with the posts that they currently
occupy.”
(My
emphasis)
Clause 7.3 provides that:
“
Translation
measures to facilitate translation from the existing dispensation to
the appropriate salary scales attached to the OSD
are based on the
following principles:
7.3.1 …
7.3.2 A minimum translation will be
implemented to the appropriate salary scale attached to the posts
(and grades in respect of
production levels). As contained in
Annexure B1 and B2”
[29] Further pertinent to
this dispute is Annexure ‘A1’ as Mathenjwa was centre
based following the migration. The annexure
sets out salary notches,
percentages and occupational levels. By virtue of his position after
migration, as per the annexure, his
position in accordance with the
OSD bands is at CB5.
[30] Annexure ‘B1’
is the translation key which shows the translation measures from the
salary scales under the old
system, 1 to 12 to the OSD bands from CBA
to CB6 (Centre Coordinator and Head of Correctional Centre in a large
Institution).
[31] When implementing
the OSD, the applicant’s contention was this implied that the
salary levels were done away with, and
that salaries for officials
were to be referred to as salary scales which allowed for a single
post to be linked to more than one
salary grade (scale) in order to
facilitate grade progression as per clause 10 of the Resolution. In
effect therefore, this implementation
meant that all officials who
were on salary level scale of 9 or 10 prior to the OSD
implementation, were then translated to CB5
within the minimum notch
of R210 267.00 to R347 544.00 upon progression. I did not understand
the submissions made on behalf of
Mathenjwa to dispute this
understanding. In my view, it is in line with the objectives set out
in clause 3 of the Resolution, and
also with the provisions of clause
10.
[32] The arbitrator
however had a different interpretation, and had concluded that upon
an interpretation of clause 7.3.2, the appropriate
salary scale
attached to the post to which Mathenjwa had migrated was at level 10
and not nine. The arbitrator found that there
was no minimum or
maximum translation or migration according to OSD, and an official
either qualified or did not. Since Mathenjwa
qualified and was
therefore migrated, upon his migration his salary scale or level
should have been aligned to CB5 according to
the “Translation
Key”, which provided for salary level 10 and relates it to CB5
scales ranging from R210 267.00 to
R347 544.00 then. The scales had
however been reviewed in accordance with “Translation Key”
dated 1 May 2012.
[33] When interpreting
collective agreements, one must have regard to the trite rules of
interpretation. Thus in the absence of
ambiguity the words contained
in the collective agreement must be given their plain, ordinary and
literal meaning. Where relevant
however, regard must also be had to
the application of the parol evidence rule.
[34] The basis of the
Arbitrator’s conclusions was that it was common cause that the
post to which Mathenjwa had migrated
was at salary level 10 and not
9. The applicant disputes that this issue was common cause, and
points out that the post of Centre
Coordinator and Head of
Correctional Centre in Medium Institution clearly fell within the
salary scale of CB5, which previously
contained personnel that was
either at salary level 9 or 10 as evident from Annexure “B1”.
The arbitrator in his interpretation
clearly missed this point.
[35] In terms of clause
6.1.1 (3) of the Resolution, centre based correctional officials
shall translate to the
appropriate salary scales
in accordance
with Annexure “B1”. This annexure formed the basis of the
Arbitrator’s conclusions and is the “Translation
Key”
which shows the translation measures from the salary scales under the
old system, 1 to 12 to the OSD bands from CBA
to CB6.
[36] Mathenjwa’s
application for migration was approved with effect from 1 July 2010.
At the time the he sought migration,
he held the position of Regional
Inspector KZN, Assistant Director at a non-centre based correctional
service facility, which according
to the applicant was at level 9
salary scale. He currently holds the position of Assistant Director,
Centre Coordinator, Operational
Support after the migration on 1 July
2010, which is at salary level 10.
[37] In the light of the
above, and having considered the translation measures from the salary
scales in the old system to the OSD
bands as contained in Annexure
‘B1’, it is apparent that the Arbitrator misconstrued the
purpose of these translation
measures, and imputed an interpretation
that is completely at odds with the objectives.
[38] Mathenjwa prior to
the migration was on salary notch R232 344.00. As per Annexure “B1”,
that salary scale is at
level 10 and in accordance with the OSD,
which now falls into CB5 scale. It was not disputed that following
the migration, his
salary was adjusted to R249 771.00 on 1 July 2010,
which fell within the previous salary level 10, and further to R274
755.00 which
again still falls under the old salary level 10 and the
new CB5 scale.
[39] I fail to appreciate
Mathenjwa’s contentions that despite his migration to post
level 10 as approved on 1 July 2010,
he remains being remunerated at
post level 9. The salary range after translation at level 9 which is
also at CB5 scale as outlined
in annexure ‘B1’ is between
R210 267.00 and R236 655.00. It being common cause that his current
salary is R274 755.00,
which is at CB5 scale and the old salary level
10, it is difficult to appreciate what could have persuaded the
arbitrator to arrive
at the conclusion that on a reading of clause
7.3.2, there cannot be a minimum or maximum translation or migration
according to
the OSD, and that Mathenjwa was therefore entitled to a
further adjustment.
[40] The arbitrator’
finding as above is completely at odds with various provisions of the
Resolution including those of clause
6.1.1 (3) which provides that
Centre Based Correctional Officials shall translate to the
appropriate salary scales
in accordance with Annexure B1;
clause 7.2 which provides that Correctional officials shall translate
to the
appropriate salary scales in accordance with the posts that
they currently occupy.”
, and lastly, with clause 7.3.2,
which provides that a
minimum
translation will be implemented
to the appropriate salary scale attached to the posts (and grades in
respect of production levels).
In finding that Mathenjwa was entitled
to a further adjustment, the arbitrator also placed reliance on the
“Translation Key”,
which provided for salary level 10 and
related to CB5 scales which had since been reviewed with effect from
1 May 2012. It is not
clear under what circumstances the arbitrator
took the 1 May 2012 Translation Key into account, in view of the fact
that the adjustment
claimed related to a translation that took place
on 1 July 2010 and long before the review.
[41] Having gone through
the record of arbitration proceedings and submissions made on behalf
of Mathenjwa, it can be inferred that
he clearly misconstrued the
migration as some form of promotion when this was not the case. The
effect of the translations per
the OSD is merely to elevate officials
to a higher salary scale without affecting their occupational grade.
It is not meant to
gratuitously grant promotions. Mathenjwa is
already on an aligned scale of level 10 in the light of the salary he
is currently
earning, and the applicant’s implementation of the
Resolution in this regard cannot be faulted.
[42] Even more perplexing
however is the order of the arbitrator which
prima facie
is
incapable of being enforced even if the applicant wished to abide.
The order reads as follows;
“
The
respondent (applicant in this application) is ordered to;
A.
With
retrospective effect from 1/7/2010 correct the migration of the
applicant (Mathenjwa) by aligning his salary structure to an
applicable salary scale or notch CB5 salary level 10; according to
“Translation Key” on page 36 of bundle “A”,
taking into account all guiding principles including but not limited
to his experience as per paragraph 11.2 of OSD
(Sic)
B.
Further
pay the applicant the difference between what he earned and what he
was supposed to be paid had his alignment been done
(correctly) at
migration.
C.
In
compliance with A and B above, take into account and apply all annual
reviews or adjustments of the “Translation Key”
as per
bundle “C””
[42] It is apparent from
the order that the arbitrator failed to appreciate the purpose of
applications in terms section 24 of the
LRA and his role in that
regards. Rather than resolving the dispute, the order is so ambiguous
and incomprehensible that it can
freely be said that it created more
disputes for the parties than resolve them.
[43] By failing to
appreciate this apparent purpose of the Resolution, and concluding
that Mathenjwa was entitled to anything more
than he was as a result
of the migration, the arbitrator failed to act fairly, and also
failed consider and apply his mind to the
issues before him. As a
result he arrived at conclusions which no reasonable decision maker
could have arrived at in the light
of the material before him.
[44] As already
indicated, I have had regard to the record of the proceedings and
further having had regard to the protracted history
of this matter,
no purpose will be served by remitting it back to the second
respondent. I have further had regard to the issue
of costs, and it
is my view that considerations of law and fairness militate against
such an order. Accordingly, the following
order is made.
Order:
i.
The
late filing of the applicant’s Supplementary Affidavit and
Amended Notice of Motion is condoned.
ii.
The
arbitration award issued by the third respondent under case number:
GPBC159/2012 dated 3 December 2012 is reviewed and set aside.
iii.
The
above award is replaced substituted with an order that:
(a)
The
Department of Correctional Services interpretation and application of
the Occupational Specific Dispensation, Resolution 2 of
2009 in
regards to the migration of Mr TM Mathenjwa from non-centre based
correctional service facility to a centre based facility
declared is
declared to be correct.
(b)
The
salary adjustments made by the Department of Correctional Services in
respect of Mr. TM Mathenjwa following the latter’s
migration
was in terms of the provisions of the Occupational Specific
Dispensation, Resolution 2 of 2009.
iv.
There
is no order as to costs.
_________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
On behalf of the
Applicant:
Adv. NSV Mfeka
Instructed
by:
State
attorney
On
behalf of the Third Respondent:
Mr. P Shangase of AP
Shangase & Associates
[1]
Defined under
clause 2 of the resolution as;
“
Centre
Based Correctional Officer”:
“…
all
categories of employees, based at correctional centres and
Social Integration Offices and include all other employees
who fall
under the establishment of the Correctional Centre, working 45 hours
per week”
“
Non-Centre
Based Correctional Official”
“
means
all categories of employees, not referred to as centre based
correctional officers, working 40 hours per week”
[2]
[2007] 12 BLLR 1097
(CC), held that
[at para 110]:
[3]
At para [12]
[4]
2013 (6) SA 224
(SCA) at para [25]
[5]
At para [13]
[6]
SA Municipal
Workers Union v SA Local Government Bargaining Council and Others
(2012) 33 ILJ 353 (LAC) at para [10]
[7]
PSA obo
Liebenberg v Department of Defence and Others
(2013) 34 ILJ 1769 (LC) at para [2]
[8]
(2014) 35 ILJ 3078
(LAC) at para 22. See also
North
East Cape Forests v SAAPAWU and Others
[1997] 6 BLLR 711
(LAC)