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[2015] ZALCD 56
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KwaZulu-Natal Department of Transport v Hoosen and Others (D 259/11) [2015] ZALCD 56; (2016) 37 ILJ 156 (LC) (17 September 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
CASE
NO: D 259/11
DATE:17
SEPTEMBER 2015
In
the matter between:
KwaZulu-Natal
Department of
Transport
..............................................................................
Applicant
And
AM
Hoosen and 23
Others
...........................................................................................
First
Respondent
GPSSBC
.....................................................................................................................
Second
Respondent
Commissioner
P
Stilwell
.............................................................................................
Third
Respondent
Mkabela,
MS
.............................................................................................................
Fourth
Respondent
Heard:
3 February 2015
Delivered:
17 September 2015
Summary:
Protected promotion – meaning of promotion
Judgment
WHITCHER
J
Introduction
[1]
This is an application to review and set
aside an arbitration award handed down by the Third Respondent (the
commissioner) on 30
November 2010 in the GPSSBC, under case number
PSGA 444-08/09. The late filing of the review application,
filed 4 days late,
is condoned. The first respondents, AM Hoosen and
23 others, oppose the review.
[2]
The commissioner found that the promotion
of the fourth respondent, Mr Makabela, to the rank of Chief
Provincial Inspector was unfair
towards the first respondents. First,
he found that Mr Makabela did
not meet the
minimum requirement even for the lower post used as a
‘
launching platform’ for his
promotion. Second, Mr Makabela’s rise in rank was not in
accordance with prescripts regulating
promotions in the public
service. His promotion above the first respondents appeared
arbitrary, irregular, unfair and the
product of a quirk of fate.
[3]
The commissioner did not set aside Mr
Makabela’s appointment but instead ordered that the department
remedy the unfair labour
practice towards the first respondents “by
initiating a recruitment process” for the appointment of
another Chief Provincial
Inspector. The commissioner ordered costs
against the applicant for the day of 7 July 2010.
Background
[4]
In January 2003, Mr Makabela, then
occupying a post level 8 position as a Principal Provincial Inspector
(PPI) within the department’s
Public Transport Enforcement
Unit, was selected to provide bodyguard services to the provincial
MEC for Transport in a new Special
Operations Task Team. This
career move was characterised by the department at the time as a
transfer. Mr Makabela kept
the same salary and job grade
although he acquired the new designation of Senior Protection
Officer.
[5]
In November 2003, while deployed as a
Senior Protection Officer, Mr Makabela was informed that his ‘salary
position’
was upgraded from post level 8 to 9.
[6]
In 2007, the MEC became Premier of
KwaZulu-Natal. Mr Makabela wrote to a senior manager asking to
formally return to his erstwhile
unit, the PTEU, as a uniformed
officer, with a ‘translation’ in rank. He added
that his former colleagues in
the PTEU made him feel unwelcome.
This had something to do with their not saluting him for, in uniform,
Mr Makabela still
had the same number of bars upon his shoulders as
they did.
[7]
In August 2007, with his current salary
unaffected, Mr Makabela returned to the PTEU he had left as a
Principal Provincial Inspector
(PPI) in 2003. Although his
designation in the special operations team was Special Protection
Officer at post level 9, he
initially took up the rank once again of
a PPI in the PTEU.
[8]
His trade union complained that Mr Makabela
should in fact hold an equivalent rank in the PTEU of Chief
Provincial Inspector (CPI)
and not PPI as the former was the
equivalent grade within the PTEU commensurate with grade of the post
Mr Makabela occupied in
the special operations team. The
department complied with this request on the authority of Ms
Cunliffe, Senior General Manager,
Corporate Services. Cunliffe
referred to the process as a ‘translation in rank’.
[9]
The first respondents initially pursued a
grievance against the department, seeking similar elevation in rank
to Mr Makabela.
They claimed that they too had provided
bodyguarding services for extended periods but had, inconsistently,
not been upgraded.
Their dispute ended up as an unfair labour
practice dispute relating to promotion. The relief they sought
was either being
upgraded themselves, compensation or the setting
aside of Mr Makabela’s promotion.
The
arbitration award
[10]
On the evidence before him, the
commissioner accepted that Mr Makabela did not have a senior
certificate, a minimum requirement
for the post of PPI and CPI.
He found that “it offends one’s sense of logic and
fairness that a person who should
never have been appointed to a post
in the first place could have used that post to ascend to an even
more senior position.”
[11]
The commissioner also found that Mr
Makabela’s assumption of the post of CPI in the PTEU
constituted a promotion. He
accepted the first respondents’
argument that promotions in the public service could only occur by
means of a specific process,
involving advertisements and open
competition, which did not occur in Mr Makabela’s case.
The arbitrary and irregular
manner in which he became a CPI amounted
to an unfair labour practice relating to promotion in that the
individual complainant
PPIs were wrongly blocked and prevented from
applying for promotion to the CPI post Mr Makabela now occupied.
Grounds
of Review
Jurisdiction
[12]
In the first instance, the applicant
challenges the jurisdiction of the GPSSBC to have heard the matter.
It points out that
the first respondents’ initial complaint
took the form of grievance in which they sought elevation to
Makabela’s grade.
Consequently, the real dispute was one
of mutual interest. The failure by the commissioner to
appreciate his lack of jurisdiction
is a reviewable irregularity.
[13]
The
applicant correctly point out that jurisdictional rulings are made by
the reviewing court on objectively justifiable grounds,
not on the
reasonableness test set out in
Sidumo
[1]
.
They incorrectly, though, try to confine the first respondents
to the name they gave their dispute at its genesis.
Neither the
original grievance form, nor the certificate of outcome issued by a
commissioner is wholly determinative of the nature
of the dispute.
Instead, as the Constitutional Court held in
CUSA
v Tao Ying Metal Industries and Others
,
“a commissioner is required to take all facts into
consideration including the description of the nature of the dispute,
the outcome requested by the Union and the evidence presented during
the arbitration”
[2]
.
[14]
The first respondents contend that the
surrounding facts, the way the dispute was articulated at the GPSSBC
and the relief sought
in closing argument all placed their dispute
within the ambit of section 186 (2) (a) of the LRA. They argue
that an original
and separate grievance seeking their own upgrading,
while permeating aspects of the promotion dispute, did not destroy or
exclude
their claim that they had suffered an unfair labour practice
when Mr. Makabela was promoted above them. This submission is, in my
view, objectively right. Consequently, the commissioner
committed no irregularity in not stopping the case at the outset
for
lack of jurisdiction.
Was
there a promotion?
[15]
The centrepiece of the first respondents’
case before the GPSSBC was that Mr Makabela’s promotion by the
department
was unfair to them. The applicant disputes that any
promotion occurred. This too is a jurisdictional issue.
If
there was no promotion but simply a ‘translation in rank’
as the applicant contends, then the GPSSBC lacked the power
to
determine the fairness of such an event.
[16]
I sympathise with the commissioner who
remarked that the evidence before him about how Mr Makabela came to
attain the rank of CPI
was not very clear. Despite the
department’s stout semantic efforts to characterize Mr.
Makabela’s increase in
salary and rank between the time he left
the PTEU in 2003 and rejoined it in 2007 as anything but a promotion,
this position is
ultimately untenable. It does not matter
precisely when the promotion occurred, or what the employer purported
to call it;
a promotion plainly happened. It may have been in
2003 when Mr. Makabela’s ‘salary position’ was
upgraded.
It may have been in 2007, when a senior manager
authorised another bar upon his shoulder as a CPI. It is quite
possible that
both of these career events qualify as a promotion, the
one enabling the other.
[17]
The
applicant’s argument that Mr. Makabela was not promoted in 2003
but simply benefited from his Special Protection Officer
post being
upgraded from level 8 to 9 cannot be sustained. The department
promoted Mr. Makabela the moment they permitted him to
remain in the
upgraded post and afforded him the appropriate higher salary.
[3]
[18]
The argument that, after Mr. Makabela’s
transfer back to the PTEU, the decision to change his designation
from a PPI to CPI
was not a promotion is also unsustainable.
The Concise Oxford Dictionary
(9 ed), defines ‘promote’ as to advance or raise (a
person) to a higher office, rank. When Makabela was transferred
back
to the PTEU, it was initially at the rank of PPI, albeit with his
grade 9 salary level intact. The department may well
have
thought they were merely correcting an error in assigning (or
‘translating’ to) him the rank commensurate with
the
grade he held in the special operations unit. However, by
definition, this act was a promotion. The other processes the
applicant mentions to describe this career event, such as
‘translation with post’, find no expression in the
regulations
prescribing how employees in the public service move from
one rank to another.
[19]
As a result the commissioner was
objectively justified, on the evidence before him, in finding that a
promotion occurred.
Was
the promotion unfair?
[20]
The first respondents bore the onus in this
matter. After a discovery application, documents recording the
educational qualifications
of Mr. Makabela were entered into
evidence. The commissioner found that these tended,
prima
facie
, to show that Mr. Makabela, who
was joined in the proceedings, did not possess the minimum
educational qualifications even for
the post of a PPI. As
expected, evidence also showed that a senior certificate was a
requirement for the position of CPI.
Notwithstanding the
absence of any evidence of such a qualification in Mr. Makabela’s
personnel file, a memorandum from Mr.
P. Govender, of Management
Advisory Services on 15 October 2007, contains the probably erroneous
assurance that Mr. Makabela met
the minimum requirements for
elevation in rank to a CPI. Ms Cunliffe relied on this
information in purporting to ‘translate’
Mr. Makabela’s
rank. Mr. Makabela did not avail himself of the opportunity to
rebut any of the documentary proof that
he lacked a senior
certificate qualification, nor did the department manage to do so.
[21]
The commissioner’s finding, not
particularly strongly challenged in argument by the department, was
that this alone was sufficient
to render Mr. Makabela’s
promotion unfair. The first respondents were wrongly blocked in
future from ascending to a
CPI position because Mr. Makabela now
occupied it. This finding is not unreasonable whether or not,
at the time Mr. Makabela
was promoted, a vacant post existed.
It seems logical that with Mr. Makabela’s occupying a senior
rank in PTEU, the
career-prospects of his juniors will suffer some
limitation. In addition, Mr. Makabela’s colleagues will,
on a day
to day basis, have to treat someone who has no right to
command them, as their superior officer. This is not a trivial
issue
in a uniformed and rank-conscious environment such as law
enforcement. This problem is confirmed by Mr. Makabela’s
original
motivation to have his special operations unit rank
‘transferred’ to him, which was that his colleagues
considered
him their equal and declined to salute him.
[22]
The commissioner also accepted the first
respondents’ argument that Mr. Makabela’s promotion did
not occur within the
framework set out in Part VII of the Public
Service Regulations. The department found it difficult to
contest this aspect
of the case. They had placed all their eggs
in the basket of denying any promotion took place. The best
they could
do to deny unfairness was to contend that Mr. Makabela was
not promoted to any
vacant
CPI post. He was simply assigned his proper rank.
[23]
Having considered the regulations setting
out the process by which posts in the public service are supposed to
be created and filled
and how promotions are supposed to take place,
I am not sure that the fact that Mr. Makabela was promoted against a
non-vacant,
non-existent, or specially created post assists the
applicant. It is, though, unnecessary for me to decide
this point.
Even if the commissioner’s decision-making
was unreasonable in finding that the promotion of Mr. Makabela was
irregular by
want of compliance with the Public Service Regulations,
I have already endorsed his finding that Mr. Makabela’s
promotion
was irregular by want of his meeting the minimum criterion
for the position. This irregularity persists whether Mr.
Makabela
assumed a vacant CPI post or was simply assigned a higher
rank.
Remedy
[24]
The
remedy the commissioner ordered would, in the highly regulated world
of the public service, cause a post to have to be created
when there
was no evidence that there was objectively a need for another CPI
position in the PTEU. A remedy that places an
unfairly treated
employee in an available post he or she would certainly have been
promoted to, but-for the unfair action of the
employer is perfectly
reasonable. Imposing, as a remedy for the unfairness
experienced by the individual respondents, the
creation and filling
of a post that in the ordinary course would not have existed seems to
me, however, to be an overreach on the
part of the commissioner. His
decision on remedy is one that another decision maker could not
reasonably have arrived at
based on the totality of the evidence.
[4]
It is overly onerous to the employer, imposes a long-term
inefficiency in its operations and is logically unconnected to the
nature
of the unfairness the evidence revealed the individual
respondents underwent. The unfairness experienced by them was
of a
negative nature. In other words, they did not establish a
case that any of them ought to have been promoted to a CPI.
Their issue was that Mr. Makabela ought not to have been appointed as
a CPI, thus rising above them and also impeding their future
career
prospects. It strikes me that there is a remedy available that
properly and more justly remedies the true unfairness
in this case.
The commissioner ought to have grasped this nettle instead of
ordering the recruitment of another CPI.
Conclusion
[25]
Ordinarily I would have remitted this
matter back to the commissioner to decide relief anew. However,
I note that sufficient
evidence exists on the record before me to
fairly and properly replace the commissioner’s order with my
own. The only
person who might benefit from the leading of
further evidence or argument on the remedy to be offered to the
respondents is Mr.
Makabela. He was however joined in the proceedings
and elected not to place any evidence or argument before the
bargaining council
or this court. He has had his chance to
influence the outcome of the case insofar as it affects him. I
also note with
some alarm how long ago the actions that form the
basis of this matter happened. I think it is in the interests of all
parties
that finality is achieved.
Order
[26]
The order I make therefore is the
following:
(i)
The portion of the award relating to remedy
of the third respondent, dated 30 November 2010, under case number
PSGA 444-08/09, issued
by the first respondent, is reviewed and set
aside. It is replaced with an award directing the applicant to
reduce the rank
of Mr. Makabela to that of a Principal Provincial
Inspector on or before 30 September 2015. Mr. Makabela’s
salary is
to remain the same.
(ii)
There is no order as to costs
Benita
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
P Schumann
Instructed
by Lambert & Associates
FIRST
RESPONDENT: Peter Hobden, Tomlinson Mguni James
[1]
De
Milander v MEC Finance: Eastern Cape & Others (2013) 34 ILJ LAC
at para 24
[2]
[2009]
1 BLLR 1 (CC)
[3]
see
Mathibeli
v Minister of Labour
[2015] 3 BLLR 267
(LAC) at para 16
[4]
(2014)
35 ILJ 943 (LAC) at para 20.