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[2016] ZALCJHB 52
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Public Servants Association of South Africa obo Potgieter v Department of Trade and Industry and Others (JR2212/12) [2016] ZALCJHB 52 (12 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
No: JR2212/12
In
the matter between:
THE
PUBLIC SERVANTS ASSOCIATION OF SOUTH
AFRICA
obo a
potgieter
Applicant
and
THE
DEPARTMENT OF TRADE AND INDUSTRY
First Respondent
THE
PUBLIC SERVICE CO-ORDINATING
BARGAINING
COUNCIL
Second Respondent
Dr
M A CHICKTAY,
N.O.
Third Respondent
Heard:
18 February 2015
Judgment
:
12 February 2016
Summary:
Application to review and set aside an interim arbitration award in
terms of s. 145 of the LRA; Parties
agreeing to the award being set
aside; Court obliged to make its own determination on the alleged
defect in the arbitration proceedings;
Award indeed reviewable;
Substitution not appropriate; Matter remitted back with no order as
to costs.
JUDGMENT
VOYI
AJ.
Introduction
[1]
The Applicant in this matter is the Public
Servants Association of South Africa (hereinafter “
PSA
”)
.
Acting on behalf of its member, namely Mr Andre Potgieter (“
Mr
Potgieter
”), PSA seeks to review
and set aside an interim arbitration award issued by the Third
Respondent (hereinafter “
the
Arbitrator
”) on 17 May 2012 under
case number PSCB 106-10/11.
[2]
The
application for review is launched in terms of section 145 of the
Labour Relations Act.
[1]
[3]
It is only the First Respondent
(hereinafter “
the DTI
”)
that is party to these review proceedings. In its answering
affidavit, the DTI agrees to the award being set aside. The
only
issue in contention between the parties is whether there should be
remittal or substitution.
[4]
PSA contends that the award should be
substituted in that all the evidence and material that was before the
Arbitrator has been
placed before this Court as part of the record on
review.
[5]
In contrast, the DTI’s stance is that
the matter ought to be remitted back to the Second Respondent
(hereinafter “
the PSCBC
”
or “
the Bargaining Council
”)
for the leading of medical evidence that would assist in the
determination of the issues arising in the dispute between
the
parties.
[6]
The DTI’s answering affidavit was
delivered out of time. There is an application for condonation of its
late delivery. I am
of the opinion a case has been made out for
condonation of the late delivery of the answering affidavit. The
explanation for the
delay is sound. In addition, PSA did not oppose
the condonation application.
Background
[7]
On or about 27 May 2010, PSA referred a
dispute to the PSCBC concerning the interpretation or application of
a collective agreement,
it being PSCBC Resolution 7 of 2000 as
amended (hereinafter “
Resolution 7
of 2000
”).
The
dispute was lodged by PSA on behalf of Mr Potgieter, an employee of
the DTI.
[8]
The dispute was lodged as a direct result
of the DTI having declined two separate and consecutive applications
for temporary incapacity
leave which were submitted by Mr Potgieter.
[9]
The
first application for temporary incapacity leave was submitted on or
about 16 March 2009.
[2]
It was
covering the period 09 March 2009 to 30 June 2009.
[3]
The second application was submitted in June 2009, and it covered the
period 1 July 2009 to 31 December 2009.
[4]
[10]
The two applications for temporary
incapacity leave were based,
inter alia
,
on the provisions of clause 7.5.1 of Resolution 7 of 2000, which read
as follows:
‘
a)
An employee whose normal sick leave credits in a cycle have been
exhausted and who, according to
the relevant practitioner, requires
to be absent from work due to incapacity which is not permanent, may
be granted sick leave
on full pay provided that:
i)
her or his supervisor is informed that the
employee is ill; and
ii)
a relevant medical and/or dental
practitioner has duly certified such a condition in advance as
temporary disability except where
conditions do not allow.
b)
The employer shall, during 30 working days, investigate the extent of
inability to perform
normal duties, the degree of inability and the
cause thereof. Investigations shall be in accordance with item 10(1)
of Schedule
8 in the
Labour Relations Act of 1995
.
c)
The employer shall specify the level of approval respect of
applications for disability leave.’
[5]
[11]
Key and relevant to Mr Potgieter’s
applications for temporary incapacity leave are two policy documents.
[12]
The
first is the Determination on Leave of Absence in the Public Service
(July 2009), made by the Minister of Public Service and
Administration (hereinafter “
the
Determination on Leave of Absence
”).
[6]
The second is the Policy and Procedure on Incapacity Leave and
ill-Health Retirement of April 2009 (herein after “
PILIR
”).
[7]
[13]
Both the Determination on Leave of Absence
and the PILIR give effect to,
inter
alia
, the provisions of clause 7.5.1 of
Resolution 7 of 2000.
[14]
These two policy documents set out,
inter
alia
, the procedural steps to be
followed by both the employer and the employee respecting an
application for temporary incapacity leave.
[15]
Of importance to the present matter, there
are timelines that are prescribed for both the employee and the
employer. As far as this
matter is concerned, the relevant timelines
are those under clause 15 of the Determination on Leave of Absence as
well as those
under clauses 7.1 and 7.3 of the PILIR.
[16]
Amongst other things, these clauses require
of an employer to conditionally grant an applicant employee a maximum
of 30 consecutive
working days as temporary incapacity leave with
full pay. This has to be done within five (5) working days from the
date of receipt
of an employee’s application for temporary
incapacity leave.
[17]
Quite pertinent to the matter, these
clauses further prescribe a time limit within which the employer must
approve or refuse the
temporary incapacity leave which has been
granted conditionally.
[18]
Under
both the Determination on Leave of Absence and the PILIR, the
employer has a period of 30 working days within which to approve
or
refuse the temporary incapacity leave which has been granted
conditionally.
[8]
[19]
It is common cause in the present matter
that the 30 working days’ time frame was never adhered to by
the DTI.
[20]
After Mr Potgieter’s applications
were declined, long after they had been submitted, a grievance was
lodged and same culminated
in a dispute being lodged by PSA with the
PSCBC as mentioned hereinbefore.
[21]
The dispute lodged was classified as being
about the interpretation or application of a collective agreement,
the latter being Resolution
7 of 2000. In giving a summary of the
facts in dispute in the referral form, PSA recorded thus:
‘
Employer
not complying with procedure of temporary incapacity leave. Member
now having to pay for leave taken.’
[9]
[22]
The
outcome required as per the dispute referral was for the temporary
incapacity leave to be approved and leave without pay be
revoked.
[10]
As a consequence of the DTI declining Mr Potgieter’s two
applications, the conditionally granted temporary incapacity leave
was converted into unpaid leave.
[23]
In dealing with the dispute, the parties
agreed to exchange a statement of case and a response thereto. In the
statement of case,
PSA outlined the issues requiring determination as
follows:
(i)
Whether the DTI and/or the Health Risk
Manager complied with the applicable procedures/discharged their
obligations in terms of
the relevant policies, determinations and
legislation for temporary incapacity leave.
(ii)
Whether the temporary incapacity leave
applications should be approved.
(iii)
Whether the unapproved temporary incapacity
leave applications must be allocated as unpaid leave.
[24]
Before the main dispute could be
arbitrated, the parties decided to separate the issues. What had to
be dealt with, as a preliminary
matter, was the consequence or effect
of the DTI not having complied with the 30 days’ time frame
within which to approve
or refuse Mr Potgieter’s applications
for temporary incapacity leave.
[25]
According to PSA, it was agreed that the
Arbitrator would decide on the following preliminary aspects of the
dispute, namely:
25.1
whether the DTI and/or the Health Risk Manager had complied with the
applicable
procedures / discharged their obligations in terms of the
collective agreement, relevant policies, determinations and
legislation
for temporary incapacity leave; and
25.2
quite apart from whether Mr Potgieter’s temporary incapacity
leave applications
should / should not have been approved, whether
the unapproved incapacity leave should be allocated as unpaid leave.
[26]
The DTI’s own recordal of the
preliminary issues that had to be dealt with by the Arbitrator
differs from that of PSA as captured
above. According to the DTI, the
Arbitrator was required, for the moment, to decide in relation to
procedure:
26.1
whether, in consequence of Mr Potgieter’s applications for
incapacity
leave, the DTI complied with the requirements laid down in
the PILIR; and
26.2
whether it is fair, in view of the alleged non-compliance with
procedure, for
the conditional incapacity leave granted to be
converted to unpaid leave which Mr Potgieter should pay back.
[27]
In the event that the Arbitrator did not
find for PSA on the separated issues, it was agreed that the
arbitration would be re-scheduled
for the testimony of the parties’
respective doctors.
The
arbitration award
[28]
The proceedings in relation to the
preliminary issues that had to be dealt with by the Arbitrator were
held on 2 March 2012. Following
receipt of the parties’ heads
of argument and on 17 May 2012, the Arbitrator handed down his award.
[29]
Quite noticeably, the award is laconic. It
examines the evidence and argument in one paragraph which reads as
follows:
‘
In
my analyses of the evidence presented to me I find both parties
liable. The [DTI] was required to respond within 30 d days (sic),
which it failed to do. [Mr Potgieter] also has a responsibility to
follow up with the [DTI]. He cannot sit idly especially after
a few
months had expired. He should have known the dire consequences that
would follow if the application were denied. Since both
parties are
to blame the amount for unpaid leave for both periods should be
apportioned equally between both parties
.’
[30]
Based on the above reasoning, the
Arbitrator ruled that both parties are liable and thus the amount for
unpaid leave should be apportioned
equally between both parties.
Evaluation
[31]
From a cursory point of view, the
preliminary issues that had to be determined by the Arbitrator strike
one as being rather undemanding.
In the first place, the
non-compliance with the Determination on Leave of Absence and the
PILIR was conceded by the DTI. Secondly
and on the face of the
conceded non-compliance, one would hasten to conclude that it would
be palpably unfair for the conditionally
granted incapacity leave to
be converted into unpaid leave which Mr Potgieter should pay back.
[32]
To my mind, the issues are not that simple
in view of,
inter alia
,
the relief that was sought by PSA as part of the preliminary issues
to be decided by the Arbitrator. Before the Arbitrator, PSA
requested
an order that the unapproved incapacity leave for the periods 26
March 2009 to 30 October 2009 and 01 December 2009 to
31 December
2009 cannot be allocated as unpaid leave.
[33]
Both PSA and the DTI are not satisfied with
the Arbitrator’s award. As stated hereinbefore, there is
consensus that the award
should be reviewed and set aside.
[34]
I hold the view that an arbitration award
cannot simply be set aside on the mere say so of the parties.
[35]
A
case grounded on the provisions of
s. 145
of the LRA must be made for
an arbitration award to be set aside. After all, an arbitration award
is final and binding in terms
of
s. 143(1)
of the LRA.
[11]
In the present matter, both PSA and the DTI are bound by the
Arbitrator’s award.
[36]
It
is trite that an arbitration award issued under the LRA is not
appealable.
[12]
Whether or not
such an award is incorrect, according to the parties, is not
sufficient for it to be disregarded. The only available
remedy is a
review
,
which is a constricted remedy.
[37]
Where both parties agree that an award
should be set aside, that could be a manifestation that there exists
a defect in the proceedings
as contemplated by
s. 145
of the LRA.
This Court is, accordingly, not absolved from examining whether or
not a case has been made out for the award to be
set aside in terms
of
s. 145
of the LRA.
[38]
Having thoroughly considered the grounds
for review as advanced by PSA and also the Arbitrator’s award
itself, I am satisfied
that a case has been made out for the award to
be set aside.
[39]
The Arbitrator did not appreciate what he
was called to pronounce upon. The Arbitrator’s reasoning is
visibly detached from
the identified issues he was called upon to
determine. These preliminary issues required an examination of the
prescripts in question,
which the Arbitrator did not embark upon in
the present matter.
[40]
Had the Arbitrator done so, he would have
appreciated that there was absolutely no basis for laying any blame
at Mr Potgieter’s
doorstep. Nowhere in the Determination on
Leave of Absence or even in the PILIR is there an obligation on the
part of an employee
to follow up with the employer.
[41]
On the contrary, there are prescribed time
lines for the employer to do certain things. It is not for the
employee, as a matter
of obligation, to either remind or follow up
with the employer on what it must do in terms of the Determination on
Leave of Absence
and the PILIR.
[42]
Of crucial importance, a distinction ought
to have been drawn by the Arbitrator between the 30 working days
within which to approve
or refuse an application for temporary
incapacity leave which was granted conditionally and any time period
thereafter.
[43]
By
way of demonstration, the first application for temporary incapacity
leave by Mr Potgieter was delivered on 16 March 2009.
[13]
On 01 April 2009, the DTI issued a letter to Mr Potgieter advising
inter
alia
that it conditionally approved his application for temporary
incapacity leave from 9 March 2009 to 30 June 2009 with full pay.
[14]
The letter stated that the conditional approval was in terms of the
authority vested according to the Determination on Leave of
Absence.
[44]
The Determination on Leave of Absence,
however, does not vest the DTI with the power to grant a conditional
temporary incapacity
leave for such a long period. Clause 15.8.1 of
the said Determination reads thus:
‘
The
Head of Department, must within 5 working days from the receipt of
the employee’s application for temporary incapacity
leave-
15.8.1
conditionally
grant a maximum of 30 consecutive working
days temporary incapacity leave with full pay subject to the outcome
of his/her investigation
into the nature and extent of the employee’s
illness/injury;’
[45]
From the above it is apparent that the DTI
could only have conditionally granted Mr Potgieter a maximum of 30
consecutive working
days’ temporary incapacity leave with full
pay. To conditionally grant Mr Potgieter’s application for
temporary incapacity
leave from 9 March 2009 to 30 June 2009 with
full pay far exceeded the maximum of 30 consecutive working days
denoted by clause
15.8.1 of the Determination on Leave of Absence.
[46]
On 30 October 2009 and after a period of
over six (6) months, the DTI declined Mr Potgieter’s first
application for temporary
incapacity leave. In terms of clause 15.10
of the Determination on Leave of Absence, the DTI had a period of 30
working days from
the date of receipt of Mr Potgieter’s first
application (for temporary incapacity leave) within which to approve
or refuse
the temporary incapacity leave granted conditionally.
[47]
The preliminary issues that had to be
determined upon by the Arbitrator related to the period over the
maximum of 30 working days
within which a decision on Mr Potgieter’s
application had to be made. I say so as the period falling within the
maximum of
30 consecutive working days denoted by clause 15.8.1 of
the Determination on Leave of Absence is the subject of the main
dispute.
In this matter, the Arbitrator simply made a blanket
determination that included the period falling within the temporary
incapacity
leave conditionally granted.
[48]
As part of the main dispute, PSA is seeking
a determination whether or not the temporary incapacity applications
should be approved.
If PSA is successful in this regard, the result
would,
inter alia
,
be the allocation of the days of absence as an approved temporary
incapacity leave with full pay. In relation to the preliminary
issues, PSA was specific in that the relief sought before the
Arbitrator was ‘quite apart from’ whether or not Mr
Potgieter’s temporary incapacity leave applications ought to
have been approved.
[49]
It was not open to the Arbitrator to make a
determination on an issue that was, at that moment, not before him.
What the Arbitrator
was seized with was a dispute pertaining to leave
that was eventually allocated as unpaid leave in relation to the
period falling
outside that which could have been conditionally
granted as temporary incapacity leave as per the Determination on
Leave of Absence,
read together with clause 7.3.3 of PILIR.
[50]
The Arbitrator in this matter simply did
not identify the dispute he was required to arbitrate as part of the
preliminary issues.
It is my finding that the Arbitrator did not
consider the principal issue before him.
[51]
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others
,
[15]
it was held thus:
‘
In
short: A review 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.’
[52]
I, therefore, do not hesitate to find that
the Arbitrator’s award stands to be set aside. The Arbitrator’s
award is
one that falls outside the realm of reasonable decisions.
[53]
In
the present matter, the Arbitrator did not only make a decision that
no other reasonable decision-maker could have reached, he
undertook
the enquiry in a wrong manner and that is a reviewable irregularity
under
s 145(2)(a)(ii)
of the LRA.
[16]
[54]
It was equally not open to PSA to ask, as
part of the preliminary issues to be decided, that the entire
durations of the temporary
incapacity leave should be converted to
paid leave.
[55]
The real issue forming the subject of the
preliminary determination sought from the Arbitrator was the question
of liability in
respect to the durations post the maximum of 30
consecutive working days granted as conditional temporary incapacity
leave.
[56]
The provisions of both the Determination on
Leave of Absence and the PILIR are crafted in such a way that a
decision on an application
for temporary incapacity leave has to be
made within 30 working days.
[57]
In order words, a decision on an employee’s
application for temporary incapacity leave must be made well within
the same period
as the conditionally granted maximum of 30
consecutive working days’ temporary incapacity leave.
[58]
In the present matter, the decision was
made way after the prescribed 30 working days. The issue at hand is,
therefore, whether
it is fair to financially burden Mr Potgieter with
the DTI’s own admitted failure to stick to its own prescribed
time limits.
[59]
PSA, on behalf of Mr Potgieter, contends
that their member would have resumed duties earlier had he been
informed of the DTI’s
decision at an earlier date. In
this regard, the following was stated by PSA in its heads of argument
before the Arbitrator:
‘
The
fact of the matter is that the [DTI] should, in respect of the first
application, have informed [Mr Potgieter] of its decision
by no later
than 28 April 2009 and, in respect of the second application have
informed the application (sic) of its decision by
no later than 6
August 2009. Had the [DTI] done so, it is reasonable to take it that
[Mr Potgieter] would have returned to work
on 29 April 2009.’
[60]
The above submission, together with the
conceded non-compliance with the provisions of the Determination on
Leave of Absence and
the PILIR, was advanced as the basis for seeking
to hold the DTI liable for the leave days that were allocated as
unpaid leave.
[61]
These leave days would, according to me, be
for the period after the prescribed maximum of 30 consecutive working
days denoted by
clause 15.8.1 of the Determination on Leave of
Absence and by clause 7.3.3.2 of the PILIR.
[62]
The revoked conditionally granted temporary
incapacity leave will be the subject of the main dispute pertaining
to whether or not
Mr Potgieter’s applications ought to have
been granted.
[63]
This brings me to the consideration of
whether to substitute the award or to remit the matter back to the
PSCBC for a fresh determination
on the preliminary issues.
[64]
At the hearing of the matter, it was PSA’s
case that the DTI ought to be held liable for the leave days that
were allocated
as unpaid leave. This was in respect to the period
after that which ought to have been conditionally granted as
temporary incapacity
leave in terms of the policy documents referred
to above.
[65]
The basis for holding the DTI liable hinges
on the supposition that it is reasonable to take it that Mr Potgieter
would have returned
to work had he been informed timeously of the
outcome of his applications.
[66]
If I am to substitute the award and make
any pronouncement on the DTI’s liability, I must be satisfied
that indeed Mr Potgieter
would have returned to work had he been
informed of the outcome of his applications on time. This, to me, is
not a foregone deduction.
[67]
On the face of Dr JA Prinsloo’s
remark that Mr Potgieter’s ‘temporary total medical
incapacity’ was from
18 February 2009 to 30 June 2009, I have
no basis to conclude that Mr Potgieter might have resumed his duties
prior to 30 June
2009.
[68]
I, accordingly, find myself in agreement
with Advocate Makhubele SC, for the DTI, that some form of medical
evidence would be necessary
for a pronouncement on the issue. The
evidence and material before this Court is wholly inadequate for me
to make an informed decision
on Mr Potgieter’s possible return
to work.
[69]
One
of the key requirements for substitution is that this Court ‘is
in as good a position’ as the administrative tribunal
to make
the decision on the matter at hand.
[17]
Without any medical evidence on the possibility of Mr Potgieter
having been in a position to return to work prior to 30 June 2009,
it
cannot be said that this Court is ‘in as good a position’
as the PSCBC to make a pronouncement on the key issue
of Mr
Potgieter’s possible return to work.
[70]
Under the circumstances, the appropriate
course to follow is to remit the matter back to the PSCBC for fresh
determination before
another Arbitrator. In my considered view, it
would be prudent to have the dispute arbitrated in its entirety as
opposed to it
being dealt with in a piecemeal fashion.
[71]
In this matter no order for costs is
warranted. Both parties were justifiably aggrieved by the
Arbitrator’s unreasonable decision.
The DTI wisely and
understandably did not contest the setting aside of the award. To my
mind both parties were successful. PSA
was successful in having the
award set aside and the DTI was successful in having the matter
remitted back to the PSCBC for arbitration
de
novo
.
Order
[72]
I, accordingly, make the following order:
72.1
The later delivery of the First Respondent’s answering
affidavit is condoned.
72.2
The arbitration award
issued by the Third Respondent on 17 May 2012 under case number
PSCB
106-10/11 is hereby reviewed and set aside.
72.3
The matter is remitted
back to the Second Respondent for arbitration
de novo
in
respect of the entire dispute between the parties, which arbitration
is to be held before an arbitrator other than the Third
Respondent.
72.4
There is no order as to costs.
______________________________
NP
Voyi
Acting
Judge of the Labour Court of South Africa
Appearance:
For
the Applicant:
Advocate Hitchings
Instructed
by:
Martins Weir-Smith Inc.
For
the First Respondent: Advocate TAN Makhubele
SC
Instructed
by:
The State Attorney - Pretoria
[1]
Act
No. 66 of 1995 (“
the
LRA
”).
[2]
Record,
p. 101.
[3]
Ibid
,
p. 21.
[4]
Ibid
,
p. 107
[5]
Record,
pp. 286 & 287.
[6]
Ibid
,
at pp. 450 - 488
[7]
Ibid
,
at pp. 489 - 517.
[8]
Clause
5.10 of the Determination on Leave of Absence and clause 7.3.5.1 (e)
of the PILIR.
[9]
Record,
p. 3.
[10]
Ibid
.
[11]
Librapac
CC v FEDCRAW and others
(1999)
20 ILJ 1510 (LAC) at para 9;
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
2008
(2) SA 24 (CC);
(2007)
28
ILJ
2405 (CC
)
at para 84.
[12]
See:
National
Union of Mineworkers and another v Samancor Ltd (Tubatse
Ferrochrome) and others
(2011) 32
ILJ
1618 (SCA) at para 5;
Shoprite
Checkers (Pty) Ltd v Commission for H Conciliation,
Mediation and Arbitration and others
2009
(3) SA 493
(SCA );
(2009)
30
ILJ
829 (SCA)
at
para 26.
[13]
Record,
p. 101.
[14]
Ibid
,
pp. 103 and 104.
[15]
(2014)
35
ILJ
943 (LAC) at para 16.
[16]
See:
Herholdt v
Nedbank Ltd (COSATU as Amicus Curiae)
(2013) 34
ILJ
2795 (SCA) at para 21.
[17]
See:
Palluci
Home Depot (Pty) Ltd v Herskowitz and others
(2015) 36
ILJ
1511 (LAC) at 58;
Cape
Clothing Association v De Kock No and others
(2014)
35
ILJ
465 (LC) at par 44.