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[2016] ZALCCT 20
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Farre v Minister of Defence and Others (C450/2015) [2016] ZALCCT 20; (2017) 38 ILJ 174 (LC) (12 July 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C450/2015
DATE:
12 JULY 2016
Reportable
In
the matter between:
RUTH
FARRE
...........................................................................................................................
Applicant
And
THE MINISTER
OF
DEFENCE
................................................................................
First
Respondent
THE SECRETARY
OF
DEFENCE
........................................................................
Second
Respondent
THE CHIEF OF
THE SOUTH AFRICAN
NAVY
...................................................
Third
Respondent
THE CHIEF OF
THE SOUTH AFRICAN NATIONAL
DEFENCE
FORCE
..................................................................................................
Fourth
Respondent
Heard:
May 5 2016
Delivered:
July 12 2016
Summary:
Review application under section 158(1)(h); Public Servants
Association of SA on behalf of de Bruyn v Minister of Safety
&
Security & another (2012) 33 ILJ 1822 (LAC) followed; labour
court jurisdiction ousted where LRA requires dispute to
be heard at
arbitration.
JUDGMENT
RABKIN-NAICKER,
J
[1]
On submission before me, the following relief contained in the
amended Notice of Motion is sought by the applicant:
‘
1.
Reviewing and setting aside the Respondents’ decision to change
the classification of the work the Applicant is employed
to do;
2.
Confirming that the Applicant is a Control Oceanographic Technicial
and restoring the status quo ante as reflected in the Applicant’s
March 2015 Salary Advice (Post Class Code 052805, CORE description
‘Eng Sup Personnel’);
3.
Reviewing and setting aside the Respondents decision to recover
R178 888.98 from the Applicant;
4.
Directing the Respondents to repay to the Applicant all such monies
as will put her in the position she would have been in, but
for the
impugned decisions….’
[1]
[2]
The applicant is a Physical Oceanographer and is employed by the
Department of Defence as the Superintendent of Tidal Information.
In
this position she is responsible for surveying the oceans abutting
the coastline of South Africa and Namibia.
[3]
In October 2008 the Job Evaluation Committee of the South African
Navy noted that the applicant’s work was inappropriately
classified as administrative and recommended that such classification
be amended from administrative to scientific. At that time
the change
in classification had no financial implications, it remained a level
9 post.
[4]
In July 2011, a collective agreement, “the Occupational
Dispensation for Quantity Surveyors, Professional Surveyors,
Architects, Town and Regional Planners, GISC Professionals and
Scientists (OSD)” came into effect. The applicant’s
colleagues were translated to the OSD in July 2011. The applicant was
translated in July 2014, and as a result, her salary increased
and
she became entitled to a housing allowance and medical aid subsidy.
In July 2013, the applicant received notice of her registration
as a
Certified Natural Scientist with the South African Council for
Natural Scientific Professions. . The translation of the applicant
was backdated to 1 March 2014.
[5]
The applicant filed a grievance requesting that her translation be
backdated to July 2009 like that of her colleagues. It would
appear
that the grievance triggered the events giving rise to the
application before me. On 13 April 2015 the applicant’s
salary
advice revealed that she would receive zero take home pay. Her
superiors enquired as to the reasons therefore. The decisions
taken
by the employer in considering her grievance regarding the backdating
of her translation, which applicant refers to as the
‘impugned
decisions’ were the following:
5.1
to restore the applicant’s position to an Assistant Director
Administration retrospective to 1 March 2014;
5.2
to recover from her an amount of R178 88.98 of ‘overpaid’
salary paid to her over the preceding 13 months; and
5.3
deduct this amount from her salary in 12 equal instalments.
[6]
The decisions are explained in the following letter dated the 16
April 2015:
“
Dear
Ms RE Farre
GRIEVANCE WRT
BENEFITS AND PAYMENTS
1.
SA Navy Grievance Committee (SANGC) meeting held on 10 March 2015
refers.
2. Your
concerns/dissatisfaction as addressed is hereby acknowledged,
however, during the proceedings of the SANGC, your grievance
was
discussed thoroughly and the following is brought to your attention:
a.
According to an audit that was done by DHRSS wrt your translation to
OSD with effect from 01 March 2014, you did not qualify
to be
appointed as a Control Scientific Technician, as you did not meet the
appointment requirements as stipulated in the OSD.
b.
Furthermore, kindly be advised that the Specialist Artisan and
Control Scientific Technician posts are regarded as newly created
posts that must be advertised in terms of Public Service Regulations
and interested employees must apply for these posts. It is
regretted
that you were erroneously translated into the OSD post without
advertising the post.
3.
The occurrence of the above resulted in you being overpaid to an
amount of R178 888.98 over period.
4. In terms of
Section 38 of the Public Service Act 1994 as amended by
Section 34
of
the
Public Service Amendment Act 2007
, the Department of Defence
(DOD)reserves the right to rectify any error or recover any
overpayment resulting from erroneous translation
to a higher post
level and receiving OSD allowance.
5.
The SANGC sincerely regrets to inform you that DOD intends to recover
the overpaid amount in twelve (12) equal installments,
however,
should you not be able to repay the amount within twelve equal
installments, you must provide an Income and Expenditure
Statement as
well as documentary proof of all accounts with the outstanding
balances to Human Resource Division (D HR.CM) in order
to determine
the amount to be deducted from your salary.
6.
The SANGC is of the opinion that the matter was adequately addressed
and considers the matter as finalised. You are required
to
acknowledge and respond within five (5) working days after receipt of
this letter.
Yours Faithfully
(R ADM (JG0 AE
KUBU)
CHAIRPERSON OF
THE SANGC: V ADM”
[7]
The applicant approached this court on an urgent basis and an interim
order was granted reinstating her ‘administrative’
position salary pending the hearing of this application.
[8]
The answering papers are deposed to by an Assistant Director:
Remuneration in the Human Resources Department of the Department
of
Defence. The respondents raise a jurisdictional point in limine. They
submit that at issue in this application is a challenge
to the
employer’s decision to place the applicant back into her
Assistant-Director: Admin post and that underlying same is
the
question of whether she was correctly translated under the OSD. It
was submitted on behalf of the respondents that applicant
is
asserting an interpretation and application of a collective agreement
dispute which ultimately resolves into an unfair labour
practice
dispute relating to demotion. This dispute has never been addressed
internally as is required by Regulation 17 of the
Individual
Grievance Regulations.
[9]
The respondents further submit that Section 35(4) of the Public
Service Act provides that an employee may only refer a
dispute
to the relevant bargaining council in the public service, or
institute court proceedings, if she has lodged a grievance
and the
Department has not resolved the grievance to her satisfaction, as
prescribed. Only after an employee has exhausted her
internal
remedies, is she able to refer this dispute to the GPSSBC in terms of
clause 18 of the OSD, read with section 24(1) and
(2) of the LRA.
[10]
This court has to determine whether it has jurisdiction to hear this
application on the basis of the pleadings before it as
set out in
Gcaba
v Minister for Safety and Security and Others
[2]
:
“
[74]
The specific term 'jurisdiction', which has resulted in some
controversy, has been defined as the 'power or competence of a
Court
to hear and determine an issue between parties'. This court
regularly has to decide whether it has jurisdiction over
a matter,
because it may decide only constitutional matters and issues
connected with decisions on constitutional matters.
If a
litigant raises a constitutional issue, this court has jurisdiction,
even though the issue may eventually be decided against
the litigant.
[75]
Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in Chirwa, and not the substantive merits
of the
case. If Mr Gcaba's case were heard by the High Court, he would
have failed for not being able to make out a case
for the relief he
sought, namely review of an administrative decision. In the event of
the court's jurisdiction being challenged
at the outset (in limine),
the applicant's pleadings are the determining factor. They contain
the legal basis of the claim under
which the applicant has chosen to
invoke the court's competence. While the pleadings - including, in
motion proceedings, not only
the formal terminology of the notice of
motion, but also the contents of the supporting affidavits - must be
interpreted to establish
what the legal basis of the applicant's
claim is, it is not for the court to say that the facts asserted by
the applicant would
also sustain another claim, cognisable only in
another court. If, however, the pleadings, properly interpreted,
establish
that the applicant is asserting a claim under the LRA, one
that is to be determined exclusively by the Labour Court, the High
Court
would lack jurisdiction. An applicant like Mr Gcaba, who is
unable to plead facts that sustain a cause of administrative action
that is cognisable by the High Court, should thus approach the Labour
Court.”
[11]
In order to establish whether a proper interpretation of the
pleadings establishes a claim that the LRA provides is to
be
dealt with in another forum, and not a claim justiciable in this
court, i.e. the review and setting aside of two decisions
of
applicant’s state employer in terms of section 158(1)(h) of the
LRA,
[3]
I must consider, among
others, the basis of applicants claim. The applicant submits that she
brings a “legality review”
but at the same time the
submissions on her behalf are clearly based on the premise that
the impugned decisions amounted
to administrative action. Her
founding papers stated that she was advised that “the
Respondents’ decisions to change
my job classification is
unlawful, invalid, and inconsistent with the Constitution, PAJA, the
Public Service Act, 1994 and the
regulations thereto”. This
‘catch-all’ description of the nature of the review
before court is not the most helpful.
[12]
The law as set out in
Gcaba
which dealt with the two spheres of constitutional protection,
the right to fair labour practices and the right to fair
administrative action, gives guidance to this court. The
Constitutional Court stated that:
“
Generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is
recognized
by the Constitution. Section 23 regulates the employment relationship
between employer and employee and guarantees the
right to fair labour
practices. The ordinary thrust of Section 33 is to deal with the
relationship between the state as bureaucracy
and citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative action. Section 33 does not regulate
the relationship
between the state as employer and its workers. When a grievance is
raised by an employee relating to the conduct
of the state as
employer and it has few or no direct implications or consequences for
other citizens, it does not constitute administrative
action.”
[4]
[13]
In
Public
Servants Association of SA on behalf of de Bruyn v Minister of Safety
& Security & another
[5]
the
LAC per Mlambo JP (as he then was), had this to say:
“
[24]
The review powers entrusted to the Labour Court in terms of s
158(1)(h) must be understood in the context when this section
(indeed
the entire LRA) was enacted. At that time, the employment
of public servants was regulated by the common-law
contract of
employment, the unfair labour practice jurisdiction of the Industrial
Court in terms of the Labour Relations Act 28
of 1956, other statutes
and by means of common-law judicial review.
[25]
Public servants were in a privileged position with regard to other
employees as their choice of remedies extended to judicial
review.
Section 158(1)(h) was intended to preserve the common-law judicial
review remedy of public servants. The permissible grounds
of
common-law review are well known.
[26]
The supposition that public servants had an extra string to their bow
in the form of judicial review of administrative action,
ie acts and
omissions by the state vis-à-vis public servants, evaporated
when the Constitutional Court in Chirwa v Transnet
Ltd & others,
held that the dismissal of a public servant was not 'an
administrative act' as defined in PAJA and therefore
not capable of
judicial review in terms of that Act. Any uncertainty regarding the
interpretation of the Chirwa judgment was removed
in the subsequent
decision in Gcaba v Minister for Safety & Security &
others. The result is that a public
servant is confined
to the other remedies available to him or her.
[27]
One of the effects of Chirwa is that a dismissal is not to be
regarded as an 'administrative act' by the state but merely as
the
act of the state in its capacity as an employer. This decision
brought us to the situation where the pre-Chirwa substratum
of s
158(1)(h) fell away, although there may conceivably still be employer
acts which are almost indistinguishable from administrative
acts. The
post-Chirwa meaning of s 158(1)(h) has received the attention of the
Labour Court in De Villiers v Head of Department:
Education, Western
Cape Province, SA Revenue Service v Commission for
Conciliation, Mediation & Arbitration & others,
and National Commissioner of Police & another v Harri NO &
others.
[28]
But it does not follow that because the remedy of judicial review may
still exist for public servants that the Labour Court
will entertain
an application to review 'any act performed by the State in its
capacity as employer' as a matter of course.
Recourse to review
proceedings, in terms of s 158(1)(h), takes place in the context of
the law relating to judicial review as well
as the other elements of
the system of dispute resolution which the LRA has put in place and
also other applicable statutes.
(my emphasis)
[29]
One limitation or restriction is relevant to the case at hand. The
LRA may oust the s 158(1)(h) review jurisdiction of the
Labour Court.
Section 157(5) of the LRA, as the court a quo appreciated, provides
that if the LRA requires an unresolved dispute
to be resolved through
arbitration, the Labour Court does not have jurisdiction to
adjudicate the dispute. Notwithstanding this,
the Labour Court could
acquire jurisdiction in terms of s 158(2) of the LRA but such a
situation does not arise in this case.”
[14]
In
De
Villiers v Head of Department: Education, Western Cape Province
[6]
this court per Van
Niekerk J had considered the implications of a deemed dismissal and
of the power given to a public functionary
to reinstate an employee
in terms of
s 14
of the
Employment of Educators Act 76 of 1998
. He
summed up the considerations relevant to determining whether a
particular decision constitutes administrative action as follows:
“
In
summary: as a general rule, conduct by the state in its capacity as
an employer will generally have no implications or consequences
for
other citizens, and it will therefore not constitute administrative
action. Employment related grievances by state employees
must be
dealt with in terms of the legislation that gives effect to the right
to fair labour practices, or any applicable collective
agreements
concluded in terms of that legislation. Departures from the general
rule are justified in appropriate cases. An assessment
must be
conducted on a case-by-case basis to determine whether such a
departure is warranted. The relevant factors in this determination
(following SARFU) are the source and nature of the power being
exercised (this would ordinarily require a consideration of whether
the conduct was rooted in contract or statute ..., whether it
involves the exercise of a public duty, how closely the power is
related to the implementation of legislation (as opposed to a policy
matter) and the subject-matter of the power). I venture to
suggest
that the existence of any alternative remedies may also be a relevant
consideration — this was a matter that clearly
weighed with the
court in both Chirwa and Gcaba, who it will be recalled, were found
to have had remedies available to them under
the applicable
labour legislation.'
[7]
Evaluation
[15]
The applicant’s version before me is that the decision-maker in
this case, (based on the record provided by the respondents),
was a
functionary in the Human Resources Department and not the Minister of
Defence, who she submits is the person authorised to
‘classify
jobs on the establishment’. The letter which set out the
‘impugned decisions’ referred to by
the applicant in her
pleadings is written on behalf of the Grievance Committee of the
Department of Defence. It predicates its
decisions on the allegation
that the applicant was incorrectly translated in terms of the OSD in
question. As a result it restores
her to her pre-OSD position her and
seeks to recover monies paid to her in terms of section 38 of the
Public Service Act.
[16]
In respect of the deductions that were made to her salary, the
applicant pleads that section 38 of the PSA is not applicable
because
the payments made to her were not ‘erroneous’ and submits
that she was properly and not erroneously paid in
accordance with the
applicable provisions of the OSD. Further reference is made to the
provisions of section 34 of the BCEA dealing
with constraints on the
ability of an employer to deduct remuneration from an employee. In my
view, the essence of the case as
pleaded concerns the interpretation
and application of a collective agreement to an individual employee.
[17]
Taking the approach as set out in the
de
Bruyn
judgment,
there is merit in the respondents’ stance on the jurisdiction
of this court. This is not a case which is an exception
to the
general rule set out in
Gcaba.
[8]
On
the basis of applicant’s pleadings properly construed, I am of
the view that the section 158(1)(h) jurisdiction in regard
to this
dispute is ousted by the provisions of the LRA which require the real
dispute between the parties, the interpretation and
application of
the OSD to the applicant, to be arbitrated. In addition, the conduct
of the employer in relation to the alleged
demotion of the applicant
may also fall to be dealt with by an arbitrator.
[18]
It is clearly in the interests of justice that the matter be dealt
with expeditiously by the parties. Given that the facts
in dispute
have been crystallised in these proceedings, I will order that this
matter proceed expeditiously. The interim order
made by this court,
that the applicant be paid her administrative salary, should remain
in place until the finalisation of arbitration
proceedings at the
Bargaining Council. I do not consider that a cost order is apposite
in respect of these proceedings. I make
the following order:
Order
1.
The application is dismissed for want of jurisdiction.
2.
The parties are ordered to finalise the internal grievance process in
terms of Regulation 17 by no later than 8 August 2016.
3.
The respondents are directed to continue to remunerate the Applicant
in accordance with the order of this court dated 5 June
2015, pending
the outcome of the proceedings at the GPSSBC or a settlement of the
dispute, whichever is the earliest.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
S. Harvey instructed by Guy & Associates
Respondents:
B. Joseph instructed by the State Attorney
[1]
The
applicant did not pursue a prayer that section 138 of the PSA be
declared inconsistent with the Constitution
[2]
2010(1)
SA 238 (CC)
[3]
which provides that this court may “review any decision taken
or any act performed by the State in its capacity as employer,
on
such grounds as are permissible in law;”
[4]
At paragraph 64
[5]
(2012) 33 ILJ 1822 (LAC)
[6]
(2010) 31 ILJ 1377 (LC)
[7]
At paragraph 17
[8]
This
distinguishes it from the exceptional facts and circumstances before
the courts in Public Servants Association of SA &
another v
Minister of Labour & another (2016) 37 ILJ 185 (LC) and
Hendricks v Overstrand Municipality & another (2015)
36 ILJ 163
(LAC)