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[2016] ZALCD 5
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South African Social Security Agency v CCMA and Others (D273/14) [2016] ZALCD 5 (12 April 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: D273/14
In
the matter between:
SOUTH
AFRICAN SOCIAL SECURITY
AGENCY
Applicant
and
CCMA
First Respondent
B
PILLEMER
N.O.
Second Respondent
PUBLIC
SERVANTS ASSOCIATION obo
DHANABAGLAM
KARIKAN
Third Respondent
Heard:
5 November 2015
Delivered:
12 April 2016
Summary:
Onus - in arbitrations decided entirely on written submissions,
unless the party who does not bear the onus’ version
is
inherently improbable or contradicted or supplanted by better
evidence, the arbitrator is bound to find in this party’s
favour on a disputed point – dispute of right –
contractual disputes.
JUDGMENT
WHITCHER
J
[1]
The Second Respondent (‘the arbitrator’) found that Ms.
Dhanabaglam Karikan (‘the employee’) should
have been
promoted to the rank of senior administrative officer as of 1 March
2000. She ordered that the employee be retrospectively
promoted
to that position.
[2]
The Applicant seeks to review the award in terms of section 145 of
the LRA. The application is opposed by the Third Respondent
on behalf
of the employee.
[3]
In 1983, the employee began working for the erstwhile Department of
Social Development as a clerk. Before its abolishment
as a
condition of employment in 2001, employees were entitled to
enhancements in salary or grade after working a certain period
of
time and upon recommendation by their supervisor. These were
called Rank and Leg promotions and were normally available,
in turn,
after three years. Employees could, however, be promoted ‘out
of turn’ six months earlier upon the recommendation
of a
supervisor.
[4]
During 1994, the employee’s supervisor recommended that she was
promotable ‘out of turn’. In 1997, a moderating
committee
lowered the supervisor’s recommendation to her being promotable
“in turn”. The employee lodged a grievance
against this
decision which ended up in the Public Service Commission (‘the
PSC’). In 2004, after a number of
deplorable delays, the
PSC found that the department’s decision was incorrect. It
ordered that a new assessment be done.
[5]
In the meantime in 2006, SASSA, a state agency, took over the
functions the department earlier performed. The employee
was
transferred into SASSA’s employ, with all rights and
obligations transferred to the new employer in terms of a Bargaining
Council resolution. The correspondence from the PSC
directing that a new assessment be done was lost and SASSA only
in
2011 assembled a new committee. This committee found that the
employee was indeed promotable out of turn as her supervisor
had
suggested sixteen years earlier and a payment was made to her in lieu
of financial loss.
[6]
The employee was not satisfied. Notwithstanding the payments,
she felt that she had not attained the rank that was her
due.
Her complaint was that the failure in 1994 to promote her ‘out
of turn’ had had run-on effects in her career.
Before
Rank and Leg promotions were abolished she would have attained the
rank of a senior administrative
officer
at salary level 8.
However, she was stuck at salary level 7 at the time and still within
the
clerk
cadre of the public service.
[7]
The employer raised three points
in limine
challenging the
jurisdiction of the CCMA to hear this dispute. These were that
the dispute was not about a promotion but
about a translation in rank
or grading; that the issue was about the interpretation of a
contractual provision and not a promotion;
and that the dispute that
emerged in the hearing had not been conciliated. The arbitrator
dismissed these points.
[8]
The essence of the arbitrator’s finding in favour of the
employee on the merits was that, had the employee been promoted
‘out
of turn’ in March 1994, she would have attained rank promotions
every three years thereafter, until this mechanism
for career
advancement was abolished in 2001. This meant that in March 1997, the
employee should have been promoted from assistant
to administrative
officer proper. Again, after three years, in March 2000, she
should have been promoted to senior administrative
officer.
[9]
Fortifying the arbitrator’s understanding was the fact that a
comparator employee existed: a Ms. Govender, who was in
an identical
position to the employee and who was retrospectively promoted
following a successful grievance.
[10]
An important feature of the hearing was that the parties agreed to
dispense with oral evidence and to swap written statements
with
supporting documents as evidentiary material.
Grounds
of review and evaluation
[11]
The Applicant first contends that its three points
in
limine
were so unsatisfactorily decided that no reasonable decision-maker
would have found as the arbitrator did. On the contrary, there
is
nothing the matter with the arbitrator’s finding that she had
jurisdiction over the dispute as an unfair labour practice
relating
to promotion. The employer’s own documentation referred
to translation in rank as a promotion. It self-evidently
was a
promotion as Ms. Karikan’s status and salary would have been
elevated by such a translation in rank, thus fitting the
general
definition of promotion
[1]
.
In addition, although the relief she sought was an enhancement of her
grade, the underlying cause of the dispute related
to the employee’s
contention that her rights had been breached. The employee was not
seeking to create fresh rights in respect
of her promotion but to
enforce rights she claimed already existed
[2]
.
[12]
The related criticism that the dispute concerned an interpretation of
a contractual term is also without merit. While parts
of the
employee’s contract dealing with promotion had to be
interpreted to decide this matter, to suggest that it was therefore
a
dispute about contract, depriving the CCMA of jurisdiction, is
fallacious.
[13]
The dispute before the arbitrator was furthermore properly
conciliated and brought within proper time limits. The issue to
be
determined was whether the employee should have been promoted to the
rank of senior administrative officer when SASSA considered
her case
anew in 2011. This issue and the attendant relief sought was the
natural consequence of the employee being unfairly denied
a
translation in rank, ‘out of turn’, back in 1994 but that
is not when the present dispute arose. It arose when SASSA
took a
position not to rectify these alleged historical wrongs.
[14]
The Applicant raised a fourth point
in limine
, not raised
during the hearing, that the employee’s former employer, the
Department of Social Development, should have been
joined in the
matter. It argued that since the complained of actions were
committed when the department was still the employer,
SASSA should
not be held liable for the failings of the previous employer.
Even if it were to be held liable, the department
ought to have been
joined as they had a substantial interest in the outcome of the
matter.
[15]
The criticism is thus that the arbitrator did not
mero motu
consider non-joinder. I do not agree with this criticism. The
Applicant is the department’s legal successor.
In terms
of clause 6.1 of Resolution 1 of the Public Health and Welfare
Sectoral Bargaining Council, all the department’s
obligations
transferred to SASSA when it came into existence. The dispute
arose from a decision of a SASSA committee who
reconvened to
reconsider the employee’s claims, historical as they may be, in
2011.
[16]
I also do not agree that the erstwhile employer has a substantial
interest in the outcome of the matter and none was put forward
on the
papers. The department is not financially liable; the Rank and
Leg promotion system, with which this case deals, was
discontinued at
the turn of the century; and it is unlikely that any adverse factual
finding made against it in the way it handled
the matter over time
will affect it.
[17]
I thus find that the arbitrator’s dismissal of the three points
in
limine
and not joining another party off her own bat, was the correct
decision; this being the test in dealing with decisions on
jurisdiction
on review.
[3]
[18]
The Applicant also criticized the arbitrator for dismissing its
points
in
limine
in a summary manner. The arbitrator should instead be complimented
for disposing of weak legal points with the minimum of verbiage.
As I
have earlier found, the absence in an award of detailed rebuttals of
all arguments made by parties should not, in itself,
be considered a
sign that an arbitrator has failed to apply his or her mind to the
issues
[4]
. Giving an argument
short shrift in an award could just as well mean that an arbitrator
has determined it to be irrelevant, frivolous
or weak. It is whether
this implied dismissal of the point is unreasonable and distorted the
outcome of the matter that should
be addressed on review.
[19]
Turning to the further grounds of review, they are that the
arbitrator failed to apply her mind to important pieces of evidence
and misdirected herself on the pieces she did consider. The
first point is that the arbitrator ignored the Applicant’s
assertion in the hearing that translation in rank could not
automatically occur every three years. A supervisor needed to
assess the employee and recommend such an upgrading. The employee was
never assessed in respect of the 1997 and 2000 translations
in rank
that the arbitrator found should have automatically be granted to
her. Second, the policy in place at the time
prevented
the employee being moved from the clerk to the officer cadre of the
public service without being promoted to a vacant,
advertised post.
Relatedly, if the employee were to have been translated in rank every
three years, she would, at most, have been
elevated to the position
of chief administrative clerk. This was only a grade 7 post and
not the grade 8 post of senior administrative
officer which she
sought. Third, the arbitrator took into consideration the supposed
promotion of a comparator employee, a Ms.
Govender, when the employee
produced no evidence of this at the hearing.
[20]
Normally when disputes of fact arise in a hearing, an arbitrator
decides these by evaluating the inherent probability of the
versions,
the reliability of the evidence and the credibility of witnesses.
The cross-examination of witnesses is a particularly
useful stage of
the hearing for it is here that concessions are obtained or
assertions made during evidence-in-chief are discredited.
It
would, in these circumstances, be possible for a reviewing court to
assess whether an arbitrator properly and reasonably evaluated
the
evidence when deciding disputes of fact.
[21]
In this matter, the parties elected to forgo oral evidence but to
exchange written submissions instead. There is nothing
per se
wrong with this manner of conducting proceedings. However,
where major disputes of fact exist, the party bearing the onus
(the
employee in this case) runs a significant risk in adopting such a
trial format. In this case, SASSA pertinently disputed,
for example,
that the employee could ever have made the transition between clerk
and officer cadres in the public service without
promotion into a
vacant post and after a normal appointment process. The
employer’s assertion that, even with two further
“in
turn” promotions being assumed to have taken place in 1997 and
2000, the employee would not have arrived at grade
8, was similarly
not demonstrably rebutted.
[22]
Bearing in mind upon whom the onus rests in unfair labour practice
matters
[5]
, unless the
employer’s version was inherently improbable or supplanted by
better evidence, the arbitrator is bound to find
in the employer’s
favour on a disputed point. This is the general position in
deciding disputes of fact that arise
during motion proceedings.
[23]
In my view, once SASSA asserted that movement between clerk and
officer streams of the public service prevented the employee
from
being appointed as an officer merely by translation in rank, the
arbitrator was, absent any inherent improbability or better
evidence
contradicting that assertion, bound to find against the accusing
party. The same would apply to the employer’s
assertion
that elevation, even to the rank of chief clerk, had to occur via a
competitive application process. On my assessment,
the format in
which the hearing took place provided the arbitrator with
insufficient evidentiary material to reject the employer’s
version at the hearing. In the result, the finding that the employee
should have been promoted to the rank of senior administrative
officer in March 2001 is
prima
facie
unreasonable, with the remaining question being whether there exists
an evidentiary basis to displace the
prima
facie
case of unreasonableness.
[6]
To my mind, there is none.
[24]
The same applies to the evidence about Ms. Govender. The
employee cited her as a comparator, while the employer denied
knowledge of these facts. It then fell upon the employee to
flesh out her contention in greater detail, perhaps with supporting
documentary evidence, before the arbitrator could accept this
inconsistency as proven and rely upon it in her award.
[25]
In contrast to the findings above, I do not think the arbitrator
acted unreasonably in discounting submissions by the employer
that
translations in rank needed the approval of a supervisor. While this
fact may be accepted as proven, in general terms, if
an employee is
unfairly denied a promotion and, in the ordinary course of affairs,
she would have been eligible for further elevation
in the future but
for the unfair act, it is only fair to assume that her performance
would have been adequate to entitle her to
those further career
advancements. To hold otherwise and provide relief only in respect of
the original block to an employee’s
career would, in my view,
deny the employee fair and equitable relief. I thus do not agree that
the arbitrator misdirected herself
insofar as she was prepared to
infer that the employee would have been entitled to further
promotions after the one unfairly withheld
from her in 1994. Having
said that, this principle does not assist the employee in this case
because of submissions by the employer
that the employee would, in
the ordinary course of rank translations, not have been promoted from
clerk to officer. In addition,
the employer asserted that, even with
the assumed further promotions in 1997 and 2000, the employee would
only have ended up on
grade 7. As indicated above, the employee
did not demonstrably rebut these assertions within the agreed upon
hearing format.
Order
[26]
In the premises, the following order is made:
1.
The
arbitration award issued by the Second Respondent is set aside on
review.
2.
The
award is replaced with an order that the application is dismissed.
3.
There
is no order as to
costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv NSV Mfeka, instructed by Hlela Attorneys
For
the Third Respondent: MacGregor Erasmus Attorneys
[1]
See
KwaZulu-Natal
Department of Transport v Hoosen and Others
(2016) 37 ILJ 156 (LC) at para 18
[2]
See
Mathibeli
v Minister of Labour
[2015] 3 BLLR 267
(LAC) at para 19
[3]
SA Rugby
Players Association (SARPA) & others v SA Rugby (Pty) Ltd &
others; SA Rugby (Pty) Ltd v SARPU & another
[2008] ZALAC 3; [2008] 9 BLLR 845 (LAC)
[4]
Mec: Department
of Health, ECP v PHSDSBC and Others
(PR63/14) [2016] ZALCPE 9 (16 March 2016) at para 32
[5]
See section 10 of
the Labour Relations Act
[6]
See
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) at para 33.