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[2017] ZALCJHB 14
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Member of the Executive Council: Police, Roads and Transport (Free State Provincial Government v Public Service Co-ordinating Bargaining Council and Others (JR2742/13) [2017] ZALCJHB 14 (19 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Not reportable
C
ase
No: JR 2742/13
In the
matter between:
THE MEMBER OF THE EXECUTIVE
COUNCIL: POLICE, ROADS AND
TRANSPORT (FREE STATE
PROVINCIAL GOVERNMENT)
Applicant
and
PUBLIC SERVICE CO-ORDINATING
BARGAINING COUNCIL
First Respondent
MARTINUS VAN AARDE
N.O.
Second Respondent
PUBLIC SERVANTS ASSOCIATION
obo MEMBERS IN FLEET
MANAGEMENT
Third Respondent
Heard
:
7 December 2016
Delivered
:
19 January 2017
Summary:
(Review – Failure to determine factual
issues – irregular proceedings – Determination of dispute
on the basis
of unlawfulness beyond remit of arbitrator)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant in this matter seeks to set
aside and review an arbitration award in which the arbitrator held
that the posts of the
individual respondents, who are members of the
PSA were validly upgraded with effect from 1 January 2012, following
the Member
of the Executive Council for Police, Roads and Transport
in the Free State approving the upgrades on 13 December 2011.
Following
the MEC’s decision, the head of Department decided
that the upgrades had been approved in error because the necessary
job
evaluation process had not been conducted to upgrade the posts.
The head of Department instructed the finance Department to stop
paying the individual respondents on the new scale and to recover
payments already made to them in consequence of the upgrading.
[2]
The arbitrator was required to determine
the dispute as an interpretation and application dispute in terms of
section 25 (2) and
(5) of the Labour Relations Act, 66 of 1995 (‘the
LRA’). The dispute referred concerned the interpretation of
Resolution
3/1999 of the Public Service Coordinating Bargaining
Council (‘PSCBC’). In particular, the arbitrator was
required
to interpret clause 4.3 of Chapter XXXVI of the resolution
which reads:
“
If
a job evaluation as provided under the Public Service regulations
indicates that a job has been undergraded, the employer shall
either
(a)
within a reasonable period of time, endeavour to upgrade the position
of an incumbent employee, or
(b)
with the agreement of the affected employee, restructure her or his
duties to reflect the grade determined by the job evaluation.”
[3]
On the basis of documents provided by the
parties, the arbitrator reasoned that the MEC had the authority to
accept or approve a
recommendation of a job evaluation panel and that
the head of Department had no power in terms of section 5 (7) (a) of
the Public
Service Act 1994 (Proclamation 103 of 1994) to reverse the
MEC’s decision. Section 5 (7) of the PSA provides:
“
(7)
(a) A functionary shall correct any action or omission purportedly
made in terms of this Act by that functionary, if the action
or
omission was based on an error of fact or law or fraud and it is in
the public interest to correct the action or omission.
(b)
The relevant executive authority shall in the prescribed manner keep
record of and report to the Minister any correction by
a functionary
of a department within the portfolio of that executive authority.”
The
review application
[4]
Firstly, the applicant complains that the
arbitrator made his award without hearing any evidence. The applicant
maintains that it
was incumbent on the arbitrator to allow the
parties to present evidence or to require them to submit a list of
common cause facts
on which he could make a determination. It appears
to be an increasingly common practice in public service sector
arbitrations
for arbitrations to be conducted on the basis that a
bundle of documents is submitted to the arbitrator, often without any
clarity
on the status of those documents as evidence, and the parties
then make oral or written submissions to the arbitrator. In this
instance, on the brief transcript of the proceedings, it is apparent
that the arbitrator intended to decide the matter after hearing
and
considering the respective oral and written submissions made by the
parties’ representatives.
[5]
Not a
murmur of concern was raised by the applicant about the procedure
adopted by the arbitrator and the only reasonable interpretation
on
the record is that the applicant agreed with the procedure adopted by
him. This was not a case where the representatives of
the parties
were unskilled and would not have realised the implications of what
they were doing. It is inappropriate for a party
to criticise the
procedure adopted by the arbitrator when it collaborated and
implicitly consented to the manner of conducting
proceedings at the
time. Nonetheless, the LAC has decided in
Arends
& others v SA Local Government Bargaining Council & others
[1]
that an arbitrator should decline to determine a dispute where the
facts are inadequately stated.
[2]
In that matter, the arbitrator determined that he did not have
jurisdiction to hear the dispute without giving the parties an
opportunity to make representations on that issue, which had not been
raised previously in argument between them. In this application,
the
applicants did not state what the disputed facts were or why the
arbitrator decided the matter on facts which were not common
cause.
[6]
The applicant further argues that the
arbitrator misconceived the nature of the enquiry by deciding the
matter on the basis of the
power of the head of Department to set
aside the decision of the MEC rather than on the basis of
interpreting resolution 3 of 1999.
I must agree with the applicant
that the arbitrator does not appear to have decided the matter on the
basis of whether or not the
applicant was obliged to comply with
clause 4.3 of the resolution referred to above. The arbitrator did
not consider if a job evaluation
in terms of the Public Service
regulations had in fact been conducted and whether the employer had
unreasonably delayed in endeavouring
to upgrade the position of the
incumbent employees.
[7]
Instead, the arbitrator decided that the
upgrading of posts approved by the successive MECs was validly
approved within the context
of resolution three of 1999. In essence,
the arbitrator made his decision based on the apparent unlawfulness
of the Head of Department’s
decision to a post ‘correct’
the MEC’s approval, which the head of Department had no
authority to do. On the
face of it, his reasoning is probably correct
and the only functionary who could alternate the decision was the
MEC. Nonetheless,
the arbitrator should have declined to make a
decision based on unlawfulness, which lay outside his jurisdiction.
It should also
be noted that this was not an issue raised by the
parties, nor were they given an opportunity to deal with it when they
made their
representations to the arbitrator.
[8]
Thirdly, the applicant contends that the
arbitrator failed to appreciate that there was a factual issue which
needed to be determined,
namely whether a job evaluation in terms of
the prerequisites of the public service regulations had in fact been
conducted. It
is apparent from the written submissions made by the
employer that this was a point raised in argument but the arbitrator
seems
to have decided it was not necessary to deal with it. I am
satisfied that the arbitrator ought to have decided this issue and
ought
to have either required oral evidence or a stated case to be
formulated by the parties on the nature of the job evaluation process
that was conducted before he could take a decision on the issue. In
this sense, apart from the fact that it concerned a jurisdictional
question going to the heart of the interpretation and application
dispute which he had to determine, the arbitrator failed in his
duties by deciding the matter on inadequately pleaded facts, as in
the
Arends’
case.
Conclusion
[9]
In light of the above, I am satisfied that
the arbitrator made a finding on issues which were not canvassed with
the parties. Secondly,
he decided the issue on the basis of
unlawfulness, which was a question beyond his remit. Thirdly, in
failing to require the parties
to submit a stated case or in failing
to require them to lead oral evidence in respect of the relevant
factual issues, he undertook
the enquiry in the wrong or in an unfair
manner which constituted an irregularity in the conduct of the
proceedings. In the circumstances,
the award must be set aside.
[10]
Because the facts pertaining to the
jurisdictional question of the nature of the job evaluation conducted
under the Public Service
regulations not dealt with in the record on
account of the arbitrator’s failure to conduct the enquiry
properly, the court
is equally incapable of determining the merits of
the dispute on the record and the only feasible solution is to remit
the matter
for a fresh hearing. As the court is also only concerned
with the review of the arbitration award it would not be appropriate
for
the court to pronounce on the lawfulness of the head of
Department’s actions in purportedly rectifying the MEC’s
decision.
Order
[11]
The arbitration award issued by the second
respondent on 26 October 2013 under case number PSCBC 196-13/14 is
reviewed and set aside.
[12]
The matter is remitted back to the first
respondent to convene a hearing
de novo
before an arbitrator other than the
second respondent to commence within thirty days of the date of this
judgement.
[13]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
S
J Mushet instructed by
Lebea & Associates
THIRD
RESPONDENT:
L
A Roux instructed by Lovius
Block
Attorneys
[1]
(2015) 36
ILJ
1200 (LAC)
[2]
At 1206-8, paras [15] – [19].