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[2017] ZALCJHB 97
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Tshifhango and Another v Minister of Justice and Correctional Services and Others (JR951/16) [2017] ZALCJHB 97; (2017) 38 ILJ 2131 (LC) (23 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable
Case
no: JR 951/16
TSAKANI
ISABEL
TSHIFHANGO
First Applicant
ELIZABETH
KUKI MAKHONDO
Second Applicant
and
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
First
Respondent
THE
DIRECTOR GENERAL: JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second Respondent
THE
REGIONAL HEAD: JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Third
Respondent
THE
ACTING DIRECTOR HUMAN RESOURCES:
Fourth Respondent
JUSTICE
AND CONSTITUTIONAL DEVELOPMENT,
GAUTENG
Heard:
15 February
2017
Delivered:
23 March 2017
Summary:
Applicants were appointed on salary level 8 after a job evaluation
process was conducted. Subsequently
their salary level was downgraded
to level 7 in terms of the provisions of section 32 of the Public
Service Act. The Applicants
approached this Court for the review and
setting aside of the decision to downgrade their salaries. The
Respondents’ case
is that no decision was taken, thus there is
no decision to be reviewed. Review is premised on the principle of
legality.
JUDGMENT
PRINSLOO,
J
Background facts
[1]
The
Applicants are currently employed as administrative officers on
salary level 7 at the Department of Justice and Constitutional
Development, Johannesburg. It is their appointment on salary level 7
that caused them to approach the Court and for purposes of
this
application, their employment history is relevant.
[2]
The
First Applicant (Tshifhango) was initially appointed as an
administrative officer on salary level 7 and her salary was upgraded
to level 8 in December 2010 backdated to August 2008. The Second
Applicant (Makhondo) was also initially appointed on salary level
7
and she was upgraded to salary level 8 with effect from December 2012
when she was transferred from Mpumalanga to the Gauteng
Regional
Office.
[3]
Their
salary upgrades from level 7 to level 8 came as a result of a job
evaluation process that was conducted in terms of the provisions
of
Chapter 1 Part III of the Public Service Regulations 2001. Various
posts, including administrative officers, were subjected
to a job
evaluation process and the job evaluation results were approved in
February 2008. The results could not be implemented
due to budgetary
constraints and in 2010 approval was granted for the uniform
implementation of the already approved job evaluation
results in the
regions. The job evaluation result that graded administration
officers in the regional offices at salary level 8
was approved on 27
August 2008 and after approval was sought and obtained for
implementation in 2010, it was implemented with backdated
effect from
August 2008.
[4]
The
Applicants were placed on level 8 and paid on level 8 until 1 June
2015 when their positions were ‘downgraded’ to
level 7.
[5]
The
Applicants were informed in a staff meeting on 13 May 2015 that the
Department of Justice and Constitutional Development (the
Department)
made an error when the Applicants were upgraded to salary level 8.
[6]
On
22 May 2015 the Third Respondent issued the Applicants with letters,
titled ‘Downgrading from salary level 8 to salary
level 7’
and informing them that an instruction was received from the Chief
Operation Officer at National Office that the
positions they occupy
have been job evaluated and approved at salary level 7. The
Applicants were informed that they were ‘wrongly
upgraded from
salary level 7 to salary level 8’ and that they would be
downgraded to the correct salary level with effect
from 1 June 2015.
They were further informed that the overpayment of salary made to
them from the date they were upgraded will
be recovered in terms of
section 38 of the
Public
Service Act
[1]
(PSA)
.
[7]
The
Applicants were not consulted prior to the downgrading of their
positions and salary levels. The Applicants were appointed and
paid
on salary level 8 for a period of almost seven and three years
respectively.
[8]
The
Applicants exhausted other Court processes, bargaining council
remedies and internal grievance procedures.
[9]
The
Applicants approach this Court in terms of the provisions of section
158(1)(h) of the Labour Relations Act
[2]
(the LRA) to review and set aside the decision to downgrade them
from salary level 8 to 7. The Applicants submitted that
the
Respondents’ act of implementing the downgrades constitute a
unilateral change in terms and conditions of employment
and that it
is illegal, unreasonable and procedurally flawed. The review
application is premised on the doctrine of legality, which
requires
public service officials to exercise powers that are permissible and
conferred by law and the exercise of such power to
be lawful and
procedurally fair and not be arbitrary, unreasonable or irrational.
[10]
The
Applicants’ case is that they should have been given an
opportunity to make representations before a final decision to
downgrade their positions was taken.
The Respondents’
case
[11]
The
Respondents raised a number of points
in
limine.
The
first is that the Applicants seek to review and set aside a decision
to demote or downgrade them and a demotion would amount
to an
infringement of section 185(2)(a) of the LRA and the dispute has to
be referred to the bargaining council as this Court has
no
jurisdiction to entertain such a dispute.
[12]
On
the Respondents’ own version they are of the view that the
action taken does not amount to a demotion. It will become clear
later what the Respondents’ case is.
[13]
I
am alive to the fact that the Applicants are not legally represented
and that they may not be
au
fait
with
the legal meaning or consequences of certain legal concepts or
phrases. In argument before me the Applicants made it clear
that they
are not seeking to pursue an unfair labour practice dispute in terms
of section 186(2) of the LRA. They are seeking the
review and setting
aside of the decision to downgrade them to level 7.
[14]
I
accept that the dispute before this Court is not an unfair labour
practice dispute relating to demotion.
[15]
The
second point
in
limine
is
that the Applicants seek an order reviewing and setting aside a
‘decision’ and they must demonstrate that the decision
constitutes administrative action in terms of the Promotion of
Administrative Justice Act
[3]
(PAJA). The Respondents deny that the decision constitutes
administrative action and submitted that the Applicants failed to
demonstrate
that the decision constitutes administrative action.
[16]
The
Applicants have not relied on the provisions of PAJA and the decision
they seek to review does not constitute administrative
action. The
Applicants approached this Court in terms of the provisions of
section 158(1)(h) of the LRA. There is no merit in the
second point
in
limine
as this review is not one brought under PAJA, but it is a legality
review.
[17]
The
Respondents’ case is that the Applicants were upgraded in 2010,
backdated to August 2008 and December 2012 respectively
pursuant to
an administrative error in the Gauteng regional offices.
[18]
The
Respondents explained that the process of job evaluation commenced in
February 2004 and it was decided to use the ‘equate
system’
in the process of comparing jobs within the organisation. According
to the Respondents the job evaluation process
was ultimately approved
in February 2008. In support of this the Respondents referred to a
memorandum to the Department’s
Director General, dated 12
February 2008, wherein it was stated that the jobs were graded
according to the equate job evaluation
system and presented to the
job evaluation panel on 11 February 2008 for consideration. It was
recommended that the job grades
in the memorandum be approved, and it
was indeed approved on 19 February 2008. In this memorandum the post
of administration officer
had been graded under the system as 6+ and
it was recommended that it be graded as level 7.
[19]
This
is where the error crept in, according to the Respondents. A job
evaluation exercise was also performed in relation to the
administrative officers in the Magistrate’s Courts and the
Master’s Office and those jobs were evaluated at salary
level 8
and was approved on 27 August 2008. In support of this the
Respondents relied on a memorandum dated 21 August 2008, relating
to
44 vacant funded posts of administrative officer on the approved
establishment of the Magistrate’s Courts. The administrative
officers in the Magistrate’s Courts and the Master’s
Office were evaluated on salary level 8 and it did not apply to
administrative officers not located in those offices. It is for this
reason that the Respondents submit that the Applicants’
upgrades to salary level 8 were made in error and that they were not
upgraded as a consequence of a job evaluation exercise, but
in
conflict with the outcome of such an exercise. The Applicants’
should have been at level 7 as that is where their positions
were
graded.
[20]
This
is disputed by the Applicants. They relied on a memorandum dated 9
February 2010 and 4 June 2010 wherein approval was sought
for the
uniform implementation of job evaluation results in the regional
offices and courts in regions. Their case is that they
are part of
the regional offices (Gauteng Regional Office), thus this memorandum
applied to them. They dispute that this approval
was for the
Magistrate’s Courts and Master’s Office only. They
further pointed out that their positions were not vacant,
therefore
what the Respondents seek to rely upon, does not apply to them.
[21]
They
further dispute that memorandum wherein the post of administration
officer had been graded under the system as 6+ recommended
to be
graded as level 7 applied to them as it specifically applied to
positions in the directorate: Organisational Development,
of which
they are not part.
[22]
The
Respondents’ case is that there are only two categories of
administrative officers employed at salary level 8 and those
are
employed in the Magistrate’s Courts and the Master’s
Offices. This is disputed by the Applicants who allege that
other
individuals employed as administration officers at the Regional
Office: Gauteng, Free State and Durban are still employed
on salary
level 8 and were not downgraded after the alleged error was
discovered.
[23]
The
Respondents place specific reliance on the provisions of section 38
of the PSA which provides that if an incorrect salary, salary
level,
salary scale or reward is awarded to an employee, the relevant
executive authority shall correct it from the date on which
it
commenced.
In
casu
the
Applicants were remunerated on the incorrect salary and in terms of
the provisions of section 38(1)(a) of the PSA the executive
authority
is given no discretion on whether to correct it or not, but is
obliged to correct it from the date on which it commenced.
[24]
The
Respondents’ case is that it is unnecessary to engage in any
procedure to reverse an error, as provided for in section
38 of the
PSA.
[25]
The
Applicants dispute that there is an error to be corrected as they
were remunerated on salary level 8 after being upgraded to
that level
as the result of approved job evaluation results. They submit that
the Respondents must have informed them of the fact
that the
downgrading of their salaries was considered, must have given them
reasons for that and an opportunity to make representations
before
the final decision was taken.
[26]
After
the matter was fully argued in Court, I afforded the parties an
opportunity to explore a possible amicable solution to this
dispute.
Instead the Respondents filed an application to submit further legal
argument. The argument so submitted addresses factual
issues rather
than legal arguments. The Applicants objected to the filing of
supplementary heads of argument.
[27]
In
view of the relief I grant and the order I make in this matter, I am
not inclined to allow the Respondents to file further submissions.
Analysis
[28]
Mr
Hulley for the Respondents submitted that pursuant to the job
evaluation exercise the post of administrative officer was to be
remunerated at salary level 7, but instead the Applicants were
remunerated at salary level 8. Section 38 of the PSA provides for
such situations in that the executing authority is obliged to correct
the incorrect salary, salary level or salary scale.
[29]
Mr
Hulley argued that section 38(1) of the PSA is cast in the form of a
conditional syllogism, “if X, then Y”, where
X is the
condition and Y the consequent, if the condition is present, the
consequent must necessarily also be present. In my view
this
conditional syllogism begs the question of the existence or the truth
of “X”.
[30]
In
casu
the
condition is the existence of an incorrect salary, salary level,
salary scale being awarded to an employee. If the condition
exists,
the consequence is that the relevant executing authority shall be
obliged to correct it. The executing authority exercises
no
discretion as the said consequence that flows from the existence of
the condition arises by operation of law and not by the
exercise of
any discretion.
[31]
The
Respondents’ case is thus that since no discretion was
exercised, no decision was taken. The right to be consulted before
a
decision adverse to one’s interest is taken, can only exist
where there is a decision taken. The power to correct the salary,
salary level or scale is permissible in law as it is expressly
provided for in section 38 of the PSA.
[32]
I
agree with the submission that where an incorrect salary, salary
level, salary scale or reward is awarded to an employee, the
consequence is that the relevant executing authority is obliged to
correct it and no discretion is exercised.
[33]
I
however do not agree that no decision or action was taken. The
consequence of correcting an incorrect salary flows from the
existence
of an incorrect salary, salary level, salary scale or
reward being awarded to an employee. The determination of whether an
incorrect
salary, salary level, salary scale or reward awarded to an
employee indeed exists, would require some form of investigation or
assessment. The executing authority certainly does not wake up one
morning and correct incorrect salaries, without any preceding
process
or action to determine whether a salary is indeed incorrect.
[34]
Section
38 of the PSA permits the State as employer to correct salaries and
to make deductions from an employee’s salary in
circumstances
where the employee was awarded and incorrect salary, salary level,
salary scale or reward. The question as to whether
the provisions of
section 38 of the PSA had been triggered and whether the requirements
or conditions for the said section to apply
have been met or nor, is
a factual enquiry. Once it is found that the requirements or
conditions have been met, section 38 of the
PSA will be triggered and
the executing authority is obliged to correct the incorrect salary,
salary level, salary scale or reward,
as the case may be.
[35]
On
the other hand, if the requirements or conditions have not been met,
section 38 will not come into operation.
[36]
In
my view the Department has to follow some process to determine
whether an employee was awarded an incorrect salary or level or
scale
before the provisions of section 38 of the PSA could be applied. This
process and the exercising of powers the executing
authority has in
respect of section 38 of the PSA, must be effected reasonably and
must be exercised within the confines of legality,
fairness,
rationality and reasonableness.
[37]
The
principle of legality derives from the provisions of the Constitution
and the components of legality relevant to this application
are that
the action taken must be procedurally fair and it must be rational
and not be arbitrary or capricious.
[38]
Where
the Department thus foresee a situation that the executing authority
will correct an incorrect salary, the action taken to
initiate the
process whereby the executing authority will act in terms of the
provisions of section 38 of the PSA, must be procedurally
fair. The
very first step in a process that is fair, will be to afford the
individual whose rights or benefits will be adversely
affected the
opportunity to be heard.
[39]
In
casu
the
Applicants complain that they were merely informed that the
Department made an error when their salary levels were upgraded
and
that it would be corrected. The letter the Applicants received
mentioned an instruction from the Chief Operation Officer at
national
office that the positions the Applicants occupy have been job
evaluated on salary level 7 and approved as such and that
they were
wrongly upgraded from salary level 7 to 8 and they would be
downgraded to the correct level.
[40]
As
much as Mr Hulley argued that no decision was taken in this matter, I
find it hard to accept. I do accept that the executing
authority does
not take a decision but simply applies section 38 of the PSA, but
before the executing authority applies section
38 of the PSA, a
decision or some action is indeed taken to decide that the salary or
level or scale is incorrect. Once this is
decided, section 38 of the
PSA is triggered.
[41]
The
Applicants were not informed that the downgrading of their salaries
was considered prior to being informed that their levels
were to be
downgraded from 1 June 2015, they were not provided with reasons,
apart from being told that they were wrongly upgraded
from salary
level 7 to 8, and they were not afforded an opportunity to make
representations before the Department decided that
an error occurred
and that it should be corrected. Only after the decision was taken
that the Applicants were wrongly upgraded
or some act performed to
determine that, the executing authority acted in accordance with the
provisions of section 38 of the PSA.
[42]
In
my view the Applicants were entitled to be told why the Department
alleges that a mistake was made when they were upgraded to
salary
level 8 and they should have been afforded the opportunity to make
submissions and to respond to the Department.
[43]
Before
the application of section 38 of the PSA is triggered, there has to
be an incorrect salary or scale or level that requires
correction.
The Department cannot unilaterally decide that an error exists and
that the Applicants were placed on the incorrect
salary scale or
level, without affording them the opportunity to respond and to make
representations on the issue. There is the
possibility that the
Department or the executing authority may be wrong in determining
whether an incorrect salary or level or
scale was awarded.
[44]
If
the existence of the prerequisite is based on wrong information, it
is doubtful that the provisions of section 38 of the PSA
could be
triggered.
[45]
It
cannot be that the Applicants have no recourse if the application of
section 38 of the PSA is triggered by a mistake or a possible
mistake, more so where the determination in respect of the existence
of an incorrect salary or level or scale is made unilaterally
and
without any consideration of the employee’s case and without
following any due or fair process.
[46]
The
Applicants have to be informed about what the error is the Department
seeks to correct and be afforded the opportunity to make
representations on that.
The relief sought
[47]
The
Applicants approached this Court for the review and setting aside of
the decision to downgrade or demote them from salary level
8 to
salary level 7. They approached the Court in terms of the provisions
of section 158(1)(h) of the LRA, which provides for the
review of any
decision taken or act performed by the State in its capacity as
employer on such grounds as are permissible in law.
[48]
In
my view the Applicants are entitled to this relief for the reasons I
have set out
supra.
[49]
The
Applicants further seek to be reinstated to salary level 8 and that
they be paid the difference between salary level 7 that
they were
downgraded to and salary level 8.
[50]
The
entitlement to be reinstated to salary level 8 and to be paid
accordingly is an entirely different and separate question.
In
casu
the
Applicants’ attack on the decision is largely process related
and for that reason alone substitution is not appropriate.
The matter
ought to be remitted to the Respondents to comply with due process.
[51]
It
is not for this Court to decide whether the Applicants should be
placed and remunerated on salary level 8 or whether they are
correctly placed on salary level 7. This is an issue that should be
addressed and resolved internally, after due consideration
of the
facts, the applicable prescripts and the Applicants submissions. The
outcome of the internal process to be followed, will
determine what
consequences are to flow from that.
[52]
In
the premises I make the following order:
Order:
1.
The
decision to downgrade the Applicants from salary level 8 to salary
level 7 is reviewed and set aside;
2.
The
Respondents must provide the Applicants with reasons as to why their
salary levels were downgraded from salary level 8 to 7
within 15 days
of date of this Order;
3.
The
Applicants must submit written submissions in response thereto within
15 days after receipt of the reasons as per paragraph
2
supra;
4.
The
Respondents must assess and consider the Applicants’ written
submissions and determine whether the Applicants were indeed
awarded
an incorrect salary level that has to be corrected;
5.
The
Applicants should be informed about the outcome of the assessment in
paragraph 3
supra
within 15 days after they submitted their written submissions;
6.
There
is no order as to costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Ms Tshifhango in person
For
the Respondents:
Advocate G I Hulley SC
Instructed
by :
State
Attorney
[1]
Public Service Act 1994.
[2]
Act 66 of 1995.
[3]
Act 3 of 2000.