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[2017] ZALCJHB 100
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Nkambule and Another v National Bargaining Council for the Chemical Industries and Others (JR1391/14) [2017] ZALCJHB 100 (29 March 2017)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: JR 1391/14
In
the matter between:
BRENDAN NKAMBULE
First Applicant
GENERAL INDUSTRIES
WORKERS
UNION OF SOUTH
AFRICA
Second Applicant
and
THE NATIONAL
BARGAINING
COUNCIL FOR THE
CHEMICAL
INDUSTRIES
First
Respondent
PANELLIST MANISHA
SINGH (
N.O.
)
Second Respondent
AEL MINING SERVICES
Third Respondent
Heard
:
16 March 2017
Delivered
:
29 March 2017
Summary:
(unfair labour practice – claim for
retrospective remuneration consequent on job regrading – claim
for grading adjustment
to a higher level within a grade)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an
opposed review application
relating to an unfair labour practice concerning remuneration for
upgrading
[2]
The first applicant, Mr B Nkambule (‘Nkambule’) had
claimed back -pay amounting to R 76,137.65 on the basis of the
re-grading of his position. He claimed that since August 2011, he had
performed the tasks in the position he occupied which was
upgraded in
September 2013. He also sought upgrading of his level within the
grade from level 2 to level 2A and demanded back pay
for that too.
[3]
The arbitrator decided that payment of back-pay was not feasible for
the following reasons:
3.1
It was indeterminate when Nkambule had commenced doing the higher
graded work. In regard to the
schedules he submitted in support of
doing prior work at the higher grade, the arbitrator found that the
schedules only related
to competency levels 1 and 2 and the fact that
he was trained at certain levels did not mean he was actually
performing tasks at
those higher levels.
3.2
It would be impractical to make retrospective adjustments every time
a job was upgraded.
3.3
There was no practice of retrospective implementation of back-pay for
upgrading.
[4]
The arbitrator dismissed Nkambule’s claim that he should have
been paid at level 2A. Although he had testified that he
performed
maintenance and quality tasks which were the criteria to be on that
level, the arbitrator accepted the employer’s
evidence that
level 2A had been created as a ‘once-off’ exercise in
2001 and the only employees who were still on that
level were the
remaining persons from the affected 2001 group who were still in
employment. It appears that the arbitrator
also accepted that
Nkambule had not been assessed for a change in his levels and had
concluded that, the only reason for not being
assessed was that he
had outstanding tasks to complete. Nkambule had testified that
multi-skilling did not stop after 2001 and
people continued to do
quality and maintenance work and were held accountable for it.
[5]
The arbitrator ultimately concluded that Nkambule’s claim was
not a claim for a benefit but a claim for remuneration and
therefore
fell outside of the scope of the term ‘benefit’ for the
purposes of the unfair labour practice. In effect
this means that
even though the arbitrator ruled on the merits of the claim, she in
fact held that, properly speaking, the claim
fell outside her
jurisdiction.
Grounds
of review and assessment:
[6]
Firstly, the applicants argued that the arbitrator incorrectly
characterised the dispute as one of remuneration when in fact
it was
about training and promotion, which was never an issue that was
disputed. Consequently, she applied irrelevant criteria
in arriving
at her decision. However, this does not square with Nkambule’s
own characterisation of the dispute in the referral
form on which it
was expressed as a straightforward claim for compensation for quality
and maintenance tasks performed and adjustment
of the salary grade
and back-pay. In effect, it was a claim for recognition of past work
allegedly performed at a higher grade
and for recognition of current
maintenance and quality tasks performed by adjusting Nkambule’s
wage level to level to 2A.
In Nkambule’s representative’s
opening address at the arbitration hearing, the dispute was
characterised as a failure
to match the applicant’s
remuneration with the higher grade in which he had been placed and
that the relief sought was back
pay. It would seem therefore that the
arbitrator’s conclusion that she was not dealing with a claim
for benefits but simply
for a claim for arrear remuneration was well
founded. In so far as the applicant contends that the claim in fact
concerned an alleged
unfair labour practice relating to promotion,
that also does not seem to be a basis on which the arbitrator would
have had jurisdiction
given the absence of an indication in the
referral that the matter concerned a promotion dispute and also given
that the applicant
was in essence seeking compensation for a
promotion which had taken place. Nonetheless, despite the apparent
absence of jurisdiction
to determine the dispute, I have considered
the other grounds of review in the event that I am wrong on this
issue.
[7]
Secondly, a fundamental pillar in Nkambule’s case is that, the
arbitrator had improperly relied on documentary evidence
which had
been “unlawfully restructured”. This claim of fabricated
evidence concerned a document produced to support
the respondent’s
argument that the 2A level had been a temporary measure in 2001.
Nkambule contends that the company logo
on the bulletin describing
the temporary measure did not exist in 2001 and that accordingly, the
document was purposely manufactured
and untrue. The company witness
conceded that the logo on the document was incorrect, but in his
evidence in chief, he tendered
the document with the original logo
and gave detailed evidence as to the origin of level 2A. He stated it
was developed as a measure
to accommodate people who did quality and
maintenance work previously, before multi-skilling was introduced.
[8]
It was submitted that Nkambule was unable to even identify designated
tasks he had supposedly performed, which were associated
with level
2A, on the document he produced as evidence in support of his claim
to perform that type of work. The document relied
on by Nkambule
makes no reference to level 2A, but only to levels 1, 2, 3 and 4. In
cross-examination of the respondent’s
witness, it was suggested
to him that some of the tasks under level 4 performed by Nkambule
should have placed him on level 2A.
His response was that levels 2A
and 2B ceased to exist after 31 December 2001. Thereafter anyone
engaged after that date was graded
under the new multi-skilling
model.
[9]
The document, which Nkambule disputed the authenticity of, contained
a diagram showing that an interim arrangement had been
devised in
2001 to accommodate employees who were both competent and accountable
for quality and maintenance tasks in the multi-skilling
system, the
respondent had adopted. The document makes it clear that the two
bands introduced to accommodate such employees were
part of a
“parallel interim model”. The document explained the term
as follows:
“
‘
Parallel’means
that the two bands not part of the multi-skilling model but to run
along side it. ‘Interim’ means
that bands A and B not
intended to be permanent. They are there to meet the need of defined
existing employees.
Beneath
the diagram showing the relationship between the parallel interim
model and the existing multi-skilling system, the following
additional explanation appears:
“
This
will be a ‘once-off’ exercise, meaning that no further
employees (whether existing or new employees) will be allowed
into
bands A and B after the present exercise of defining employees is
completed and implemented. This exercise was supposed to
be closed by
31 December 2001. But was officially closed on 30 June 2002 after
been extended a number of times due to requests
from union
representatives and line management.”
[10]
In the context of all the oral testimony relating to this interim
arrangement which was not seriously contested in the
cross-examination
of the third respondent’s witness, save for
the dispute about the authenticity of the document itself, it cannot
be said
that the arbitrator acted unreasonably in refusing to
discount the document as a fabrication. To consider it as such, would
entail
concluding that the third respondent had embarked on a scheme
of deception of an extraordinarily elaborate nature just to deny
Nkambule what was due to him. It would also have required the
arbitrator to simply ignore the fact that the document relied on by
Nkambule himself made no reference to the intermediate grade levels
2A and 2B. I am satisfied that the arbitrator’s conclusions
in
relation to the non-existence of level 2A as an intermediate grade
level that can be applied to employees other than those who
were
specifically subject to the parallel interim arrangements in 2001 and
2002 were not conclusions that no reasonable arbitrator
could have
arrived at on the evidence.
[11]
Thirdly, the applicants also submit that the arbitrator unreasonably
relied on the evidence of a senior manager
rather than someone with
knowledge of HR practices policies. This ground of review seems to be
a somewhat belated attempt to discredit
the expertise of the
respondent’s witness in circumstances where his ability and
competence to testify were not disputed
at the arbitration.
[12]
Fourthly, it is claimed that the arbitrator had no basis for deciding
that because Nkambule claimed to be have been trained
at certain
levels that he was actually performing work at that level. As the
essential issue in this review is whether it was possible
for a
person like Nkambule, who was not part of the group that was placed
on level 2A or 2B in 2001, to still be classified in
that group, and
since it was not unreasonable to conclude that entry into those
levels was not possible after that interim period,
it makes little
difference whether he was performing such work or not as his grading
had to relate to the permanent grading structure.
[13]
It was also claimed that the arbitrator had ignored evidence there
had been other instances of employees receiving back-pay
for
upgrading and showed undue concern for setting a precedent by
recognising a right to back-pay. On the available evidence, the
employer’s witness had explained that this had only happened
where people had been placed in a new job without a pre-existing
grade being attached to it. In the case of the applicant, his job had
been graded at a certain level for many years and the regrading
was
not the same as a delay in grading a job for the first time. I also
note that in the applicant’s evidence in chief, the
allegation
of back-pay was not supported with specific examples and it was only
in re-examination that he made a vague reference
to a case of some
individuals who had been found to be on a higher grade and received
retrospective compensation. In the circumstances,
it cannot be said
that the arbitrator’s finding on this issue was one that no
reasonable arbitrator could have arrived at.
[14]
In
conclusion, I am satisfied that even if the arbitrator did have
jurisdiction to consider the applicant’s complaint, her
other
findings are not ones that no reasonable arbitrator could have
arrived at. Moreover, to the extent that she may have erred
in some
respects, her errors were not ones that would have had the result
that her award would necessarily have been different
had she not made
them.
[1]
[15]
Although Nkambule was assisted in this matter by his union,
albeit
perhaps after he had filed papers initially, I accept the applicants
might genuinely believed his application had some merit and
it was
not frivolous or vexatious. In the circumstances, I do not believe a
cost award against the applicants is warranted.
Order
[16]
In light of the above,
16.1
The application is dismissed.
16.2
No order is made as to costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
V Bayi of Bayi Attorneys
THIRD RESPONDENT:
B
Masuku of Mervyn Taback Inc.
[1]
See
Head
of the Department of Education v Mofokeng and others
[2015]
1 BLLR 50
(LAC)
at 60 par [32].