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[2017] ZALCJHB 480
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Public Service Association of South Africa obo Members v MEC for Agricultural and Rural Development (North West Province) (JR634/13) [2017] ZALCJHB 480 (12 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR 634 / 13
In
the matter between:
THE
PUBLIC SERVICE ASSOCIATION OF
SOUTH
AFRICA OBO
MEMBERS
Applicant
and
MEC
FOR AGRICULTURAL AND RURAL
DEVELOPMENT
(NORTH WEST PROVINCE)
Respondent
Heard
:
19 April 2017
Delivered
:
12 October 2017
Summary:
Conduct by State as employer –
application of performance management and development system –
review of decision of
employer in applying
such
system to employees – Section 158(1)(h) of LRA considered –
principles applicable to such reviews considered
Review
application – review application based on principle of legality
– considerations applicable to legality review
–
principles considered
Nature
of dispute – performance management and development system and
consequent payment of bonuses – constitutes a
benefit under the
unfair labour practice jurisdiction – dispute should be dealt
with by bargaining council under normal dispute
resolution processes
under Chapter VIII of the LRA – review under Section 158(1)(h)
not appropriate
Extraordinary
circumstances – principles considered – no extraordinary
circumstances shown to justify departure from
normal dispute
resolution processes – alternative remedy available
Review
application – no justification for consideration of review
application – application dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The
current application is an application by the applicants in terms of
Section 158(1)(h) of the Labour Relations Act
[1]
(‘the LRA’) to review and set aside a decision made by
the respondent as employer in the public services sector.
The
review concerns a decision made by the respondent where it came to
the application of the Performance Management and Development
System
in place at the respondent, and in particular, the payment of
performance bonuses to employees in terms of that system.
The
applicants were unhappy about the manner in which such bonuses was
determined, and then paid, for the 2010-2011 year.
[2]
The application dates back to 2013.
It was marred by objections
in limine
and point taking by both parties. The matter ultimately came before
Van Niekerk J for case management on 7 February 2017, and in
terms of
an order made by the learned Judge on such date, it was recorded that
the points
in limine
were withdrawn, the late filing of the answering affidavit was
condoned, and the respondent was directed to file heads of argument.
Van Niekerk J also enrolled the matter for hearing on 19 April 2017,
and it then came before me for determination.
[3]
I
will decide this matter by first summarizing the proper factual
matrix upon which such decision is to be based. As these are motion
proceedings, and insofar as there exists a factual dispute between
the parties, I shall apply the
Plascon
Evans Paints v Van Riebeeck Paints
[2]
principles.
The
relevant facts
[4]
The respondent is the functionary
responsible for the Department of Agriculture and Rural Development
for the North West Province.
The individual applicants are the
members of the Public Servants Association (‘the Association’)
on whose behalf the
application has been brought and are all employed
in that department. For ease of reference, I shall refer in
this judgment
to the respondent as ‘the department’.
[5]
In the public service, there are mechanisms
in place that are intended to reward deserving public service
employees for good performance,
by way of a performance bonus, paid
annually. The mechanism at stake in this instance, as touched
on above, is the Performance
Management and Development System
(‘PMDS’). The PMDS was executed under the Public Service
Regulations.
[6]
In the case of the North West Provincial
Government, it implemented a PMDS policy as far back as 2003.
There were five amendments
to the PMDS policy over the years, with
the latest applicable amendment being effected on 1 April 2010.
This policy appears
to apply to all the departments in the North West
provincial government, including the department.
[7]
A consideration of the PMDS policy shows
that it is not just aimed at individual performance of individual
employees. It also has
a group objective, with the first listed
purpose of the policy being to enhance organizational/departmental
performance against
the strategic plan. The next listed purpose is to
enhance individual performance against agreed upon objectives. It is
recognized
that good performance must be rewarded. The policy applies
to all employees that are not senior management.
[8]
In short, the PMDS policy prescribes that
an annual performance bonus be paid to deserving employees in the
department, based on
the employees excelling where it comes to work
performance. These bonuses are paid as a percentage of annual
salary.
It is however specifically prescribed that these
performance bonuses paid to employees cannot be in excess of a total
of 1.5% of
the salary bill for the department.
[9]
In order to determine if employees qualify
for such a performance bonuses, there is an evaluation process in
terms of the PMDS policy.
It starts with an assessment of the
employee’s performance by his or her supervisor, which happens
continuously during the
annual bonus cycle. This is followed by
an annual performance review, pursuant to which the employee is then
given an ‘assessment
outcome’ (the employee is entitled
to challenge such an outcome, if dissatisfied with it). The
employee is given a
score in this annual performance assessment,
which places the employee into one of five categories of performance,
starting with
‘unacceptable performance’ and ending with
“outstanding performance’. The particular category
firstly
determines if the employee qualifies for a bonus.
Performance bonuses only accrue to employees in the categories of
‘performance
significantly above expectations’ and
‘outstanding performance’. For level 1 – 10
employees, and
in the category of ‘performance significantly
above expectations’, bonuses range from 5% to 17% of annual
salary, and
in the category of ‘outstanding performance’,
the bonus is 18%. For level 11 – 12 employees, and in the
category of ‘performance significantly above expectations’,
bonuses range from 5% to 13% of annual salary, and in the
category of
‘outstanding performance’, the bonus is 14%.
[10]
This annual performance assessment is
however subject to moderation by a moderating committee. The
PMDS policy specifically
records that the primary role of the
moderating committee is to ‘
ensure
equity and consistency in the application of the PMDS
’
.
If the moderating committee identifies deviations or discrepancies in
the performance assessments, it must remedy the situation
through a
moderation process to be submitted to the head of department for
approval.
[11]
The department also adopted a set of
guidelines where it came to the application of the PMDS policy in the
department. These
guidelines record that all performance
reports would be subject to moderation. Also provided for in
these guidelines is what
is called a ‘committee of managers’
that review the semester ratings by supervisors of employees, and
this committee
shall have the prerogative to recommend to the
supervisor to either increase or reduce ratings. Following
consultation with
the supervisor, the committee shall then determine
a final semester score.
[12]
The guidelines however do recommend that if
the cost of performance incentives exceed the prescribed maximum
allowed, the head of
department may scale it down. It is stated that
the scaling down will be done on the amount due/applicable to the
employee rather
than on the percentage allocated based on the
performance level.
[13]
The evidence shows that the department for
a number of years prior to 2010 / 2011 paid out performance bonuses
to employees under
the PMDS policy, without any issue or complaint
from the Association or its members.
[14]
For the 2010 – 2011 assessment
period, the department decided to establish what it called a
Centralized Moderating Committee.
This committee had two
purposes, the first being to standardize the different evaluation and
scoring mechanisms adopted by the
various directorates in the
department in applying the PMDS policy, and secondly to ensure that
all the different directorates
stay within the limit of 1.5% of the
total salary bill of the department where it came to paying out
performance bonuses.
[15]
According to the department, it has been
experiencing difficulties with the different directorates evaluating
performance bonuses,
leading to what it called bonuses ‘way
above’ the budgetary limitation of 1.5% of the salary bill. The
figure mentioned
is that this budget limitation was exceeded by 38%.
This Central Moderating Committee would ensure consistent application
of the PMDS policy across all directorates, and ensure this would
always be within the budgetary prescription.
[16]
The problem with this approach of the
department, as far as the Association was concerned, in establishing
this Centralized Moderating
Committee, is that the department
deviated from the manner in which it had been applying the PMDS
policy before this assessment
year, and in particular, that this
Central Moderating Committee was not provided for in the PMDS policy
or accompanying regulations.
As far as the Association was concerned,
how the process was prescribed to work was that employees were
assessed by their individual
supervisors. These assessments by
the supervisors would then be presented to the moderating committee.
The moderating
committee would then make the final determination
where it came to performance bonuses, and that was that. This means,
according
to the Association, that there is no provision for further
moderation.
[17]
In the founding affidavit, the Association
sets out one example of Orapeleng Motshwane (‘Motshwane’).
It is said
that he was initially assessed, and then moderated, to
qualify for a 13% bonus payment under PMDS policy. However, and
due
to a decision taken by the new Central Moderating Committee, the
individual rating of Motshwane was decreased to 8%. The
difficulty that the PSA has with this decision is that should it be
necessary to decrease bonus payments so as to fall within the
1.5% of
salary bill budget constraint, this could only be done by way of an
across the board scaling down of bonus payments and
the decreasing of
individual ratings was not permissible, as contemplated by the
guidelines.
[18]
However, and save for Motshwane, the
Association has not mentioned one single other example of an
individual employee that has been
assessed and then moderated for a
certain bonus percentage, but then has had that percentage reduced by
the Central Moderating
Committee. The department has taken specific
issue with this lack of particularity in its answering affidavit,
contending that
it means that the applicants have failed to make out
a proper case.
[19]
The department, on the other hand, states
that there is nothing in the PMDS policy or regulations that
prohibits the establishment
of a Central Moderating Committee. It
said that this Committee fulfilled the important purposes set out
above, and in particular,
to ensure that bonus payments remain within
budget, and that the policy is consistently applied in all
directorates (in other words
quality assurance). According to the
department, individual performance scores of individual employees
were not adjusted downwards
or decreased, as contended by the PSA,
but the overall ratings per directorate was scaled down to fit within
the budgetary limit.
In other words, although individual performance
scores may have been adjusted downwards, this was done on the basis
of an across
the board scaling down per directorate, because the
actual bonus payment is based on an actual percentage attached to the
employee.
[20]
Finally, the Central Moderating Committee
determined that for the lowest level of employees, being those at
levels 2 – 4,
a standard across the board performance bonus of
10% would be paid, irrespective of individual ratings, provided the
employees
concerned of course qualified for a bonus payment
per
se
following assessment and moderation.
The rationale provided for this was that these level employees
perform routine duties similar
in nature, and in this context
consistency was the overriding consideration. The department has also
said that the bonus payments
at these levels did not significantly
contribute to the limit in respect of the salary bill percentage.
[21]
In a letter dated 5 March 2012, the
Association raised a complaint with the department contending that
the conduct of the department
was in contravention of the PMDS policy
because it reduced the individual scores of employees, and afforded a
fixed percentage
to the lower level employees irrespective of the
level of their performance. Significantly, it is recorded in this
letter that
the Association ‘understands’ the budgetary
constraint of 1.5% and does not appear to take issue with the fact
that
this had to be adhered to and could lead to the reduction of
performance bonuses.
[22]
The department answered on 12 March 2012.
It stated that the PMDS policy made provision for the establishment
of Moderating Committees,
and based on this, a Central Moderating
Committee had been established. This letter set out the role and
responsibilities of the
Central Moderating Committee, which included
the issues already discussed above. The Association was
informed that the activities
of the Central Moderating Committee
revealed that the budgetary limit was being significantly exceeded
and the performance curve
was abnormal. The Association was also
informed that the recommendations of the Central Moderating Committee
had been accepted
by the heads of department.
[23]
Dissatisfied with the answer given, the
Association then pursued the application which is now before me for
consideration. As stated
above, the application is a review
application under Section 158(1)(h) of the LRA, and I will now
commence deciding this application
by first setting out the relevant
review principles in an application of this nature.
Review
principles
[24]
Section 158(1)(h) provides as follows:
‘
The
Labour 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.
’
[25]
It is
thus clear that the process of utilization of Section 158(1)(h)
contemplates a review application. This being the case, the
applicable basis of such a review has been described in
Hendricks
v Overstrand Municipality and Another
[3]
,
as follows:
‘
In
sum therefore, the Labour Court has the power under s 158(1)
(h)
to review the decision taken by a presiding officer of a disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision
constitutes administrative action; (ii) in terms of the common law in
relation to domestic or contractual disciplinary proceedings;
or
(iii) in accordance with the requirements of the constitutional
principle of legality, such being grounds 'permissible in law'
.
[26]
Following
on, the Court in
Merafong
City Local Municipality v SA Municipal Workers Union and Another
[4]
similarly pronounced:
‘
The
Labour Court is not precluded by the LRA from reviewing the decisions
and acts contemplated in s 158(1)(h)
.
It has the power (and jurisdiction) to review them on any grounds
'permissible in law'. Permissible grounds in law would
include
the constitutional grounds of legality and rationality and, if they
constitute 'administrative action', on the grounds
that are
stipulated in PAJA …
’
[27]
In
its founding affidavit, the applicants have relied on review grounds
based on the principle of legality. The applicants have
not relied on
PAJA
[5]
.
Dealing specifically with ‘legality’, the Court in
Hendricks
[6]
said:
‘…
.
Legality includes a requirement of rationality. It is a requirement
of the rule of law that the exercise of public power by the
executive
and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power
was given,
otherwise they are in effect arbitrary and inconsistent with the rule
of law.
’
[28]
The
Court in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[7]
also specifically dealt with the meaning of ‘legality’,
in the context of a review application under Section 158(1)(h)
of the
LRA, and held:
‘…
The
principle of legality is applicable to all exercises of public power
and not only to 'administrative action' as defined in PAJA.
It
requires that all exercises of public power are, at a minimum, lawful
and rational. …
’
[29]
In
MEC
for the Department of Health, Western Cape v Weder;
MEC for the
Department of Health, Western Cape v Democratic Nursing Association
of SA on behalf of Mangena
[8]
the Court held that the principle of legality had developed over the
past decade, to the extent that a parallel system of review
for
actions which falls outside of the strict definition of
administrative action, had developed. Having held so, the Court then
proceeded to set out this development as follows:
[9]
‘…
Public
functionaries are required to act within the powers granted to them
by law. See
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC)
at
para 58, furthermore, see the seminal judgment in
Pharmaceutical
Manufacturers Association of SA & another
:
In
re Ex parte President of the Republic of SA & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC)
at
para 85, where the court laid down the core element of legality as
follows:
'It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this
requirement.
'
The
Court in
Weder
[10]
then proceeded to consider this component of rationality as part of
the legality enquiry, and held:
‘
In
later judgments the court has developed this concept of rationality
requiring the executive or public functionaries to exercise
their
power for the specific purposes for which they were granted so that
they cannot act arbitrarily, for no other purpose or
an ulterior
motive. See
Gauteng
Gambling Board & another v MEC for Economic Development,
Gauteng
2013
(5) SA 24
(SCA)
at
para 47. Furthermore, in
Democratic
Alliance v President of the Republic of SA & others
2013
(1) SA 248
(CC)
at
para 39 Yacoob ADCJ held:
'If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means to achieve the purpose for which the power was conferred. And
if the failure had an impact on the rationality of the
entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the process as a whole.'
’
[30]
In summary, where the applicants seek to
challenge the decision taken by the department where it comes to the
payment of performance
bonuses under PMDS policy, on the basis of a
review application in terms of Section 158(1)(h) of the LRA founded
on the constitutional
principle of legality, the applicants must show
that the decision failed to meet the following essential
requirements:
30.1 The decision of
the department was rationally connected to the purpose for which the
power was given to it,
thus meaning that the decision would not be
considered to be arbitrary;
30.2 The decision
accounted for all the relevant facts informing the decision, to the
extent that the decision
made can be said to be rational;
30.3 The process
giving rise to the decision was lawful and fair; and
30.4 The decision
itself was lawful, meaning that it is not a decision that falls
outside the scope of the power
afforded to the department.
Should the applicants be able to show
that any one of these requirements have not been satisfied, then the
decision by the department
would be reviewable in terms of Section
158(1)(h) of the LRA based on the principle of legality.
Is
the review appropriate?
[31]
There
is no doubt that as a general proposition, the Labour Court has the
jurisdiction, in terms of Section 158(1)(h) of the LRA,
to consider
the applicants’ application to review and set aside the
decision of the department relating to the payment of
performance
bonuses to employees, on the basis of the test as summarized above.
The Court in
Gcaba v
Minister for Safety and Security and Others
[11]
said that jurisdiction
means:
‘…
the
power or competence of a court to hear and determine an issue between
parties …’
And
in
Merafong
City Local Municipality v SA Municipal Workers Union and Another
[12]
the
Court held:
‘
Section
158(1)(h) of the LRA refers to a jurisdictional power of the
Labour Court. It specifically provides that the Labour
Court 'may
review any decision taken or any act performed by the State'. The
only way the Labour Court is able to review is by
hearing and
determining an application for review of the acts and/or
decisions contemplated in s 158(1)(h). That section
should be
read as not only conferring a power, but also jurisdiction upon the
Labour Court.
’
The
Labour Court thus clearly has the power under Section 158(1)(h) to
hear the applicants’ application.
[32]
But
it is not as easy as that. The fact that the Labour Court has
jurisdiction / power does not mean that the Court should
exercise
this power. In other words, and even thought the Court may have
jurisdiction to consider such a review under Section 158(1)(h),
it
does not mean that it is appropriate for it to exercise such power,
especially where there are other specifically prescribed
means by way
of which the issue can be resolved. The Court in
Madzonga
v Mobile Telephone Networks (Pty) Ltd
[13]
said:
‘
The
issue is not one of jurisdiction. It is one of competence.
As I have set out above, the Labour Court will by virtue
of the
provisions of Section 158(1) of the LRA always have jurisdiction to
interdict any form of disciplinary proceedings or grant
interim
relief. …’
[33]
Skweyiya
J in
Chirwa
v Transnet Ltd and Others
[14]
dealt with what was in essence an unfair dismissal dispute based on
poor work performance, but which dismissal was challenged by
the
employee party on the basis of a case of the breach of her right to
administrative justice, which is in essence an issue of
legality.
After accepting that such disputes are dealt with in Chapter VIII of
the LRA, Skweyiya J then said:
[15]
‘…
The
LRA is the primary source in matters concerning allegations by
employees of unfair dismissal and unfair labour practice irrespective
of who the employer is, and includes the state and its organs as
employers.
Ms Chirwa's case is based on an
allegation of an unfair dismissal for alleged poor work performance.
The LRA specifically legislates
the requirements in respect of
disciplinary enquiries and provides guidelines in cases of dismissal
for poor work performance.
She had access to the procedures,
institutions and remedies specifically designed to address the
alleged procedural unfairness
in the process of effecting her
dismissal. She was, in my view, not at liberty to relegate the finely
tuned dispute-resolution
structures created by the LRA. If this is
allowed, a dual system of law would fester in cases of dismissal of
employees by employers,
one applicable in civil courts and the other
applicable in the forums and mechanisms established by the LRA.’
[34]
The
Constitutional Court in
Gcaba
[16]
followed suit, with Van Der Westhuizen J applying the
dicta
in
Chirwa
as follows:
‘
Once
a set of carefully crafted rules and structures has been created for
the effective and speedy resolution of disputes and protection
of
rights in a particular area of law, it is preferable to use that
particular system. This was emphasized in
Chirwa
by both Skweyiya J and Ngcobo J. If litigants are at liberty to
relegate the finely tuned dispute-resolution structures created
by
the LRA, a dual system of law could fester in cases of dismissal of
employees.
’
It
may be added that the issue before the Court in
Gcaba
concerned an employee party that challenged a failure to promote him
as being an infringement of his right to just administrative
action,
and in this context, the Court said:
[17]
‘…
the
failure to promote and appoint Mr Gcaba appears to be a
quintessential labour related issue, based on the right to fair
labour
practices, almost as clearly as an unfair dismissal …
’
[35]
The
Labour Appeal Court in
Hendricks
[18]
specifically applied the aforesaid
dicta
in
Chirwa
and
Gcaba
,
and concluded:
‘
These
dicta of the Constitutional Court support the general proposition
that public sector employees aggrieved by dismissal or unfair
labour
practices (unfair conduct relating to promotion, demotion, training,
the provision of benefits and disciplinary action short
of dismissal)
should ordinarily pursue the remedies available in ss 191 and 193 of
the LRA, as mandated and circumscribed by s
23 of the Constitution.
…
’
[36]
Therefore
in summary, the LRA has a very unique scheme where it comes to
resolving disputes that arise within the scope of an employment
relationship. This includes such disputes involving the state
as employer.
[19]
The LRA creates a right to fair dismissal and the right to fair
labour practice, and then provides for a prescribed dispute
resolution process to give effect to such rights.
[20]
At the heart of this dispute resolution process lays the notion of
fairness as between both employer and employee. This notion
of
fairness is not compatible with concepts such as unlawfulness,
illegality or invalidity. At a level of policy, this Court
should always strive to give primacy to this prescribed dispute
resolution process of the LRA and the notions underlying it. These
kind of policy considerations were evidenced in the judgment of the
Constitutional Court in
Steenkamp
and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
[21]
where the Court dealt with the notion of challenging dismissals under
the LRA on the basis of the dismissal being unlawful or invalid.
Zondo J (as he then was), writing for the majority, held:
[22]
‘
I
think that the rationale for the policy decision to exclude unlawful
or invalid dismissals under the LRA was that through the
LRA the
legislature sought to create a dispensation that would be fair to
both employers and employees, having regard to all the
circumstances,
including the power imbalance between them. In this regard a
declaration of invalidity is based on a 'winner takes
all' approach.
The fairness which forms the foundation of the LRA has sufficient
flexibility built into it to enable a court or
arbitrator to do
justice between employer and employee.
’
Having
so held, the learned Judge then reflected on the dispute resolution
process envisaged by the LRA, and said:
[23]
‘
The
scheme of the LRA is that, if it creates a right, it also creates
processes or procedures for the enforcement of that right,
a
dispute-resolution procedure for disputes about the infringement of
that right, specifies the fora in which that right must be
enforced
and specifies the remedies available for a breach of that right.
’
[37]
What
this means, in my view, is that when this Court is confronted with an
application seeking to challenge the decision of an employer
on
review under Section 158(1)(h) in the context of the employment
relationship, this Court is duty bound to ascertain whether
the
decision taken is one that would normally resort under the definition
of dismissal or unfair labour practice as defined in
Chapter VIII of
the LRA, irrespective of the fact that the applicant may label it as
a legality challenge.
[24]
Thus, the classification of the dispute as one of an infringement of
a Constitutional principle of legality and a challenge
being launched
on that basis, must be carefully scrutinized, so as to ascertain if
it is a dispute capable of resolution under
the proper prescribed
processes under Chapter VIII of the LRA in the forum properly and
specifically designated to deal with such
a dispute. As said by
Ngcobo J in
Chirwa
:
[25]
‘…
It
could not have been the intention of the legislature to allow an
employee to raise what is essentially a labour dispute under
the LRA
as a constitutional issue under the provisions of s 157(2). To hold
otherwise would frustrate the primary objects of the
LRA and permit
an astute litigant to bypass the dispute-resolution provisions of the
LRA. This would inevitably give rise to forum
shopping simply because
it is convenient to do so or as the applicant alleges, convenient in
this case 'for practical considerations'.
What is in essence a labour
dispute as envisaged in the LRA should not be labelled a violation of
a constitutional right in the
Bill of Rights simply because the
issues raised could also support a conclusion that the conduct of the
employer amounts to a violation
of a right entrenched in the
Constitution.
’
Of
proper practical illustration of this point is the following
dictum
from the judgment in
Public
Servants Association of SA on behalf of de Bruyn v Minister of Safety
and Security and Another
[26]
:
‘
Therefore,
the court a quo (although of the opinion that the application before
it was in terms of s 158(1)
(g)
of the LRA) correctly proceeded to consider whether the LRA required
the kind of dispute which existed between the appellant and
the
respondent to be resolved through arbitration. The court concluded
that leave, including incapacity leave and temporary incapacity
leave
at the respondent's organization, is governed by the provisions of
Resolution 5 of 2001 of the PSCBC, which is a binding
collective
bargaining agreement. This means that the dispute between the parties
was required to be submitted to arbitration as
it concerned the
application and/or interpretation of the provisions of the PSCBC
resolution …
’
[38]
I am
alive to the fact that jurisdiction of the Court is determined by the
case as pleaded by an applicant.
[27]
Accordingly, a pleaded case of infringement of the Constitutional
right to legality will clothe the Court with jurisdiction
to consider
the case. But considering the case does not mean that the case
must then be decided on its merits. The Court
can still decline to
decide the matter on the basis that the dispute should rather be
dealt with in terms of the dispute resolution
processes under Chapter
VIII of the LRA. To describe it as simply as possible, the fact that
the Labour Court has the power or
competence to do something, does
not mean that it should, especially where that something can be dealt
with under the proper prescribed
dispute resolution processes under
the LRA. This was appreciated by the Court in
de
Bruyn
[28]
where it was held as follows:
‘
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 …
’
[39]
But
when should the Labour Court nonetheless exercise its powers under
Sections 158(1)(h) of the LRA, in place of the prescribed
dispute
resolution processes under the LRA? The answer is under exceptional
circumstances only. There are in fact a number
of examples of
this approach. One of these instances is intervention by the
Labour Court in the case of disciplinary proceedings
against
employees. The Labour Court clearly has the jurisdiction to do
this.
[29]
The Court in
Booysen
v Minister of Safety and Security and Others
[30]
held that:
‘…
.
the Labour Court
has jurisdiction to interdict any unfair conduct including
disciplinary action. However such an intervention should
be exercised
in
exceptional cases
.
It is not appropriate to set out the test. It should be left to the
discretion of the Labour Court to exercise such powers having
regard
to the facts of each case. Among the factors to be considered would
in my view be
whether
failure to intervene would lead to grave injustice or whether justice
might be attained by other means
.
The list is not exhaustive.
’ (emphasis added)
[40]
Another example is where
the suspension of an employee is being challenged in the Labour
Court. I
n
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[31]
the Court equally confirmed the jurisdiction of the Labour Court to
entertain an urgent application specifically relating to the
uplifting of a suspension, but then said the following:
[32]
‘
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA. The
respondent in this case instead sought a declaratory order
from the
Labour Court in terms of s 158(1)
(a)
(iv)
of the LRA to the effect that the suspension was unfair, unlawful and
unconstitutional. A declaratory order will normally be
regarded as
inappropriate where the applicant has access to alternative remedies,
such as those available under the unfair labour
practice
jurisdiction. A final declaration of unlawfulness on the grounds of
unfairness will rarely be easy or prudent in motion
proceedings.
The
determination of the unfairness of a suspension will usually be
better accomplished in arbitration proceedings, except perhaps
in
extraordinary or compellingly urgent circumstances
…’
(emphasis
added)
Applying
the aforesaid dictum in
Gradwell
,
the Court in
Madzonga
[33]
held:
‘
The
above authorities make it clear that the issue of the alternative
remedy of the referral of the dispute to the CCMA or bargaining
council, and this remedy is actually prescribed by law, is an
important consideration mitigating against not granting relief in
urgent applications concerning the uplifting of suspensions. In
my view the issue is actually more than just the existence
of an
alternative remedy. The simple reason for this is that the
alternative remedy is not just an available alternative
remedy but a
statutory prescribed alternative remedy. This is where the
issue of competence comes in. The primary consideration
must
always be that proper effect be given to the clear terms of the
statute, and for the Labour Court to entertain this issue
would be
contrary to the dispute resolution process clearly prescribed by such
statute which should only be done with great circumspection
and
reluctance. In my view, and as a matter of principle, the
Labour Court should only entertain urgent applications to declare
suspensions unfair or unlawful or invalid on the basis of interim
relief pending the final determination of the issue in the proper
prescribed forum, and even then compelling considerations of urgency
and exceptional circumstances have to be shown by an applicant
for
such relief. Whether or not compelling considerations of
urgency and exceptional circumstances exist is a call the Court
has
to make on a case by case basis on the facts of the matter.
’
[41]
What
thus clearly appears to be the central theme guiding the Labour Court
in deciding whether or not to exercise the power afforded
to the
Court in terms of Section 158(1)(h) of the LRA, is the availability
of a prescribed alternative process and accompanying
remedies, and in
particular the unfair dismissal and unfair labour practice dispute
resolution process and remedies under Chapter
VIII of the LRA.
Apposite, in my view, is the following dictum of Skweyiya J in
Chirwa
:
[34]
‘
It
is my view that the existence of a purpose-built employment framework
in the form of the LRA and associated legislation infers
that labour
processes and forums should take precedence over non-purpose-built
processes and forums in situations involving employment
related
matters. At the least, litigation in terms of the LRA should be seen
as the more appropriate route to pursue. Where an
alternative cause
of action can be sustained in matters arising out of an employment
relationship, in which the employee alleges
unfair dismissal or an
unfair labour practice by the employer, it is in the first instance
through the mechanisms established by
the LRA that the employee
should pursue her or his claims.
’
[42]
But
if exceptional circumstances dictate otherwise, this Court may still
intervene, in place of the prescribed dispute resolution
processes
running their course. These exceptional circumstances must however be
shown by the applicant to exist, with proper motivation
for the
contention, and a proper case in this regard must be made out in the
founding affidavit. In this regard the Court in
Minister
of Labour and Another v Public Servants Association of SA and
Another
[35]
held:
‘
Features
that serve to distinguish the exception from the general are, inter
alia, the source and nature of the action, whether
the action
involves, or is closely related to the formulation of policy, or to
the initiation of legislation and/or whether it
has to do with the
implementation of legislation. In
De
Villiers
the Labour Court added the existence of alternative remedies as
another factor to be considered, due to the importance attached
to
that aspect in both the
Chirwa
and the
Gcaba
decisions. …
’
[43]
It is
useful to refer to some examples where such exceptional circumstances
were found to exist. One of these is in fact the judgment
in
Minister
of Labour
[36]
itself which dealt with the revocation of an employee’s
designation of Registrar of Labour Relations in terms of the LRA,
[37]
and his resultant removal from that position, for reasons that were
entirely irrational and invalid and where there in reality
was no
alternative remedy. A further example is
Hlabangwane
v MEC for Public Works, Roads and Transport, Mpumalanga Provincial
Government and Others
[38]
which concerned a case where the right to discipline the employee had
been specifically removed by statute (the Public Service
Act) as a
result of a transfer of the employee. A final example is by now the
well known matter of
Solidarity
and Others v SA Broadcasting Corporation
[39]
which concerned the dismissal and victimization of reporters for
being critical of policy decisions by the SABC as public broadcaster,
which conduct violated the Constitutional duties of the employees,
and even infringed on the right of the public to be properly
informed.
[44]
Turning
then to the instances where no alternative remedies exist, thus
justifying an applicant party to resort to Section 158(1)(h),
there
is no better example than the issue of deemed terminations of
employment under Section 17 of the PSA.
[40]
In these cases, and because of a deemed statutory termination of
employment in instances of absence of employees from the workplace
in
the public service, there is no opportunity for such an employee to
resort to the dispute resolution processes under the LRA,
as there is
no dismissal. It has thus been consistently recognized that in
these cases, this termination of employment can
be challenged on
review to the Labour Court under Section 158(1)(h) of the LRA.
[41]
[45]
To sum up
in
casu
: This court has jurisdiction to
entertain the applicants’ application. But whether it is
appropriate to exercise this jurisdiction
and consider the
application is dependent upon deciding, firstly, whether the issue in
dispute is in reality not one relating to
employment that should be
resolved in terms of the dispute resolution processes under Chapter
VIII of the LRA. If the issue
in dispute is such, then as a
matter of general principle this Court should decline to entertain
the application. However, and
even if the issue in dispute is such,
the second consideration is deciding whether extraordinary
circumstances exist justifying
this Court to consider the merits of
the application, irrespective of the fact that Chapter VIII would
ordinarily have to find
application. I will next turn to
deciding these two issues.
Evaluation
[46]
It is
clear from the founding and replying affidavits submitted the
applicants that the PMDS policy lay at the heart of the matter.
It is
undeniable that this is a policy that deals with the rewarding of
employees for good performance, and applies not only in
the
department, but in the entire public service. There can be little
doubt that this policy constitutes part of the conditions
of
employment of employees in the public service, and seeks to convey
certain benefits onto them for excelling in the performance
of their
duties. This is, quintessentially, an employment issue, pointing in
the direction of dispute resolution under the LRA
needing to be
applied. In
Aucamp
v SA Revenue Service
[42]
the Court had opportunity to specifically consider a challenge by an
applicant relating to the PMDS policy in the public service,
and
said:
‘
The
regulatory provisions in the respondent on which the applicant seeks
to rely are firmly founded in a collective agreement, being
the PMDS
policy and its empowering provision, the PMDS collective agreement.
At the heart of the dispute lies a case advanced by
the applicant of
non-compliance with these provisions and as a result, non-compliance
with the collective agreement. Added to this
is a contention by the
applicant that, even if the relevant regulatory provisions in the
respondent were applied, they were either
incorrectly or improperly
applied …
’
Having
found this to be the case, the Court in
Aucamp
concluded:
[43]
‘
The
above being said, and if the factual basis of the applicant's case is
considered, as he has identified and described it in his
own
statement of claim, it is clear that what he is in effect saying is
that he was unfairly deprived of a benefit he was entitled
to in
terms of his contract of employment. The applicant is saying that
because of unfair behaviour by the respondent relating
to the
application of the PMDS policy and the moderation (or lack thereof)
of his performance score, he was deprived of his performance
bonus,
and this is unfair. This kind of dispute, as the applicant himself
has articulated and put forward, is an unfair labour
practice as
defined in law. …
’
[47]
How
do the applicants then seek to avoid their dispute being considered
to be one of an unfair labour practice? The answer is simple.
It is
all about labelling. The applicants initiated this dispute
before this Court under Section 158|(1)(h) of the LRA, by
way of, in
my view, an act of deliberate labelling. The applicants in essence
labelled the dispute as an infringement of their
Constitutional right
to legality, as evidenced by a number of causes of complaint
specifically dealt with hereunder, and they specifically
steer away
from relying on unfairness. But, and as I have dealt with
above, the Court should not be bamboozled by this kind
of labelling.
In
Aucamp
[44]
the Court said:
‘…
it
is the duty of the Labour Court to determine the true nature of the
issue in dispute between the parties before court, no matter
how an
applicant may choose to label or describe the dispute. The court is
not bound by the description of the dispute as may be
articulated by
an applicant. …
’
The
Court in
Aucamp
applied the following
dictum
from the judgment in
CUSA
v Tao Ying Metal Industries and Others
[45]
where the
Court held:
‘…
The
labels that the parties attach to a dispute cannot change its
underlying nature …’
[48]
Despite how the applicants labelled the
dispute, it remains at its core a dispute about the manner in which
the department applied
the PMDS policy. The applicants firstly say
the terms of the PMDS policy did not permit the department to
introduce an extra level
of moderation in scoring employees for the
purposes of being paid their performance bonuses. Secondly, and
according to the applicants,
even if the scores of employees were to
be moderated downwards because of the specific requirement that these
bonuses could not
exceed 1.5% of the total salary bill, then there
should have been a fixed moderation downwards across the board
applicable to everyone,
individual scores should not be moderated
downwards, and in doing the latter the department acted unlawfully.
[49]
In then looking beyond the label, I have
little doubt that the dispute raised by the applicants is in fact one
that fits quite comfortably
in the confines of the unfair labour
practice jurisdiction under Chapter VIII of the LRA. Section
186(2)(b) reads:
‘
"
Unfair
labour practice" means any unfair act or omission that arises
between an employer and an employee involving —
(a)
unfair
conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason
relating
to probation) or training of an employee or relating to the provision
of benefits to an employee.
'
As
I said above, the PMDS policy is in fact an employment benefit, as
contemplated by this definition. It is a benefit that flows
from a
specific policy applied in the department in terms of which employees
are rewarded, on a discretionary basis, for good work
performance.
This is not the payment of remuneration, as appreciated by the Court
in
Aucamp
[46]
,
where it was said:
‘…
the
performance bonus is clearly not remuneration. In fact, the
qualifying provisions and terms of the PMDS policy and collective
agreement make it clear that it is not remuneration. It is linked to
performance objectives, all kinds of qualifying requirements,
and
several moderation levels which do not specifically relate to
employees or their own individual performance. Also, what is
declared
as a bonus pool forming the very basis for the quantum of any such
bonus, is also discretionary and dependent on a variety
of factors.
…
’
[50]
It
does not matter that this benefit may be subject to the exercise of a
discretion by the department. The fact is the manner in
which the
department may choose to exercise its discretion under the PMDS
policy is always open to challenge under the unfair labour
practice
jurisdiction. In
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[47]
the Court said:
‘
The
Labour Court pointed out that there are many employer and employee
rights and obligations that exist in many employee benefit
schemes.
In many instances employers enjoy a range of discretionary powers in
terms of their policies and rules. The Labour Court
further pointed
out that s 186(2)
(a)
is the legislature's way of regulating employer conduct by
superimposing a duty of fairness irrespective of whether that duty
exists expressly or implicitly in the contractual provisions that
establish the benefit. The court continued and stated that the
existence of an employer's discretion does not by itself deprive the
CCMA of jurisdiction to scrutinize employer conduct in terms
of the
provisions of the section. It concluded that the provision was
introduced primarily to permit scrutiny of employer discretion
in the
context of employee benefits. I agree with this conclusion.
’
Having
so held, the Court in
Apollo
Tyres
[48]
then concluded:
‘…
In
my view, the better approach would be to interpret the term "benefit"
to include a right or entitlement to which the
employee is entitled
(ex contractu or ex lege, including rights judicially created) as
well as an advantage or privilege which
has been offered or granted
to an employee in terms of a policy or practice subject to the
employer's discretion. In my judgment
"benefit" in s
186(2)
(a)
of
the Act means existing advantages or privileges to which an employee
is entitled as a right or granted in terms of a policy or
practice
subject to the employer's discretion.
’
In
the end, any complaint by the applicants as to the manner in which
the department exercised its discretion under the PMDS policy
can be
fully catered for under the auspices of the unfair labour practice
jurisdiction, without having to resort to issues such
as legality
reviews, instead.
[51]
One
cannot overemphasize the fact that the review jurisdiction of this
Court under Section 158(1)(h) flows from the LRA itself.
As such,
this jurisdiction must always be applied within the scheme of the LRA
as a whole.
[49]
I mention this again because the Court in
Steenkamp
[50]
when dealing with dismissals held that the LRA did not envisage
unlawful or illegal dismissals, it was all about whether it was
fair
or unfair. As the co-inhabitant of dismissals in Chapter VIII of the
LRA, this kind of principal consideration should equally
apply to
unfair labour practices. The point I make is that as soon as a
dispute concerns an unfair labour practice claim, it must
be pursued,
and then considered, on the basis of what is fair. And when doing so,
arbitration is clearly the most appropriate route
to take. Legality
is a winner takes all approach. Fairness is more than that, as
it envisages flexibility, and ultimately
protects the interests of
both parties. In the whole scheme of the LRA, fairness must have
preference over legality as a basis
to resolve disputes. This
approach should only be departed from in cases of extraordinary
circumstances as discussed above.
[52]
I must add that it seems to me that the
Association, as one of the applicants in this matter, has a penchant
for forum shopping
where it comes to these kind of disputes. I will
mention two reported arbitration awards specifically involving the
Association
and the PMDS policy, where the Association in fact
pursued very similar disputes to the one
in
casu
to the relevant bargaining
councils as an unfair labour practice dispute. This is the kind of
forum shopping that is entirely undesirable,
as already discussed
earlier in this judgment.
[53]
In
PSA
obo Sharp and Others v Dept of Health, GP
[51]
the Association contended that the manner in which the employees were
assessed for the financial year 2003/2004 was wrong and that
the
employees were entitled to a performance bonus under the PMDS policy.
In that case, the arbitrator agreed, and held that the
public service
department indeed committed an unfair labour practice within the
meaning of section 186(2)(a) of the LRA by not
paying the employees
their performance bonuses.
[54]
Then,
and in
Public
Servants Association on behalf of Motsekoa v Department of Sports,
Arts and Culture
[52]
the Association again contended that the individual employee had an
entitlement to a performance bonus under the PMDS policy.
[53]
In this case, the outcome was however not favourable for the
Association. The arbitrator held that the PMDS policy entitled the
public service department in that case to exercise a discretion, and
it was up to the employee to show that
this
discretion under the PMDS policy was exercised capriciously,
arbitrarily or for no justifiable reason, and because the employee
failed to show this, no unfair labour practice was committed.
[54]
[55]
What this illustrates to me is that the Association knows that
disputes about the PMDS policy and the manner in which a public
service
department seeks to apply it and / or exercise its discretion
in terms of it, is a matter that can readily be dealt with in the
applicable bargaining council under the unfair labour practice
jurisdiction. Why the Association would consider it necessary, in
these circumstances, to
in casu
re-label what is in reality
the same kind of dispute and came directly to this Court, leaves me
perplexed.
[56]
That being said, it does
appear that the Association has in the past come right in this
approach of approaching this Court directly
about the PMDS policy. In
Public
Servants Association and Another v Director General: Office of the
Presidency of South Africa and Another
[55]
this Court
entertained a legality review where it came to the application of the
PMDS policy, brought by the Association. The Court
however reaffirmed
the principles that employment disputes between the state and its
employees must be dealt with in terms of the
LRA and that the
remedies for employment disputes between the state in its capacity as
an employer and its employees are found
in the LRA.
[56]
The Court also accepted that the Court can depart from this general
rule in ‘appropriate cases’.
[57]
There can of course be nothing wrong with this reasoning, considering
the discussion earlier in this judgment. However, and
on the
facts, the Court in
Director
General: Office of the Presidency
held that there existed an appropriate case for departure from the
general principle, because the employer had already exercised
a
discretion in terms of the PMDS policy to award employees bonuses,
and then simply refused to pay because of an alleged lack
of funds.
The Court said:
[58]
‘
In
my view the excuse of non-payment of bonuses due to lack of funds is
unsustainable. …
’
[57]
The point is that the Court in
Director
General: Office of the Presidency
exercised its own discretion to intervene based on what it considered
to be extraordinary facts calling for it. Even though it
can be said
that this distinguishes that matter from the case
in
casu
, the further point I wish to make
is that surely the Association had to be alive to the kind of case it
needed to make out to justify
intervention, in place of the normal
dispute resolution processes under the LRA. But the Association did
not do so, and the judgment
in
Director
General: Office of the Presidency
thus
does not serve as precedent for its current approach
in
casu
.
[58]
I add
that it may well be said that some of the reasoning of the Court in
the judgment of
Director
General: Office of the Presidency
actually lends support to what the department did
in
casu
.
It was common cause on the facts that the department moderated the
scores downwards so as to comply with the 1.5% of salary bill
limit
on bonuses. The Court in
Director
General: Office of the Presidency
held:
[59]
‘…
in
the present instance the DG had the duty to ensure that 1.5% of the
salary budget was allocated for the performance bonus. …
’
The
Court then held as follows as to what can legitimately be done where
there is a lack of funds:
[60]
‘
It
is evident in this regard that the policy maker did anticipate the
situation where there could be shortage of funds. The policy
frame
work provides a clear approach to be adopted by the DG, should such a
situation arise. The approach does not include a refusal
to pay the
bonuses to those who qualified on the basis of lack of funds. The
powers given to the DG in the event of lack of funds
is limited to
having to scale down whatever the amount was to be paid to those who
qualified or tightening the criteria for qualifying
to receiving the
bonus. …
’
As
set out above, the department
in casu
did insert an extra
level of moderation so as to ensure that the budgetary provisions
have been complied with, and then moderated
scores downwards to fit
into this requirement. This is in my view the kind of conduct
contemplated by the judgment in
Director General: Office of the
Presidency
to be permissible. Whilst I need not decide this now,
as it is an issue relating to the merits of the case, it certainly
moves
the matter out of the realm of extraordinary circumstances
justifying intervention by this Court in place of the normal dispute
resolution process under Chapter VIII of the LRA which should be
applied to decide this.
[59]
In
Public
Servants Association of SA v Premier of the Free State and
Others
[61]
,
the Court also considered the PMDS and accepted that the upper limit
of 1.5% of the salary bill actually limits performance bonuses
to
that amount. The Court then considered the PMDS policy
framework, and said:
[62]
‘
The
policy framework offers a built in flexibility in the form of a right
by moderating committees to scale down maximum percentages
and
allocate any percentage between the minimum and maximum percentages
stipulated in order to meet the demands of the budget.
…
’
In
Premier
of the Free State
,
the Court dealt with three departments in the Free State province,
and decided to intervene and set aside the decisions taken
by these
three departments relating to the PMDS policy in terms of Section
158(1)(h) of the LRA, for three different reasons.
These
reasons were that the moderating committee had moderated the bonuses
to below the minimum percentage allowed by the PMDS
policy, certain
employees were excluded from receiving bonuses all together for
ulterior purposes despite these employees qualifying
for the same,
and finally that a moderating committee did not take a decision at
all.
[63]
The difficulty I have with the judgment in
Premier
of the Free State
is
that the Court had no regard at all to the kind of considerations
that became relevant after the judgments of the Constitutional
Court
in
Chirwa
and
Gcaba
,
and the Labour Appeal Court in
Hendricks
,
discussed above. In my respectful view, and for this critical reason,
the judgment in
Premier
of the Free State
is
to be distinguished as not being in line with current jurisprudence.
[60]
In
the end, whether or not the PMDS policy allows for a central
moderating committee calls for an interpretation and application
of
the policy which in my view requires proper evidence to be led on all
aspects of this policy, in arbitration, so as to satisfy
all the
requirements in order to properly interpret and apply such a written
instrument as set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[64]
.
Also, the relationship between the PMDS policy and the guidelines
issued in terms thereof must be explored in evidence.
Considering that it seemed to be undisputed that the performance
bonuses prior to central moderation far exceeded the allowed limit,
it has to be determined by way of proper evidence what exactly the
department then did vis-à-vis each employee and if this
conforms to what is envisaged by the policy and/or the guidelines.
This, in my view, simply cannot be properly done in a review
application such as the current one.
[61]
In summary therefore:
T
he dispute
of the applicants is quintessentially an unfair labour practice
dispute, and as a matter of principle it should not be
decided on the
basis of a legality review in this Court.
[65]
It should be decided in terms of the unfair labour practice dispute
resolution process under the LRA on the basis of what
is fair,
ultimately by way of arbitration if it cannot be resolved amicably in
the course of this process.
[66]
I am satisfied that the applicants’ application has the effect
of circumventing the prescribed dispute resolution processes
under
the LRA, which should be given primacy. It is inappropriate for the
applicants to challenge the decisions taken by the department
in the
course of applying the PMDS policy on the basis of a legality review
under Section 158(1)(h) of the LRA.
[62]
The
applicants are required to challenge these decisions on the basis of
an unfair labour practice relating to benefits under Chapter
VIII of
the LRA. I am confident that should an arbitrator, after
considering the much more comprehensive evidence that would
come out
in an arbitration, decide that the complaints made by the applicants
as to the decisions taken by the department in terms
of the PMDS
policy have merit, an unfair labour practice should be found to
exist, and the same kind of relief the applicants seek
in this
application can then follow.
[67]
[63]
This then leaves only the consideration of
extraordinary circumstances. As already touched on above, and
even considering
the judgment in
Director
General: Office of the Presidency
,
there are none. The applicants have made out no such case in
the founding affidavit in any event. There is no grave injustice
that
will result if this matter is simply dealt with in the normal course
in terms of the normal dispute resolution processes for
an unfair
labour practice under Chapter VIII of the LRA. And, as is apparent
from the above, the applicants have an alternative
remedy, which is
not only perfectly viable, but actually the primary remedy.
[64]
In conclusion, and for all these reasons as
set out above, there is simply no need to decide the merits of the
applicants’
application, for the simple reason that it is not
appropriate to do so. The applicants have to pursue their dispute by
way of referring
an unfair labour practice to the relevant bargaining
council in the public service, where it can be fully ventilated, and
then
determined. This Court must give effect to the overall
scheme of the LRA, and not allow the carefully crafted dispute
resolution
processes, which serve a specific purpose, to be bypassed
by inappropriate labelling of a dispute and consequent utilization of
powers afforded to the Labour Court in equally an inappropriate
manner. The applicants’ application is thus inappropriate,
incompetent, and falls to be dismissed.
[65]
Because of this conclusion I have come to,
there is no need for me to make a finding on the other issues raised
by the respondent,
such as the identification of the other individual
applicants and the specific particulars relating to them.
Again, these
issues are best dealt with in the course of the unfair
labour practice proceedings, which would be much better served to
ventilate
these kind of considerations.
[66]
This then only leaves the issue of costs.
In terms of the provisions of Section 162(1) and (2) of the LRA, I
have a wide discretion
where it comes to the issue of costs.
Considering the ill-advised approach adopted by the Association,
having regard to what I
have set out above, I was tempted to make a
costs order against the applicants. But I am mindful of the fact that
as matters still
currently exist, there is a continuing relationship
between the Association, the individual applicants, and the
respondent. In
my view, a costs order against the applicants will
unduly harm this relationship. I also consider that the dispute dates
back some
years, and to in essence resurrect it by way of the
introduction of a costs order may cause unnecessary resentment on the
part
of the individual applicants, should it be executed against
them. In all these circumstances, it is my view that the appropriate
order where it comes to costs, is to make no order as to costs.
Order
[67]
In the premises, I make the following
order:
1.
The applicants’ application is
dismissed.
2.
There
is no order as to costs.
_____________________
S.Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Adv F Van Der Merwe
Instructed
by:
Martins Weir-Smith Inc Attorneys
For the Second Respondent:
Adv T Makgate
Instructed by:
The State Attorney
[1]
Act 66 of 1995.
[2]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E 635C ; See also
Jooste
v Staatspresident en Andere
1988
(4) SA 224
(A)
at
259C – 263D;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
at
paras 26 – 27;
Molapo
Technology (Pty) Ltd v Schreuder and Others
(2002) 23 ILJ 2031 (LAC) at para 38. These principles were
summarized in
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
2009
(3) SA 187
(W) para 19 aptly as follows: ‘…where an
applicant in motion proceedings seeks final relief, and there is no
referral
to oral evidence, it is the facts as stated by the
respondent together with the admitted or undenied facts in the
applicants'
founding affidavit which provide the factual basis for
the determination, unless the dispute is not real or genuine or the
denials
in the respondent's version are bald or uncreditworthy, or
the respondent's version raises such obviously fictitious disputes
of fact, or is palpably implausible, or far-fetched or so clearly
untenable that the court is justified in rejecting that version
on
the basis that it obviously stands to be rejected.’
[3]
(2015) 36 ILJ 163
(LAC) at para 20.
[4]
(2016) 37 ILJ 1857
(LAC) at para 38.
[5]
Promotion of
Administrative Justice Act 3 of 2000.
[6]
(
supra
)
at para 28.
[7]
(2014) 35 ILJ 613
(CC) at para 28.
[8]
(2014) 35 ILJ 2131
(LAC) at para 33.
[9]
Id at para 34.
[10]
Id at para 35.
[11]
(2010)
31 ILJ 296
(CC)
at para 74.
[12]
(2016) 37 ILJ 1857
(LAC) at para 36.
[13]
[2013] ZALCJHB 232
(30 August 2013)
at
para 62.
[14]
(2008) 29 ILJ 73
(CC).
[15]
Id at paras 64 – 65.
[16]
Id at para 56.
[17]
Id at para 66.
[18]
(supra) at paras 10 – 12.
[19]
See
Chirwa
(
supra
)
at paras 64 and 66;
Public
Servants Association of SA on behalf of de Bruyn v Minister of
Safety and Security and Another
(2012)
33 ILJ 1822 (LAC) at para 26.
[20]
This is found in
Chapter VIII of the
LRA, and in particular Section 191.
[21]
(2016) 37 ILJ 564
(CC)
[22]
Id at para 116.
[23]
Id at para 130.
[24]
Compare
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
(2003) 24 ILJ 305 (CC) at para.52;
Chirwa
(
supra
)
at para 63;
Gcaba
(
supra
)
at para 66;
Farre
v Minister of Defence and Others
(2017) 38 ILJ 174 (LC) at para 17.
[25]
(
supra
)
at para 124.
[26]
(2012) 33 ILJ 1822
(LAC) at para 32. See also the conclusion reached by the Court
at para 34 of the judgment.
[27]
See
Gcaba
(
supra
)
at para 75;
Mbatha
v University of Zululand
(2014) 35
ILJ 349 (CC) at para 157;
Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members
(2015)
36 ILJ 624 (LAC) at para 21;
Moodley
v Department of National Treasury and Others
(2017) 38 ILJ 1098 (LAC) at para 37.
[28]
(
supra
)
at para 28.
[29]
See
158(1)(a)
of the LRA which reads: ‘
The
Labour Court may – make any appropriate order, including …
(ii) an interdict … (iv) a declaratory order
…’.
[30]
(2011) 32 ILJ 112
(LAC) at para 54.
[31]
(2012) 33 ILJ 2033
(LAC).
[32]
Id at para 46.
[33]
(
supra
)
at para 63. See also
Ida
v Department of Co-Operative Governance Human Settlements and
Traditional Affairs Limpopo Province and Another
[2016] JOL 37301
(LC) at para 53;
Zondo
and Another v Uthukela District Municipality and Another
(2015) 36 ILJ 502
(LC) at para 17.
[34]
(
supra
)
at para 41. See also
Hendricks
(
supra
)
at para 27;
MEC,
Department of Education, KwaZulu-Natal v Khumalo and Another
(2010)
31 ILJ 2657 (LC)
at
para 26.
[35]
(2017) 38 ILJ 1075
(LAC) at para 52.
[36]
(
supra
)
at paras 53 and 92,
[37]
See Section 108 of the LRA.
[38]
(2012) 33 ILJ 1195
(LC) at paras 22 – 24.
[39]
(2016) 37 ILJ 2888
(LC) at paras 65 – 66.
[40]
Public Service Act
103 of 1994. Prior to the
Public Service Amendment
Act
30 of 2007
this
was dealt with in
Section 17(5)
, and after these amendments in
|
Section 17(3).
[41]
See
Public
Servants Association on behalf of Smit v Mphaphuli NO and Others
(2014)
35 ILJ 2260 (LC) at paras 26 and 32;
Grootboom
v National Prosecuting Authority and Another
(2014) 35 ILJ 121 (CC) at paras 12 and 45;
Weder
(
supra
)
at paras 33 and 36 – 37.
[42]
(2014)
35 ILJ 1217 (LC) at para 21.
[43]
Id at para 24.
[44]
(
supra
)
at para 18.
[45]
(2008)
29
ILJ
2461
(CC)
at
para 66.
[46]
(
supra
)
at para 25. See also
City
of Cape Town v SA Local Government Bargaining Council and Others
(2014)
35 ILJ 163 (LC) at para 22.
[47]
(
2013)
34 ILJ 1120 (LAC) at para 45.
[48]
Id at para 50. See also
Aucamp
(
supra
)
at para 29;
Thiso
and Others v Moodley NO and Others
(2015)
36 ILJ 1628 (LC) at paras 16 – 17;
Western
Cape Gambling and Racing Board v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2166 (LC) para 18
.
[49]
See the
dictum
from the judgment of the Labour Appeal Court in
de
Bruyn
quoted earlier in
this judgment at para 38.
[50]
See para 36 of
this judgment,
(
supra
).
[51]
[2007] JOL 19729
(PHWSBC).
[52]
(2015) 36 ILJ 808
(BCA). See also
Public
Servants Association of South Africa obo Venter v Department of
Health – Free State
[2014] 12 BALR 1216 (PHSDSBC) where a similar dispute was pursued by
the Association as an unfair labour practice.
[53]
See paras 25 and 28 of the award.
[54]
Paras 27 and 30 of the award.
[55]
[2008] ZALC 27
;
[2015] 7 BLLR 700
(LC).
[56]
Id at para 14.
[57]
Id at para 15.
[58]
Id at para 22. See also the
conclusion reached in para 23 of the judgment.
[59]
Id at para 21.
[60]
Id at para 22.
[61]
Unreported Case no 123 / 09 dated 15
March 2010 per van Niekerk J.
[62]
Id at para 11.
[63]
See paras 19 – 22 of the
judgment.
[64]
2012
(4) SA 593
(SCA)
at
para 18. See also
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para 12.
[65]
Compare
Aucamp
(
supra
)
at para 30.
[66]
The dispute
resolution process prescribes
obligatory
conciliation before the matter can proceed to arbitration –
see
Section 191(4)
and (5) of the LRA.
[67]
Section 193(4)
of
the LRA reads: ‘An arbitrator appointed in terms of this Act
may determine any unfair labour practice dispute referred
to the
arbitrator, on terms that the arbitrator deems reasonable
…’
.