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[2017] ZALCJHB 385
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Khunou and Another v South African Local Government Bargaining Council and Others (JR175/2016) [2017] ZALCJHB 385 (19 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 175 /2016
In
the matter between:
ONICA
KHUNOU
First Applicant
REUBEN
TSHABANE
Second
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
LUNGILE
MATSHAKA
N.
O
Second
Respondent
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Third Respondent
Heard:
12 October 2017
Delivered:
19 October 2017
Summary:
Review application. Unfair labour practice dispute relating to
placement on specific salary level. Arb
itrator accepted that
the error was made and rectified and there was no unfair labour
practice committed. Application dismissed.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award issued
on 11 November 2015 under case number: JMD080803. The application
is
opposed.
Background facts
[2]
The
brief history of this matter is as follows:
[3]
The
Applicants were employed by the Third Respondent (the City or
employer) as an accounts assistant and administrative assistant
respectively on salary level 8. Around October 2004 the employer
contemplated a new business plan which introduced a new department
called ‘credit control: staff accounts’. The proposed
business plan was approved in January 2005 and with effect from
1
April 2005 the Applicants were transferred from where they were
employed to the newly created credit control department. The
Applicants were transferred as ‘accounts specialists’.
[4]
The
Applicants were under the impression that their transfer to the new
position was a promotion and that their salaries would be
adjusted
and they assumed that the increase in their salaries would be
effected in July 2005 at the start of the employer’s
new
financial year. When their salaries were not corrected after July
2005, the Applicants lodged a grievance in April 2006.
[5]
A
grievance hearing was held on 12 June 2006 and the recommended
outcome was
inter
alia,
that
the employer should do a job grading of the accounts specialist
position and adjust the Applicants’ remuneration accordingly.
[6]
On 13
December 2007 the employer’s assistant director: human
resources, Mr Jones (Jones), wrote a letter to the Applicants
informing them that a job grading was done as per the recommendation
that followed from the grievance process, and that the job
title of
accounts specialist was changed to accounts officer and that the
position was graded at level 6. Jones further stated
that approval
would be sought for the adjustment of salary from level 8 to 6.
[7]
The
Applicants’ salaries were never adjusted to salary level 6 and
on 17 June 2008 another letter was addressed to the Applicants
informing them about their position upgrade and salary increase. The
Applicants were informed that they would be paid an acting
allowance
for the period the position was not graded and that, based on the
grading results, the level of their positions as accounts
officers
were graded at level 7 and their salaries would be increased with
effect from 1 November 2007.
[8]
The
Applicants were graded on level 7 and not level 6, as they were
previously advised. The employer explained that the job level
of an
accounts officer is at level 6 and that the grade for the job was
grade 7.
[9]
The
Applicants subsequently referred an unfair labour practice dispute in
respect of promotion to the First Respondent and the dispute
was
arbitrated on 27 August and 21 October 2015.
[10]
The
Second Respondent (arbitrator) found that the employer did not commit
an unfair labour practice in not effecting the appointment
of the
Applicants as accounts officers at level 6 and he dismissed the
Applicants’ case.
The arbitrator’s findings
[11]
It is
evident from the transcribed record that Mr Seepamore, the
Applicants’ representative during the arbitration, identified
the dispute in his opening statement as an unfair labour practice
relating to promotion in that the Applicants’ posts were
graded
at level 6 and that the City is refusing to implement the grading on
level 6 and to pay the Applicants accordingly.
[12]
The
issue to be decided, as recorded by the arbitrator, was whether or
not the City committed an unfair labour practice by not placing
the
Applicants at salary level 6.
[13]
There
was a letter written to the Applicants on 13 December 2007 informing
them that their positions were graded at level 6 and
another letter
to them dated 17 June 2008 wherein they were informed that their
positions were graded at salary level 7. The arbitrator
identified
the bone of contention as whether level 6 mentioned in the December
2007 letter was an error or not.
[14]
During
the arbitration proceeding Jones testified that he had signed the
letter dated 13 December 2007 wherein the Applicants were
notified
that their positions as ‘account specialists’ were
changed to ‘account officer’ and that it was
graded at
level 6. Jones explained that there was an error in the letter as the
job level, which is the same as the reporting level,
was graded at
level 6 and the salary grade was at level 7. The job level and the
grade level were incorrectly interpreted and it
was incorrectly
reflected in the letter. Jones explained that the Applicants’
placement on salary level 6 was never implemented
as it was a mistake
due to the misinterpretation of the job grading results.
[15]
Jones
explained that after the mistake was picked up, a meeting was held
with the City’s labour relations department and it
was realised
that the grading results were incorrectly interpreted. The mistake
was rectified and a letter was addressed to the
Applicants on 17 June
2008 wherein the correct grading was reflected and the Applicants
were informed that their positions were
graded on salary level 7.
Jones explained that a mistake was made when the Applicants were
informed that their positions were graded
at level 6 and the mistake
had to be rectified and the Applicants were placed on level 7.
[16]
In
his analysis of the evidence the arbitrator held that it was crucial
to determine whether an error was made and had to be rectified.
It
was common cause that, as a result of a grievance hearing, that the
Applicants’ positions had to be graded and their remuneration
adjusted accordingly. The arbitrator accepted that there was an error
in the communication sent to the Applicants on 13 December
2007 and
that it was understandable as the grading document reflected the job
level as 6, which could give the impression that
it was the grade of
the post, but the grading was actually at salary level 7. The
executive director never approved salary level
6 for the Applicants.
[17]
In
conclusion the arbitrator found that the City’s conduct in not
effecting the appointment of the Applicants to positions
at level 6
did not constitute an unfair labour practice.
The test on review
[18]
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable is well established
[1]
.
It is ultimately a test of reasonableness. The arbitrator's decision
must fall within a range of decisions that a reasonable decision
maker could make.
[19]
In
Goldfields
Mining South Africa v Moreki
[2]
the
Labour Appeal Court held that:
“
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
[20]
These
are the principles this Court should apply in consideration of the
review application.
The grounds for review
[21]
In
the heads of argument filed on behalf of the Applicants, two grounds
for review were raised. The first ground for review is that
the
arbitrator committed gross misconduct and failed to apply his mind to
the evidence placed before him when he found that the
Applicants are
on salary level 7 when the evidence was clear that they are indeed on
level 8.
[22]
It
was submitted that if the arbitrator found that the Applicants did
not make out a case to be placed on level 6, he should have
ordered
that they be placed on level 7.
[23]
There
are a number of difficulties with this ground for review. Firstly,
the arbitrator was never mandated to determine the salary
level of
the Applicants or to decide on which level they should be placed, if
not level 6. The issue to be decided was whether
or not the City
committed an unfair labour practice by not placing the Applicants at
salary level 6.
[24]
Secondly,
the submission that if the Applicants did not make out a case to be
placed on level 6, the arbitrator should have ordered
that they be
placed on level 7 is an entirely different issue to the issue the
arbitrator had to consider and decide.
[25]
In
argument before Court it became evident that the Applicants’
real issue is that they were informed that they were placed
on level
7, but they are not paid on level 7 and are still paid a level 8
salary and that they are effectively underpaid.
[26]
Mr
Seepamore correctly abandoned the first ground for review.
[27]
The
second ground for review as set out in the Applicants’ heads of
argument and persisted with in Court is that the arbitrator
relied on
and attached considerable weight to Jones’ testimony that the
letter written on 13 December 2007 was an error,
notwithstanding that
such testimony was hearsay evidence as Pumeza Sundu (Pumeza) did not
testify.
[28]
In
his examination in chief, Jones relied on the job grading document
wherein the post of accounts officer was graded at salary
level 7.
With reference to the document he explained that there was an error
in the letter as the job level, which is different
from the salary
level, was graded at level 6 and the salary grade was at level 7 and
those were incorrectly interpreted and reflected
in the letter of 13
December 2007.
[29]
Jones
further explained that the Applicants’ placement on salary
level 6 was never implemented and after the mistake was picked
up, it
was rectified and a letter was addressed to the Applicants on 17 June
2008.
[30]
In
cross-examination it was put to Jones that the letter dated 13
December 2007, which Jones claimed was a mistake, was written
by
Pumeza and as she was the author of the document, his evidence was
hearsay. Jones disputed that and testified that he was the
authorised
person to sign the document, he indeed signed it, he was familiar
with the contents of the letter and he took responsibility
for the
mistake that was made in the letter and he made it clear that he was
in a position to testify to the document in terms
of the
responsibility he had in that regard. Jones testified that he was the
HOD and he remained accountable.
[31]
Mr
Seepamore stated that as the content of the letter was written by
someone else, it was hearsay evidence. He further submitted
that the
document relied on by Jones graded the position of ‘accounts
officer’ and not the Applicants’ position
of ‘accounts
specialist’ and as Jones was not in possession of a grading
document for ‘accounts specialists’,
the arbitrator
admitted and relied on irrelevant evidence.
[32]
The
version the Respondent presented during the arbitration should be
considered holistically. It is evident from the letter addressed
to
the Applicants on 13 December 2007 that the position of accounts
specialist was sent for grading and the grading committee changed
the
title to ‘accounts officer’ and they were informed that
their role description of ‘accounts specialist’
was
changed as aforesaid. This can only mean that no other or separate
grading was done for ‘accounts specialist’ as
the title
was changed and that the grading that was done for ‘accounts
officer’ is the grading applicable to the Applicants.
The
grading document Jones referred to was for ‘accounts officer
and it reflected a salary level 7.
[33]
Jones’
testimony was not only based on Pumeza’s mistaken understanding
of the correct salary level. Jones was able to
explain the mistake
that was made and how it was made and in doing so he acknowledged
that he signed the letter in which a mistake
was made and he
explained it by making reference to the grading document and the
incorrect interpretation thereof.
[34]
The
other factors that became clear from the evidence is that the
Applicants’ grading on level 6 was never implemented, it
was
never approved and it was not possible as the level they report to,
which should be a higher level, is graded at level 6.
[35]
The
only document that indicated that the Applicants positions were
graded at level 6, is the letter of 13 December 2007, which
the
employer testified was issued in error. All other documents and
communication to the Applicants indicate that their positions
were
graded at salary level 7.
[36]
The
arbitrator found that the grading that came out at salary level 7, as
was evident from the grading document as well as the change
in
titles, enabled him to come to the conclusion that there was indeed
an error when the employees were informed that their positions
were
graded at salary level 6.
[37]
It is
evident from the arbitrator’s findings that he considered the
documents placed before him and that he considered those
as well as
the explanation tendered by Jones holistically and that he did not
attach weight to Pumeza’s version or Pumeza’s
understanding or interpretation of the grading report.
[38]
The
Applicants’ submission that Pumeza wrote the letter and only
Pumeza could testify about it has no merit in the context
that the
arbitrator attached no weight to Pumeza’s version, but
considered the evidence that was adduced and placed before
him and
that he decided the dispute on the totality of the facts and material
before him.
[39]
Having
considered the evidence adduced at the arbitration proceedings, the
findings made by the arbitrator and the grounds for review
as raised
by the Applicant, I am satisfied that the arbitrator's findings and
conclusion fall within a range of decisions that
a reasonable
decision maker could make.
[40]
The
award and the findings contained therein are reasonable and are not
to be interfered with on review.
Costs
[41]
This
Court has a discretion in making a cost order, considering the
requirements of law and fairness.
[42]
I
invited both parties to make submissions on the issue of costs. Mr
Seepamore for the Applicants submitted that the City is at
fault and
should pay the costs, more so where the Applicants have limited
resources.
[43]
Mr
Hutchinson for the City submitted that the Applicants should be
ordered to pay the costs for a number of reasons. He submitted
that
the City made a
bona
fide
error
and that that was explained and corrected. It was made clear, even in
the arbitration award, that the Applicants are free
to approach the
employer’s human resources to have their grades re-evaluated
should they wish to do so, but instead they
persisted with their
dispute to snatch a bargain and insisting that they should be placed
on salary level 6, based on a mistake.
The Applicants challenged a
reasonable award and this application is opportunistic and an abuse
of process. Mr Hutchinson further
submitted that the Applicants are
employed and used an attorney to represent them in their case.
[44]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[3]
it was emphasized that:
“……
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.”
[45]
In
casu
the
employer was compelled to engage in litigation and oppose a meritless
application. The Applicants came to Court challenging
a reasonable
award with the sole aim to be placed on salary level 6 and if that
does not succeed, then they want to be placed on
salary level 7.
There was no consideration of the applicable principles and their
prospects of success, causing the City, and effectively
the
taxpayers, to incur legal costs.
[46]
A
cost order is a method of ensuring that decisions to litigate in this
Court are taken with due consideration of the law and the
prospects
of success. A review application is not the next automatic step after
arbitration and the practice to review arbitration
awards where the
decision is reasonable, should be discouraged.
[47]
I can
see no reason to deviate from the general rule that the cost should
follow the result.
[48]
In
the premises I make the following order:
Order
1.
The
application is dismissed with costs;
2.
The
Applicants are severally and jointly liable to pay the Third
Respondent’s costs, the one paying the other to be absolved.
______________
Connie Prinsloo
Judge
of the Labour Court
Appearances:
For the Applicants:
Mr S Seepamore
of Mohlaba & Moshoana Inc Attorneys
For the Third Respondent:
Advocate W Hutchinson
Instructed
by:
Moodie & Robertson Attorneys
[1]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
2007
28 ILJ 2405 (CC) at para 110.
[2]
(2014) 35 ILJ 943
(LAC).
[3]
2012 33 ILJ 2117
(LC).