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[2017] ZALCCT 43
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Tabane v Vlieger-Seynhaeve NO and Others (C27/15) [2017] ZALCCT 43 (28 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case
no: C 27/15
In
the matter between:
MALEBYE
URIA TABANE
Applicant
and
I
DE VLIEGER-SEYNHAEVE
N.O
First Respondent
THE
PUBLIC SERVICE CO-ORDINATING BARGAINING
COUNCIL
Second Respondent
DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third Respondent
Heard:
17 May 2017
Delivered:
28 September 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The Applicant seeks an order reviewing and setting aside the
arbitration award dated 12 December 2014 issued under
case
number PSCB21-14/15 by the First Respondent (Commissioner), acting
under the auspices of the Second Respondent, (PSCBC). In
the award,
the Commissioner found that the Third Respondent (Department) had not
acted in breach of the provisions of the PSCBC
Resolution 3 of 2009
(The Resolution) as alleged by the Applicant . The dispute was
referred to the PSCBC in terms of the provisions
of
section 24
of the
Labour Relations Act 66 of 1995
.
Background:
[2]
The factual background to this dispute is to a large extent common
cause. The Applicant is currently employed by the Department,
having
commenced his employment on 1 April 1993, as a Security
Officer Grade 1 on salary scale level 3. He had received
a salary
level progression from salary level 3 to level 4 on 1 May 1994
upon attaining the status of a Security Officer
Grade 2. On
1 July 1996, he progressed to salary level 4 after his
status changed from Security Officer Grade 2 to Grade
3.
[3]
On 1 August 1997, the Applicant progressed from Security
Officer Grade 3 to Senior Security Officer, and as a result,
received
a further salary progression to salary level 5. On 1 August 2000, he
received another salary progression to salary level
6, and at the
time of the dispute, he was graded as a Senior Security Officer Grade
3.
[4]
The Applicant lodged an internal grievance with the Department
alleging that he has was precluded from benefiting from provisions
of
Clause 3.6.2.12 of the Resolution, which provide that;
3.6.2.12
Accelerated Grade Progression will be as follows:
3.6.2.12.1
An employee who has performed above satisfactory for 12 years
cumulatively in a specific salary level, shall grade (salary level)
progress from salary level 4 to 5 or from salary level 5 to 6 or from
salary level 6 to 7 or from salary level 7 to 8. Only 30%
of the
employees per year may be awarded grade progression in this regard.
3.6.2.12.2
Recognition for accelerated grade progression commences with
effect from 1 April 2010.
[5]
The nub of the Applicant’s grievance was that he has been at
salary level 6 for over 12 years, had performed satisfactorily
for 12
years cumulatively since 2000, and he therefore was eligible for
grade progression from salary level 6 to level 7 as per
the above
provisions.
[6]
The Department had investigated the grievance internally, and
compiled a report dated 23 November 2010, in which it
was
concluded that the process of excluding the Applicant from salary
progression was fair. This was due to the reason that his
post was
graded on level 3, and he could therefore not grade progress to
another level, as he was regarded ‘out of adjustment’.
Furthermore, he was informed that he was 3 levels higher than he was
supposed to be.
The
Arbitration proceedings:
[7]
Aggrieved by the outcome of the internal grievance processes, the
Applicant referred a dispute to the PSCBC. Conciliation proceedings
held on 2 May 2014 failed to resolve the dispute, and it
was then referred for arbitration. The central issue as recorded
by
the Commissioner during the arbitration proceedings was whether
the Department was in breach of the provisions of the
Resolution.
[8]
No oral evidence was led before the Commissioner. The parties had
agreed that the factual background to the dispute was largely
common
cause, and that the principal issue for determination pertained to
the interpretation and application of the Resolution.
They had
accordingly exchanged written arguments, which were presented to the
Commissioner together with documents which they contended
were in
support of their respective cases.
[9]
The Applicant does not dispute the grading of his post. His principal
contention was that in accordance with the provisions
of clause
3.6.2.12 of the Resolution, he was eligible for grade progression to
salary level 7 on 1 August 2012. His interpretation
of the
Resolution was that it covered employees who had occupied the same
salary level for a period of 15 years, and that it further
provided
for a salary progression for employees who have been in the public
service for a period of 12 years, and who had performed
above
expectation for the cumulative period of 12 years.
[10]
The Applicant rejected the
Department’s position that clause 4.1.3 of Circular 29 of
2011
[1]
prevented it from grade progressing him, and contended that this
circular differentiated between employees with 15 years of service
and those with 12 years of service (as provided for in clause
4.2
[2]
).
His further interpretation of the Resolution and clause 7 of Circular
2 of 2009 was that the latter mirrored what was set out
in Circular
29 of 2011, and dealt with accelerated grade progression without
prescribing that the post should be graded and/or
evaluated at a
certain level, and further that it did not make any reference to
employees who are remunerated ‘out of adjustment’.
[11]
The Department agreed with the contention that the provisions of the
Resolution provided for grade progression for employees
on specific
salary levels and that its purpose was to give recognition to public
servants who have been in the service for a period
of 12 years and
more. The Department however held the view that the Resolution was
only applicable to employees who fell under
specific criteria, and
that the progression of an employee was dependent on his or her years
of services. Thus an employee could
be elevated to the next salary
level without this affecting the level of the designation he was
occupying. Differently put, where
the designation was not graded at a
higher salary level, the employee was not advancing to a higher
designation, but rather to
a higher salary. The employee’s
designation in title remained the same, but he or she would however
receive a higher salary
for essentially performing the same duties.
[12]
The Department further contended that promotions were abolished in
the public service since 1999, and currently there were
two ways that
an employee could be elevated to a higher designation. The first was
by applying and being appointed to a higher
designation after a
recruitment and selection process, or if the post the incumbent
occupied, received a higher job level grading
after a job evaluation
exercise. In the second instance, the employee would then be absorbed
into the higher graded post in terms
of the applicable regulatory
measures.
[13]
Moreover, according to the Department, the Resolution was explicit in
that it stipulated that employees, who are incumbents
in designations
that are graded on a lower salary level but for some reasons are
remunerated at a higher salary than what the post
they occupy, are
not eligible to be progressed to a higher salary level as they ‘are
out of adjustment’. Reliance in
this regard was placed on
clause 7.6.1 of Circular 2 of 2009, which provided that the grade
determined with job evaluation formed
the basis from which employees
could receive a grade progression. Regarding the Applicant therefore,
he had occupied a designation
graded on salary level 3, but was
remunerated at salary level 6, and was consequently not entitled to
be elevated to salary level
7.
The Award:
[14]
Upon a consideration of the matter, the Commissioner in issuing the
award found that the Department was not in breach of the
provisions
of the Resolution on the basis that;
a)
It was common cause that the Applicant was graded at level three
(3),
and that he was remunerated at salary level 6. The grading of a
designation was determined by a job evaluation exercise, which
was
therefore the basis from which employees could receive a grade
progression. The salary progression was caped to the next salary
level above the salary level attached to the designation in
contention;
b)
Clause 4.1.3 of Circular 29 of 2011 stipulated that employees
who are
incumbents in designations which are evaluated at a lower salary
level than on what they are remunerated on (‘out
of adjustment)
do not qualify to be elevated to the next salary level;
c)
The Applicant’s contention that clause 4.2 of circular
29 of
2011 did not contain a similar limitation clause as clause 4.1 ought
to be rejected, as such a ‘state of affairs would
cause
confusion and unfairness, in that, an employee who is “out of
adjustment”’ would be allowed to progress
to a salary
level four (4) times than his current level after 12 years, but an
employee who had 15 years’ service record
would not be entitled
to the same;
d)
The starting point for every progression was determined by the
grade
level, and the Resolution therefore made it clear that progression
was allowed for one salary level higher and not any further
up.
Whilst it was accepted that the Applicant was remunerated at salary
level 6 but that his designation was grade at salary level
3, he was
on those grounds not entitled to be elevated any further.
The
legal framework:
[15]
The
purpose of
section 24
of the LRA is to resolve disputes where a party
to an agreement is alleged to have been in breach of the provisions
of that agreement
by failing to apply its terms either correctly or
at all
[3]
.
The principles applicable to the interpretation of collective
agreements are trite as restated in
Western
Cape Department of Health v Van Wyk and Others
[4]
.
The
legal position is that;
a)
When interpreting a collective agreement,
the arbitrator is enjoined to bear in mind that a collective
agreement is not like an
ordinary contract, and he/she is therefore
required to consider the aim, purpose and all the terms of the
collective agreement;
b)
The primary objects of the LRA are better
served by an approach which is practical to the interpretation of
such agreements, namely
to promote the effective, fair and speedy
resolution of labour disputes. In addition, it is expected of the
arbitrator to adopt
an interpretation and application that is fair to
the parties.
c)
A collective agreement is a written
memorandum which is meant to reflect the terms and conditions to
which the parties have agreed
at the time that they concluded the
agreement.
d)
The
courts and arbitrators must therefore strive to give effect to that
intention, and when tasked with an interpretation of an
agreement,
must
give
to the words used by the parties their plain, ordinary and popular
meaning if there is no ambiguity. This approach must take
into
account that
it
is not for the Courts or arbitrators to make a contract for the
parties, other than the one they in fact made
[5]
;
e)
The “parole evidence” rule when
interpreting collective agreements is generally not permissible when
the words of the
memorandum are clear.
f)
Collective agreements are generally
concluded following upon protracted negotiations, and it is expected
of the parties to those
agreements to remain bound by their
provisions. It therefore follows that such agreements cannot be
amended unilaterally.
[16]
Applying the above principles to the facts
of this case, the starting point is that for this application to be
successful, the Applicant
must convince the Court that the award or
the decision arrived at by the Commissioner is one that a reasonable
decision maker would
not have made in the light of what was presented
to him. The enquiry is not whether the decision is correct or not,
but whether
the Commissioner properly applied her mind to the issues
before her, considered all the material before, and adopted an
approach
that gave effect to the purpose of the provisions of the
agreement.
The
grounds of review:
[17]
The Applicant seeks to have the award
reviewed on the basis that
the Commissioner incorrectly
concluded that the grade determined which job evaluation formed the
basis from which employees could
receive grade progression. He
contended that this conclusion was not based on the provisions of the
Resolution. The Applicant further
contended that the Commissioner’s
conclusion that clause 4.1.3 of Circular 29 of 2011 was not
applicable to advanced progression
as it would cause confusion and
unfairness, was incorrect, as this was tantamount to making a
contract for the parties other than
the one they envisaged or in fact
made.
[18]
It was further submitted
that the Commissioner’s decision was wrong and not one that a
reasonable decision maker could have
reached as she failed to
appreciate that where a circular conflicted with the Collective
Agreement, the latter prevailed, as the
employer did not have the
prerogative to impose its understanding of the bargained agreement on
the employee without a specific
authority for such prerogative in the
agreement
[6]
.
Evaluation:
[19]
The
objectives of Resolution include giving effect to clause 5 of
Resolution 1 of 2007 by introducing a revised salary structure
for
all occupational categories graded on salary levels 1-12 not covered
by any Occupation Specific Dispensation (OSD), and to
introduce a
career pathing model and grade progression for identified salary
levels
[7]
.
In this regard, it is not in dispute that the Applicant is within the
salary levels in question, and is also not covered by the
OSD.
[20]
The essential elements of the Resolution to
the extent that they are relevant for the determination of this
application are to provide
for a grade progression model, to be based
on,
inter alia
,
the principle of completed continuous years
of
services on a salary irrespective of the notches, and for employees
who have performed above satisfactory over a period of 12
years.
[21]
With a view of ensuring
the proper implementation of the provisions of the Resolution, the
Director-General and Deputy Director-General
(Corporate Services) of
the DPSA had issued circular 2 of 2009 and circular 29 of 2011.
The
intervention of the Minister of the DPSA in the implementation of
collective agreements concluded in the public service, is
permissible
within the context of section
5 of the
Public Service Act (PSA)
[8]
.
These provisions permit the Minister to issue directives to elucidate
or supplement collective agreements, with the proviso that
that any
act performed by the Minister under the PSA may not be contrary to
the provisions of any collective agreement concluded
at a bargaining
council for the public service as a whole or for a particular sector
in the public service.
[22]
A proper interpretation of clause 3.6.2.12
of the Resolution needs to take into account other provisions of the
Resolution, more
specifically the other parts of clause 3 wh
ich
provide;
“
3.
PARTIES TO THE COUNCIL AGREE
Revised salary structure
3.3
Progression to a higher notch within the scale attached to a salary
level
will be based on performance in terms of existing department
performance management and development systems.
Grade Progression
Model
3.5 The grade
progression model is based on the following principles:
3.5.1
Posts are graded based on the outcome of Job Evaluation;
3.5.2
Recognition of performance; and
3.5.3
Completed continuous years of service on a salary level irrespective
of the notch.
[23]
In line with the above, I agree with the
submissions made on behalf of the Department that clause 3.5 of the
Resolution should be
read conjunctively with clause 3.6, which set
out the salary structure of the model. Accordingly, the fact that an
employee has
served 12 cumulative years in a grade is not a basis for
an automatic grade progression, as any grade progression is based on
a
variety of factors, including job evaluation, recognition of
performance and obviously the cumulative 12 years.
[24]
The
difficulty with cases presented before Commissioner by way of mere
submission of written heads of argument and voluminous bundle
of
documents has received attention by the Labour Appeal Court in
Arends
and Others v South African Local Government Bargaining Council and
Others
[9]
.
Murphy AJA held that such a decision (i.e., to merely present written
submissions) in that case was ill-advised
[10]
.
The same sentiments ought to be equally expressed in this case. The
mere fact that a dispute pertains to the interpretation and/or
application of a collective agreement does not imply that a
determination in that regard will be confined solely to matters of
interpretation or application. Such disputes must obviously be
resolved within a factual context, and it is invariable that disputes
of fact are bound to arise not notwithstanding the parties’
agreement that the background facts of the dispute are largely
common
cause. The facts of this case illustrate this difficulty.
[25]
In this case, and bearing in mind the
provisions of clause 3 of the Resolution as pointed above, the
questions that should be asked
is how, in the absence of oral
evidence was it expected of the Commissioner to determine whether the
requirements of grade progression
as stipulated within clause 3.5
were met in this case? Thus, how was the Commissioner to conclude
that there was a proper job evaluation,
and what its outcome was? On
what basis if any, was the Commissioner to conclude that the
Applicant’s performance was recognised
and that he had
satisfactorily performed? Even more crucially, how was the
Commissioner to know that the Applicant fell within
the 30% threshold
in 2012 for him to be awarded grade progression?
[26]
The
Department in its submissions before the Court had sought to rely on
the fact that no oral evidence was led at the arbitration
proceedings, and thus there was no evidence that the Applicant had
‘satisfactorily performed’. In my view however,
these
submissions are not in tandem with what was presented before the
Commissioner as can be gleaned from the Department’s
own
written submissions before the Commissioner
[11]
.
To therefore suddenly raise the concerns as stated above is clearly
opportunistic, particularly since the Department had also
agreed to
the manner with which the case was presented before the Commissioner.
[27]
To
come back to the concerns being raised, there is nothing in the
record that suggests that the requirements for grade progression
as
stipulated in clause 3.5 of the Resolution were met, nor is there
anything in the award that suggests that the Commissioner
had in
earnest, considered whether those requirements as stipulated in
clause 3.6.2.12.1 of the Resolution were met. There is further
nothing in the award that suggests that the Commissioner had regard
to or considered the requirements or principles for grade progression
as further emphasised in clauses 3.3
[12]
,
3.5, or 3.6 of the Resolution.
[28]
The Commissioner as is evident from the
award, placed emphasis on the interpretation of the two circulars,
which were in the main,
merely ancillary to the Resolution if not
interpretation tools devised by the DPSA. These circulars were to be
considered only
if there was ambiguity in the provisions of the
Resolution relied upon if the need arose.
[29]
To the extent that it was submitted on
behalf of the Applicant that these circulars were in conflict with
the provisions of the
Resolution, and further to the extent that the
Commissioner had regard to them, it is important to highlight that
clause 7. 6 of
circular 2 of 2009 provides that the grade progression
model is introduced based on the principle that posts are to be
graded based
on outcome of the job evaluation unless indicated
otherwise, and that the grade determined with job evaluation formed
the basis
from which employees could be grade progressed. This
provision cannot by all accounts be in conflict with the provisions
of clause
3.5 of the Resolution, which also outlines the principles
applicable to grade progression, including that of an outcome of job
evaluation. As already indicated however, the Commissioner paid scant
regard to these principles or requirements.
[30]
The manner with which the Commissioner
however dealt with the provisions of these circulars is equally
problematic, and I am convinced
that her interpretation of clauses
4.1 and 4.2 of the circular 29 of 2011 evinces a failure to properly
apply her mind to the issues
before her. In essence, in shifting her
focus to these circulars, and basing her decision on them, she not
only interpreted them
in an unfair and misguided manner, but she also
failed to adopt an approach that gave effect to the purpose of the
provisions of
the Resolution.
[31]
Clause 4.1 of the circular pertains to
employees with 15 years’ service on a salary level, whilst
clause 4.2 dealt with employees
with 12 years’ service on a
salary level, and was specifically about accelerated grade
progression. The dispute before the
Commissioner pertained to an
employee who had 12 years of continuous service, and clause 4.2 does
not make any reference to employees
remunerated out of adjustment as
in 4.1.3 of the same circular. Thus, reliance by the Commissioner or
the Department for that matter
on the provisions of clause 4.1 of
circular 29 of 2011 was misplaced, as it had no relevance to the
Applicant’s case. The
Commissioner thus imputed an
interpretation to clause 3.6.2.12.1 of the Resolution that was
completely out of sync with the objectives
of the Resolution and the
principles of grade progression model as stipulated in clause 3.5.
[32]
Even if the Commissioner was inclined to be
persuaded by the provisions of the circulars in coming to her
conclusion, for the purposes
of the interpretation of clause
3.6.2.12.1, and for what it is worth, clause 4.2.1 of circular 29 of
2011 was even more instructive,
as it provided for grade progression
in respect of employees with 12 years of service, with emphasis
however being placed on ‘above
satisfactory’ performance.
[33]
The conclusion to be reached in the light
of the above is that the Commissioner, having correctly identified
the issue for determination,
went about the enquiry in that regard in
a wrong manner, and thus arrived at an outcome which did not fall
within the band of reasonableness.
In the end, the Commissioner
failed to adopt an interpretation of the provisions of the Resolution
that was fair to the parties,
especially in view of it being apparent
that her decision was based more on the interpretation of the
circulars rather than the
provisions of the Resolution themselves.
[34]
In the light of the above conclusions,
ordinarily, the Court, and where it was prudent, would substitute the
Commissioner’s
findings with its own. The circumstances of this
case however militate against such an approach, more specifically in
view of the
concerns raised in regard to the manner with which this
dispute was presented before the Commissioner. In the circumstances,
the
only way that this matter can be properly determined is to have
it remitted to the PSCBC for a fresh hearing. I have also had regard
to the issue of costs, and I am satisfied that the requirements of
law and fairness dictate that each party must be burdened with
its
own costs.
Order:
[35]
In the circumstances, the following order
is made;
1.
The arbitration award issued by the First
Respondent under case number PSCB21-14/15 dated 12 December 2014 is
reviewed and set aside.
2.
The matter is remitted back to the Second
Respondent to be heard
de novo
by a Commissioner other than the First Respondent.
3.
There is no order as to costs
______________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
C.J May of Adams & May Attorneys
For
the Third Respondent:
Adv. S.C O’Brien
with Adv. S Mbali
Instructed
by:
The State Attorney,
Cape Town
[1]
Which
reads:
‘
Employees
with 15 years service who are occupying posts that are job evaluated
at a lower salary level than on what they are remunerated
(out of
adjustment), e.g. an employee who is occupying a post graded at
level 4 and remunerated at salary level 6, cannot progress
to salary
level 7. In this instance, the affected employee must be identified
for the purpose of exploring the possibilities
of job
enrichment/expansion’ (sic)
[2]
Which
reads;
Where
employees with 12 years service on the same salary level meet the
criteria of 12 cumulative ‘above satisfactory’
performance ratings, the implementation of the Resolution is
straightforward. ‘Cumulative’ should not be confused
with ‘consecutive’. If an employee, for example, has 14
years service on same salary level, at least for any 12 of
those
years, she/he must have received “above satisfactory”
performance ratings’ (sic)
[3]
See
PSA
obo Liebenberg v Department of Defence and Others (2013) 34 ILJ 1769
(LC)
at para [2]
[4]
(2014)
35 ILJ 3078 (LAC)
at para 22.
See also
North
East Cape Forests v SAAPAWU and Others
[1997] 6 BLLR 711
(LAC)
;
Food
and Allied Workers Union v Commission for Conciliation, Mediation
and Arbitration and Others
(
2007)
28 ILJ 382 (LC)
at para 35.
[5]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA
262 (SCA)
[6]
In
reference
to Western Cape Department of Health v MEC Van Wyk and others (20140
11 BLLR 1122
(LAC)
at para 20
[7]
Clause 1 of
the Resolution
[8]
Act No. 103 of
1994,
Section
5:
‘
5.
Implementation or limitation of actions affecting public service or
its members
(4)
Any act by any functionary in terms of this Act may not be contrary
to the
provisions
of-
a)
any collective agreement contemplated in
item 15 (i) of Schedule 7 to the
Labour Relations Act; or
b)
any collective agreement concluded by a
bargaining council established in terms of the said Act for the
public service as a whole
or for a particular sector in the public
service.
(5)
…………………
(6)
(a) Any provision of a collective agreement contemplated in
subsection (4), concluded on or after the commencement of the
Public
Service Amendment Act, 2007
, shall, in respect of conditions of
service of employees appointed in terms of this Act, be deemed to be
a determination made
by the Minister in terms of section 3 (5).
(b)
The Minister may, for the proper implementation of the collective
agreement, elucidate or supplement such determination by
means of a
directive, provided that the directive is not in conflict with or
does not derogate from the terms of the agreement.’
[9]
(
2015)
36 ILJ 1200 (LAC)
[10]
At para 11.
See also at para 15, where it was held that;
“
The
appellants are to some extent the authors of their own misfortune.
They placed the matter before the arbitrator as if there
was a
simple, single issue capable of resolution with the barest minimum
of factual matter. Their approach was neither prudent
nor correct.
When parties desire to proceed without oral evidence in the form of
a special case, it is imperative that there
should be a written
statement of the facts agreed by the parties, akin to a pleading.
Otherwise, the presiding officer may not
be in a position to answer
the legal question put to him. Alternatively, without such a
statement, the question put is in danger
of being abstract or
academic. Courts of law and arbitration tribunals dealing with
disputes of right exist for the settlement
of concrete controversies
and not to pronounce upon abstract questions or to give advice upon
differing contentions about the
meaning of an agreement. Where a
question of legal interpretation is submitted to an arbitrator, the
parties must set out in
the stated case a factual substratum which
shows what has arisen and how it has arisen. The stated case must
set out agreed facts,
not assumptions. The purpose of the rule is to
enable a case to be determined without the necessity of hearing the
evidence.
An oral stated case predicated upon poorly ventilated and
potentially unshared assumptions as to the facts defeats the purpose
of the requirements of a stated case and, as this case shows, will
lead to problematic results
.”
(Citations
omitted)
[11]
Pages 128 –
132 of the Record
[12]
Which
provide that;
‘
Progression
to a higher notch within the scale attached to a salary level will
be based on performance in terms of existing departmental
performance management and developmental systems’