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[2017] ZALCCT 56
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Eskom Holdings Soc Ltd v NUM obo Coetzee and Others (C727/16) [2017] ZALCCT 56; [2018] 2 BLLR 176 (LC); (2018) 39 ILJ 828 (LC) (14 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C 727/16
Reportable
In
the matter between:
ESKOM
HOLDINGS SOC
LTD
Applicant
and
NUM
obo N COETZEE & 4
OTHERS
First Respondent
C
M BENNETT
N.O.
Second Respondent
CCMA
Third Respondent
Heard:
18 October
2017
Delivered:
14 November 2017
Summary:
Review – unfair labour practice – regrading –
whether CCMA had jurisdiction in terms of LRA s 186(2)(a). Award
set
aside on merits despite CCMA having jurisdiction. Award not
reasonable – conclusion disconnected from the evidence.
JUDGMENT
STEENKAMP
J:
Introduction
[1]
The National Union of
Mineworkers (NUM, the first respondent) represents five of its
members who are employed by the applicant,
Eskom, at its Koeberg
nuclear power station. They successfully referred an unfair labour
practice dispute in terms of s 186(2)(a)
of the Labour Relations
Act
[1]
to the CCMA.
[2]
Commissioner C M Bennett
[3]
found that Eskom had committed an unfair labour practice when it
failed to upgrade the employees as part of its “Transformation
and Migration Process”. He ordered Eskom to upgrade four of
them to level T10 (warehouse supervisor) from level T6 on the
TASK
grading system; and one of them, M Zatu, to level T12 (senior
warehouse supervisor) from level T10. He also ordered Eskom
to pay
them backpay calculated on the difference in salaries. Eskom seeks to
have the award reviewed and set aside.
[2]
At the beginning of the hearing, I granted condonation for the late
filing of the review application and the answering affidavit.
Neither
application for condonation was opposed.
Background
facts
[3]
Four of the employees – Coetzee, Lambert, Smit and Wolstenholme
– were graded as “senior storepersons”
at grade T6.
They claimed that they were performing duties as “warehouse
supervisors” at T10. The fifth, Zatu (aka
Tafeni), was graded
at T10 as a warehouse supervisor. He claimed to be performing duties
as a “senior warehouse supervisor”
at grade T12.
[4]
The employees submitted grievances seeking the reclassification or
regrading of their posts. Eskom embarked on a “Transformation
and Migration process”. One of the stated aims of this process
was to harmonise grading structures across Eskom’s divisions
and regions. The principles of that process envisaged three
scenarios:
4.1
Positions that are unaffected, i.e. the job profile (job content,
minimum requirements and grade)
and location remain the same.
4.2
Positions that have changed by less than 30%, in which case grading
would remain the same.
4.3
Positions that have changed more than 30%, i.e. after regrading the
new grade attached to the
job would be higher than the old one.
[5]
The outcome for the applicants was that Tafeni remained at T10 and
the other four employees remained at T6.
[6]
On 21 May 2015 Eskom’s “senior manager – nuclear
commercial” , B Culligan, sent Tafeni (aka Zatu) a
letter in
these terms:
“
Dear Mr Tafeni
APPOINTMENT DURING ESKOM TRANSITION
POSITION:
WAREHOUSE SUPERVISOR
GRADE
: T10
DEPARTMENT/SECTION
: SUPPLY
CHAIN OPERATIONS
It is confirmed that Eskom is
currently in a transition in order to implement its business plan. In
terms of the principles that
govern the migration of employees during
the transition, Eskom has given the undertaking that no loss of
employment will occur
during this process.
In order for Eskom to honour that
undertaking you are hereby informed the job content, designation and
grading of your current position
have remained unchanged.
You do not have to reapply for your
current position since your position is not affected by the
transformation.
All your Eskom staff benefits, terms
and conditions of employment, and remuneration remain unchanged.
Feel free to contact the author or
your HR practitioner should you have any queries.
I wish you success in your career and
trust that you will be successful in your work environment.”
[7]
The other four employees received similar letters, advising them that
they would remain on T6 as “senior storeperson”.
They
were dissatisfied. They appealed to the Employee Care Group (ECG), a
body that was established to deal with disputes arising
from the
process. It operated on these principles:
“
Employee Care Group (ECG) is a
system of committees that is composed of representatives from Eskom
management and the trade unions
recognised by Eskom. The purpose is
to monitor the implementation of these principles and rules, to
facilitate the placement of
unplaced employees and to resolve appeals
lodged by employees in terms of these principles and rules. The ECG
will be established
at BU/OU/divisional and national levels.”
[8]
The ECG panel hearing the
appeal of the five employees at divisional level comprised, inter
alia, a number of union and management
representatives, including Mr
Lionel Henn, a human resources business practitioner at Koeberg. It
met on 14 July 2015. The minutes
of that meeting reflect the
following:
[4]
“
Koeberg Power Station –
Warehouse Supervisors
Job Title – Snr Storeman (T06)
Labour representative was present.
Appellants gave background on the
case:
The appellants are T6 operating at a
T10 level (senior supervisors).
Their job went for grading and
came back as T10
. They believe that they should be upgraded to
T10 based on the job outputs and that the jobs were graded at T10.
There desired outcome with the appeal
is that management and HR upgrades them to T10.
Response from management and HR:
Management confirmed that the
employees are operating at T10 level. In 2007 they logged an appeal
and the jobs went for grading
and came back at T10 level. Management
supported that they should be upgraded to T10 because they play
pivotal role in the Department
and they perform the duties very well
and it’s only fair that they are appointed as T10.
HR confirmed that the employees logged
a grievance in 2007 and outcome of the grievance was that they wait
for the transformation
process.
When the jobs were graded at T10,
remuneration and benefits rejected that they be moved to T10 because
on SAP they were occupying
T6 positions.
ECG response and recommendation:
ECG advised management and HR to
rectify the employees’ designation on SAP and automatically
they will be upgraded at T10
because the grades will be correct.”
[9]
It will be immediately apparent that the recordal that the employees’
jobs had been regraded at T10 is not commensurate
with the letters
they received two months earlier, in May 2015.
[10]
On the other hand, in respect of Zatu (Tafeni), at least, the letter
of May 2015 is contradicted by an earlier letter that
Lionel Henn
sent him in December 2014. In that letter, Henn informed him that his
job profile had changed more than 30% and that
the job evaluation had
confirmed his new grading at TASK grade 12 at the position of senior
warehouse supervisor. He also told
Tafeni:
“
It is confirmed that after
consultation with you it was determined that you:
do not meet the minimum requirements
established by the new job profile and that you have the necessary
skills, knowledge and experience
to perform the job outputs.”
[11]
The other four employees did not present similar letters to the
arbitrator but claimed that they had also been upgraded before
December 2014.
[12]
On 3 September 2015 Lionel Henn sent an email to a number of his
employees with the subject line, “Warehouse employees”
and reading as follows:
“
Hi colleagues
You would recall that the ECG
recommended that we should “rectify the employees’
designation on SAP”. We did the
paperwork and sent it to HRSSU,
but they requested that Remuneration and Benefits (R&B) sign it
off because of the change in
grading. Subsequently it was sent to
them.
After my engagement with Beulah at R&B
she informed me that she is not comfortable signing these grade
changes. The requirement
from HRSSU to have the paperwork signed by
R&B did not yield success and therefore these grading changes
cannot happen.
Regards
Lionel.”
[13]
The reference to HRSSU is to the Human Resources Shared Services
Unit. Beulah Sishuba is a middle manager in that unit,
dealing
with remuneration and benefits.
Referral
to CCMA
[14]
The employees were unhappy with
the failure to upgrade them. Their trade union, NUM, referred an
unfair labour practice dispute
to the CCMA on their behalf in terms
of section 186(2)(a) of the LRA.
[5]
[15]
In their initial referral to conciliation, the dispute was described
as follows:
“
The company refuses to upgrade
our members as per the migration principles. Please note that our
members are already doing the work
at the higher grade.”
[16]
The union asked as a result of conciliation that “the employer
must upgrade our members.” Conciliation failed.
The union
requested arbitration, describing the issues in dispute as follows:
“
Promotions was [
sic
] not
effected after the transformation process as guided by the migration
principle document.”
[17]
The union requested that the arbitrator make a ruling that “the
company must promote our members”.
The
award
[18]
At the arbitration, Eskom raised a jurisdictional argument. It argued
that, if the dispute related to the transformation and
migration
policy, it was one relating to the interpretation and application of
a collective agreement; and because that was not
the dispute that had
been referred to the CCMA, the CCMA lacked jurisdiction.
[19]
The arbitrator rejected that
argument. He was satisfied that the dispute was one “concerning
upgrading of posts”. Relying
on the authority of the Labour
Appeal Court in
Apollo
Tyres
[6]
he found that “dispute of this nature may be categorised as an
unfair labour practice disputes” in terms of s 186(2)(a).
He
also cited
Thiso & ors v
Moodley NO
[7]
and found that the dispute about grading is what of benefits because,
should the job be upgraded, the applicant would be entitled
to better
benefits.
[20]
Having found that he does have jurisdiction and that the dispute over
regrading concerned one of “benefits” as
an unfair labour
practice, the arbitrator accepted that, “according to the
minutes of the respective ECG meetings, local
management and HR
accepted that the employees
were
carrying out the duties of
the jobs claimed”. He found that Eskom committed an unfair
labour practice when it failed to treat
the applicants in the same
way that it treated another group of employees, Van Wyk
et al
.
Those employees were upgraded to T10. He concluded:
“
It is clear from the
documentary evidence (ECG minutes) that applicants are carrying out
the duties described in the T10 and T12
job descriptions and that the
ECG should have placed them into those positions as it did with Van
Wyk and his colleagues.”
[21]
The arbitrator ordered Eskom to upgrade the employees with effect
from 1 September 2014.
Grounds
of review
[22]
Mr
Boda
, for Eskom, raised the following grounds of review:
22.1
Lack of
jurisdiction
: The arbitrator incorrectly found that Eskom had
committed an unfair labour practice in terms of section 186(2)(a)
when it failed
to upgrade the employees as part of the transformation
and migration process. The dispute was not about
promotion
and
thus the CCMA lacked jurisdiction to hear the matter.
22.2 The decision and
outcome was not one that a reasonable decision-maker could have
arrived at. He identified six
individual “difficulties”
which, he submitted, individually or cumulatively render the award
and result unreasonable.
22.3 The Commissioner
acted in a procedurally unfair manner and misconceived his duties as
an arbitrator.
Evaluation
/ Analysis
[23]
I will deal with each of the three broad review grounds in turn.
Jurisdiction
[24]
Mr
Boda
argued that the CCMA did not have jurisdiction. On questions of
jurisdiction, the reasonableness test in
Sidumo
[8]
does not apply. The
question is simply whether the arbitrator was right or wrong when he
ruled that the CCMA did have jurisdiction.
[9]
[25]
Did the CCMA have jurisdiction?
The first point of departure is the union’s referral of the
dispute. Although the referral
form in the CCMA does not constitute
pleadings like a statement of claim in a referral to this Court does,
I think the following
dictum
of the Constitutional Court in
Gcaba
[10]
addresses the same
principle when considering the question of jurisdiction rather than
the merits of the claim:
“
[75]
Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in
Chirwa
, and not the substantive merits of the case.
If Mr Gcaba’s case were heard by the High Court, he would have
failed
for not being able to make out a case for the relief he
sought, namely review of an administrative decision. In the
event
of the Court’s jurisdiction being challenged at the
outset (in limine), the applicant’s pleadings are the
determining
factor. They contain the legal basis of the claim
under which the applicant has chosen to invoke the court’s
competence.
While the pleadings – including in motion
proceedings, not only the formal terminology of the notice of motion,
but also
the contents of the supporting affidavits – must be
interpreted to establish what the legal basis of the applicant’s
claim is, it is not for the court to say that the facts asserted by
the applicant would also sustain another claim, cognisable
only in
another court. If however the pleadings, properly interpreted,
establish that the applicant is asserting a claim
under the LRA, one
that is to be determined exclusively by the Labour Court, the High
Court would lack jurisdiction. An applicant
like Mr Gcaba, who
is unable to plead facts that sustain a cause of administrative
action that is cognisable by the High Court,
should thus approach the
Labour Court.”
[26]
In this case, the union
referred an unfair labour practice dispute
[11]
to the CCMA in terms of s 186(2)(a) of the LRA and, as set out above,
it described the dispute as follows in the referral to conciliation:
“
The company refuses to upgrade
our members as per the migration principles. Please note that our
members are redoing the work at
the higher grade.”
[27]
The union asked that “the employer must upgrade our members.”
When conciliation failed and the union requested
arbitration, it
described the issues in dispute as follows:
“
Promotions was [
sic
] not
effected after the transformation process as guided by the migration
principle document.”
[28]
The union requested that the arbitrator make a ruling that “the
company must promote our members”.
[29]
It is clear from these referrals that the union referred an unfair
labour practice dispute “relating to promotion”
to the
CCMA in terms of s 186(2)(a) of the LRA. That subsection 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;’
[30]
It is beyond doubt that the CCMA has jurisdiction over a dispute
involving a promotion. But, argued Mr
Boda
, this was a dispute
over grading. It does not fall into the definition of an unfair
labour practice. It is either a mutual interest
dispute that is not
arbitrable, or it is a dispute over the interpretation and
application of a collective agreement that must
be dealt with in
terms of s 24 of the LRA.
[31]
Mr
Boda
referred to
Public Servants
Association v National Prosecuting Authority
[12]
and to
MEC, Department of
Sports, Recreation, Arts & Culture, Eastern Cape v GPSSBC
[13]
in support of his argument that a grading dispute is a matter of
mutual interest and thus not arbitrable as a promotion dispute.
[32]
In
NPA
the Labour Appeal Court
accepted
[14]
that “[i]n the normal course of mutual interest disputes
such
as this one was alleged to be
,
upon the failure of conciliation, industrial action in the form of a
strike or lockout would have ensued. However, no strike action
was
initiated as the employees of the NPA involved in this matter are
precluded from engaging in strike action as they have been
designated
in terms of s 71 of the LRA to be engaged in an essential service.”
And it further accepted:
[15]
“
The arbitrator’s
conclusion that the dispute was one of interest is, in my view,
rationally connected to the material before
him and his analysis of
the facts before him. In this regard, he properly took account of the
fact that if the recommendations
for job upgrades had become legal
entitlements in the form of rights, then the regulations provided no
shield to the respondents
to avoid total implementation until they
had found money. Recommendations are just that and nothing more. They
are required to
be effected and/or implemented before crystallising
into substantive rights. It cannot be that the appellants were
entitled to
the higher salaries but could not enjoy them until the
NPA found money.”
[33]
In
MEC,
Department of Sport
the
facts were distinguished from those in
Mathibeli
v Minister of Labour.
[16]
There was no evidence that
a job grading was done and that approval was granted for the
upgrading of his post and that his claim
was that he should be paid
at the upgraded post. He was simply seeking to upgrade his salary
level.
[34]
As Ms
Ralehoko
pointed out, the authority in
NPA
is also questionable in the light of the more recent authority of the
LAC in
Mathibeli.
In
that case the Department employed the applicant as a legal officer at
grade 10. After a job evaluation exercise, the grading
team
recommended that his post be upgraded to grade 11. The Department of
Public Service and Administration told the Department
that it could
not be implemented as it had been done in error. He referred an
unfair labour practice dispute to the Bargaining
Council. At the
arbitration the question arose whether it was a dispute of interest
rather than a dispute of right. The arbitrator
found that he did have
jurisdiction. The Labour Court set that decision aside on review and
held that it was an interest dispute.
The Labour Appeal Court
overturned the decision of the Labour Court. Sutherland AJA held that
the arbitrator did have jurisdiction
to arbitrate the matter, with
reference to the decision by Freund AJ in
Potterill
:
[17]
“
[15] In my view there is no
merit in this point. The substance of the dispute pertained to the
employees' complaint that their posts
had been regraded but, despite
the fact that they had continued to be employed in the same posts and
despite the requirements of
regulation 24, their salaries had not
been increased. In my view this is a complaint about alleged unfair
conduct 'relating to
the promotion' of the employees.
[16] In my view regulation 24 requires
one to draw a distinction between a decision to regrade a post and a
decision to allow the
incumbent employee in the regraded post to
continue to occupy that post. Where the incumbent employee is
permitted to continue
to occupy the regraded post and is afforded the
appropriate higher salary, the employee is, in my view, 'promoted'.
In my view
such a situation falls within the first meaning given for
the word 'promote' in The Concise Oxford Dictionary (9 ed), namely:
'V.tr.1 (often foll. by to) advance or
raise (a person) to a higher office, rank, etc (was promoted to
captain).'
[17] …
[18] The employees' complaint that
regulation 24(6) had not been applied with regard to their posts and
their request that their
salaries be increased to the salary level of
directors must, in my view, be construed as a complaint that they
were entitled to
be, but had not been, promoted. By alleging that
their employer was guilty of an unfair labour practice they impliedly
alleged
unfair conduct on its part 'relating to' its failure to
promote them. Having regard to the substance of the dispute as the
parties
understood it I am satisfied that this was a dispute about
alleged unfair conduct relating to promotion.
[19] …
[20] I do not accept the argument that
the dispute was a 'dispute of interests' which, for this reason, fell
beyond the jurisdiction
of the arbitrator. The employees' case was
that they were the victims of an unfair labour practice and that, as
a matter of law,
they were entitled to salary increases. This was a
'dispute of rights'. The fact that the remedy sought was an increase
in salary
does not change the character of the dispute. A claim for a
higher salary as a matter of right is not an 'interests dispute'.”
[35]
The LAC agreed with these sentiments and held that the arbitrator did
have jurisdiction, although Mr Mathibeli’s claim
was meritless
on the facts.
[36]
Much the same pertains to this case. The union referred an unfair
labour practice relating to promotion. Its case was that
its members
had been upgraded to levels T10 and T12 respectively and that they
were entitled to be paid accordingly. That is a
rights dispute over
which the CCMA did have jurisdiction in terms of s 186(2)(a) of the
LRA. That also distinguishes it from
NPA
, where the employees
attempted to create fresh rights rather than relying on claimed
existing rights.
[37]
The fact that the arbitrator in this case decided instead that he had
jurisdiction because it was an unfair labour practice
relating to
‘benefits’, rather than relating to promotion, is, in my
view, a bit of a red herring. Even if he was mistaken
in that view,
he still had jurisdiction to decide an unfair labour practice dispute
in terms of s 186(2)(a). Whether his award
can be sustained on the
merits is a different question.
[38]
Ms
Ralehoko
also referred to
Parliament
of the Republic of South Africa v NEHAWU
[18]
in support of the argument
– with which I agree – that the CCMA did have
jurisdiction in this case. In that case, the
trade union referred a
dispute about an alleged unilateral change to the terms and
conditions of employment after they had been
appointed to new
positions but kept on the same grades. The court found that the
dispute concerned an alleged failure to promote
and thus an unfair
labour practice dispute.
[39]
Ms
Ralehoko
quite properly pointed out that, before the decision in
Potterill
,
the Labour Court had reached a different decision in
Polokwane
Local Municipality v SALGBC
.
[19]
in that case, the employee applied to have her job upgraded. The
employer created a new position and she applied for it. She was
unsuccessful. She claimed that the employer had committed an unfair
labour practice. The Commissioner agreed but on review, the
court
disagreed and found that the dispute was one of mutual interest.
[40]
Firstly, the
Polokwane
case is distinguishable as
it related to the creation of a new job. The employee in that case
unsuccessfully applied for a new job
– something that may well
be seen as a dispute of interest. In the case before me (and before
the commissioner), the employee’s
claim that they were entitled
to be paid at the higher level. And secondly, I agree with Ms
Ralehoko
that, in the light of the LAC decision in
Mathibeli,
the decision of the Labour
Court in
Polokwane
may no longer be good rule. And she pointed out that, in
Thiso
v Moodley NO
[20]
,
this Court also expressed
the view that
Polokwane
is no longer good law in the light of the LAC judgement in
Apollo
Tyres.
[21]
[41]
That brings me to the question
whether the Commissioner’s decision that he had jurisdiction
because the dispute related benefits
could in any event be sustained.
In
Thiso
,
the employees were employed in job category A3 and a job evaluation
committee recommended that the position be upgraded to level
A2. The
employer appealed successfully against the decision and it was not
implemented. The employees referred an unfair labour
practice dispute
relating to promotion. The Commissioner ruled that the CCMA did not
have jurisdiction because it concerned a matter
of mutual interest.
On review, the Court held:
[22]
“
[15] The parties agreed that
the employer in this case had a discretion whether to upgrade the
positions. If that is so, the arbitrator
is correct that the
applicants could strike in support of that demand. It is a matter of
mutual interest. But where he is wrong,
is in finding that that
option excludes arbitration of an unfair labour practice dispute in
terms of s 186(2)(a).
As the LAC clarified in
Apollo
Tyres
:
‘
As pointed out above employees
will have an election to strike or go the arbitration/adjudication
route in respect of many rights
disputes. 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.
…
An employee who wants to use the
unfair labour practice jurisdiction in section 186 (2) (a) relating
to promotion or training does
not have to show that he or she has a
right to promotion or training in order to have a remedy when the
fairness of the employer’s
conduct relating to such promotion
(or non-promotion) or training is challenged.”
[16] In this case, it may be that the
applicants could have elected to follow the collective bargaining
route. But they elected
to refer an unfair dismissal dispute to the
CCMA in terms of s 186(2)(a) of the LRA. It is clear from the
dictum
in
Apollo Tyres
that they were entitled to do so.
[17] The CCMA does have jurisdiction
to arbitrate the unfair labour practice dispute that the applicants
referred in terms of s
186(2)((a) of the LRA. The commissioner’s
award to the contrary must be reviewed and set aside.”
[42]
In this case, the Commissioner’s decision that the CCMA did
have jurisdiction could be sustained on this basis as well;
but in
any event, as discussed above, the CCMA did have jurisdiction to
decide the dispute as one of an unfair labour practice
in terms of s
186(2)(a).
[43]
Lastly, albeit argued faintly, Eskom did not abandon its argument
that the dispute concerned the interpretation and application
of a
collective agreement. But that is not the dispute that the union
referred to the CCMA. The fact remains that the CCMA did
have
jurisdiction to arbitrate the unfair labour practice dispute that the
union referred to it in terms of s 186(2)(a).
[44]
As the learned authors in
Labour Relations Law: A
Comprehensive Guide
[23]
point out:
“
[T]he closed nature of the list
of unfair labour practices that are actionable in terms of s 186(2)
obliges employees who are aggrieved
by other forms of conduct to seek
to fit them into one of the statutory categories or to rely on an
alternative cause of action.
… Alternatively, the LRA may
provide a remedy if the dispute is governed by a collective agreement
[s 24]. …
The ‘remedy-shopping occasioned
by the closed definition of an ‘unfair labour practice’
may be problematic, given
the cost and delay associated with
approaching the High Court or Labour Court on a contractual or
constitutional basis on the one
hand and the artificiality that may
be involved in seeking to protect a non-statutory cause of action
(such as transfer) in a statutory
guise (such as demotion). An
assessment of the unfair labour practice provision in a concept paper
prepared for the President’s
Office in 2005, indeed, questioned
the need for several of the statutory forms of unfair labour practice
and recommended a far-reaching
overhaul of s 186(2). These
recommendations … have not yet been addressed by government
and did not feature in the LRA [Amendment
Act] 6 of 2014.”
[45]
I conclude that the arbitrator did have jurisdiction to deal with the
dispute before him as one of an alleged unfair labour
practice in
terms of s 186(2)(b) of the LRA. This ground of review fails.
Reasonable
outcome?
[46]
Having decided that the CCMA did have jurisdiction, the next question
is whether the arbitrator’s decision can be sustained
on the
merits.
[47]
The Commissioner found that Eskom had committed an unfair labour
practice when it failed to upgrade the individual employees
as other
employees on the same grade level upgraded to T10 during the
migration process. He found that it was clear from the documentary
evidence that the employees were carrying out the duties described in
the higher T10 and T12 job descriptions respectively and
that they
should have been placed into those positions. He accepted that,
according to the minutes of the ECG meetings, local management
and HR
accepted that the employees were carrying out the duties of the jobs
claimed.
[48]
The first difficulty with the Commissioner’s award that Eskom
has identified is that there was no evidence that the ECG
could make
that decision.
[49]
It is indeed so that the arbitrator himself stated:
“
But there appears to be a
hierarchy here because from the evidence that has been presented by
Mr Coetzee, it appears that in the
hierarchy, that somewhere along
the line, it has come out of the crunching machine at T10, but
somebody still has the authority
to say: ‘no’. Now, and
that authority appears to be vested higher than ECG.”
[50]
The Commissioner ignored the extensive evidence led on behalf of
Eskom that the ECG did not have the final authority; it made
a
recommendation, but Ms Beulah Sishuba – the Remuneration
Benefit Manager – had the final authority at national level
after the ECG had made the recommendation and divisional or local
level. She also explained that the decision to place employees
at her
higher level would need to follow the principles in the recruitment
and selection process, and could not be done through
the migration
process. According to her, “it cannot be done because in
essence you are promoting the employee and that is
outside of the
mandate as the ECG to just say go and change because in essence they
say what they are saying and I think they did
not really realise the
implications, like, go and promote, that is what they’re
saying, and that is really outside of the
scope. I think here they
overstepped their bounds in terms of that the ECG could do and not
do.”
[51]
The employee who testified on behalf of the four senior storemen, Mr
Coetzee, conceded that the manager for remuneration and
benefits can
override any decision of the managers earlier in the process. He also
agreed that, what was reflected in the ECG minutes,
was subject to
the final approval of the Remuneration and Benefits Manager. The
Commissioner simply ignored this evidence.
[52]
The second difficulty is that the Commissioner did not consider the
employer’s evidence that the migration principles
were simply
inapplicable to this process. In this regard Lionel Henn, the Human
Resources Business Partner at Koeberg, explained
as follows against
the background of the fact that the employees’ job grades had
remained unchanged:
“
I think we embarked on a very
collaborative process where we think you know we could have
redesigned the organisation and do all
kinds of things, which
unfortunately I think you know it was not within our powers, because
most other people just, you know, settle
the organisation very
quickly but that is sometimes the way we do things at Nuclear, having
said that, if you look at this particular
case, except the mishaps
that have happened, in terms of administratively which obviously way
we were very positive, thinking that
we can assist employees from
upgrade perspective, purely in terms of the rules of the game which
is the migration principles and
in terms of the national process that
we have to follow, unfortunately the five individuals their jobs
remained unchanged in terms
of what has been used throughout the
migration principle process which is firstly SAP information which I
use as the basis to do
activities, secondly in terms of the migration
principles the job has not gone for grading and has come out at the
higher grade,
so that cannot be used, thirdly it is not new positions
because new positions obviously, I went through in detail will
reflect
a different process that will have to be followed, so from
those perspectives is that it did not qualify in any way of any of
those
three possibilities to be migrated differently from what I’ve
currently on the system which is the jobs and grades remain
unchanged.”
[53]
Ms Sishuba confirmed that:
“
ECG had to look at migration
principles and it had to remain and confine themselves within what
the migration principles were saying
and when they say go onto SAP
and change people’s grades.”
[54]
The arbitrator also ignored this clear evidence. It simply accepted
that the recommendation of the ECG panel – as part
of the
migration principles – had to be accepted and implemented by
changing the grading of the employees on the SAP system
and
remunerating them accordingly.
[55]
A further difficulty is that the Commissioner ignored the requirement
in the Migration Principles that, if a job changed more
than 30%
resulting in a higher grade, the incumbent employee could only remain
in that position if he met the minimum requirements
or if he could
attain them through an Individual Improvement Plan. In the case of
these five employees, the evidence was that they
were told in May
2015 that their jobs remained unchanged. Yet the arbitrator ignored
this material aspect.
[56]
The May 2015 letters were unequivocal. The only testimony to the
contrary was that of Zatu, who produced a letter purporting
to inform
him in December 2014 that his job had been regraded to T12. But Henn
gave extensive evidence that that letter was unauthorised
and should
never have been issues. Zatu himself testified that “HR said we
need to hold on to the letters, not to issue the
letters, they will
come back to us”; and he conceded under cross examination that
there was an instruction from HR not to
issue the December 2014
letters. No evidence was produced to show an actual job evaluation
resulting in an upgrading of the applicants’
jobs.
[57] The final difficulty relates to
the issue of consistency. The main tenet of the Commissioner’s
finding is that the applicants
were treated differently to Van Wyk
et
al.
That group was upgraded after they had lodged grievances
whereas the applicants were not. The Commissioner found that Eskom
had
committed an unfair labour practice “when it failed to
treat applicants in the same way that it treated Van Wyk
et al.
The treatment was arbitrary and without rational explanation in
relation to the others had been treated. It is clear from the
documentary
evidence (ECG minutes) that applicants are carrying out
the duties described in the T10 and T12 job descriptions and that the
ECG
should have placed them into those positions as it did with van
Wyk and his colleagues.”
[58]
The first problem with this finding is that there was no documentary
evidence that the applicants “are carrying out the
duties
described in the T10 and T12 job descriptions”. The ECG panel
simply accepted the say-so of the applicants. They had
no actual job
evaluation of the applicants’ jobs before them. And in the
arbitration Coetzee relied on the job description
of a warehouse
supervisor (T10) instead of that of a senior storeperson (T6) –
the job that he in fact occupied.
[59]
Secondly, Eskom led some evidence that the output of the positions
held by van Wyk et al was significantly different to the
output of
the applicants even though they were all employed on the T6 level.
Whilst the applicants remained on the same level,
van Wyk
et al
had to be moved to new positions at T10. They were placed into the
position of Assistant Officer Quality Assurance – graded
at T10
– as opposed to storeperson (T5) and senior storeperson (T6)
respectively. In their case the ECG minutes reflect that
“local
HR at Koeberg indicated that they support the upgrade of T10 as their
outputs are more [than] 30% as per the migration
principles”.
[60]
The arbitrator simply accepted that the applicants should have been
upgraded, the same as Van Wyk
et al
, without taking these
distinctions into account.
[61]
The conclusion reached by the
arbitrator, in my view, falls within the same category as that in
Mathibeli
[24]
,
where Sutherland JA concluded:
“
The upshot is that:
21.1. There is no merit in the claims
of the appellant, having regard to the facts adduced in evidence: he
was not an incumbent
of a grade 11 post.
21.2. The award was unreasonable
because the evidence demonstrated the meritless[ness] of the claims,
and the rationale for finding
otherwise was not rationally connected
to the evidence.
21.3. The award should be set aside in
its entirety.
21.4. The appropriate outcome should
have been the outright dismissal of the dispute.”
[62]
The award should be reviewed and set aside for these reasons. The
finding of the arbitrator was disconnected from the evidence
before
him. That rendered his award unreasonable.
Procedural
fairness
[63]
Given my view on the second main ground of review, I need not
consider the oblique attack on the way that the commissioner
dealt
with the arbitration process. He did make some inappropriate remarks,
and his attempt to exclude Eskom’s witnesses
from hearing the
evidence of the employees – who bore the onus to prove the
unfair labour practice – was entirely irrational.
But in the
end Ms Singh – the attorney who appeared for Eskom at the
arbitration – stood her ground and her witnesses
remained in
attendance. These irregularities did not have any discernible effect
on the outcome.
Conclusion
[64]
I find that the CCMA did have jurisdiction; Eskom’s first
ground of review fails. However, the review application succeeds
on
the merits. The arbitrator came to a conclusion that is disconnected
from the evidence that was before him and the outcome was
unreasonable.
[65]
It would serve little purpose to remit the dispute for a fresh
arbitration. All of the evidence was before Court. On that evidence,
I am persuaded that Eskom did not commit an unfair labour practice.
Costs
[66]
The individual applicants are still employed by Eskom. And there is
an ongoing relationship between their trade union, NUM,
and Eskom.
They had an arbitration award in their favour. It was not
unreasonable to oppose the review application. Eskom was successful
on its second review ground but unsuccessful on the first. Taking
into account the requirements of both law and fairness, I do
not
think a costs award is appropriate.
Order
[67]
I therefore make the following order:
67.1 The late filing of
the review application and the answering affidavit is condoned.
67.2 The arbitration award
issued by the second respondent, Commissioner CM Bennett, under the
auspices of the third
respondent, the CCMA, under case number WECT
15971 – 2015 on 6 August 2016 is reviewed and set aside.
67.3 The award is replaced
with an award that the applicant, Eskom Holdings SOC Ltd, did not
commit an unfair labour
practice.
67.4 There is no order as
to costs.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Instructed
by
Firoz
Boda SC
Ms S Singh of Cliffe Dekker
Hofmeyr Inc.
FIRST RESPONDENT:
Tapiwa
Ralehoko
of Cheadle Thompson &
Haysom.
[1]
Act 66 of
1995 (the LRA).
[2]
The
Commission for Conciliation, Mediation and Arbitration (the third
respondent).
[3]
The second
respondent (the arbitrator).
[4]
My
underlining.
[5]
Tafeni/Zatu
was joined at a later stage.
[6]
Apollo
Tyres
South
Africa (Pty) Ltd v CCMA
(2013)
34
ILJ
1120
(LAC).
[7]
[2015] 5
BLLR 54 (LC).
[8]
Sidumo v
Rustenburg Platinum Mines Ltd
(2007)
29
ILJ
1097
(CC).
[9]
SARPA v
S A Rugby (Pty) Ltd
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) par 40;
Public
Servants Association v Minister of Correctional Services
[2017]
4 BLLR 373
(LAC) par 20;
Parliament
of the RSA v NEHAWU
[2011]
9 BLLR 905
(LC) par 15;
Thiso
& ors v Moodley NO
(2015)
36
ILJ
1628 (LC) par 6.
[10]
Gcaba v
Minister of Safety & Security
(2010)
31
ILJ
296
(CC) par 75.
[11]
Initially
two disputes, but they were consolidated and they were referred on
exactly the same basis.
[12]
[2012] 8
BLLR 765
(LAC) [
NPA
].
[13]
[2015] 12
BLLR 1224 (LC).
[14]
In para 13
(my underlining).
[15]
Par 29.
[16]
(2015) 36
ILJ
1215
(LAC); [2015] 3 BLLR 267 (LAC).
[17]
National
Commissioner of SAPS v Potterill
(2003)
24
ILJ
1984
(LC) par 11-16.
[18]
(2011) 32
ILJ
2534 (LC); [2011] 9 BLLR 905 (LC).
[19]
[2008] ZALC 29
;
[2008] 8 BLLR 783
(LC); (2008) 29 ILJ 2269 (LC).
[20]
(2015) 36
ILJ
1628
(LC); [2015] 5 BLLR 5443 (LC).
[21]
Apollo
Tyres
South
Africa (Pty) Ltd v CCMA
(2013) 34
ILJ
1120 (LAC).
[22]
At paras
14-17.
[23]
Du Toit
et
al
,
Labour
Relations Law: A Comprehensive Guide
(LexisNexis
6ed 2015) at 545-6.
[24]
Above at
par 21.