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[2018] ZALCJHB 69
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Pelindaba Workers Union obo Members v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR868/16) [2018] ZALCJHB 69 (21 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JR868/16
In
the matter between:
PELINDABA
WORKERS UNION obo MEMBERS
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION (CCMA)
First
Respondent
RICHARD
BYRNE
N.O.
Second
Respondent
NECSA
Third
Respondent
Heard:
14 July 2017
Delivered:
21 February 2018
JUDGMENT
SHONGWE.
AJ
[1]
Applicant
had launched a review application in terms of Section 145 of the
Labour Relations Act
[1]
(the LRA) seeking an order as follows:
‘
1.1.
Correcting,
reviewing and setting aside the arbitration award of Commissioner
Richard Byrne under case number GATW2534-2015 issued
on March the
30
th
2016;
1.2.
That
the award of Commissioner Byrne be substituted with the following in
respect of the dispute under case number GATW2534-2015
1.2.1.
Salary
adjustments/increase for all the First Applicant’s members
(listed in annexure ‘H” to the pre-arbitration
conference
minutes) and for the Second through twelfth Applicants (before the
CCMA) for the relevant period be recalculated and
implemented based
on the same costs of living arguments/adjustments that applied for
the D salary bands; ALTERNATIVELY, across
the board salary
adjustments/increases for all the First Applicants members and for
the Second through Twelve Applicants for the
relevant period of 6.5%
as approved by the NECSA Board of Directors. FURTHER ALTERNATIVELY,
salary adjustments/increase for the
First Applicant’s members
and for the Second through twelfth Applicants (before the First
Respondent) for the relevant period
to be recalculated based on an
approach that assigned a cost of living adjustment related to
economic variables (such as CPI) for
all E Bands employees that
performed as expected by performance contract (score value 3) and
that higher performance receive an
additional percentage in a pro
rata manner with the average total E Bank increase not exceeding the
6,5% as approved by the Board
of Directors.
1.2.2.
The
payment of corrections due to these readjusted increases be backdated
to the 1
st
of July 2015;
1.2.3.
The
Third Respondent to adjust the remuneration scales of E Bands to be
closer to market values in a manner consistent with what
was done for
others bands and adjust the remuneration of all E bands staff, who
are below the minimum of the new scales, to at
least minimum of the
new scales with effect from 1
st
July 2014;
1.2.4.
The
letters stating that Ben Blom, Isabel Steyn, Frans Mashilo and Alick
Chinake allegedly neglected their duties resulting in a
0% increase
be withdrawn and that new letters be issued.
1.2.5.
FURTHER
ALTERNATIVELY that the First through Twelfth Applicants dispute
against the Third Respondent under case number GATW2534-2015
be
determined by this court in a manner which it deems appropriate.
1.3.
That
the award of the Second Respondent be substituted with the following
in respect of the dispute under case number GATW1555-2015.
1.3.1.
Salary
adjustment/increase for all the Applicants members (First Applicant
in this matter) (as per the list “A” bundle
A page 73
before the CCMA) for the relevant period be recalculated and
implemented backdated to July 1
st
2015 based on the same costs of living arguments/adjustments that
applied for the other salary bands who received an across the
board
cost of living salary adjustment of 5.5%.
1.3.2.
ALTERNATIVELY
that Applicants (First Applicant in this matter) dispute against
Third Respondent under case number GATW1555-2015
be determined by
this honourable court in a manner which it deems appropriate;
1.4.
In
the alternative to prayers 1.2 and 1.3 above, that this honourable
court refer the dispute under case number GATW2534-2015 (which
was
consolidated with case number GATW1555-2015) back to the First
respondent to be determined by a Commissioner other than the
Second
Respondent;
1.5.
Costs
if opposed;
1.6.
Further
and/or alternative relief.’
Applicant’s
Submissions
[2]
The
Applicant submitted that:
2.1
The Second Respondent committed misconduct in relation to the duties
of a commissioner and/or committed gross irregularities
in the
conduct of the arbitration proceedings and/or failing to decide the
matter and/or misconstrued the evidence and/or law and/or
logic
and/or conclusions not sustained by the evidence and/or no reasonable
decision-maker would have reached and that his award
is one that a
reasonable decision-maker would not have reached in that:
2.1.1
The
Second Respondent stated in paragraph 3 of the award in respect of
the Remuneration Policy of the Third Respondent that “
The
Applicant party argues that this amounts to a collective agreement”
.
Applicants never argued that the Remuneration Policy amounts to a
collective agreement;
2.1.2
The
Second Respondent stated in paragraph 4 of the award that “
On
this occasion though, the CEO moderated the score ratings himself,
and downgraded all the Applicants scores such that they obtained
either a very low or no increase”
.
The agreed performance rating scores and moderated scores of the
First Applicant’s members and the Second through twelfth
Applicants (before the First Respondent) are as set out in Annexure
“A” to the Pre – Arbitration minutes concluded
between the parties and reflects some employees scores were moderated
upwards, some downwards and some were left unchanged;
2.1.3
The
Second Respondent stated in paragraph 4 of the award that “
The
Applicants were not given any information as to the methodology used
in the moderation of their scores, save that the CEO indicated
to
them the areas in which their performance(s) were lacking”.
The record will reflect that the CEO only indicated to Ben Blom (a
member of the First Applicant), Isabel Steyn (a member of the
First
Applicant), Frans Mashilo (the Eighth Applicant) and Alick Chinake
(the Fifth Applicant) (before the First Respondent) the
areas in
which in their performance(s) were allegedly lacking but not to the
remainder of the First Applicant’s members and
other Applicants
whose scores were moderated downwards.
2.1.4
The
Second Respondent stated in paragraph 7 of the award under the
heading: “ISSUES TO BE DECIDED” that “The
Respondent party has argued that the Commission for Conciliation,
Mediation and Arbitration (CCMA) does not have jurisdiction to
arbitrate this matter as the Applicants are seeking salary increases,
which is a matter of mutual interest. It argues that the
Applicant
should embark on collective bargaining or power play in order to deal
with this matter, and that wage increases cannot
amount to benefits
or to be arbitrated upon”. This argument was raised by the
Respondent
in
limine
prior to the commencement of the arbitration and the Second
Respondent, on 20 January 2016 made
inter-alia,
a verbal ruling that the initial dispute referred by the Applicants
constitutes a dispute of rights which falls within the unfair
labour
practice jurisdiction of the LRA and that the CCMA has jurisdiction
to arbitrate this dispute.
2.1.5
The
Second Respondent stated in paragraph 13 of the award that “In
my view, the employer’s action in sending out a letter
stating
that they would only afford salary increases on the basis of
performance for Band E staff, amounted to a unilateral change
to a
right that the employees had by virtue of the Remuneration Policy,
and which could also be argued to have been a collective
agreement.
Unilateral changes to terms and conditions of employment are not
subject to arbitration by the CCMA…” and
“As such,
in my view the CCMA does not have jurisdiction to arbitrate the
action of the employer in this regard under the
Unfair Labour
Practice jurisdiction”. This conclusion constitutes a variation
and/or an alteration of the Second Respondent’s
previous
in
limine
verbal ruling that the initial dispute referred by the Applicants
constitutes a dispute of rights which falls within the Unfair
Labour
Practice jurisdiction of the LRA that the CCMA has jurisdiction to
arbitrate this dispute.
2.1.6
The
Applicants never argued that the Remuneration Policy amounts to a
collective agreement. The Third Respondent persisted with
its
argument during arbitration, which it also raised
in
limine
that the CCMA does not have jurisdiction to arbitrate this matter as
the Applicants are seeking salary increases, which is a matter
of
mutual interest and that the Applicants should embark on collective
bargaining or power play in order to deal with this matter,
and that
wage increase cannot amount to benefits or be arbitrated upon. The
Third Respondent also did not argue that its Remuneration
Policy
amounts to a collective agreement;
2.1.7
The
Second Respondent did not inform the Applicants and/or the Third
Respondent during the arbitration or prior to issuing his award,
that
he was considering, alternatively reconsidering the issue of
jurisdiction afresh, on a different or alternative basis than
previously challenged by the Third Respondent and on which his
initial verbal ruling was based. The Second Respondent also did
not
invite the Applicants and/or the Third Respondent to make
representations in this regard and/or did not afford them an
opportunity
to be heard on the matter and/or consult with them prior
to issuing the award.
2.2
The
Second Respondent stated in paragraph 13 of the award under the
heading “ANALYSIS OF EVIDENCE AND ARGUMENT” that
“In
my view, the employer’s action in sending out a letter stating
that they would only afford salary increase on the
basis of
performance for Band E staff amounted to a unilateral change to a
right that the employees had by virtue of the Remuneration
Policy,
and which could also be argued to have been a collective agreement”
and concluded that this amounts to a unilateral
change to the terms
and conditions of employment.
2.3
The
Second Respondent’s conclusion that the sending of the letter
amounted to a unilateral change to a right that the employees
had by
virtue of the Remuneration Policy and the further conclusion that the
action of the employer amounts to a unilateral change
to terms and
conditions of employment constitutes an error in fact and/or in law
and/or in logic, is not sustained by the evidence
and is not a
reasonable conclusion. The Second Respondent does not state which
“right” the employees had by virtue
of the Remuneration
Policy and which was changed unilaterally. It can only refer to the
right to a “cost-of-living salary
adjustment related to
economic variables” as part of the Third Respondent’s
annual salary increase. The actual percentage
increase (if any) is
still the subject of discretion exercised by management of the Third
Respondent in which case it would fall
squarely with the CCMA’s
Unfair Labour Practice jurisdiction. Accordingly, this “right”
cannot amount to a term
and condition of employment.
2.4
The
Second Respondent’s conclusion that the Third Respondent’s
Remuneration Policy could be argued to have been a collective
agreement constitutes an error in fact and/or law and/or in logic, is
not sustained by the evidence and is not a reasonable conclusion.
The
Third Respondent’s Remuneration Policy is not a collective
agreement for
inter
alia
,
but not limited to, the following reasons which the Second Respondent
failed to appreciate:
2.4.1
Third
Respondent’s Remuneration Policy did not arise as a result of
the consent or meeting of the minds of all the parties
thereto.
Organized Labour was merely consulted during the process of
formulating the Remuneration Policy, put forward certain proposals
and accepted the final version on behalf of First Applicant; and/or
2.4.2
That
the Remuneration Policy provides for and was subject to the approval
by the CEO of the Third Respondent; RM Adams; and/or
2.4.3
Section
23
of
the
LRA
,
which deals with the legal effect of collective agreements, inter
alia,
states that a collective agreement binds
-
‘…
(d)
employees who are not members of the registered trade union or trade
unions party to the agreement if-
(i)
The
employees are identified in the agreement;
(ii)
The
agreement expressly binds the employees; and
(iii)
That
trade union or those trade unions have as their members the majority
of employees employed by the employer in the workplace.’
The
Remuneration Policy, if it was a collective agreement, does not
identify employees who are not members of the registered trade
union
or trade unions party to the agreement and does not expressly bind
these employees. As a result, the Third Respondent’s
Remuneration Policy, if it was a collective agreement, only binds the
unions who are parties to the agreement (The First Applicant
and
Solidarity) and their members, but not the remaining employees of the
Second Respondent who are not members of the union parties.
This is
an untenable interpretation. From the content of the Remuneration
Policy it is clear that it is the intention of the Policy
that it
applies to all employees of the Third Respondent.
2.4.4
The
Remuneration Policy, if it is a collective agreement neither
stipulates the period for which the Policy is valid and in force
nor
does it contain a cancellation clause and is therefore concluded for
an indefinite period. As a result, the legal effect is
that any party
of the Remuneration Policy (which according to Second Respondent is a
collective agreement) may terminate same by
giving reasonable notice
in writing to the other party/ies as contemplated in Section 23(4) of
the LRA. It would be untenable if
either the First Applicant or
Solidarity could cancel the Third Respondent’s Remuneration
Policy by giving reasonable notice.
2.5
Even
if the conclusion of the Second Respondent that the sending out of
the letter amounted to a unilateral change to a right that
the
employees had by virtue of the Remuneration Policy, which Policy
could be argued to have been a collective agreement was correct,
the
Second Respondent failed to appreciate and lost sight of the fact
that:
2.5.1
An
employer’s conduct is subject to scrutiny by the CCMA in terms
of Section 186 (2) (a) when an employee’s claim concerns
failure by an employer to comply with an obligation arising
ex
contractu
or
ex
lege
,
as well as the unfair exercise of the employer’s discretion in
terms of a policy or practice relating to the provision of
benefits;
and/or
2.5.2
Where
conduct amounts to a unilateral change to terms and conditions of
employment or constitutes a dispute of interest, the employee
can
elect to arbitrate the matter or to strike if the conduct of an
employer also falls within the ambit of an unfair labour practice
and/or
2.5.3
It
is the functions and duty of the Second Respondent during arbitration
proceedings to determine the real nature of the dispute
between
parties on consideration of all facts and that the Second Respondent
could have adjudicated this dispute as a dispute about
the
interpretation or application of a collective agreement as provided
for in terms of the provisions of section 24 (2) of the
LRA.
2.6
The
Second Respondent, concluding in paragraph 15 of the award, that
“
there
was insufficient evidence before me as to how or why this action by
the CEO was unfair. As such, I am not making a determination
as to
whether or not it was an unfair act, but am simply dismissing the
matter. As stated above, my ruling is that the CCMA does
not have
jurisdiction to arbitrate this leg of unfair labour practice dispute”
effectively amounts to an order of absolution from the instance
inferring the notion that the Applicants may reopen their case
on
this point.
2.7
The
Second Respondent, in concluding as he did as set out above, failed
to appreciate and lost sight of the fact that:
2.7.1
Commissioners
are enjoined by virtue of the provisions of Section 138(1) of the LRA
to determine disputes fairly and quickly and
must deal with the
substantial merits of the dispute and therefore the Second
Respondent’s failure to make a determination,
which effectively
amounts to an order of absolution from the instance, is not a
competent order of the CCMA; and/or
2.7.2
The
effect of an arbitration award in terms of section 143 of the LRA is
final and binding. By dismissing the matter, the Second
Respondent
has effectively nominally determined the matter but failed to deal
with the substantial merits of the matter.
2.8
The
Second Respondent, in concluding in paragraph 15 of the award, that
“
there
was little evidence before me as to how the discretion exercised by
the CEO had been unfair”
failed to appreciate and lost sight of the evidence presented on
behalf of the Applicants, in particular:
2.8.1
The
common cause facts contained in the addendum to the Pre –Arbitration
Conference Minutes;
2.8.2
The
evidence of how moderation is supposed to be done and that moderation
should not disturb the individual scores of the Group
Executive (GE)
for their individual subordinates;
2.8.3
The
evidence that the moderation was done arbitrary in that some of the
scores of the Applicants reporting to the same GE were moderated
up
and others down by the CEO who did not contract with the individuals.
Accordingly, the CEO could not interfere with the performance
scores
of the individuals.
2.8.4
The
evidence that according to the Remuneration Policy, shortcomings of
the individuals who are evaluated should be addressed during
the year
so that they could address such and be par at the end of the year and
that the CEO could not do this.
2.8.5
The
evidence that when the moderated scores were considered, no formula
or methodology was applied as some were moderated up and
others down
and that the First Applicant requested the reason(s) for the
moderation by the CEO but to date of the arbitration no
reason/s had
been provided.
2.8.6
The
fact that the Third Respondent’s Remuneration Policy which
regulates Pay for Performance does not provide for moderation
of
performance scores.
2.8.7
The
fact that other than Ben Blom (a member of the First Applicant),
Isabel Steyn (a member of the First Applicant), Frans Mashilo
(the
Eighth Applicant) and Alick Chinake (The Fifth Applicant) (before the
First Respondent) who were informed by the CEO in which
areas their
performance(s) were allegedly lacking, the remainder of the First
Applicant’s members and other Applicants who
were moderated
downwards, were not informed of such areas in which their
performance(s) were allegedly lacking.
2.8.8
The
evidence of Ben Blom, Isabel Steyn , Frans Mashilo and Alick Chinake
(The Fifth Applicant) in general, but specifically that
even after
they sought clarity and/or engaged with the CEO and/or clarified with
the CEO why their duties were allegedly visibly
neglected, and not
accurate, they had received no clarification or explanation from the
CEO.
2.8.9
The
fact that the CEO was in moderating some of the scores for the
Applicant’s downwards have interfered and/or overruled
the
contractual performance agreement and assessment between the
Applicants and their GE’s under the circumstance where there
could not have been any basis to do so.
2.8.10
It
is clear from the evidence that the CEO did not recalculate Blom,
Steyn, Mashilo and Chinake’s individual performance scorecards
and afford them each item, about which he had a complaint. What the
CEO did is to simply deny these Applicants increases without
any
recalculation thereby totally bypassing the performance contracts and
calculations. Chinake for instance scored a 3.5 or 3.6
according to
his scorecard and his score was simply downgraded to 3.0. Mashilo
scored 4.1 and his score was also downgraded to
3.0 Steyn and Blom
were downgraded from 3.2 to 3.0.
2.8.11
The
CEO’s actions in this regard violate various fundamental
principles which the Respondent undertook to maintain in its
Remuneration Policy. These include a lack of “
transparent
communication
regarding the organisation’s reward practices that enable
individuals to have an informed opinion” remuneration
differentiation
between individuals which is not based on criteria
that are fair and objective, deviation from the agreements on how
their performance
will be measured, deviation from what is required
of them in terms of standards of performance as derived from their
annual KPA’s,
a deviation from the agreement on how they are to
be measured regarding performance, a unilateral amendment on which
targets they
must achieve and a total lack of objective feedback
about their performance during the year of assessment.
2.8.12
The
fact that the CEO meted out differential treatment in moderating some
of the Applicants’ performance scores and/or the
ex
facie
the evidence this was done on an arbitrary and/or inconsistent basis
and that thus in itself constitute unfair conduct and that
the
Respondent failed to lead any evidence and /or to call the CEO as a
witness to justify the moderation.
2.9
The
ninth and tenth issues in dispute, as per the pre-arbitration minutes
are not issues in dispute in the alternative to any of
the previous
issues in dispute whether or not the Commissioner finds that the
Respondent was entitled to base the salary increase
on performance or
not.
2.10
The
ninth issue in dispute is whether the fact that E Bands’ salary
bands have not been adjusted to the 50
th
and 75
th
percentile of the market for the relevant period as provided for in
the Remuneration Policy is contrary to the provisions of the
Third
Respondent’s Remuneration Policy, is accordingly unfair and
whether it constitutes an unfair labour practice as defined
in the
LRA.
2.11
The
tenth issue in dispute is in the alternative to the ninth issue in
dispute and it is whether the fact that the E Bands salary
bands were
not adjusted for the relevant period, which is a deviation from the
practice historically followed by the Third Respondent,
whilst C and
D bands’ salary bands were adjusted for the relevant period, is
unfair and whether it constitutes an unfair
labour practice as
defined in the LRA.
2.12
The
Second Respondent is enjoined by virtue of the provisions of section
138 (1) of the LRA to determine disputes fairly and quickly
and must
deal with the substantial merits of the dispute. The Second
Respondent failed to determine the ninth and tenth issues
in dispute
and failed to deal with the substantial merits of these disputes
and/or failed to consider the evidence tendered by
the Applicants in
this regard.
Third
Respondent’s Submissions
:
[3]
The
Third Respondent submitted that:
3.1
The
arbitration award rendered by the Second Respondent is rational and
one that another decision maker could have arrived at. There
is no
legal basis for it to be reviewed and set aside.
3.2
The
first finding made by the Second Respondent is that the decision to
use performance, as opposed to CPI, as a basis for effecting
salary
increases constitutes a unilateral change to the terms and conditions
of employment and cannot be arbitrated by the CCMA.
It was always the
Third Respondent’s contention that the entire dispute referred
to the CCMA by the Applicants concerned
the issue of remuneration
increases and that was not arbitrable. The finding by the Second
Respondent that this is indeed the case
is reasonable, rational and
correct. There is no legal basis to interfere with the finding.
3.3
The
second finding by the Second Respondent was that the decision by the
Third Respondent to depart from the use of CPI to performance
to
determine salary increases amounted to the exercise of discretion and
could potentially constitute an Unfair Labour Practice.
On the basis,
he found that the CCMA had jurisdiction to arbitrate the matter.
Although the Third Respondent does not accept this
finding, in the
light of the ultimate conclusion arrived at by the Second Respondent,
it is not necessary for the Third Respondent
to deal with this issue
any further. The Third Respondent will, should the review be
successful, and the dispute be referred back
to the CCMA, deal with
this issue in that forum.
3.4
The
third finding by the Second Respondent is that the Applicants failed
to adduce sufficient evidence to prove that the Third Respondent’s
CEO had acted unfairly in moderating the Applicants’ scores,
which determined what increase, if any, they would get. The
Second
Respondent then proceeded to dismiss the referral. The Third
Respondent submits that as the Applicants bore the onus to
prove that
the Third Respondent had committed and Unfair Labour Practice, the
Second Respondent correctly dismissed the referral.
3.5 It
is clear that what the Second respondent did was to effectively grant
the Third Respondent absolution, in circumstances where
the
Applicants had failed to lay any evidentiary basis that required any
response from the Third Respondent .The Second Respondent
was
entitled to make such a finding as section 193(4) of the LRA requires
him to resolve an alleged Unfair Labour Practice dispute
on terms
that he deemed to be reasonable. Dismissing a referral is one of the
findings that a Commissioner in these circumstances
can make. The
Third respondent accordingly submits that the award by the Second
Respondent is not reviewable.
3.6 As
pointed out already, the first finding by the Second Respondent was
that the change from a CPI based salary increases to
a performance
based one gave rise to a dispute about unilateral changes to terms
and conditions of employment. This finding is
correct in the sense
that the dispute was and had always been about salary increases and
was never about the provisions of benefits.
The Second Respondent’s
finding that he did not have jurisdiction is legally correct.
3.7 It
is common cause that in so far as a jurisdictional finding is
concerned, the basis for its review is whether or not it is
legally
correct. In
casu
,
the Third Respondent submits that the ruling by the Second Respondent
is indeed legally correct. The evidence before the Second
Respondent
was clear what the Applicants wanted was a salary increase, and not
benefits.
3.8
The Applicants claim that the Third Respondent did not amend the
Remuneration Policy but deviated from it. The Third Respondent
contends that its decision to base salary increases for senior
managers on their performance does not constitute a departure from
the Policy but is inconsistent with it. In any event, the Third
Respondent submits that the fact that remuneration is dealt with
in a
Policy does not make it a benefit issue subject to arbitration at the
CCMA.
3.9
The Third Respondent did not exercise discretion in respect of the
decision to increase or not increase salaries of the Applicants.
Increases were granted or not granted based on actual performance.
This does not render the decision discretionary.
3.10 In so far as the
time periods between when the Third Respondent took the decision to
change to a performance based remuneration
increase approach is
concerned, this does not constitute a dispute that can separately be
referred and is not one that the Second
Respondent was required to
determine. The issue was whether the decision was a dispute
concerning the provision of benefits. It
was not.
Court’s
Evaluation
[4]
The Commissioner had ruled at the start of the arbitration
proceedings that the dispute ‘finds itself within the
definition
of Unfair Labour Practice. The CCMA does have jurisdiction
that falls under the definition of Unfair Labour Practice…’
It is my view that this was in error because the evidence led later
on during the arbitration hearing was very clear that this
was no
ordinary provision of benefits dispute but one of mutual interest as
clearly shown below (evidence of Coetzee in cross examination).
The
Commissioner cannot be faulted for having deviated from his earlier
ruling that the matter was one relating to Unfair Labour
Practice.
The Applicant’s complaint therefore cannot amount to any
significant ground for review that can impact on the overall
content
of the arbitration award.
[5]
It was argued that all senior managers like the Applicants had
performance agreements entered into between 2008 to 2013. Before
2013
all senior managers got cost of living increases.
[6]
The salary increases at the employer is handled in collective
bargaining for certain categories of employees. Those who are
outside
of the bargaining unit normally receive salary increases based on the
outcome of the salary negotiations. Mr Coetzee testifying
for the
employees indicated
[2]
that “the
NECSA Board in its meeting held in May 2013 decided that with effect
from July 2014…salary increases for
managers will be based on
performance”. However, during the period in question the
employer handled it differently for senior
managers falling outside
of the bargaining unit. Once the Departments’ Heads had
evaluated and assessed the relevant managers,
the CEO moderated the
final results which produced the results for getting or not getting
salary increase. The Commissioner after
hearing evidence decided to
dismiss the referral on the strength of the fact that there was no
sufficient evidence before him suggesting
that the CEO acted unfairly
in moderating. I am of the view that the Commissioner’s award
in this regard cannot be faulted.
This ground of review cannot
therefore be sustained.
[7]
Sections 64(4) and (5) of the LRA provides that:
“
(4) Any
employee who or any trade union that refers a dispute about a
unilateral
change to terms and conditions of employment
to a council or the Commission in terms of subsection (1)(a) may, in
the referral, and for the period referred to in subsection
(1)(a)
-(a) require the employer not to implement unilaterally the change to
terms and conditions of employment; or (b) if the
employer has
already implemented the change unilaterally, require the employer to
restore the terms and conditions of employment
that applied before
the change. (5) The employer must comply with a requirement in terms
of subsection (4) within 48 hours of service
of the referral on the
employer”.
[8]
Unequivocally the Commissioner took a clear stance that “in my
view, the employer’s action in sending out a letter
stating
that they would only afford salary increases on the basis of
performance for band E staff amounted to a unilateral change
to a
right that the employees had by virtue of the Remuneration Policy…
Unilateral changes to terms and conditions of employment
are not
subject to arbitration by the CCMA, but can rather be pursued by
aggrieved employees through strike action and/or application
to the
Labour Court”
[3]
.
[9]
The Applicants’ Mr Coetzee was given a version
[4]
to comment on and he answered in the affirmative. “The
applicant seeks the following relief, salary adjustment increases
for
all the applicant’s members… You were asking for the
CCMA to order that NECSA must give you a salary increase
of 7%?...”
– Answer: “YES”. The attack to the Commissioner’s
award that it should be reviewed for
having ruled that the matter
before him was not arbitrable is unjustified. Seeing that the
employer had deviated from the normal
way of granting salary increase
– instead of the bargaining forum and the extension of the
agreed percentage, the employer
opted for a performance based
increase, the employer changed the terms and conditions of employment
without the other parties imputs.
This in our law is called
unilateral change to the terms and conditions of employment and
therefore not arbitrable. There is nothing
reviewable in this finding
– it is neither misconduct, gross irregularity nor exceeding of
one’s powers. It is a finding
that any other commissioner could
make. It is an award justifiable in the circumstances of this case.
In fact, the employer’s
contention that a dispute about salary
increase falls outside of the CCMA’s jurisdiction and therefore
not arbitrable is
legally correct.
[10]
In an arbitration hearing regarding an alleged Unfair Labour
Practice, the applicant employee would commence to lead evidence.
The
same happened in this matter. The Commissioner said
[5]
“okay, can you confirm Mr Du Bruyn, is that the case of the
Applicant party”, to which Mr De Bruyn answered
[6]
– “That is correct Mr Commissioner”. The
Commissioner turned to the Employer’s representative Mr
Maserumule,
“alright, are you ready with the respondent’s
case”
[7]
. Mr Maserumule
responded
[8]
“Formally we
are not calling any witnesses”. This I think was done having
realized that the employees had failed to
make any case to the
Commissioner, even on their own version. The Commissioner assessed
all the evidence and the concluding submissions
by the parties and
came to a clear conclusion that no case was made by the employees for
Unfair Labour Practice and that the alleged
Unfair Labour Practice is
in fact a unilateral change to the terms and conditions of employment
which falls outside the CCMA’s
jurisdiction to arbitrate. The
Commissioner did not say he is granting absolution as none was
requested.
[11]
Again the Applicants’ case seems to have been convoluted to an
extent that it is not one issue that they seek relief
for, thus
making it untenable. On the one hand they want increase based on the
Remuneration Policy or the wage negotiations outcome.
On the other
hand, Steyn testified
[9]
that
she was informed that she had not performed well and thus got no
increase. She is challenging the employer’s assertion
that she
is not performing and thus not entitled to any salary increase. But
this was a dispute that she was supposed to have lodged
outside of
the complaint that the employer had introduced performance based
salary increase. She seeks relief on the basis of the
performance,
whilst others question the Policy introduced by the letter. This is
not right. It is my view that considering her
individual case with
its own merits, she would have made a better case and it would have
fallen within the jurisdiction of the
CCMA.
[12] It is worth
mentioning in passing and as a general observation in this matter,
that there seems to develop a habit in the South
African workforce
that employees would want to be highly paid no matter what the
consequences – whether they are productive
or not. In this case
it seems to me that the employer had brought about a relatively
objective system in order to facilitate performance
and to use same
for evaluating employees’ work performance to determine if an
increase in salary is justified. This seems
to correct the injustices
that are created by the Remuneration Policy. The Applicants are
opposed to this performance based salary
increment and they want to
be paid increase following outcome from negotiations and whatever
else as a method of calculating cost
of living and the CPI. That is
unacceptable if we want to be a productive and cost effective
country. Employees at the level where
the Applicants are need to
understand this better. To demand for a high salary and not wanting
the same benchmarked and gauged
against one’s work performance
is wrong.
[13] In the final
analysis and for the aforegoing reasons, I make the following order:
Order
1. The review application
is dismissed with costs.
IM Shongwe
Acting Judge of the
Labour Court
Appearances:
For the Applicant: Mr. De
Bruyn, an attorney
Instructed by: Deon De
Bruyn Attorneys
For the Respondent: Mr.
Maserumule, an attorney
Instructed by: Maserumule
Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
See page 85 lines
11 – 13 and page 86 lines 17 – 19 transcript of
8/3/2016: Record of Proceedings
.
[3]
See paragraph 13
of the arbitration award.
[4]
See page 90 lines
16 – 25 of the transcript Record of Proceedings.
[5]
See page 187 lines
9 – 10 transcript.
[6]
See page 187 line
11 transcript.
[7]
See page 187 lines
13 – 14 transcript.
[8]
See page 187 line
15 transcript
[9]
See page 103 lines
1 – 25 transcript.