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[2018] ZALCJHB 215
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PSA obo Mhlongo v General Public Service Sectoral Bargaining Council and Others (JR1225/2014) [2018] ZALCJHB 215 (3 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1225/2014
In
the matter between:
PSA
obo SP MHLONGO
Applicant
and
THE
GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL
First
Respondent
COMMISSIONER
MARLEZE BLIGNAUT
N.O
Second
Respondent
DEPARTMENT
OF DEFENCE
Third
Respondent
Heard:
30 May 2017
Delivered:
3 July 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
In this opposed application,
the applicant (Mhlongo) seeks an order reviewing, setting aside and
replacing the award of the second
respondent (Commissioner) issued on
4 May 2014. In her award, the Commissioner held that the
decision by the third respondent
to terminate Mhlongo’s
allowance, did not constitute an unfair labour practice within the
meaning of section 186 (2)(b) of
the Labour Relations Act
[1]
(LRA).
[2]
Mhlongo’s claim of an
allowance before the Commissioner was grounded in the provisions of
Annexure B, Part XIX of the PSCBC
Resolution 3 of 1999 (The
Resolution)
[2]
.
In June 1999, Mhlongo was transferred from the Department of Housing
to the third respondent as an Assistant Director of Personnel
Management. At the Department of Housing, he was entitled to the
allowance in terms of the provisions of the Resolution, which
he had
continued to receive upon his transfer to the third respondent.
[3]
In August 2012, Mhlongo was placed on precautionary suspension
with full pay pending investigations and finalisation
of a
disciplinary enquiry into allegations of misconduct. The third
respondent continued to pay the allowance until January 2013,
when the Director of Administration in the third respondent
instructed the Financial Department to cease payments with
retrospective
effect from September 2012. Payment of allowances to
Mhlongo was then terminated on the basis that his suspension
disqualified
him. A further instruction was issued for any over
payments made to Mhlongo to be recovered from him.
[4]
A deduction was then made to Mhlongo’s April 2013 salary in the
amount of R33 565.00. The third respondent refused
to reverse
the deductions despite requests from Mhlongo’s Union. In
June 2013 an unfair labour practice dispute was
then referred to
the first respondent, the General Public Service Sectoral Bargaining
Council (GPSSBC) in respect of the
precautionary suspension
that took effect in August 2012. It is common cause that Mhlongo
has since been dismissed based on
the allegations of misconduct.
The
arbitration proceedings and the award
[5]
Central to Mhlongo’s
referral of the dispute and his evidence at the arbitration
proceedings was that the termination of the
allowance, which he
considered to be a benefit, constituted an unfair labour practice. As
apparent from his referrals for both
conciliation and arbitration to
the GPSSBC, he only sought the reinstatement of the allowance
[3]
,
and it does not appear from those referrals that he sought the
upliftment of his suspension.
[6]
Mhlongo’s case as summarised by the Commissioner was
essentially that he had been entitled to the allowance since 2004
when he was still at the Department of Housing. With a transfer to
the third respondent, that benefit was always due to him as
it was
part of his remuneration package, effectively becoming a term of his
contract of employment. Further to the extent that
he was placed on
precautionary suspension with full pay, he was still entitled to the
allowance, notwithstanding that suspension.
[7]
His further contention was that the termination of the allowance was
a form of ‘punishment’. He had nonetheless
conceded that
during his suspension, he was not required to travel, to work
overtime, to perform extra functions outside of his
normal scope of
duties, and/or that he was not subjected to any inconvenience, within
the meaning and requirements of clause 3.2
of the Resolution.
[8]
The third respondent relied on the evidence of its Director:
Administration, Mr Freddy Khumalo. His testimony was essentially
that
it was discovered that a number of employees within the third
respondent were being paid allowances even when they did not
qualify
in accordance with the provisions of the Resolution. This had caused
a strain on the third respondent’s expenditure,
and he had then
issued an instruction for such payments to be stopped, and for
overpayments to be recovered from the individual
employees concerned.
[9]
Khumalo confirmed that no consultations were held with the concerned
individuals before the payments were stopped. He however
testified
that not every employee was paid the allowance as one had to meet the
necessary requirements in terms of the provisions
of the Resolution.
Thus, payment could be stopped even in respect of those employees
that had previously qualified, depending on
the nature of the duties
they performed. In this case, Mhlongo did not meet the criteria for
payment during his period of suspension.
[10]
According to Khumalo, the allowance under the Resolution was only
payable in circumstances outlined therein, and was different
from
other benefits/allowances such as housing, service bonus or medical
aid, which Mhlongo had continued to receive even after
his
suspension.
[11]
In his award and in regards to the contention that the allowance
formed part of the terms of Mhlongo’s contract of employment,
the Commissioner rejected that argument on the basis that he
(Mhlongo) had not produced evidence of that contract, and in
the
absence of such proof, the allowance was merely paid out as provided
for in the Resolution.
[12]
In regard to the argument that the allowance was a benefit forming
part of a ‘full salary’ for the purposes of
the
suspension, and further that termination of the payment constituted
an unfair labour practice, the Commissioner had regard
to the third
respondent’s counter arguments, which were that:
12.1 The dispute did not fall under
section 186 (2) (a) or 186 (b) of the LRA, but rather under section
24 of the LRA;
12.2 The Resolution provided for
dispute procedures pertaining to any interpretation and/or
application of its provisions, and for
such disputes to be referred
to the PSCBC;
12.3 The GPSSBC thus had no
jurisdiction to determine the dispute.
[13]
In arriving at her conclusions, the Commissioner took into account
that Mhlongo was essentially challenging the termination
of the
payment of allowances despite his suspension, and that such payments
in accordance with the provisions of the Resolution
were
subject to certain conditions incidental to the work performed by him
prior to his suspension.
[14]
The Commissioner appreciated that the Resolution created rights in
respect of payment of an allowance but subject to the discretion
of
the employer and the criteria set out therein. She further
appreciated that the allowance had a distinct purpose, which was
mainly to compensate employees for inconvenience during the
performance of their functions in serving executive authorities.
[15]
The Commissioner accepted
Mhlongo’s argument that the right to an allowance in accordance
with the provisions of the Resolution
became a ‘conditional’
benefit within the meaning of section 186 (2)(a)
[4]
of the LRA. She however found that upon Mhlongo’s suspension,
it could not be said that he had suffered any inconvenience
as
contemplated in clause 3.2 of the Resolution, and he therefore could
not claim entitlement to the allowance, hence the decision
to
discontinue it did not constitute an unfair labour practice.
[16]
Equally so, the Commissioner further found that the decision of the
third respondent not to inform Mhlongo that the allowance
would be
discontinued could not on its own constitute an unfair labour
practice.
The
grounds for seeking a review
[17]
Mhlongo contends that the Commissioner’s award is reviewable on
the grounds that
17.1
The Commissioner misconceived
the true nature of the enquiry, and further erred in the application
of the provisions of section
186 (2)(a) and (b)
[5]
of the LRA. In this regard, it was alleged that despite being
required to determine the dispute in terms of section 186 (2)(a)
of
the LRA relating to benefits, she nonetheless determined it in
accordance with the provisions of section 186 (2)(b) relating
to
suspension. This was in circumstances where Mhlongo’s
case was essentially that the allowance was a benefit he was
entitled
to.
17.2 The Commissioner thus erred in
finding that the allowance did not form part of Mhlongo’s
remuneration to which he was
entitled to despite his suspension which
was on full pay.
17.3 The Commissioner should have
recused herself from the matter having previously considered other
preliminary points raised in
the matter.
[18]
Central to the third respondent’s opposition to the review
application was that upon his suspension, Mhlongo was no longer
entitled to the allowance as he was no longer executing the duties
that entitled him to that allowance. This was the case with
other
employees identified in the third respondent. The continued payment
of the allowance as attested to by Khumalo should in
accordance with
the provisions of the Resolution be paid against certain set of
criteria which Mhlongo did not meet subsequent
to his suspension.
[19]
It was further submitted that since Khumalo had no knowledge of who
Mhlongo was, the termination of the allowance was not effected
with
the intention of punishing him as he had alleged. The respondent
proceeded to deal with Mhlongo’s grounds of review,
which I
propose to attend to with in the course of my evaluation as below.
Evaluation
[20]
The test applicable in review
proceedings of this nature is trite, and it is not whether the
Commissioner was right or wrong, but
whether the decision made
by the Commissioner is one that a reasonable decision-maker could not
have made. It is also trite
that if the Commissioner misconstrues the
nature of the inquiry and that has an impact on the outcome of the
arbitration, that
would constitute a reviewable irregularity
[6]
.
[21]
The starting point is that
Mhlongo’s claim of an allowance is grounded in the provisions
of the Resolution. Prior to the commencement
of the arbitration
proceedings, the third respondent had raised a preliminary point to
the effect that the GPSSBC lacked jurisdiction
to determine the
dispute as it ought to have been referred to the PSCBC in terms of
the provisions of section 24 of the LRA, and
further in accordance
with the dispute resolution provisions of the Resolution
[7]
.
Mhlongo had opposed the preliminary points, and argued that the
termination of the allowance pending a disciplinary enquiry was
on
its own, disciplinary action, thus his dispute fell under section 186
(2)(a) of the LRA.
[22]
In a ruling issued in November 2013, the same Commissioner had found
that since the third respondent had not pursued the preliminary
point, it would be appropriate to determine that point together with
the merits of the claim in arbitration proceedings.
[23]
In the arbitration award
however, this preliminary point seems to have escaped the attention
of the Commissioner, despite her conclusions
that the allowance was
paid in accordance with the provisions of the Resolution
[8]
.
The basis of the Commissioner’s decision to determine the
dispute under the provisions of section 186 (2)(b) of the LRA
was
that Mhlongo was
dominus
litis
and had elected to
pursue a dispute pertaining to the allowance in accordance with those
provisions. The Commissioner, in the light
of that fact, concluded
that Mhlongo’s claim ought therefore to be measured against
those provisions.
[24]
It is trite that Bargaining
Councils, like the Commission for Conciliation Mediation and
Arbitration (CCMA), cannot decide upon
their own jurisdiction
[9]
.
Equally so, there is an obligation on a Commissioner to satisfy
him/herself that the Council has the requisite jurisdiction to
determine a dispute, irrespective of how it was referred and the
election of a party to pursue a particular path in respect of
that
claim. Furthermore, jurisdiction is not assumed on the say-so of the
parties, or the failure of a party to raise any such
jurisdictional
points where appropriate.
[25]
In
Hospersa
obo Tshambi v Department of Health, KwaZulu-Natal
[10]
,
the Labour Appeal Court had reiterated that:
“
An
arbitrator is required to determine the true dispute between the
parties. To that end, it is necessary to establish the relevant
facts
and construe the category of dispute correctly. An arbitrator must
make an objective finding about what is the dispute to
be determined.
This Court in
Wardlaw
v Supreme Mouldings (Pty) Ltd (Wardlaw),
addressed
directly the question of whether the employees characterisation of a
dispute should enjoy deference and rejected that
approach.
Distinguishing the formalistic school of thought from that of the
substantive school of thought, this Court held that
the latter should
prevail. As a result, in
Wardlaw,
an
arbitrator was held to have incorrectly assumed jurisdiction over a
dispute that was about an automatically unfair dismissal,
a category
of dispute reserved for adjudication by the Labour Court. The
Constitutional Court disposed of this issue in
CUSA
v Tao Ying Industries and Others
‘
A
commissioner must, as the LRA requires, 'deal with the
substantial merits of the dispute'. This can only be done by
ascertaining
the real dispute between the parties. In deciding what
the real dispute between the parties is, a commissioner is not
necessarily
bound by what the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot change its
underlying
nature. A commissioner is required to take all the
facts into consideration including the description of the nature of
the
dispute, the outcome requested by the union and the evidence
presented during the arbitration. What must be borne in mind is
that there is no provision for pleadings in the arbitration process
which helps to define disputes in civil litigation. Indeed,
the
material that a commissioner will have prior to a hearing will
consist of standard forms which record the nature of the dispute
and
the desired outcome. The informal nature of the arbitration process
permits a commissioner to determine what the real dispute
between the
parties is on a consideration of all the facts. The dispute between
the parties may only emerge once all the evidence
is in.’
[11]
(Authorities omitted)
[26]
The above principles therefore confirm that despite Mhlongo having
framed his dispute in a particular manner, it was still
for the
Commissioner to satisfy herself that the dispute fell to be
determined by way of section 24 or section 186 (2) (b) of the
LRA. It
was therefore incorrect for the Commissioner to determine the dispute
simply in accordance with the manner with which Mhlongo
sought it to
be determined, specifically after she had established that the
allowance in question was governed by the provisions
of the
Resolution.
[27]
Once the Commissioner had established that the allowance was payable
in terms of the provisions of the Resolution, she was
obliged to
determine how disputes emanating from any interpretation or
application of its provisions were to be resolved. In this
case,
clause 8 of the Resolution specifically makes provision for
resolution of disputes pertaining to its provisions, and the
Commissioner ought therefore to have found that the GPSSBC lacked
jurisdiction to determine the dispute.
[28]
Even though the above conclusions would have disposed of the claim,
they are nonetheless not central to this review application.
In view
of Mhlongo’s insistence that the termination of the allowance
was punitive for the purposes of a section 186 (2)(b)
claim, and
further that the Commissioner was supposed to deal with that dispute
as pertaining to benefits as contemplated in section
186 (2)(a) of
the LRA, his argument in that regard was that the allowance was part
of the terms of his contract of employment.
[29]
Even if the dispute was to be
determined in accordance with the provisions of section 186 (2)(a) of
the LRA as Mhlongo had submitted,
the fact of the matter is that
clause 3 of the Resolution made provision of the circumstances under
which such an allowance could
be due. It was correctly pointed out on
behalf of the third respondent that any determination in terms of
section 186 (2)(a) of
the LRA could not be divorced from the
interpretation of the provisions of the Resolution and those of the
Directive
[12]
which governed the allowance. It being common cause that Mhlongo was
on suspension at the time that the allowance was terminated,
it is
incomprehensible as to how he could have expected the payment of the
allowance to continue at the time when he clearly was
not eligible
under clause 3.2 of the Resolution. Thus, even if there was merit in
the argument that the allowance was a part of
conditions of service,
there were conditions attached prior to it being due, which Mhlongo
clearly did not meet.
[30]
It follows from the above that to the extent that Mhlongo viewed the
allowance as a benefit within the meaning of section 186
(2)(a) of
the LRA, he could not have been entitled to any payment in that
regard as he had not established before the Commissioner
that he met
the criteria for the payment in the light of his then suspension.
Equally without merit is the contention that the
termination of the
allowance was punitive, and this was in circumstances where Mhlongo
had not sought the upliftment of his suspension.
In a nutshell, the
payment of the allowance depended on the services that an employee
rendered, and Mhlongo at the time was not
rendering any.
[31]
In regards to other grounds of review raised, there is no merit in
the contention that the Commissioner ought to have recused
herself
simply because she had dealt with the preliminary point raised in the
matter. A perusal of her ruling in that regard indicates
that in the
end, that preliminary point was not pursued and effectively, the
Commissioner had not dealt with the merits of the
claim. There is no
basis laid out in the founding affidavit as to the reason the
Commissioner ought to have recused herself in
the matter.
[32]
I do not deem it necessary to deal with Mhlongo’s allegations
that the Commissioner committed misconduct during the process
of a
reconstruction of the record of proceedings subsequent to the review
application being launched. That is a matter that falls
outside of
the determination of this review application, particularly where it
is not established by Mhlongo as to how the reconstruction
of the
record process prejudiced or impacted on the final determination of
the review application.
[33]
To conclude, Mhlongo’s grounds of review are to be rejected as
they are lacking in merit. To the extent that the Commissioner
had
determined the matter in accordance with the provisions of section
186 (2)(a) or (b) of the LRA, a case had not been made out
that
Mhlongo was entitled to the allowance as a benefit, or that the
termination of the allowance constituted a form of discipline
short
of a dismissal within the meaning of section 186 (2)(b) of the LRA.
Accordingly, there is no basis for a conclusion to be
reached that
the award of the Commissioner is one which a reasonable arbitrator
could not have arrived at in the light of the material
before her.
[34]
In regards to costs, even though I am of the view that this review
application was ill-considered, upon a consideration of
the
requirements of law and fairness, I am of the view that each party
must be burdened with its own costs.
[35]
In the premises the following order is made:
Order:
1. The applicants’ application
is dismissed;
2. Each party is to pay its own costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicants: Ms A Davies of Johanette Rheeder Inc.
For
the Respondent: Adv. PC Pio
Instructed
by: The State Attorney
[1]
66 of 1995, as amended.
[2]
‘
XIX. Allowances for
personnel serving executive authorities
1.
Aim
In some cases, the employer shall
provide an allowance for personnel directly serving executive
authorities
2.
Existing
allowances
If an employee received an allowance
for serving an executing authority on March 1 1999, the employee
shall continue to pay the
allowance until
2.1 the employer and employee
negotiate a change in line with the requirements of the Labour
Relations Act
2.2 parties in a bargaining council
that includes the employee in its scope negotiate a change in the
system of allowances, or
2.3 the employee leaves the position
that she or he occupied on March 1 1999.
3.
Eligibility
3.1 The employer may pay the
allowance to an employee who serves an executing authority
(a) Either directly or by working for
an employee who reports to the executing authority, and
(b) In terms of a Cabinet decision on
Ministerial staffing
3.2 The employer shall pay an
employee the allowance if the employee’s executing authority
considers it necessary to compensate
for
(a) undertaking duties that lie
outside the employee’s primary career or profession;
(b) overtime;
(c) travelling; and/or
(d) inconvenience
4.
Determination of
allowances
4.1
Clothing and
overtime
(a) …
(b) …
(i) …
(ii) Payment of overtime
(i) …
(ii) …
4.2
Compensation for
inconvenience and for work outside of an employee’s main
career
(a) An executing authority may pay an
eligible employee an allowance equal to a maximum of R2150 a month
for inconvenience and
work outside of the employee’s main
career
(b) The employer and employee shall
pay normal pension contributions on the allowance
(c) The Minister may revise the
maximum amount annually, based on the overall increase in the
Consumer Price Index
(d) Up to the maximum amount,
(i) Parties in a bargaining council
may negotiate the allowance for a particular position that falls
within the scope of the council,
and
(ii) If no collective agreement
affects a position, the executing authority shall determine the
amount of the allowance.
[3]
Annexures
‘M13’ and ‘M15’ to the Founding Affidavit
[4]
186. Meaning of dismissal
and unfair labour practice
(2) “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;
[5]
(b) unfair suspension of an employee or any other unfair
disciplinary action short of dismissal in respect of an employee;
[6]
See
Mahlakoane v South
African Revenue Service
[2018] 4 BLLR 337
(LAC); (2018) 39 ILJ 1034 (LAC) at para 24.
[7]
Clause 8 of
Resolution which provides that;
‘
If there is
a dispute about the interpretation or application of the agreement
or this resolution, any party may refer the matter
to the council
for resolution in terms of the dispute resolution procedure of the
council.’
[8]
At para 26
of the award. Annexure ‘M1’ to the founding affidavit.
[9]
South African Rugby Players
Association (SARPA); SA Rugby (Pty) Ltd and Others; v SA Rugby
Players Union and Another
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at para 40, where it was held that;
‘
As a
general rule [the CCMA] cannot decide its own jurisdiction. I can
only make a ruling for convenience. Whether it has jurisdiction
or
not in a particular matter is a matter to be decided by the Labour
Court.
…
This means that...., the CCMA may not
grant itself jurisdiction which it does not have. Nor may it deprive
itself of jurisdiction
by making a wrong finding that it lacks
jurisdiction when it actually has jurisdiction. There is, however,
nothing wrong with
the CCMA enquiring whether it has jurisdiction in
a particular matter provided it is understood that its decision on
such an
issue is not binding in law on the parties.’
[10]
[2016] 7 BLLR 649
(LAC); (2016) 37 (ILJ) 1839 (LAC).
[11]
At para 16
[12]
Directive
on Collective Agreement XIX: Allowances For Personnel Serving
Executive Authorities, issued by the Minister of the DPSA
in July
2012.