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[2018] ZALCCT 5
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National Commissioner of Correctional services and Another v PSA obo Snyman and Others (C98/2017) [2018] ZALCCT 5; [2019] 1 BLLR 62 (LC) (28 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C 98/2017
Not
reportable
Of
interest to other judges
In
the matter between:
THE
NATIONAL COMMISSIONER
OF
CORRECTIONAL SERVICES
First
Applicant
THE
MINISTER OF CORRECTIONAL
SERVICES
Second
Applicant
and
PSA
obo SNYMAN
First
Respondent
PIERRE
SNYMAN
Second
Respondent
GPSSBC
Third
Respondent
J
P HANEKOM
N.O.
Fourth
Respondent
Heard:
1 February 2018
Delivered:
28 February 2018
SUMMARY:
Review –
interpretation and application of collective agreement – LRA
ss 145 and 24.
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This is the third round of a
series of applications that have served before this Court, all
relating to a long-running dispute between
Mr Pierre Snyman and his
employer, the Department of Correctional Services.
[1]
[2]
Snyman migrated from one post
to another in terms of a collective agreement referred to as an
Occupation Specific Dispensation (OSD).
[2]
A dispute ensued about his new post. Two settlement agreements were
made orders of this Court. Still his salary was disputed. The
PSA
referred a dispute to the Bargaining Council on his behalf. The
Arbitrator, Adv J P Hanekom
[3]
,
found that the Department did not correctly apply and interpret the
OSD. He ordered the Department to place Snyman on the OSD
salary band
CB5 and to pay him accordingly. The applicants seek to have that
award reviewed and set aside in terms of s 145 of
the LRA.
[4]
Background
[3]
Snyman started working for the Department in 1991 as a correctional
officer on salary level 8. He was promoted to senior correctional
officer in 2004.
[4]
On 24 June 2004 the Department concluded a collective agreement with
NEHAWU and POPCRU. Although the PSA is not a party to the
agreement,
its members are bound by it. The OSD is contained in the agreement.
Its objectives are to create an occupational specific
dispensation
for “centre based” and “non-centre based”
correctional officials that provides for a unique
salary structure;
career-pathing opportunities based on competencies, experience,
performance and scope of work; pay progression;
grade progression
based on performance; recognition of appropriate experience; and
differentiated salary scales for different categories
of correctional
officials.
[5]
Snyman, who was at the time
employed as a non-centre based correctional services official at
salary level 8, applied unsuccessfully
in terms of the OSD to migrate
to a centre-based post, viz Divisional Head: Security at Mossel Bay.
He applied in this Court
[5]
to have that decision reviewed and set aside.
[6]
The parties signed a settlement agreement on 25 November 2011. The
pertinent terms were:
6.1 The
Department would place (“migrate”) Snyman in the vacant
post of Centre Coordinator:
Operational; Support at Mossel Bay Youth
Centre with effect from 1 October 2011.
6.2 The
Department would pay Snyman on the salary scale of R230 136 “in
accordance with all
the applicable provisions of the OSD agreement,
GPSSBC resolution 2 of 2009.”
6.3
“Disputes concerning the applicable OSD band with regard to the
post of Centre Co-ordinator
Mossel Bay Youth Centre may be pursued
through arbitration or other legal institution, depending on the
nature of such dispute.”
[7]
On 30 May 2013 an application by the PSA and Snyman to have that
agreement made an order of Court came before Lagrange J. The
Department brought a counter-application to rectify the settlement
amount. Lagrange J gave judgment on 3 March 2014. He made the
settlement agreement an order of court in terms of s 158(1)(c) of the
LRA and dismissed the counter-application.
[8]
Lagrange J found that the Mossel Bay Youth Centre was a medium
centre. As Snyman’s legal representatives pointed out,
that is
important because the job of centre co-ordinator at a medium centre –
as opposed to a small centre – attracts
the OSD band of CB5,
with the commensurate salary.
[9]
The Court further found that the parties had agreed to place Snyman
in the post of Centre Coordinator: Operational Support and
that such
a post exits. “Accordingly, there is no good reason not to make
the arbitration award and order of Court and ordering
the respondents
to comply with its terms. Insofar as there is a real dispute about
the correct OSD salary band applicable to Snyman,
that is a matter
which does not have to be resolved to enforce the settlement
agreement and appears to be a matter for the dispute
resolution
mechanisms of the OSD agreement.”
[10]
The applicants’ reading of the judgment is that Snyman had to
be placed on salary level CB5, as that is the commensurate
salary for
the post at a medium centre. Yet the Department did not place him in
that salary level. The applicants then brought
contempt proceedings
under case no C110/2012, alleging that the Department had not
complied with the order issued by Lagrange J.
That dispute was also
settled on 23 October 2015. The relevant terms are that:
10.1 Notwithstanding the
Department’s PERSAL salary system reflecting Snyman’s job
title as security manager,
it confirmed his placement as Centre
Coordinator at Mossel Bay Youth Centre from 1 October 2011.
10.2 Snyman’s salary
was commensurate with OSD band CB4, notwithstanding that the OSD
reflects the post of Centre
Coordinator at a medium centre at salary
level CB5.
[11]
Snyman contends that he had still reserved the right to challenge his
salary in terms of the first settlement agreement. The
second
agreement merely recorded the status of his salary at the time; it
did not detract from his right to challenge it.
[12]
The second agreement was also made an order of court on 23 October
2015. However, paragraph 2 of the agreement – relating
to the
CB4 salary band – was not included in the court order.
[13]
Consequent upon the Court making the second agreement an order of
court, the PSA referred a dispute to the Bargaining Council
in terms
of s 24 of the LRA to interpret the collective agreement (the OSD) in
order to determine what his salary should be.
The
arbitration award
[14]
The arbitrator found that the Department had not correctly applied
and interpreted the OSD when it appointed Snyman in the
Centre
Coordinator post on OSD salary band CB4 instead of CB5. He ordered
the Department to place Snyman on OSD salary band CB5
with effect
from 1 October 2011.
Relief
sought
[15]
The applicants seek to have the award reviewed and set aside on three
grounds. But before I deal with those grounds, I need
to rule on the
union’s application to strike out certain paragraphs in the
founding affidavit.
Application
to strike out
[16]
The application to strike out was brought on the basis that the
offending paragraphs and sub-paragraphs constitute evidence
that did
not serve before the arbitrator. Those are paragraphs 33 (and the
sub-paragraphs thereunder); 34; and sub-paragraphs 37.1
and 37.3.
[17]
The offending portions comprise references to affidavits filed in
previous proceedings before this Court. But only the judgments
and
orders in those proceedings served before the arbitrator. Snyman
never had the opportunity to deal with the evidence that the
Department now seeks to introduce before the arbitrator. This is a
review application. New evidence pertaining to the reasonableness
of
the arbitrator’s conclusion cannot be introduced after the
fact.
[18]
The application to strike out the offending portions is granted.
Review
grounds
[19]
The Department raises three grounds of review:
19.1 The arbitrator did
not have jurisdiction to decide a dispute in terms of s 24 of the
LRA;
19.2 Alternatively, the
award was not one that a reasonable decision-maker could make;
19.3 The award was
improperly obtained.
Evaluation
[20]
I shall consider each of the three review grounds in turn.
Jurisdiction
[21]
The Department argued that the Bargaining Council did not have
jurisdiction over the dispute that the PSA referred because
Snyman’s
salary had been fixed by agreement. The salary dispute, it maintains,
is a contractual one. It is not a dispute
over the interpretation or
application of a collective agreement.
[22]
Jurisdiction is determined on
the basis of the pleadings, as Langa CJ held in
Chirwa
[6]
,
and not the substantive merits of the case.
[7]
[23]
Although there are no pleadings
in the bargaining council, the referral must be the starting point.
And the union referred a dispute
over the interpretation and
application to the bargaining council on behalf of Snyman. The
union’s representative, Ms Aileen
Mosetic, reiterated that
characterisation of the dispute in her opening statement. And the
Department’s representative, Mr
Luphondo
[8]
,
did not take issue with jurisdiction; instead, he called upon the
arbitrator to favour his interpretation of the OSD and argued
that
Snyman could not be promoted in accordance with its terms.
[24]
It is so, as Mr
De
Villiers-Jansen
argued,
that the arbitrator must determine the true dispute between the
parties.
[9]
But that is what the arbitrator did in this case, using as his
starting point the characterisation of the dispute by the parties.
The remaining dispute between the parties flows directly from their
interpretation of the OSD and its application. And, as the
union
pointed out, the Department argued in this Court before Lagrange J
that “the essence of the dispute is whether the
agreement of
settlement contradicting the objectives and provisions of Resolution
2 of 2009 which cannot be implemented because
the PERSAL system can
be held to reflect the true intention of the parties”.
[25]
As the arbitrator noted in his interaction with the Department’s
representative, Mr Luphondo: “But the court order
also says
that if there is a dispute about the salary that is something that
can be arbitrated”. And Mr Luphondo agreed.
[26]
The characterisation of the
dispute is also in line with the judgment of Lagrange J when he
concludes:
[10]
“
It seems if there is a dispute
about the applicability of a particular OSD band to an employee that
is essentially a matter concerning
the interpretation and application
of the OSD agreement, which is a collective agreement, and should be
resolved through the dispute
resolution procedures applicable under
that agreement”.
[27]
That dispute resolution process – concerning, as it does, the
interpretation and application of the OSD agreement –
is, of
course, a referral to the Bargaining Council.
[28]
The union’s legal team
also had regard to the useful guideline offered by the LAC in
Tshambi
[11]
:
“
What is a ‘dispute’
per se, and how one is to recognise it, demands scrutiny. Logically,
a dispute requires, at minimum,
a difference of opinion about a
question. A dispute about the interpretation of a collective
agreement requires, at minimum, a
difference of opinion about what a
provision of the agreement means. A dispute about the application of
a collective agreement
requires, at minimum, a difference of opinion
about whether it can be invoked.”
[29]
In this case, there is a difference of opinion between the Department
and the union about the salary band applicable to Snyman,
now that it
is beyond dispute that he has been placed in the post of Centre
Coordinator in a medium centre. The difference arises
from the
parties’ interpretation of the OSD concerning the “migration”
of posts and the salary band applicable
to the new post that Snyman
now occupies. And there is a difference of opinion about its
application: applied to Snyman, does his
placement in terms of the
OSD entitle him to a salary at the higher CB5 band?
[30]
The arbitrator did have jurisdiction to decide the question before
him. This ground of review fails.
Reasonableness
[31]
Having decided that the bargaining council did have jurisdiction, it
remains to be considered whether the remaining review
grounds have
merit.
[32]
The first two review grounds –
reasonableness, i.e. the
Sidumo
[12]
test, and the allegation of a gross irregularity – can
conveniently be dealt with together.
[33]
Mr
De
Villiers-Jansen
argued that
the arbitrator did not consider the aim, purpose and all the terms of
the agreement; the primary objects of the LRA;
a practical approach
to the interpretation of the agreement; and what would be fair to the
parties, as he was enjoined to do by
Department
of Health v Van Wyk & Others.
[13]
The Department complained
that the arbitrator considered only one subclause – clause 6.1
– of the OSD. But that is not
correct. As appears from the
award, the arbitrator also considered clauses 7 and 16.5 relating to
promotion; and clause 16.2 relating
to migration. He further had
regard to the general principles relating to promotion and the
annexure setting out the entry requirements
for salary levels CB4 and
CB5.
[34]
The approach followed by the
arbitrator was a reasonable one. It is in line with the guideline of
the LAC to follow a practical
approach rather than applying purely
contractual principles
[14]
;
and that fairness may also be taken into account.
[15]
He interpreted the OSD and applied it to the facts of this dispute;
and he found that the post of Centre Coordinator attracted
a CB5
salary, and that it was fair to pay Snyman that salary. That is a
conclusion that a reasonable arbitrator could reach in
interpreting
and applying the OSD.
[35]
Turning to the allegation of a
gross irregularity, this overlaps to a large extent with the
reasonableness test. As Mr
De
Villiers-Jansen
pointed out
in his argument, the SCA held in
Herholdt
[16]
that, for a defect in the conduct of the proceedings to amount to a
gross irregularity as contemplated in s 145(2)(a)(ii), the
arbitrator
must have misconceived the nature of the enquiry or arrived at an
unreasonable result (i.e. the
Sidumo
test).
[36]
The Department accepts that it
– and Snyman – is bound by the OSD. But, it argues,
Snyman has been accorded greater
rights by the arbitration award than
he is entitled to under the OSD; and that amounts to a gross
irregularity. But there is nothing
in the OSD that states that an
employee may not be promoted or placed in a higher position, as
Lagrange J pointed out in his judgment
[17]
:
“
On the affidavits there is
sufficient reason to accept that the Mossel Bay Centre is a medium
centre and that the post to which
Snyman was appointed under the
settlement agreement does exist. As such the salary of Snyman would
be commensurate with the OSD
salary band and the payroll anomaly
relied upon by the [Department] should disappear.”
[37]
.And the Department agreed to place Snyman in the Centre Co-ordinator
post – a higher post that attracts a CB5 salary.
And lastly, as
the union pointed out, s 199(1)(b) of the LRA states that an employee
may not be treated in a manner less favourable
than that prescribed
by the collective agreement; there is no provision to the contrary.
[38]
The arbitrator did not
misconceive the nature of the enquiry. He decided exactly the
question before him, as contemplated in
Kloof.
[18]
And the result, as I have
already found, is not so unreasonable that no other arbitrator could
have come to the same result.
[39]
The award is not reviewable on these grounds.
Award
improperly obtained?
[40]
Mr
De
Villiers-Jansen
readily and
properly conceded that this is not a clear-cut case of an award
having been improperly obtained such as, for example,
where the
successful party bribed the arbitrator or stole a march on its
opponent by proceeding with an arbitration knowing that
the other
party is not aware of it.
[19]
Instead, he relied on correspondence between the parties, as well as
affidavits culled from other litigation, both annexed to the
founding
affidavit, purporting to show that Snyman did not dispute the salary
scale.
[41]
The problem with this submission is that the evidence on which it
purports to rely did not serve before the arbitrator. It
is for that
reason that it was struck out. And the award was not otherwise
improperly obtained.
Conclusion
[42]
The arbitrator did have jurisdiction to determine the dispute; and
the award is not reviewable.
[43]
With regard to costs, the
Constitutional Court in
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[20]
very recently reiterated:
“
The rule of practice that costs
follow the result does not apply in Labour Court matters. In
Dorkin
, Zondo JP explained the reason for the departure as
follows:
‘
The rule of practice that costs
follow the result does not govern the making of orders of costs in
this Court. The relevant
statutory provision is to the effect
that orders of costs in this Court are to be made in accordance with
the requirements of the
law and fairness. And the norm ought to
be that costs orders are not made unless the requirements are met.
In making
decisions on costs orders this Court should seek to strike
a fair balance between on the one hand, not unduly discouraging
workers,
employers, unions and employers’ organisations from
approaching the Labour Court and this Court to have their disputes
dealt
with, and, on the other, allowing those parties to bring to the
Labour Court and this Court frivolous cases that should not be
brought to Court.’
In this matter, there is nothing on
the record indicating why the Labour Court and Labour Appeal Court
awarded costs against the
applicant. Neither court gave reasons
for doing so. It seems that both courts simply followed the
rule that costs follow
the result. This is not correct.”
[44]
In this case, I take into account that Snyman is still employed by
the Department; that there is an ongoing relationship between
the PSA
and the Department; that the matter has a long history; and that the
ensuing litigation may have clarified, to an extent,
some issues
concerning the collective agreement. Taking into account the
considerations of both law and fairness, I do not consider
a costs
award to be appropriate.
Order
[45]
I therefore make the following order:
45.1 Paragraphs 33 (and
the sub-paragraphs thereunder); 34; and sub-paragraphs 37.1 and 37.3
of the applicants’
founding affidavit is struck out.
45.2 The application is
dismissed with costs.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Ewald
de Villiers-Jansen
Instructed
by the State Attorney.
FIRST RESPONDENT:
Randall
van Voore of Bowman Gilfillan Inc.
(Heads
of argument drafted by
Adv Lourens Ackermann).
[1]
Mr Snyman
is cited, it seems superfluously, as the second respondent in this
application. The first respondent is his trade union,
the Public
Servants’ Association (PSA), acting on his behalf. The
applicants are the National Commissioner and the Minister
of
Correctional Services. I shall refer to them as “the
applicants” or, in shorthand, as the Department.
[2]
The OSD was
contained in Resolution 2 of 2009 of the General Public Service
Sectoral Bargaining Council (GPSSBC), the third respondent.
[3]
The fourth
respondent.
[4]
Labour
Relations Act 66 of 1995
.
[5]
Under case
number C 382/2011.
[6]
Chirwa v Transnet Limited
and Others
[2007] ZACC 23;
2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC).
[7]
Gcaba v Minister for Safety
and Security and Others
(CCT64/08)
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) ; (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC).
[8]
Spelt as
Lepondo in the transcript.
[9]
Wardlaw
v Supreme Mouldings (Pty) Ltd
(2007) 28
ILJ
1042 (LAC);
CUSA
v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA 204
(CC) par 66.
[10]
In par [18]
of his judgment.
[11]
HOSPERSA
obo Tshambi v Department of Health, KwaZulu-Natal
(2016)
37
ILJ
1839 (LAC) par [17].
[12]
Sidumo v
Rustenburg Platinum Mines Ltd
2008 (2) SA
24 (CC).
[13]
(2014) 35
ILJ
3078 (LAC) par 22.
[14]
North
East Cape Forests v SAAPAWU
(2)
[1997] 6 BLLR 711
(LAC) 718 [per Froneman JA].
[15]
SAMWU v
SALGBC
[2012]
4 BLLR 334 (LAC).
[16]
Herholdt
v Nedbank Ltd
2013
(6) SA 224
(SCA) par [25].
[17]
Paras {27]
– [28].
[18]
Gold
Fields Mining SA Ltd (Kloof Gold Mine) v CCMA
[2014]
1 BLLR 20 (LAC).
[19]
Cf
Stars
Away International Airlines (Pty) Ltd v Thee NO
(2013)
34
ILJ
1272 (LC) par [29].
[20]
[2018] ZACC 1
par 24-26.