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[2018] ZALCCT 26
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NEHAWU obo Smith v Public Health and Social Development Sectoral Bargaining Council and Others (C61/2017) [2018] ZALCCT 26 (1 August 2018)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
reportable
Case
no: C61/2017
In the matter between:
NEHAWU
obo ABRAHAM SMITH
Applicant
and
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
First Respondent
J N
MATSHEKGA
Second Respondent
DEPARTMENT
OF SOCIAL DEVELOPMENT
Third
Respondent
Heard: 24 May 2018
Delivered:
01 August 2018
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicant seeks the review and setting aside of the Second
Respondent’s (the arbitrator) condonation ruling (the “ruling”)
dated 21 December 2016 wherein he refused to grant condonation for
the late filing of the Applicant’s unfair labour practice
dispute.
[2]
The
application is opposed.
Factual
background
[3]
The
Applicant, Mr Abraham Smith (the employee) is employed by the Third
Respondent (the Department) as a customer care officer at
Vredenburg
District. He was appointed in the said position in 2007 at salary
level 7.
[4]
In
2010 the Western Cape Provincial Government introduced a
modernization policy and the Department’s modernization process
entailed a redesign of the organisational structure. In terms of the
proposed organisation and establishment of the Department,
which was
approved by the Minister, the post of customer care officer in the
West Coast region was graded on salary level 8.
[5]
The
employee was matched and placed in the position of customer care
officer in the West Coast region with effect from 1 November
2010.
However, the employee was only absorbed into the said position on
salary level 8 with effect from 1 March 2014 and he became
entitled
to remuneration on salary level 8 as from this date. The Department
placed reliance on the provisions of the Public Service
Regulations
of 2001 which provide that the absorption of an incumbent employee in
a higher graded post takes effect on the first
day of the month
following the month during which the executing authority approved the
absorption. The executive authority approved
the upgrade of the post
of customer care officer from salary level 7 to 8 on 8 February 2014,
which upgrade was with effect from
1 March 2014.
[6]
The
employee addressed correspondence to the Department relating to what
he perceived as a discrepancy in his remuneration. The
employee
sought retrospective remuneration of the difference between salary
levels 7 and 8, commencing from November 2010 when
the Department
adopted the job evaluation outcome.
[7]
The
employee was advised to lodge a grievance after the Department was
unwilling to pay him the difference in remuneration retrospectively.
The grievance was lodged on 14 April 2014 and was referred to the
Public Service Commission on 5 November 2014, as provided for
in the
public service grievance procedure.
[8]
On 28
May 2015 the Public Service Commission indicated that it has found
the employee’s grievance to be substantiated and
recommended
that the Department remedies the situation. On 21 July 2015 the
Department informed the employee about the outcome
of the Public
Service Commission’s investigation and that notwithstanding its
recommendation, the Department maintained its
view that the
employee’s grievance was unsubstantiated and the matter was
regarded as finalised.
[9]
The
employee subsequently referred an unfair labour practice dispute
relating to benefits to the First Respondent on 14 November
2016.
[10]
The
dispute had to be referred within 90 days from the date it arose. The
date the dispute arose is contentious and according to
the Applicant,
it arose on the date the Department rejected the Public Service
Commission’s recommendation and informed the
employee that the
matter was closed. On this scenario, the dispute had to be referred
to the bargaining council by no later than
19 October 2015, but was
only referred on 14 November 2016. The Applicant applied for
condonation for the late filing of the dispute.
[11]
The
Department opposed the condonation application on the basis that the
employee did not provide good cause for the lateness.
[12]
The
arbitrator dismissed the application for condonation after he
calculated the degree of lateness from 1 March 2014, when the
employee lodged a grievance. The arbitrator found that the dispute
was referred 899 days outside the 90-day timeframe and he found
the
degree of lateness to be ‘extremely excessive’ with no
explanation as to why the dispute was only referred to the
First
Respondent in November 2016, when the outcome of the grievance was
given in July 2015. The arbitrator held that where there
was no
reasonable and acceptable explanation for the delay, the prospects of
success are immaterial.
[13]
The
Applicant seeks the review and setting aside of the condonation
ruling and the gist of the Applicant’s review is that
the
arbitrator failed in his duties when he refused to grant condonation
after he failed to deal with the employee’s prospects
of
success, in view of the employee’s failure to provide an
adequate explanation for the delay.
The
arguments
[14]
The
employee has been remunerated on salary level 8 as from 1 March 2014
and he is aggrieved by the fact that his adjusted remuneration
was
not made retrospectively since 2010. The Department finally dismissed
his grievance in July 2015 and he only referred his dispute
to the
First Respondent on 14 November 2016.
[15]
In
his application for condonation, the employee stated that the matter
arose on 14 April 2014 when his appointment to salary level
8 was
confirmed, thus the referral was 28 months late. Counting from the
outcome of the grievance in July 2015, the period is reduced
to just
over a year.
[16]
In
argument before Court, the Applicant submitted that neither the
arbitrator nor the parties considered the fact that the date
of the
dispute does not have to coincide with the date on which the unfair
labour practice commenced because the unfairness complained
of did
not constitute a single act.
[17]
The
Applicant’s argument is that where an employer pays its
employees who occupy the same post differently based on arbitrary
grounds, then notwithstanding the fact that the employer implemented
the differential on a particular date, the unfair treatment
is
continual and repetitive and therefore there was no need to apply for
condonation.
[18]
This
issue was not raised before the arbitrator and was not included in
the Applicant’s grounds for review. Can this issue
be raised at
this point?
[19]
In
Commercial
Workers Union of SA v Tao Ying Metal Industries and others
[1]
the
Constitutional Court has held that:
‘
Subject
to what is stated in the following paragraph, the role of the
reviewing court is limited to deciding issues that are raised
in the
review proceedings. It may not on its own raise issues which were not
raised by the party who seeks to review an arbitral
award. There is
much to be said for the submission by the workers that it is not for
the reviewing court to tell a litigant what
it should complain about.
In particular, the LRA specifies the grounds upon which arbitral
awards may be reviewed. A party who
seeks to review an arbitral award
is bound by the grounds contained in the review application. A
litigant may not on appeal raise
a new ground of review. To permit a
party to do so may very well undermine the objective of the LRA to
have labour disputes resolved
as speedily as possible
These
principles are, however, subject to one qualification. Where a point
of law is apparent on the papers, but the common approach
of the
parties proceeds on a wrong perception of what the law is, a court is
not only entitled, but is in fact also obliged,
mero motu
, to
raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on an
incorrect
application of the law. That would infringe the principle of
legality.’
[20]
The
question whether the Applicant had to apply for condonation at all is
indeed a point of law and I am inclined to consider the
Applicant’s
submissions in this regard.
[21]
The
Applicant’s case is that the unfair labour practice commenced
when the employee was matched and placed as a customer care
officer
on salary level 8 on 1 November 2010, but was still remunerated at
salary level 7. The unfair labour practice continued
subsequent to
the adjustment of the employee’s salary on 1 March 2014, since
the adjustment regulated the employee’s
future position, but
did not eradicate the past unfair labour practice.
[22]
The
Applicant argued that the withholding of remuneration the employee
has earned on salary level 8 prior to 1 March 2014, amounts
to a
continued unfair labour practice being committed by the Department.
On this basis the unfair labour practice was of a continuing
nature
and there was no need for the employee to ask for condonation in the
first place.
[23]
The
question is whether the unfair labour practice is indeed ongoing.
This question is to be considered with specific reference
to two
distinct aspects namely ‘unfair labour practice’ and
‘ongoing’. In my view there are two difficulties
with the
Applicant’s submissions.
Unfair
labour practice
[24]
The
employee seeks retrospective remuneration of the difference between
salary levels 7 and 8, commencing from the date in 2010
when the
Department adopted the job evaluation outcome. In his referral to the
First Respondent it is evident that he seeks the
correction of his
salary and of what he believes to be an underpayment for the period
between November 2010 and March 2014, when
his salary level was
indeed adjusted to level 8.
[25]
In
short, the employee claims retrospective remuneration.
[26]
In
Apollo
Tyres SA (Pty) Ltd v CCMA and others
[2]
the Labour Appeal Court dealt with the meaning of ‘benefit’
as provided for in section 186(2)(a) of the Labour Relations
Act
[3]
(LRA) and held that
there
are at least two instances of employer conduct relating to the
provision of benefits that may be subjected to scrutiny by
the CCMA
under its unfair labour practice jurisdiction. The first is where the
employer fails to comply with a contractual obligation
that it has
towards an employee. The second is where the employer exercises a
discretion that it enjoys under the contractual terms
of the scheme
conferring the benefit. It was said that:
‘
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. In my
judgment 'benefit' in s 186(2)
(a)
of the Act means existing advantages or privileges to which an
employee is entitled as a right or granted in terms of a policy
or
practice subject to the employer's discretion.’
[27]
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. In my
judgment 'benefit' in s 186(2)
(a)
of the LRA means existing advantages or privileges to which an
employee is entitled as a right or granted in terms of a policy
or
practice subject to the employer's discretion.
[28]
I am
not convinced that the employee’s claim for retrospective
remuneration of the difference between salary levels 7 and
8 and the
correction of what he believes to be an underpayment of his salary,
constitutes an unfair labour practice and would be
justiciable by the
First Respondent in terms of the provisions of section 186(2)(a) of
the LRA.
[29]
This
is a material difficulty for the Applicant in the sense that even if
the arbitrator had considered the prospects of success,
the
Applicant’s prospect to succeed with a claim for retrospective
remuneration under an unfair labour practice benefits
dispute, is
unlikely.
Ongoing
unfair labour practice
[30]
If I
were to accept that the employee’s claim indeed constitutes and
unfair labour practice, the question is whether it is
ongoing.
[31]
The
Applicant’s case is that the unfair labour practice commenced
on 1 November 2010 when the employee was matched and placed
as a
customer care officer on salary level 8, but was remunerated at
salary level 7. The employee has been remunerated on salary
level 8
as from 1 March 2014. The unfair labour practice continued subsequent
to the adjustment of the employee’s salary
as the adjustment
only regulated the employee’s future position, but did not
eradicate the past unfair labour practice.
[32]
In
SA
Broadcasting Corporation Ltd v Commission for Conciliation, Mediation
and Arbitration and others
[4]
the Labour Appeal
Court considered the question and held that:
‘
While
an unfair labour practice/unfair discrimination may consist of a
single act it may also be continuous, continuing or repetitive.
For
example where an employer selects an employee on the basis of race to
be awarded a once-off bonus this could possibly constitute
a single
act of unfair labour practice or unfair discrimination because like a
dismissal the unfair labour practice commences and
ends at a given
time. But, where an employer decides to pay its employees who are
similarly qualified with similar experience performing
similar duties
different wages based on race or any other arbitrary grounds then
notwithstanding the fact that the employer implemented
the
differential on a particular date, the discrimination is continual
and repetitive.
The
discrimination in the latter case has no end and is therefore ongoing
and will only terminate when the employer stops implementing
the
different wages.
Each time the employer pays one of its employees more than the other
he is evincing continued discrimination.
Hence
in the present matter the date of dispute does not have to coincide
with the date upon which the unfair labour practice/unfair
discrimination commenced because it is not a single act of
discrimination but one which is repeated monthly. In the
circumstances
the dispute being labelled as ongoing was an accurate
description of the 'dispute date' and the decision arrived at by the
commissioner
that there was no need for the respondent to seek
condonation was correct.’ (My emphasis)
[33]
The
Applicant’s argument is flawed. Even if an unfair labour
practice was committed in respect of the employee’s
remuneration
from November 2010 and such was repetitive and
continual, it ended and the conduct terminated on 1 March 2014, when
his salary
level was adjusted to level 8. The unfair labour practice,
if any, did not continue beyond this date and it cannot be said that
it is continuing because it did not eradicate the past.
[34]
The
Applicant had to refer an unfair labour practice dispute within 90
days from 1 March 2014, when the employee’s remuneration
was
adjusted and when the unfair labour practice ceased. The dispute had
to be referred to the bargaining council by 30 May 2014.
[35]
There
is no merit in the Applicant’s submission that there was no
need to apply for condonation when the unfair labour practice
dispute
was only referred to the First Respondent in November 2016.
[36]
The
need to apply for condonation was obvious and the Applicant indeed
applied for condonation.
[37]
The
arbitrator refused to grant condonation for the late referral and it
is this ruling the Applicant seeks to have reviewed and
set aside.
The
condonation application and ruling:
[38]
In
the condonation application that served before the arbitrator, the
Applicant’s explanation for the lateness was as follows:
38.1 When his appointment on
salary level 8 was confirmed without retrospective effect from 1
November 2010, the Applicant
lodged a dispute or grievance on 14
April 2014, which was subsequently referred to the Public Service
Commission on 5 November
2014, as provided for in the public service
grievance procedure.
38.2
On 28 May 2015 the Public Service Commission indicated that it has
found the employee’s
grievance to be substantiated and
recommended that the Department remedies the situation. On 21 July
2015 the Department informed
the employee about the outcome of the
Public Service Commission’s investigation and that
notwithstanding their recommendation,
the Department maintained its
view that the employee’s grievance was unsubstantiated and the
matter was regarded as finalised.
38.3
The application was also delayed by the sudden disappearance of the
union official, who was said to be on
sick leave and who was later
dismissed. The employee learnt about this when she made a query on
the progress of her case.
[39]
The
arbitrator considered the application for condonation and recorded
that the degree of lateness was excessive. The referral was
made 29
months late, which delay is no doubt excessive.
[40]
In
his survey of the relevant factors, the arbitrator recorded the
submissions made and more specifically the reasons for the lateness,
namely that the matter was referred to the Public Service Commission
on 5 November 2014, the notice of the outcome was received
on 21 July
2015 and the matter was delayed by the disappearance of the NEHAWU
union official. The Department opposed the application
and submitted
that the Applicant failed to provide a compelling explanation for the
delay.
[41]
In
his analysis of the aforesaid factors the arbitrator made reference
to the applicable principles as set out in the relevant authorities
and the principle that where the explanation for the lateness is not
adequate, there was no need to consider the prospects of success.
[42]
The
arbitrator considered the explanation tendered and stated that a
proper explanation entails an explanation for every period
of the
delay. He found the Applicant’s explanation to be hollow,
lacking in explaining why the Public Service Commission
was only
approached in November 2014 and why the dispute was only referred to
the First Respondent in November 2016 when the outcome
of the
grievance was already given to the employee in July 2015. No details
were given of when the NEHAWU official disappeared
and the
submissions made were so vague that it was impossible to assess the
reasons for lateness objectively. The arbitrator held
that the
Applicant failed to tender an adequate explanation and were
condonation to be granted in the absence of an explanation,
the
purpose and spirit of the LRA would be defeated.
[43]
It is
evident from the explanation tendered that it was sketchy and bereft
of any detail. In fact, it did no more than to list events
which took
place during the period in question. Glaringly absent is an
explanation for the time that lapsed between the events.
[44]
In
argument Ms Matshala for the Applicant conceded that the explanation
tendered was indeed a poor one. In the Applicant’s
heads of
argument, it has been submitted that the delay is lengthy and the
explanation is poor, but that the arbitrator ought to
have considered
the prospects of success
Grounds
for review and applicable legal principles:
[45]
The
Applicant raised a number of grounds for review,
inter
alia,
that
the arbitrator ignored evidence, that he failed in his duties when he
dismissed the Applicant’s case, that he made an
error in
finding that there was no prospect of success and that he should have
granted condonation. Glaringly absent from the Applicant’s
review application is any allegation that the arbitrator’s
findings were unreasonable.
[46]
In
considering the merits of this application, a consideration of the
applicable principles is necessary.
The test for the grant
of condonation
[47]
The
relevant legal principles to be applied in an application for
condonation, are well established.
[48]
The
court or relevant tribunal has a discretion, which must be exercised
judicially on a consideration of the facts of each case
and in
essence it is a matter of fairness to both sides
[5]
.
[49]
In
Melane
v Sanlam Insurance Co Ltd
[6]
it was held that:
“…
.
Among the facts usually relevant, are the degree of lateness, the
explanation therefore, the prospects of success and the importance
of
the case. Ordinarily these facts are interrelated, they are not
individually decisive, for that would be a piecemeal approach
incompatible with a true discretion, save of course that if there are
no prospects of success there will be no point in granting
condonation. What is needed is an objective conspectus of all the
facts.”
[50]
In
this Court however the principles have long been qualified by the
rule that where there is an inordinate delay that is not
satisfactorily
explained, the applicant’s prospects of success
are immaterial.
[51]
The
approach that in the absence of a satisfactory explanation for a
delay, the applicant’s prospects of success are ordinarily
irrelevant, has been conventionally applied.
[7]
This principle was confirmed in
National
Education Health and Allied Workers Union on behalf of Mofokeng and
others v Charlotte
Theron
Children’s Home
[8]
where the Labour Appeal Court held that without a reasonable and
acceptable explanation for a delay the prospects of success are
immaterial.
[52]
In
Collett
v Commission for Conciliation, Mediation and Arbitration
[9]
the
Labour Appeal Court confirmed that without a reasonable and
acceptable explanation for the delay, the prospects of success are
immaterial and without good prospects of success, no matter how good
the explanation for the delay, an application for condonation
should
be refused.
[53]
The
onus is on the applicant to satisfy the court or tribunal that
condonation should be granted. In employment disputes there is
an
additional consideration which applies in determining whether the
onus has been discharged, as was held
in
National
Union of Metalworkers of SA on behalf of Thilivali v Fry’s
Metals (A Division of Zimco Group) and others
[10]
:
‘
There
is, however, an additional consideration which applies in employment
disputes in determining whether an applicant for condonation
has
discharged this onus. This is the fundamental requirement of
expedition. The Constitutional Court has, as a matter of fundamental
principle, confirmed that all employment law disputes must be
expeditiously dealt with and any determination of the issue of good
cause must always be conducted against the back drop of this
fundamental principle in employment law.’
[54]
The
fundamental requirement of expedition is not to be ignored. In
Toyota
SA Motors (Pty) Ltd v CCMA and others
[11]
the Constitutional Court emphasised that one of the fundamental
purposes of the LRA was to establish a system for the quick
adjudication of labour disputes. When it assesses the reasonableness
of a delay, the court or relevant tribunal must not lose sight
of
this purpose.
[55]
In
summary: The Courts have endorsed the principle that where there is a
delay with no reasonable, satisfactory and acceptable explanation
for
the delay, condonation may be refused without considering prospects
of success and to grant condonation where the delay is
not explained,
may not serve the interests of justice. The expeditious resolution of
labour disputes is a fundamental consideration.
[56]
Condonation
for delays in all labour law litigation is not simply there for the
taking. The starting point is that an applicant
in an application for
condonation seeks an indulgence and bears the onus to show good
cause.
[57]
It is
trite that an applicant in an application for condonation seeks an
indulgence from the court or the relevant tribunal and
bears the onus
to satisfy the court or tribunal that condonation should be granted
and it is incumbent upon such applicant to provide
a full explanation
for every period of the delay. The explanation for the delay must be
both comprehensive and persuasive and should
cover every period of
the delay.
[58]
In
IMATU
obo Zungu v SALGBC and Others
[12]
the principle was confirmed that it is not sufficient simply to list
significant events that occurred during the period in question
as
that does not assist the court properly to assess the reasonableness
of the explanation.
[59]
The
longer the delay, the better the explanation should be.
The
test on review
[60]
I
have to deal with the merits of the review application within the
context of the test this Court must apply in deciding whether
the
arbitrator's decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[13]
as whether the decision reached by the commissioner is one that a
reasonable decision maker could not reach. The Constitutional
Court
very clearly held that the arbitrator's conclusion must fall within a
range of decisions that a reasonable decision maker
could make.
[61]
The
ultimate question is whether holistically viewed, the decision taken
by the arbitrator was reasonable based on the evidence
placed before
him. I have considered this question after perusal of the condonation
application and record, the ruling and the
grounds for review raised
by the Applicant.
[62]
I am
not convinced that the arbitrator ignored material evidence or that
he should have come to a different conclusion based on
the evidence
that was before him. The arbitrator considered the application, the
applicable principles and his ruling is well-reasoned
and based on
the totality of facts placed before him and the principles to be
applied in an application for condonation.
[63]
The
arbitrator's conclusion falls within a range of decisions that a
reasonable decision maker could make based on the evidence
placed
before him and there is no reason for this Court to interfere with it
on review. It follows that the application for review
stands to fail.
[64]
This
Court has a wide discretion in respect of costs. Representatives for
both parties argued that the cost should follow the result.
Effectively both submitted that the general rule should be applied
and no arguments were submitted to deviate from the general
rule. The
Applicant has not considered the merits of this application before
approaching this Court and forcing the Department
to engage in
meritless litigation.
[65]
In my
view this is a matter where a cost order is warranted as the
application for review is meritless and should not have been
brought
in the first place.
[66]
In the premises I make
the following order:
Order
1.
The application is dismissed
with costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Matshala
For
the Third Respondent: Advocate Ngumbela
Instructed
by:
The State Attorney
[1]
[2008] ZACC 15
;
2009
(2) SA 204
(CC); (2008) 29 ILJ 2461 (CC).
[2]
(2013) 34 ILJ 1120
(LAC).
[3]
Act 66 of 1995, as
amended.
[4]
(2010)
31 ILJ 592 (LAC).
[5]
‘
Civil Procedure in the
Superior Court, Harms at B27.6.
[6]
1962 (4) SA 531
(A) at 532 C - F.
[7]
See
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209 (LAC).
[8]
(2004)
25
ILJ
2195 (LAC)
at
para
23
.
[9]
(2014) 6 BLLR 523 (LAC).
[10]
(2015)
36
ILJ
232 (LC)
[11]
(2016) 37 ILJ 313 (CC).
[12]
(2010) 31 ILJ 1413 (LC).
[13]
2007 28 ILJ 2405 (CC) at para 110.