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[2018] ZALCD 17
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Jijana and Others v Department of Justice and Constitutional Development and Others (D1287-17) [2018] ZALCD 17 (3 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
Not
Reportable
Case
no: D 1287-17
In
the matter between:
C
JIJANA AND 12
OTHERS
Applicant
and
DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
First
Respondent
COMMISSIONER
P
JAIRAJH
Second
Respondent
GOSSBC
Third
Respondent
Heard:
3 May 2018
Delivered:
3 October 2018
JUDGMENT
WHITCHER
J
[1]
This is an application to review and set aside the second
respondent’s ruling that the third respondent did not have
jurisdiction to determine the dispute referred by the applicants to
the first respondent on 27 July 2016 under case number GPBC
1488/2016.
[2]
The terms and conditions of employment of the employees who are
subject to the GPSSBC are encapsulated in resolutions of the
bargaining council which record collective agreements. Among other
collective agreements are several which deal with “occupational
specific dispensations” (OSDs).
[3]
The parties to PSCBC Resolution 1 of 2007 resolved to implement OSDs
for the different categories of employees in the Public
Service and
that the OSDs must include unique salary structures per occupation;
centrally determined grading structures; career
pathing opportunities
based on competence, experience and performance and pay progression
within the salary levels.
[4]
To this end a collective agreement, GPSSBC Resolution 1 of 2008,
styled
Implementation of an Occupational Specific Dispensation
(OSD) for legally qualified employees
was concluded in 2008.
[5]
The applicants referred a dispute to the Bargaining Council on 27
July 2016.
[6]
They ticked the box in the referral form which describes the nature
of the dispute as an
interpretation
and/or application of a collective agreement
and
described the facts of the dispute as follows:
The
Applicants are employed as Estate Controllers and/or Assistant
Masters in the Masters Office in Durban. The employer
has
failed to implement
the
Occupation Specific Dispensation (OSD) for Legally Qualified
Personnel: GPSSBC Resolution 1 of 2007. This resulted in the
Applicants
being paid far less salary compared to their colleagues
who perform the same work as them.
[7]
Further, in answering the question what relief they wanted, they
stated:
The
employer corrects the Applicants’ salaries retrospectively, and
to pay Applicants’ monies due to them as per the
retrospective
correction.
[8]
They recorded that the dispute had arisen in 2008.
[9]
A document with their names, job titles and dates of employment was
annexed to the referral form. According to the document,
their
respective dates of employment were in 2008, 2011, 2013, 2014 and
2015.
[10]
At the commencement of the arbitration, the first respondent raised
questions regarding the nature of the dispute and the long
delay in
referring the dispute.
[11]
The first respondent complained that they had been unable to
ascertain from the referral form the real nature and specifics
of the
dispute. They pointed out that
PSCBC
Resolution 1 of 2007 [on which the dispute appears to be premised]
was merely a general conceptual resolution in terms of
which the
parties to the resolution had agreed to negotiate different OSDs
(collective agreements) for the different categories
of employees in
the Public Service. Pursuant thereto a collective agreement (GPSSSBC
Resolution 1 of 2008) styled
Implementation
of an Occupational Specific Dispensation (OSD) for legally qualified
categories of employees
was
concluded in 2008. The OSD,
inter
alia,
provided for a new system of differentiated salary scales for legally
qualified employees and for the employees to be translated
to
appropriate posts and salary grades. And, as far as the first
respondent was concerned it had implemented Resolution 1 of 2008.
What
then, can
possibly
be the dispute
about
the application of the collective agreement
?
[12]
The arbitrator was referred to the case of
Hospersa
obo
Tshambi v Department of Health, KwaZulu-Natal
[1]
in
which the Labour Appeal Court noted as follows in para [17]:
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.
What is signally absent from the record
is any clue that the
respondent disputes that the collective agreement provides that an
employee on suspension is entitled to full
pay. Indeed, on the basis
of the allusions in the ruling, that fact seems to be common cause.
Similarly, there is no clue that
the respondent disputes that the
collective agreement binds itself and the appellant. What then, can
possibly be the dispute
about the application of the collective
agreement
?
[13]
The first respondent further argued that whatever the nature of the
dispute it had not been referred within a reasonable time,
namely
within 90 days of the alleged misconduct by the first respondent.
In
t
his
regard, they again referred to the case of
Hospersa
obo
Tshambi v Department of Health, KwaZulu-Natal
in
which the Labour Appeal Court stated as follows in para [32]:
“…
what
constitutes a reasonable time within which to refer a true labour
dispute is dictated by the expectations to be derived from
the LRA
not from civil litigation. A true money claim belongs to civil
litigation and insofar as such a claim is covered by
section 77
of
the
Basic Conditions of Employment Act 75 of 1997
, which confers
concurrent jurisdiction on the Labour Court to hear certain civil
claims, the Labour Court could hear the case and
Prescription Act
would prevail in such a context. The use of analogy must be tempered
by an appreciation of the context and functionality
of the procedures
and remedies provided in the LRA. In true labour disputes, the
provisions of section 191(1) of the LRA are a
more obvious general
yardstick to test what is a reasonable time for a referral. The
absence of a prescribed period does not automatically
license a
longer period than is the norm for other labour disputes to be
referred. In labour disputes, expedition is the watchword,
not
because that is simply a good idea, but because the prejudice of
delay in matters concerning employment often is not capable
of
remedial action. This applies to both employees and employers. The
appropriate enquiry is into the history of the engagement
between the
parties about the controversy, and the elapse of time since
engagement to resolve the controversy ceased. Self-evidently,
the
ultimate decision on reasonableness has to be fact-specific. A lapse
of 692 days in respect of a failure to pay a salary is
a remarkably
long time. On this record, nothing said provides a convincing
rationale why the delay was unavoidable.
[14]
Counsel for the first respondent contended that in all these
circumstances,
there
was no competent dispute before the arbitrator, alternatively the
bargaining council lacked jurisdiction to determine the
dispute.
[15]
The applicants’ attorney addressed the arbitrator and explained
the nature of the dispute as follows:
The
issue in dispute is that “the estate controllers and the
assistant masters … are
unfairly
paid as a consequence of the respondent’s
failure
to
apply
the
OSD policy
correctly.
The consequence of that failure is that they end up paid less than
what their counterparts are paid when they are actually doing
the
same job. That is the dispute.
[16]
And later in his address:
The
way
the department is applying the OSD results in the applicants being
paid far less than their counterparts for performing the same
work,
the same amount of work, who have the same amount of experience, who
have the same amount of service”.
[17]
On which collective agreement the dispute was premised, he gave an
extremely muddled response. From what I could gather after
repeated
readings
of the record his argument went something like this: Resolution 1 of
2008 was supposed to give effect to Resolution 1 of
2007. The
applicants’ complaint is that Resolution 1 of 2008 does not
give effect to Resolution 1 of 2007 and the manner
in which the first
respondent has implemented Resolution 1 of 2008 does not give effect
to the objectives of an OSD set out in
Resolution 1 of 2007.
[18]
He contended that the referral was not out of time because the LRA
does not set a time frame for referring a dispute that concerns
an
interpretation and/or application of a collective agreement.
[19]
Moreover, he contended, the applicants’ dispute on the
interpretation and application of a collective agreement is “entwined
with an unfair labour practice because the result of the
misinterpretation of the collective agreement is an unfair labour
practice”
and an unfair labour practice is committed every
month the first respondent unfairly implements the OSDs.
[20]
In regard to the latter, he cited the case of
SABC
Ltd v CCMA and Others
[2]
in
which the Labour Appeal Court held as follows in paras [27] and [28]:
…
The
problem however is that the argument presented by the appellant is
premised upon the belief that the unfair labour practice/unfair
discrimination consisted of a single act. There is however no basis
to justify such belief. 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.
[21]
The first respondent countered that the council does not have
jurisdiction over a complaint that a collective agreement had
resulted in an unfair labour practice.
[22]
The arbitrator found as follows:
I
accept the respondent’s argument that the Council does not have
jurisdiction to deal with the alternative claim of an unfair
labour
practice. I accept the respondent’s assertion that as the Court
held in
Hospersa,
the
provisions of section 191(1) of the LRA is the yardstick to test what
is a reasonable time. Having regard for what triggered
a referral to
be made in terms of section 191 and failing which an application for
condonation should be made, I find that a lapse
of 8 years to refer a
dispute is an unreasonably long time. As a consequence of the above
the GPSSBC does not have jurisdiction
to determine the matter.
Analysis
[23]
The applicants’ explanation of the nature of their dispute was
muddled and confusing.
[24]
At times it appeared that they took issue with the
content
and
fairness
of Resolution 1 of 2008, to wit that it does not give effect to
Resolution 1 of 2007 and impacts unfairly on the applicants. The
bargaining council clearly has no jurisdiction to deal with such a
dispute.
[3]
[25]
At other times, they seemed to assert that the first respondent had
incorrectly interpreted and applied both collective agreements.
Clearly only Resolution 1 of 2008 is open to an interpretation and/or
application dispute.
[26]
The judgment in
Department
of the Premier, Western Cape v Sam Plaatjies NO and others
[4]
is
instructive here. In the matter the respondents, all state or senior
state legal advisors employed by the applicant, were "translated"
to higher grades pursuant to an "occupation specific
dispensation" collective agreement. They referred a dispute to
the respondent bargaining council, claiming that the applicant had
committed an unfair labour practice by not
applying
the agreement properly.
The Court noted that the employees had not taken issue with the
content
of the agreement. Their complaint was that the employer had
incorrectly
interpreted or applied it
when effecting their translation. Although the referral was rather
imprecisely formulated, the employees’ main claim concerned
the
interpretation of the collective agreement. If that was the true
nature of the dispute, the bargaining council had jurisdiction.
But
if the effect of the application of the agreement was unfair
to the employees that was a consequence of a bargain their union had
struck with the employer, and its members had to live with
the
consequences. A collective agreement is binding on all members of the
union parties.
Even
when a party has referred an interpretation or application dispute,
the arbitrator is bound to determine the true issue.
In this case, the main dispute was about the application of the
collective agreement. The council had jurisdiction to determine
that
dispute,
but
not over the alternative unfair labour practice claim.
All the council could do was to determine whether the agreement had
been applied correctly. If the agreement was found to have
been
correctly applied, that would have been the end of the matter.
The
council could not determine whether the agreement had been fairly
applied.
The arbitrator's award was set aside and replaced with an order
declaring that the council had jurisdiction to entertain the
interpretation/application
dispute, but lacked jurisdiction to
entertain the alternative unfair labour practice claim.
[27]
As stated, the applicants in their opening address did not
demonstrate a dispute the terms of which were clear, understandable
and fell within the jurisdiction of the bargaining council.
[28]
However, the following observation by the Constitutional Court in
CUSA v Tao Ying Industries and Others (2008) 29 ILJ 2461 (CC)
at para 66 should have been instructive to the arbitrator:
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
……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.
[5]
[29]
The case before the arbitrator did not deal with a simple subject
matter. An arbitrator acting reasonably would have adjourned
the
matter and instructed the applicants to file a written statement of
case or permitted the applicants to lead the evidence of
their main
witness. If at the end of his or her evidence-in-chief, an
adjournment was necessary for the first respondent to take
instructions and prepare its cross examination, that could have been
done. I note from the record that the applicants’
representative
made a similar request.
[30]
However, this is not the end of the matter. The question is whether
the way the arbitrator ultimately disposed of the case
is reviewable.
[31]
The arbitrator essentially disposed of the case on the basis that the
dispute was not referred within a reasonable time.
[32]
In my view, the arbitrator committed a material irregularity in
summarily disposing the matter in this manner. In
Hospersa
obo Tshambi v Department of Health, KwaZulu-Natal,
the
Labour
Appeal Court stated as follows:
“…
what
constitutes a reasonable time within which to refer a true labour
dispute is dictated by the expectations to be derived from
the LRA
not from civil litigation. A true money claim belongs to civil
litigation and insofar as such a claim is covered by
section 77
of
the
Basic Conditions of Employment Act 75 of 1997
, which confers
concurrent jurisdiction on the Labour Court to hear certain civil
claims, the Labour Court could hear the case and
Prescription Act
would prevail in such a context. The use of analogy must be tempered
by an appreciation of the context and functionality
of the procedures
and remedies provided in the LRA. In true labour disputes, the
provisions of section 191(1) of the LRA are a
more obvious general
yardstick to test what is a reasonable time for a referral. The
absence of a prescribed period does not automatically
license a
longer period than is the norm for other labour disputes to be
referred. In labour disputes, expedition is the watchword,
not
because that is simply a good idea, but because the prejudice of
delay in matters concerning employment often is not capable
of
remedial action. This applies to both employees and employers.
The
appropriate enquiry is into the history of the engagement between
the
parties about the controversy, and the elapse of time since
engagement to resolve the controversy ceased.
Self-evidently,
the ultimate decision on reasonableness has to be fact-specific.
A lapse of 692 days in respect of a failure to pay a salary is a
remarkably long time.
On
this record, nothing said provides a convincing rationale why the
delay was unavoidable.
[6]
[33]
On the face of the matter, the dispute appears to have been referred
about 6 years after the translation process began and,
although the
parties did not deal with this point on record, my understanding from
various judgments on the matter is that the
translation of an
employee comprises a single event at a specific point in time.
However, the annexure to the referral form records
that there are
various applicants with different dates of employment and the
applicants recorded in their referral that there was
a history of
engagement with the first respondent on the matter. The first
respondent also indicated to the arbitrator that the
translation
process comprises of at least two phases.
[34]
In these circumstances an arbitrator acting reasonably would have
struck the matter from the roll and advised the applicants
to file an
explanatory affidavit (a condonation application) to explain the time
factor and if relevant the delay in referring
the dispute to get the
matter reinstated.
[35]
To sum up, in the circumstances of this case, the arbitrator should
have given the applicants an opportunity to file an
explanatory/condonation
affidavit, and in the event of a successful
application, an opportunity to lead evidence on the matter to
ascertain the real dispute
between the parties.
[36]
The arbitrator would have been entitled to award costs against the
applicants for the adjournment. The record reveals that
prior to the
arbitration the first respondent asked the applicants to attend a
pre-trial conference to clarify the nature of the
dispute, but the
applicants’ attorney, with no rational explanation, refused to
attend same or offer a statement of claim.
Order
[37]
In the premises, the following order is made:
(1)
The second respondent’s ruling is reviewed and set aside.
(2)
The applicants may apply to have the matter re-enrolled together with
a condonation application and statement of case.
(3)
I make no order as to costs.
________________________________
B
Whitcher
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicants: S Mhlanga from Mhlanga Incorporated
For
the First Respondent: RPA Ramawele, SC instructed by the State
Attorney, KwaZulu-Natal
[1]
[2016] 7 BLLR 649 (LAC)
[2]
(2010)
BLLR 251 (LAC)
[3]
See
IMATU
v SALGBC & others
(2010) 31 ILJ 1407 (LC) para [13];
Public
Servants Association obo Strauss and others v Minister of Public
Works N0 and others
[2013]
7 BLLR 710
(LC);
Department
of the Premier, Western Cape v Sam Plaatjies NO and others
[2013]
7 BLLR 668 (LC)
[4]
[2013] 7 BLLR 668 (LC)
[5]
Emphasis
added.
[6]
Emphasis
added