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[2019] ZALCJHB 191
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Public Servants Association obo Tloana v Public Health and Social Development Sectoral Bargaining Council and Others (JR642/14) [2019] ZALCJHB 191 (13 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 642/14
In the matter between:
PUBLIC SERVANTS
ASSOCIATION obo ND TLOANA
Applicant
and
THE PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
First
Respondent
MOHUBEDU SIMON RANTHO
N. O
Second
Respondent
DEPARTMENT OF HEALTH
AND SOCIAL
DEVELOPMENT,
LIMPOPO
Third
Respondent
Heard:
30 January 2019
Delivered:
13 August 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
With this application, the Public Servants Association (PSA) acting
on
behalf of its member, (Tloana) seeks an order reviewing and
setting aside the arbitration award issued by the second respondent
(Arbitrator), acting under the auspices of the first respondent
(PHSDSBC).
[2]
The review application is opposed by the third respondent (The
Department),
which has also filed a supplementary affidavit in which
it raised a point of unreasonable delay in the prosecution of that
application.
[3]
The
Department further opposed the review application on the basis that
that whilst the arbitration award was issued on 26 December 2013,
the review application was only delivered on 15 April 2014,
making it some two months outside of the time periods
contemplated in
section 145(1)(a) of the Labour Relations Act (LRA).
[1]
It was also pointed out that no condonation was sought for the
non-compliance with the time periods, even after the concerns were
raised in the answering affidavit.
[4]
The applicants had in the replying affidavit, simply averred that a
copy
of the arbitration award was served on them on 28 February 2014
by the PHSDSBC, and that to the extent that the Notice
of Motion was
filed on 15 April 2014, the application was within the six
weeks’ period.
[5]
The provisions of section 145(1)(a) of the LRA are peremptory. An
application
for a review of an arbitration award must be delivered
within six weeks of a copy of the award having been served on the
applicant.
Non-compliance with these provisions would require an
applicant to show good cause prior to the Court assuming jurisdiction
over
the matter.
[6]
Since the applicants made no attempt to explain the reasons the
application
was only delivered on 15 April 2014 when the
award was issued on 26 December 2013, and had merely
averred that
a copy of the award was served on them on
28 February 2014, from the records, it appears that copies
of the award were
served on the parties on 13 January 2013,
and also on 27 and 28 February 2014. A simple averment
therefore
that the copies of the award were only served on
28 February 2014 is not sufficient. At the most, and to the
extent that
the Department had raised the issue of jurisdiction, it
was incumbent upon the applicants to explain the delay, and if there
was
no delay as they had contended, to equally state why that was the
case. In the light of the record demonstrating that the copies
of the
award were initially served on 13 January 2014, at the
most, the application is outside of the statutory period
by some six
weeks. Clearly under those circumstances, the applicants were obliged
to seek condonation. To the extent that they
had failed to do so, it
follows that this application ought to be dismissed for want of
jurisdiction, and it is not even necessary
to address the issues
surrounding the lack of timeous prosecution of the application.
[7]
Even if I may be incorrect in my conclusions as above, the
applicants’
review application lacks merit as demonstrated
below.
The
background and the arbitration award:
[8]
The arbitration award sought to be reviewed and set aside was issued
in
circumstances where an alleged unfair labour practice dispute was
referred to the PHSDSBC on 14 October 2013. The dispute
related to the refusal by the Department to award Tloana a
performance bonus on the basis that his performance score was below
(at 3). Tloana however contended that his original overall
performance rating of 4 was improperly changed by the Moderating
Committee.
[9]
The following material is not seriously contested;
9.1
The Department had in 2007, introduced a Performance Management and
Development
Policy (The Policy). The policy was complemented by a
Circular issued by the Head of the Department in November 2010,
which
inter alia
provided that employees performing
satisfactorily at a rating of 3 would no longer be awarded the bonus
in the financial year 2010/2011,
but were to only qualify for a pay
progression.
9.2
In 2010, the Premier of Limpopo introduced a Provincial Performance
Management
System Policy Guideline which
inter alia
required
an employee and his supervisor to ensure that a performance
instrument or agreement was put in place yearly by the 1
st
of April, and to thereafter submit a rating to the overseer, who
would in turn submit it for approval by the Moderating Committee.
9.3
The performance assessment and ratings of Tloana for April 2010
–
March 2011 were compiled and signed by him, his
supervisor and overseer in June 2011. Scores of 4 were allocated
for
Key Result Areas (KRA’s 2 and 3) by the supervisor.
9.4
The role of
the Moderating Committee in accordance with Clause 5.1.4
[2]
of the 2010 Provincial Policy is to identify deviations or
discrepancies in documents and annual assessment reports, to ensure
correlation between documents and consistency, and to ensure that
ratings obtained are confirmed. If the Committee however identifies
deviations, it must then refer those deviations back to the
supervisor with a request for reconsideration of the rating.
9.5
Under the provisions of clause 6.3.1.3 of the Provincial Guidelines
as issued
through Circular 155 of 2007, reiterate that it is not for
the Moderating Committee to change the supervisor’s score, but
that it must advise the PMDC or the line managers who must account
for the ratings which are not consistent with the targets of
the
annual performance management plans. The Committee must further
ensure that the ratings given are supported by verifiable
evidence and that there is a correlation between the ratings on the
quarterly review, annual evaluation reports, performance
instruments/agreements
and annual departmental performance plan.
9.6
When the Moderating Committee was appointed, its attention was drawn
to the
Circular of 2007, and it was advised that its function is to
moderate without changing the scores, to advise the Accounting
Officer
on employees who might have been rated too high when
performance reports indicated that targets were not met, or where
there were
no supporting documents to justify the rating, and to
recommend the appropriate ratings for approval by the Head of
Department.
4.1
On 12 September 2012, the Moderating Committee had convened and
recommended
that Tloana be given a final satisfactory rating of 3
instead of 4. The Committee’s reasoning was that it concurred
with
the ratings in KRAs 1, 4 and 5 as agreed with the supervisor,
but not those in KRAs 2 and 3 because Tloana did not achieve on
targets
set for the Key Results areas.
4.2
Similar recommendations were made with respect to other employees.
The record
further demonstrates that the Committee had recommended a
rating of 3 even in cases where other employees had obtained a rating
of 5. In this regard, of the 30 individual employees scores
moderated, 13, inclusive of Tloana, were similarly affected.
The
arbitration proceedings:
[10]
A dispute having been referred for conciliation and a certificate of
outcome having been
issued, it came before the Arbitrator. Tloana’s
case at those proceedings was essentially that;
10.1
A score of 4, which refers to commendable performance, was agreed to
between him and his supervisor,
after having obtained an overall
score of 540.
10.2
The source of the score of 480 as allocated by the Moderating
Committee was unknown to him and
the supervisor.
10.3
The Moderating Committee was
obliged to confirm
the score
allocated by the supervisor, and any deviations identified by the
Committee ought to have been referred back to the supervisor
with a
request for a reconsideration of the rating. In his case however,
this was not done, as the Committee had merely indicated
that it did
not agree with the scores as he did not overachieve on targets, and
had accordingly changed the initial scores.
[11] The
Department’s case before the Arbitrator was that;
11.1
Any rating agreed to between the employee and the supervisor was not
final, as it was subject
to a further recommendation of the
Moderating Committee upon a consideration of the scores allocated as
against verifiable evidence
submitted by the supervisor and the
employee, and the targets to be met. The recommendations, including
the appropriate score,
would then be assessed and approved by the
Head of Department.
11.2
Thus, the role of the Moderating Committee is not to rubber-stamp the
scores agreed to between
the employee and the supervisor. In this
case, the Committee had agreed with some of the scores allocated in
the KRA’s, and
not all, because targets were not achieved in
certain respects, hence a final satisfactory rating of 3 was
recommended. Tloana’s
case was not the only one where the
Committee had made its own assessment and made different
recommendations to the HOD.
11.3
In the light of the above, it was argued that the Committee did not
change Tloana’s scores
as agreed between him and his
supervisor, and that it had only made recommendations to the HOD with
reasons as stated in its minutes.
Flowing from those recommendations,
and in the light of the confirmed score of 3, Tloana was then
entitled a performance based
salary increase by way of pay
progression, which was duly paid to him.
[12]
The Arbitrator concluded that having had regard to the Policy and the
role of the Moderating
Committee, it was not for the Committee to
change the supervisor’s scores, but to advise the PMDC or the
line manager, who
must account for the ratings which were
inconsistent with the targets and management plans. The Committee
only made recommendations
inclusive of the appropriate rating, which
were in turn approved by the HOD. Accordingly, the Moderating
Committee had not acted
ultra vires
by recommending a score of
3, and consequently, Tloana was not subjected to any unfair labour
practice.
The
grounds of review and evaluation:
[13]
Central to any review application is whether the Arbitrator’s
decision can be said
to fall within the band of reasonableness. The
applicants attacked the Arbitrator’s findings based on their
insistence that
the Moderating Committee had changed the scores.
[14]
The first ground of review is that the Arbitrator committed
misconduct by finding that
the Committee had no authority to change
the scores as agreed to between an employee and supervisor, and yet
in the same vein,
concluding that the Committee had the authority to
recommend a change of any score, and as such, did not act
ultra
vires
.
[15]
A second ground of review is that the Arbitrator committed a gross
irregularity in the
proceedings by over-emphasising the purposive
doctrine in interpreting statutes, whilst not placing any emphasis
that the agreement
and the score agreed to between the employee and
the supervisor was binding.
[16]
The third ground of review is that the Arbitrator should have found
that the Committee
ought to have referred the matter back to the
supervisor and the employee to revisit the score, and further that he
ought to have
found that the Committee had no right to amend the
supervisor’s score, and that to the extent that this was not
done, the
Department had committed an unfair labour practice.
[17]
As it was correctly pointed out on behalf of the Department, the
applicants’ premise
in attacking the award is purely based on
the power exercised by the Committee rather than the reasons given by
that Committee
in regards to its recommendations.
[18]
The
mandate
[3]
of the Committee was
to moderate quarterly reviews and annual evaluation without changing
the scores, and to advise the Accounting
Authority on employees who
were rated too high whereas according to the division’s annual
performance report, some of the
targets were not achieved or where
there were no supporting documents to justify the ratings. The
Committee was further mandated
to recommend appropriate ratings for
the targets achieved for approval by the HOD
[4]
.
[19]
The Arbitrator’s reasoning that the Committee had no power to
change the score but
to recommend any changes cannot be faulted, as
it was premised on the above mandate of the Committee. The ultimate
decision and
approval lay with the HOD and I fail to appreciate the
difficulty in acknowledging this basic premise, which is grounded in
letter
of appointment.
[20]
The applicants do not even attack that letter of appointment and the
mandate set out therein.
Their contention that the Arbitrator should
have found that the Committee should have reverted the matter back to
Tloana and his
supervisor is based on the provisions clause 5.1.4 of
the policy insofar as the Committee had identified deviations and
discrepancies.
Even if this was the case, these discrepancies ought
to be referred back to the supervisor for his consideration, and
nothing is
said in the policy that the matter should be reverted back
to the
employee
.
[21]
The difficulty with the applicants’ case is that they do not
contest the reasoning
of the Committee insofar as it had found that
Tloana had not over-achieved in respect of certain targets set out in
the KRA’s,
hence the recommendation of a score of 3. Their
approach is simply that since Tloana and his supervisor had agreed on
the rating,
that rating should stand regardless of the process of
moderation. The fundamental flaw with this approach is that it
renders the
role of the Committee redundant. The rating agreed to
between Tloana and his supervisor cannot be final and binding on the
Department,
nor was the Committee obliged to simply confirm it.
[22]
Thus to the extent that the Committee had found that certain targets
were not met, it was
obliged to point these out and to make
appropriate recommendations to the HOD. There was thus no obligation
to refer the matter
back to the supervisor in terms of the
Committee’s mandate. To this end, the approach of the Committee
in this regard cannot
be equated with a mere changing of the scores,
as the final decision to approve or not approve the recommendations
was that of
the HOD. Effectively, it is the decision of the HOD that
ought to be the subject of the attack, rather than the
recommendations
of the Committee. Any suggestion that the matter
ought to be have been referred back to the supervisor would only have
merit if
a case was made out against the decision of the HOD. In this
regard, no case has been made as to the reason the HOD ought not to
have approved the recommendations of the Committee without referring
the matter back to the supervisor.
[23]
In the light of the above conclusions, it follows that the grounds
upon which a review
of the arbitration award is sought are not
sustainable. The reasoning of the Arbitrator cannot be faulted and
consequently, the
decision of the Arbitrator in the light of the
material before him falls within a range of reasonableness.
[24]
I have had regard to the issue of costs, and it is my view that the
requirements of law
and fairness militates against any costs order.
[25]
In the premises, the following order is made;
Order:
1. The Applicants’
application to review and set aside the arbitration award issued by
the Second Respondent under case
number PSHS 13/14 dated
26 December 2013 is dismissed.
2. There is no order
as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
MS. Schnehage, instructed by AM Carrim Attorneys
For
the Third Respondent:
T Skosana, instructed by The State Attorney
[1]
Act 66 of 1995 (as amended)
[2]
Clause 5.1.4
Moderating
Committees
The
Head of Department must constitute Moderating Committees in Branches
The
Role of the Moderating Committee is to: -
5.1.4.1
Identify deviations or discrepancies in the PMDS documents namely,
Pls, PRDs and annual assessment reports.
5.1.4.2
Ensure the correlation between Pls, PRDs and annual assessment
reports that informs consistency with
regard to the ratings.
5.1.4.3
Ensure that ratings obtained are confirmed.
If
the Moderating Committees identify deviations or discrepancies with
regard to the above listed roles, then such deviations
should be
referred back to the supervisors. This should be accompanied by a
request for reconsideration of the rating.
[3]
The
appointment of the Committee dated 26 July 2012
[4]
In
line with clause 6.3.1.3 of the Policy read together with Circular
21 of 2004 at para 3.1