About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2019
>>
[2019] ZALCCT 28
|
|
Mbetshe v Commission for Conciliation Mediation and Arbitration and Others (C313/2018) [2019] ZALCCT 28 (11 October 2019)
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Not reportable
Case no: C313/2018
In the matter between:
SINDISWA TYHOKOLO
MBETSHE Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First
Respondent
PIET VAN STADEN
N.O.
Second
Respondent
PARLIAMENT OF
RSA Third
Respondent
Heard:
21 August 2019
Delivered:
21 August 2019
Edited:
11 October 2019
Summary:
Unfair labour practice in terms of section 186(2)(a) LRA, demotion –
redeployment back
to the position the applicant held 14 years’
prior with a salary cut of about 80% – failure to have due
regard to the
peculiar circumstances and to consider less drastic
alternatives – decision not preceded by consultation with
applicant.
EX-TEMPORE
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
In
this application the applicant, Ms Sindiswa Tyhokolo Mbetshe, seeks
an order reviewing and setting aside the arbitration award
rendered
by the second respondent (commissioner) under case number WECT
17084-17 dated 2 March 2018. The commissioner dismissed
the
applicant’s claim that the third respondent (Parliament)
committed an unfair labour practice in terms of section 186(2)(a)
of
the Labour Relation Act
[1]
(LRA) by demoting her.
[2]
The applicant’s main grounds of
review are that the commissioner misconceived the nature of the
enquiry; failed to apply his
mind to the evidence that was before
him; and ultimately rendered an unreasonable award. The Parliament is
robustly defending the
award.
Background
[3]
The facts in this matter are mostly common
cause.
The applicant was appointed on a permanent basis at
level C1 as the Public Education Practitioner in 2003 and remained in
that position
for a period of four years. This position has since
been upgraded to C2 with effect from 1 September 2017.
[4]
In the year 2005, following the adoption of the Oversight and
Accountability Model in which Parliament Democracy Offices (PDOs)
featured as one of the identified mechanisms to enhance parliamentary
democracy that is responsive to the needs of the people, Parliament
embarked on a project of establishing the PDOs. The plan was that the
project would initially consist of an ‘establishment
phase’.
Subsequent to the establishment phase, a pilot phase would be
embarked upon.
[5]
Pursuant to the above, Parliament established a Project Team
responsible for the project of the establishment of the PDOs. In year
2006, the applicant was assigned to work on the PDOs project team as
Project Co-ordinator working alongside the Project Manager,
who was
on five-year employment contract.
[6]
In November 2006, the Task Team for the PDOs requested that
the applicant’s job description grading be updated to suit her
role on the project as a Co-Project Manager. The request was
accordingly granted and the applicant’s position was upgraded
to grade level D1.
[7]
On 1 February 2007, the applicant was deployed/ appointed to
the newly graded position of a Co-Project Manager, grade level D1.
This position was at the same level as that of the Project Manager
and higher than the C1/C2 position which the applicant occupied
in
2003.
[8]
On 1 June 2011, the applicant was appointed to act as Section
Manager: PDO at grade level D2 for the duration of the pilot phase,
a
position that was four levels higher than the entry grade level C1.
Three PDOs were established during the pilot phase as well
as a
central PDO based in Parliament to co-ordinate and manage the pilot
offices.
[9]
The
Parliamentary independent review of the pilot phase was undertaken in
order to determine whether the PDOs were a viable mechanism
to
realise public involvement and participation. The independent review
and recommendations resulted in the decision by the Executive
Authority to integrate PDO’s into the Parliamentary
Administration and thus signalling the end of the pilot phase of the
project. It is instructive that the Parliament approved the following
recommendation:
[2]
9.1
Adoption of the TNS report on the Evaluation Research of the PDOs;
9.2
Integration of PDOs piloted in Northern Cape, Northwest and
Mpumalanga as permanent structures
of Parliament Administration;
9.3
Integration of the PDO’s staff into Parliamentary
Administration Service; and
9.4
Report to the Speakers Forum on the pilot close out and roll out of
the PDOs.
[10]
Consequently, in March 2017, the approval for the closeout of
the pilot part of the PDOs project was granted. The PDOs’ staff
members who had been on fixed-term contracts that had been extended
from time to time during the pilot phase were appointed on
permanent
basis.
[11]
On 8 August 2017, the applicant was informed in writing that
her acting capacity had ceased following the closure of the pilot
project
and that she had to revert back to the level C2 position, a
position she occupied in 2003, as of 1 September 2017.
[12]
The applicant referred the dispute of unfair labour practice,
demotion to the CCMA. The matter set for arbitration and the
commissioner
found in favour of Parliament, hence this review
application.
The
award
[13]
The commissioner correctly identified the issue in dispute as whether
the applicant was
demoted and if so, whether the demotion was fair.
In the end. he found that the applicant had served on a pilot project
which was
temporary in nature. He also found, as an objective fact,
that the project run its course.
[14]
The commissioner rejected the applicant’s evidence that she had
been appointed as
Co-Project Manager, grade level D. He was of the
view that her assertion was inconsistent with the fact that she
served on the
project that eventually came to an end. He also
accepted Parliament’s evidence that the appointment of the
applicant to grade
level D1 was not effected in accordance with its
recruitment policies as trite.
[15]
Despite acknowledging the reality that the project ran for almost 11
years at the instance
of Parliament and the inherent prejudice to the
applicant, the commissioner only found it to be regrettable. He went
on to blame
the applicant for not raising concerns on her part.
Legal principles and
evaluation
[16]
As
a point of departure, we must be reminded, as succinctly expounded in
Distinctive
Choice 721 CC t/a Husan Panel Beaters v The Dispute Resolution Centre
(Motor Industry Bargaining Council) and Others,
[3]
‘
that
section 3 of the LRA enjoins a person applying the LRA to interpret
its provisions so as to give effect to its primary objects
and in
compliance with the Constitution and the public international
obligations of the Republic. The primary objects of the LRA
are set
out in section 1 and include the regulation and giving effect to the
rights entrenched in section 23 of the Constitution.
Accordingly,
186(1)(e) [in this instance section 186(2)(a)] must reflect the
fundamental right of every person to fair labour practices
enshrined
in section 23 of the Constitution. Fairness, in the context of unfair
dismissals, must be considered from the perspective
of both employer
and employee.’
[17]
The courts further stated that:
‘
The
provisions of the LRA (like all other statutes enacted to give effect
to constitutional rights) must be interpreted in a ‘purposive’
manner so as to give effect to the purpose of the legislation and the
values enshrined in the Constitution. However, as Sachs J
observed
in
South African Police Service v
Public Servants Association
:
‘
Interpreting
statutes within the context of the Constitution will not require the
distortion of language so as to extract meaning
beyond that which the
words can reasonably bear. It does, however, require that the
language used be interpreted as far as possible,
and without undue
strain, so as to favour compliance with the Constitution. This in
turn will often necessitate close attention
to the socio-economic and
institutional context in which a provision under examination
functions. In addition it will be important
to pay attention to the
specific factual context that triggers the problem requiring
solution.’
[18]
Turning to the matter at hand,
section
186(2)(a) reads as follows:
‘
(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,’
[19]
It is clear from the award that the
commissioner premised his findings on the temporal nature of the
pilot project and did not consider
the constitutional imperatives and
the factual context that triggered the dispute.
[20]
Nonetheless, it is common cause that the applicant had been
deployed to serve in the PDOs project for 11 years, i.e. from 2006 to
2017. She was appointed as Co-Project Manager grade level D1, a
position she occupied from 2007 until 2017. In 2011 she was appointed
as an Acting Sectional Manager until 2017. In my view, there is no
way that a person on an acting appointment can be appointed
to act on
a higher position. Clearly, the applicant was appointed as a
Co-Project Manager grade level D1 in 2007 hence she could
be
appointed to act as Sectional Manager grade level D2. The applicant’s
pay slips and the submission that motivated her
appointment to this
position supports this conclusion.
[21]
Notwithstanding, Clause 3 of the Parliament’s Deployment
of Staff Policy clearly states that ‘no person may be deployed
in a stand-in or acting capacity for more than three months, unless
the Secretary in a particular instance decides otherwise with
reasons
given.’ In this instance, the applicant’s deployment and
acting appointment violated the Deployment Policy
and it would seem
that such was condoned without reason.
[22]
Another issue that eloped the commissioner is the reality that
even though the Pilot Project ran its course, as described by the
commissioner, the actual PDOs Project was ultimately sanctioned by
Parliament. Consequently, incorporated into the Parliament
Administration and the personnel on fixed term contracts were
appointed on permanent basis. In essence, the structure became
permanent
with both grade levels D1 and D2 positions on the
organogram. Ms Begg, Parliament’s Divisional Manager: Core
Business Support
and the applicant’s immediate supervisor
confirmed in her testimony that these positions were part of the
permanent structure
and vacant but not funded. However, she failed to
explain how these positions were not budgeted for when the PDOs were
made permanent.
[23]
To my mind, it is inconceivable that a project would be made
permanent and appoints junior personnel permanently without a
provision
for the supervisory staff; particularly since there was a
possibility for the project to be rolled out to other provinces that
were not part of the pilot project as per Ms Begg’s evidence.
Also, the appointment of the other staff members was not preceded
by
the recruitment procures as prescribed in the Parliament’s
Recruitment Policy. Clearly, the commissioner deferred his
finding in
this regard to Parliament’s reasoning as opposed to assessing
the fairness of the conduct.
[24]
Another
issue that escaped the grasp of the commissioner is the fact that the
applicant was earning about R31 565.20, including
the acting
allowance, when she was informed that she had to return to the
position she had occupied 14 years earlier. Her salary
was reduced to
R4227.76 with effect from 1 September 2017. Tritely, a salary
reduction could amount to demotion, albeit it may
be so not
automatically as even without a reduction in salary, redeployment may
solely constitute a demotion.
[4]
The commissioner never traversed this prospect as glaring as it was.
[25]
In essence, the applicant was unilaterally flung in back to
the position she occupied 14 years ago, at the time when she started
her vocation with Parliament. That is so, despite what Parliament
stands for as a constitutional institution and highest echelon
of
administration in this country. Cleary, there, was little
consideration, if at all, of the applicant’s constitutional
rights to dignity, career prospects and fair labour practice. I am
not sure whether any of the Parliamentarians, or Ms Begg herself,
could survive on a salary cut of almost more than 80%.
[26]
The applicant also had qualms with the fact that her
redeployment was not preceded by any consultation despite its grave
adverse
effect on her salary. Ms Begg sought to blame the applicant
for the failure to adequately consult with her. However, it is not
disputed that Parliament did not consider any alternatives to
redeployment that ultimately resulted in reduction of the applicant’s
rank, status, salary and benefits.
[27]
In
Van der
Riet v Leisurenet t/a Health and Racquet Clubs,
[5]
referred to by the applicant, the Labour Appeal Court (LAC) held that
failure by the employer to consult with an employee prior
to the
demotion constitutes an unfair labour practice. Similarly, in the
present case, Parliament’s conduct clearly offended
the right
of the applicant to be heard before deciding on her fate.
Conclusion
[28]
In
the circumstances, the commissioner clearly misconceived the nature
of the enquiry before him and as a result, rendered an unreasonable
outcome. The award stands to be reviewed and set aside accordingly as
it offends the benchmark set by the Constitutional Court
and
expounded in various
dicta
of both the SCA and LAC.
[6]
[29]
I am not inclined to remit the matter back to the CCMA as the
record of the arbitration proceedings is sufficiently detailed and
the facts are, in any event, mostly common cause. As a result, in the
interest of justice, this Court is in a position to deal
with the
matter to finality.
[30]
For all the reasons alluded to above, the conduct of
Parliament in redeploying the applicant back to the position of
Co-Project
Manager grade level C1/C2 with a huge salary cut and
without proper consideration of alternatives constitutes demotion in
terms
of section 186(2)(a) of the LRA.
[31]
There is no reason why the following applicant’s desired
outcome as per paragraph 4 of her LRA 7.13 form
requesting arbitration should not be granted:
30.1
The PDO Sectional Manager Acting Position
to continue until due process that is procedurally and substantively
fair is followed
within reasonable time;
30.2
The letter dated 8 August 2017 purporting
to demote her be withdrawn in writing; and
30.3
Her salary to be retained at the level of
Acting Sectional Manager and that she be reimbursed for all the
deductions consequent
to the effecting of the impugned redeployment.
Costs
[32]
Even though it is trite that costs do not follow the result in this
Court, this case presents
an exception to the rule. The applicant is
an individual litigant who had her salary cut inhumanly by more than
80% and incurred
costs in order to vindicate her rights. Parliament
ought to have been better advised about the prospect of defending the
award.
[33]
In the circumstances, I make the following order:
Order
1.
The
arbitration award rendered by the second
respondent under case number WECT 17084-17, dated 2 March 2018 is
reviewed and set aside.
It is substituted with the following order:
1.1 The conduct of
Parliament in redeploying the applicant back to the position of
Co-Project Manager grade level C1/C2 constitutes
a demotion in terms
of section 186(2)(a) of the LRA.
1.2
Parliament
is to reinstate the applicant to the position of Acting Sectional
Manager grade level D2 retrospectively and without
loss of benefits
pending the outcome of a consultation process with the applicant on
the issue of her redeployment or appointment.
1.3
Parliament is to retain the applicant’s
salary at the position of Acting Sectional Manager grade level D2 and
reimburse her
all the monies deducted consequent to effecting the
decisions to redeploy her back to the to the grade level C1/C2.
1.4
Parliament is to comply with the orders in
paragraphs 1.2 and 1.3 above within five days from the date of this
order.
2.
Parliament is to pay the applicant’s costs.
_________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Instructed
by:
Third the
Respondent:
Instructed
by:
[1]
Act 66 of 1995 as amended.
[2]
See: Record, bundle of documents file, page 50.
[3]
Distinctive
Choice 721 CC t/a Husan Panel Beaters v The Dispute Resolution
Centre (Motor Industry Bargaining Council) and Others
((2013) 34 ILJ 3184 (LC) at paras 83, 89-90.
[4]
See:
Nxele
v Chief Deputy Commissioner, Corporate Services, Department of
Correctional Services
[2008]
12 BLLR 1179
(LAC)
para [88] (per Zondo JP);
SAPS
v Salukazana
[2010]
7 BLLR 764
(LC);
(2010) 31
ILJ
2465
(LC).
[5]
[1997] 6 BLLR 721 (LAC).
[6]
See:
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC).