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[2020] ZALCJHB 57
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South African Police Service v Sotheni and Others (JR2236/16) [2020] ZALCJHB 57 (4 March 2020)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Reportable
case
no: JR 2236/16
In
the matter between:
SOUTH AFRICAN POLICE
SERVICE Applicant
and
MATIPANDILE SOTHENI
First
Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL
Second Respondent
E MAREE N.O. (AS COMMISSIONER)
Third Respondent
Heard:
4 December 2019
Delivered:
4 March 2020
Summary:
Bargaining Council arbitration
proceedings – review of proceedings, decisions and awards of
arbitrators – test for review
– s 145 as read with
158(1)(g) of
Labour Relations Act, 1995
– determination of
gross irregularities and reasonable outcome
Unfair labour practice –
benefits – scarce skill allowance – employee did not meet
qualification for scarce skill
allowance of an operators’ badge
until 2012 – objective and justified basis for not paying
allowance back dated to
2010 – no unfair labour practice shown
to exist
Unfair labour practice – four
employees had received allowance back paid to prior having received
operators badge –
employer realised this was in error and
sought to recover payments – arbitrator finding this
constitutes inconsistency –
issue cannot concern inconsistency
– more akin to waiver – evidence does not show that
employer waived its rights under
a clear policy – finding of
inconsistency unreasonable
Unfair labour practice – even
if principles relating to inconsistency considered – arbitrator
failing to properly consider
the application of the principles of
inconsistency to the facts in this case – finding of
inconsistency unreasonable
Review of award – conclusion
of arbitrator irregular and unreasonable – arbitration award
reviewed and set aside –
substituted with award that no unfair
labour practice committed
JUDGMENT
SNYMAN
, AJ
Introduction
[1]
This
judgment concerns an application by the applicant to review and set
aside an arbitration award of the third respondent in her
capacity as
an arbitrator of the second respondent, the Safety and Security
Sectoral Bargaining Council (SSSBC). This application
has been
brought in terms of
section 145
as read with section 158(1)(g) of the
Labour Relations Act
[1]
(the LRA).
[2]
This matter concerns the back payment of
what is termed a scarce skills allowance to the first respondent, who
was a warrant officer
employed by the applicant in what is known as
the Special Task Force (STF). According to the applicant, the first
respondent did
not qualify for the payment of the allowance until
certain conditions were met, and this was then the subject matter of
an unfair
labour practice dispute relating to benefits pursued by the
first respondent to the SSSBC. It is this dispute that ultimately
came
before the third respondent for arbitration.
[3]
The third respondent was called upon to
decide whether the decision by the applicant not to pay the first
respondent a scarce skilled
allowance back dated to the date when he
actually joined the STF, constituted an unfair labour practice
relating to benefits, and
whether the first respondent was entitled
to payment of this allowance from such date. In an award dated 27
August 2016, the third
respondent decided that the applicant had
committed an unfair labour practice as a result of its refusal to pay
the first respondent
a scarce skill allowance from the date he joined
the STF, and afforded the first respondent the consequential relief
of the payment
of such an allowance for a period of twenty four
months, amounting to R151 992.00. It is this award of the third
respondent
that forms the subject matter of the review application
brought by the applicant.
[4]
The
arbitration award of the third respondent was served on the applicant
on 30 August 2016. The applicant’s review application
was then
served and filed on 21 October 2016. The application was thus some
seven days out of time. The applicant did apply for
condonation in
its notice of motion. Despite the first respondent taking issue with
such late filing in the answering affidavit,
such opposition was not
persisted with when this matter was argued before me. Even though the
explanation for the delay in the
founding affidavit was somewhat
thin,
[2]
I do consider that the delay in this case is minimal, with very
little prejudice resulting from it. I also consider that the review
application was properly prosecuted to finality and both parties had
the opportunity to fully ventilate the matter. Justice and
fairness
requires that the application be decided on the merits thereof, and
accordingly I granted condonation for the late filing
of the review
application. I will now proceed deciding the merits of this review
application by first setting out the relevant
background facts.
The
relevant background
[5]
The applicant is the South African National
Police Service. It is a highly regulated working environment, with a
large number of
policies and procedures determining the working
conditions and occupational benefits and allowances payable to police
officers.
Fortunately, in this application, the core factual matrix
was in essence undisputed.
[6]
The case at hand relates to the Special
Task Force (STF) of the applicant, and in particular at the Division
Operational Response
Service. It was common cause that the first
respondent was employed by the applicant as a warrant officer, and
was deployed to
the STF as an operator, as from 18 December 2010.
[7]
As part of being deployed to the STF,
police officers have to undergo further advanced training courses, to
the extent of qualifying
for what is called an ‘
operators’
badge
’. The third respondent
indeed underwent this further advanced training, and qualified for
and was awarded his operators’
badge on 18 December 2012.
[8]
Where police officers are deployed to the
STF, the possibility of the payment of what is termed a scarce skill
allowance comes into
play. The reason for this is that such police
officers have to undergo extensive further training, which would not
be applicable
to ordinary police officers, so to speak, not in the
STF. This takes several years to complete, and is why such police
officers
earn an operators badge upon successful completion thereof.
[9]
The qualifications and criteria for
receiving the scarce skill allowance are determined in what is called
the Scarce Skills Policy
4/2/1 dated 13 November 2006 (referred to in
this judgment as ‘the policy’). In terms of the policy, a
scarce skills
allowance was approved for a number of occupational
categories in the applicant. This included members of the STF. The
qualification
criteria for the payment of the allowance was that the
employee had to sign a contract, obtain the qualification applicable
to
the occupation, and then serve a further 3(three) years. The
employee also had to actually fulfil a scarce skill function.
[10]
However, and on 14 December 2006, the
qualifying criteria for a scarce skills allowance payable to STF
members was adapted. In essence,
the three years’ service
requirement after obtaining the required qualification was waived. In
a memorandum dated 14 December
2006, the Divisional Commissioner:
Career Management explained that because STF members underwent one
years’ basic training,
plus another years’ advanced
training and then a further years’ probation, they would
qualify for the scarce skills
allowance ‘
from
the date on which he/she receives the operators badge
’.
[11]
There was a further dispensation issued on
the issue of the scarce skills allowance payable to members of the
STF, by the Divisional
Commissioner: Career Management, on 9 February
2007. This was as a result of difficulties experienced by certain
employees in the
STF who had received an operators’ badge, but
still had some outstanding courses not offered by the task force
itself, which
they had to complete. It was determined that employees
who had been awarded the operators’ badge, but had outstanding
courses,
would receive the scarce skill allowance, provided the
outstanding courses are completed in 24 months.
[12]
After having been awarded his operators
badge, the first respondent was then permanently appointed to the STF
as from 7 January
2013, and was paid his scarce skills allowance
under the policy. He also signed the required contract appointing him
as an operator
in the STF on the same date, which records that the
first respondent shall be paid a scarce skills allowance (clause
1.1).
[13]
On 17 December 2013, the first respondent
then lodged a grievance. He contended that he should have been paid
the scarce skills
allowance from the date when he joined the STF, and
not the date from when he obtained his operators’ badge. The
reason for
this was that, according to the first respondent, he had
worked as an operational member of the STF throughout and performed
scarce
skills from the date when he signed his job description on 25
May 2011.
[14]
The first respondent also raised an issue
of inconsistency. He indicated that some of his colleagues were paid
the scarce skills
allowance back dated to the date they joined the
STF, upon receiving their operators’ badge.
[15]
The applicant from the outset conceded that
some task force members were paid the scarce skills allowance back
dated to the date
they joined the STF, when they should not have been
paid the allowance. The applicant stated that this was done in error.
The applicant
had in fact initiated steps to recover these payments,
but was then met with disputes raised by the employees concerned,
which
aborted the efforts until these disputes could be resolved. As
matters stood at the time of the arbitration, these disputes with
these employees were still pending. The applicant however remained of
the intention to recover these amounts.
[16]
The applicant in the end declined to pay
the first respondent’s scarce skill allowance from 18 December
2010 to 18 December
2012, as he demanded. The first respondent then
referred an unfair labour practice dispute to the SSSBC on 15 August
2014. In such
referral, the first respondent stated that the
requirement for being paid the allowance was that the employee must
be an operational
member of the task force actively involved in the
functions of the unit, which he was. He also referred to the
inconsistency issue
as set out above. This is the dispute that came
before the third respondent for arbitration.
[17]
In deciding the dispute, the third
respondent in my view correctly identified the gist of the respective
cases of the two parties.
She stated that the case of the applicant
was that the terms of the policy applied, in terms of which the first
respondent was
only entitled to a scarce skills allowance once and as
from when he had obtained his operators’ badge. As to the case
of
the first respondent, she stated that his case was that he was
entitled to the scarce skills allowance from when he joined the STF
because he was doing operational duties in the STF from the outset,
and that the applicant behaved inconsistently by paying this
back
dated allowance to other employees.
[18]
The third respondent, in her finding,
accepted that the policy regulated the issue of the payment of scarce
skills allowances. She
however held that here were ‘numerous
exceptions’ to the policy, referring to the two alternative
dispensations set
out above. She held that ‘
the
policy is clearly not cast in stone and has been implemented
inconsistently
’. She concluded
that the applicant was what she called consistently inconsistent.
[19]
The third respondent also held that the
‘
situation
might have been different’
if the applicant had seen through its efforts to recover the scarce
skills payments from those employees it alleged were paid in
error.
In concluding the reasoning in her award, the third respondent
decided that the first respondent was entitled to the payment
of the
scarce skills allowance from 18 December 2010, on the following
basis:
‘
It
is my view that due to the inconsistent application of the policy and
especially the fact that retrospective payment of the allowance
were
made to other employees based on the date they commenced duties at
the STF, the applicant is entitled to such back pay.
’
This
prompted the current review application, which I will now turn to
deciding by first setting out the applicable test for review.
The
test for review
[20]
The
test for review is trite. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
the
Court held that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’,
and that the threshold test for the reasonableness of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[4]
.
In
Duncanmec (Pty
)
Ltd v Gaylard NO and Others
[5]
the Court succinctly summarized the test as follows:
‘
The
correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there
are
reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified by
rational
reasons.
’
[21]
It is
however always necessary and important for the Court to enquire into
and consider the merits of the matter in deciding what
is
reasonable.
[6]
In
Herholdt
v Nedbank Ltd and Another
[7]
the Court
said:
‘…
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.
’
[22]
What this means is a two stage review
enquiry. Firstly, the review applicant must establish that there
exists a failure or error
on the part of the arbitrator. If this
cannot be shown to exist, that is the end of the matter. Secondly, if
this failure or error
is shown to exist, the review applicant must
then further show that the outcome arrived at by the arbitrator was
unreasonable.
If the outcome arrived at is nonetheless reasonable,
despite the error or failure that is equally the end of the review
application.
In short, in order for the review to succeed, the error
or failure must affect the reasonableness of the outcome to the
extent
of rendering it unreasonable.
[23]
Further,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[8]
In the end, it would only be if the outcome arrived at by the
arbitrator cannot be sustained on any grounds, based on the material
before the arbitrator as a whole, and the irregularity, failure or
error concerned is the only basis to sustain the outcome the
arbitrator arrived at, that the review application would succeed.
[9]
[24]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the arbitration award of the third respondent.
Analysis
[25]
From the outset, I am unfortunately
compelled to say that despite the third respondent correctly
identifying the respective cases
of the two parties, she does very
little in properly deciding the cases. Her reasoning is sketchy and
she does not properly come
to grips with the evidence especially
relating to the inconsistency issue. She appears to accept the policy
exists, but simply
seems to ignore its clear terms. All of this
unfortunately adversely impacted on the outcome the third respondent
arrived at, to
a material extent, as will be dealt with below.
[26]
There
can be little doubt that the scarce skills allowance constitutes a
‘benefit’ as contemplated by the unfair labour
practice
jurisdiction under the LRA.
[10]
As held in
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation
and
Arbitration
and Others
[11]
:
‘
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 casu
,
the benefit flows from the policy, which policy itself was never
contradicted nor challenged. However, and what the third respondent
does is to derogate the application of the policy, finding that it
was not cast in stone and inconsistently applied. This finding
is
based not only on the first respondent’s case that others were
paid the scarce skill allowance back dated to prior the
awarding of
those employees’ operators’ badge, but that the applicant
itself in general allowed deviations from the
policy. I have a number
of difficulties with the third respondent’s findings relating
to what she considered to be deviations
from the policy. The
inconsistency issue aside, what the third respondent considered to be
deviations were actually written amendments
to the policy to cater
for specific circumstances in the STF, remembering that the policy
when first promulgated on 20 November
2006 did not just apply to the
STF, but a variety of other occupational categories as well. I will
deal with this next.
[28]
As stated above, the policy, as originally
promulgated in November 2006, provided for a signed contract, and
having the required
qualification plus three years’ service,
for an employee to qualify for the payment of the scarce skills
allowance. After
this promulgation, certain unique circumstances of
the STF was considered, namely that an employee in the STF would have
one years’
basic training, one years’ specialist
training, and one years’ probation, before obtaining the
operators’ badge
qualification. Because of this, it was
specifically directed in December 2006, again by way of written
notification, that the additional
three years’ service
requirement would not apply to STF employees, and that STF employees
would qualify for payment of the
scarce skills allowance upon receipt
of the operators’ badge (being the required qualification under
the policy).
[29]
Finally, and in 2007, another operational
difficulty was identified, being that despite STF employees having
received an operators’
badge (thus qualifying as operator),
some employees still had to complete courses not offered in the STF.
In this respect, the
written directive issued by the applicant
specifically recorded that such employees, provided they were awarded
the operators’
badge, would keep their scarce skills allowance,
provided they complete these outstanding qualifications in 24 months.
[30]
So therefore, and after 2007 at the latest,
the terms of the policy as applicable to the payment of a scarce
skills allowance to
STF employees was clear. Also, the policy was
never further adapted, amended or deviated from after that, and
continued to apply
in those terms. Other than the first respondent’s
inconsistency case, there was no evidence or even case of any
alternative
application of the policy not on these specific terms. In
sum, an employee such as the first respondent, deployed to the STF,
would
be entitled to the payment of a scarce skills allowance if he
or she was awarded an operators’ badge and signed a contract.
If he or she still had outstanding courses after receiving the
operators’ badge, he or she would still keep the allowance,
provided the outstanding courses were completed in 24 months. And
lastly, he or she would keep the allowance for as long as they
actually fulfilled scarce skills functions.
[31]
On the undisputed facts, the first
respondent was awarded his operators’ badge on 18 December
2012. He signed his contract
on 7 January 2013. He then actually
received his scarce skills allowance under the policy, having
qualified for it pursuant to
the clear terms of the policy. This
should have been where the enquiry ended, in that the policy does not
afford the applicant
any discretion to decide if the scarce skills
allowance could still be paid to an employee, irrespective of whether
these requirements
were met or not. It is simply the case of
stipulated objective requirements being met by the employee, and a
payment following
thereon. Therefore, and in terms of the policy, the
applicant was only entitled to be paid his scarce skill allowance as
from 18
December 2012, which the applicant complied with.
[32]
In my view, and clearly appreciating this
difficulty to his case, the first respondent raised two contentions.
The first is that
the policy itself provides for the payment of the
scarce skill allowance when he joined the STF, provided he fulfilled
operational
duties. The second is that the policy afforded the
applicant a discretion, which it exercised when it made the back
dated payment
of the scarce skills allowance to four other employees,
and the applicant unfairly failed to exercise this discretion in
favor
of the first respondent. As touched on above, the third
respondent appeared to reject the first contention, but accept the
second.
For the reasons to follow, none of these contentions had
merit, and the findings made by the third respondent in this regard
are
unsustainable on review.
[33]
In giving his evidence, the first
respondent contended that because clause 6 of the policy provided
that an employee was entitled
to receive the scarce skills allowance
for as long as the employee performs the scarce skills functions, it
meant that he would
be entitled to receive the allowance once
deployed at the STF and fulfilling operational duties, as opposed to
administrative duties,
there. The first respondent testified that
from the outset of being deployed to the STF in December 2010, he
fulfilled such operational
functions and not administrative duties.
That meant, according to him, that he was entitled to the scarce
skills allowance in terms
of clause 6 of the policy from December
2010.
[34]
The applicant disputed this interpretation
the first respondent sought to attach to clause 6 of the policy.
According to Slabbert,
who testified for the applicant, clause 6 of
the policy cannot be read in isolation. It needed to be read in
conjunction with all
the other provisions of the policy. Slabbert
said that the policy contemplated that the employee first had to
achieve the qualifying
requirements to be paid the scarce skills
allowance. Once this had been achieved, the employee would be
entitled to continue to
receive the allowance, but only for as long
as the employee actually fulfilled the scarce skills duties. Slabbert
stated that clause
6 contemplated that where an employee would move
out of a scarce skills requirement role, such as being redeployed or
accepting
an appointment in another department not requiring the use
of the scarce skills, the payment of the allowance stops.
[35]
There is force in the evidence of Slabbert.
It is in my view fully in line with the clear terms of the policy.
The requirement that
the scarce skills allowance is only payable for
as long as the employee actually performs a scarce skills function is
not a standalone
qualification requirement to the exclusion of the
other requirements. What the policy clearly means is that where an
employee qualifies
to be paid a scarce skills allowance in the first
place, that employee only keeps that allowance for as long as the
employee does
the scarce skills job. The example of becoming a
detective, which is not a scarce skill, and the employee then losing
the allowance,
given by Slabbert, is quite apposite. Accordingly,
even if an employee such as the first respondent fulfills scarce
skills functions
in the STF after being transferred there, he would
simply not qualify to be paid the scarce skills allowance until he
gets his
operators’ badge.
[36]
The
first respondent’s case where it came to the application of
clause 6 of the policy is clearly contrived. It ignores what
can
hardly be more clearly stated in the memorandum of 14 December 2006,
which specifically related to the STF, being that a member
will only
qualify for the payment of the scarce skill allowance from the date
on which the member receives the operators’
badge. The first
respondent received his operators badge on 18 December 2012. As from
then, he qualified for payment of the allowance.
In terms of clause 6
of the policy, he will remain entitled to the payment of this
allowance for as long as he performs operational
functions in the
STF. Should he at some time in the future accept a deployment or be
transferred to another occupation in the applicant
that does not
require a scarce skill, he will lose the allowance. It is as simple
as that. In
Skhosana
v Commission for Conciliation, Mediation and Arbitration and
Others
[12]
the Court
dealt with a case where the payment of a vehicle allowance to an
employee was suspended when the conditions imposed by
a policy for
the payment of the allowance were not met, and held as follows:
‘
In
then deciding to suspend payment of the allowances to the applicant,
NUMSA based this squarely on the provisions of the vehicle
scheme and
the policy, which in effect provides that if the vehicle is not
returned to service in 30 days, the allowances could
be suspended.
This clearly, in my view, constitutes a proper substantive basis
justifying the making of such a decision.
In
casu
,
the vehicle was unusable, had not returned to service (so to speak)
when it was decided to suspend the allowances, and it was
not
presented for inspection when demanded. If the applicant was using
the vehicle allocated to him, and had not parked it in his
garage
whilst using other vehicles, the problem would never have arisen.
This was said in so many words by Marulane. There can
be no doubt
that the decision by NUMSA was objectively justified and relevant to
the purpose behind the decision.
’
[37]
I believe the first respondent knew that
his case about the application of clause 6 was irreconcilable with
the remainder of the
policy. That is why he adapted his testimony in
the course of the arbitration. A pertinent example of this can be
found where the
first respondent was taken to task by the
representative of the applicant under cross examination, about the
policy specifically
saying that the scarce skills allowance would
only be paid once an operators badge is issued, and he was asked to
comment on this
clear wording. His answer was that this was not a
rule but an ‘
assumption
’.
This is undoubtedly a contrived answer, and completely lacking in
merit. And later on in cross examination, the first respondent
even
went so far as to suggest that anyone can simply walk into the
applicant’s general store to get an operators badge,
suggesting
it means nothing. The third respondent should have had far more
regard to the first respondent’s lack of candour
and propensity
to fabricate evidence, as exhibited by the above examples, had she
reasonably evaluated the evidence as expected
of her.
[38]
What the third respondent however
inexplicably had no regard to, was the clear terms of the contract
signed by the first respondent
on 7 January 2013. It was undisputed
that such contract would only be signed once an employee assigned to
the STF had completed
all training and passed probation. It was the
document symbolizing permanent appointment to the STF. That contract
specifically
dealt with the scarce skills allowance and when it was
payable. It recorded, in the case of the first respondent, that it
was payable
when he received his operators’ badge on 18
December 2012. That is what he agreed to. To now try and squirm out
of it by
some kind of contrived reliance on the provisions of the
policy was simply not acceptable. He should be held bound to what he
agreed
to, and the third respondent’s failure to appreciate
this is simply unreasonable.
[39]
In summary, and as the policy stands and
reads, and as read with the contract signed by the first respondent
on 7 January 2013,
the first respondent would not simply qualify for
the payment of a scarce skills allowance prior to 18 December 2012,
and the applicant’s
decision not to do so is fully in line with
the policy, cannot be faulted, and is certainly not unfair. Any
conclusion to the contrary
would not be a reasonable outcome.
[40]
The only leaves the inconsistency issue.
The case of the first respondent in this regard is simple. He
contends that five other
employees were paid the scarce skills
allowance upon being awarded an operators badge in 2009, but this
payment was back dated
to 2007 when they had joined the STF. The
first respondent contended that based upon the application of the
principle of inconsistency,
he should also be awarded his scarce
skills allowance back dated to 2010 when he joined the STF. As stated
above, the third respondent
accepted this argument, which constituted
the primary basis for her finding in favour of the first respondent.
[41]
Ordinarily, the issue of inconsistency is
one of the elements of fairness where it comes to deciding whether a
sanction of dismissal
if fair in the case where employees are
dismissed for misconduct. The basic premise underlying this is that
persons who transgressed
alike, should be treated alike. However, and
where it comes to the dispute
in casu
,
it is simply not a case of the first respondent having transgressed
in some way, but then being treated differently from other
employees
who also transgressed in the same way. In reality, it is thus not a
case of inconsistency at all. Rather, it is a case
of the first
respondent seeking to assert a right he contended he had, being the
right to the payment of a scarce skills allowance.
That right, for
the want of a better description, can exist as a guaranteed right,
namely that the policy specifically provides
for the payment of the
allowance as claimed, or in the form of a discretion exercised by the
employer to award the first respondent
the allowance concerned.
[42]
But the applicant must still prove the
existence of the right, even if it is subject to an employers’
discretion. If there
is no right, there is no claim. In my view, what
is contemplated by the word ‘
unfair
’
in the unfair labour practice definition where it comes to benefits,
is to target those cases where the right, for the want
of a better
description, is founded in the discretion of an employer. Ordinarily,
and in common law, the exercise of a discretion
is very seldomly
assailable. However, and in the employment relationship, these kind
of discretions are tested against the tenets
of fairness. However, it
must be proven that such a discretion in fact exists. The notion of
‘unfairness’ cannot serve
to create a right on a
discretion that does not exist in the first place. The notion of
unfairness can only apply to that which
already exists.
[43]
The aforesaid is where the first
respondent’s problem in this case lies. The policy and his
contract make it clear that he
has no right to the scarce skills
allowance from the date when he first joined the STF. The wording of
the policy and the contract
make it equally clear that the applicant
is given no discretion to decide to award the scarce skills allowance
to non-qualifying
employees. Stripped down to its core, there must
exist specified objective facts in order for an employee to be
entitled to payment
of the scarce skills allowance, being the
attaining of an operators badge and the signature of a contract, with
the allowance only
being payable from that point onwards, and for as
long as the employee performs the scarce skills functions. Thus, and
if there
is no right to the allowance in the first place, be it by
way of a guaranteed right or in the form of the exercise of a
discretion,
there exists nothing against which to measure
‘unfairness’, so to speak. It follows that the real
enquiry has to be
far more than just comparing what happened to one
employee to that which may have happened to another employee where it
comes to
benefits, and then concluding that based only on that, the
differentiation is unfair and thus an unfair labour practice.
[44]
Therefore,
in my view, what one thus has to deal with in this case is not
inconsistency. It is actually a case of the first respondent
needing
to establish and prove that the applicant, by way of its conduct, has
waived its right to rely on the clear terms of the
policy and that it
has agreed (tacitly or by conduct) to apply another tacit arrangement
of the back dated payment of the scarce
skills allowance to the date
when the employee joined the STF. As held in
Gbenga-Oluwatoye
v Reckitt Benckiser SA (Pty) Ltd and Another
[13]
:
‘…
The
reason that such an agreement must be clearly
and
unambiguously proved is that compromise, as a form of novation,
involves the waiver of existing rights, or claimed rights …’
[45]
It is
of course true that useful evidence to prove this kind of waiver by
conduct would be an evaluation of how the applicant applied
the
policy to other employees, and if there was a deviation from its
terms, what the reason for that deviation may have been.
In
National
Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
[14]
the Court held:
‘…
Waiver
is the legal act of abandoning a right on which one is otherwise
entitled to rely. It is not easily inferred or established.
The onus
to prove it lies with the party asserting waiver. That party is
required to establish that the right-holder, with full
knowledge of
the right, decided to abandon it.
So
waiver depends on the intention of the right-holder. That can be
proved either through express actions or by conduct plainly
inconsistent with an intention to enforce the right. …
’
[46]
It
follows from the
dicta
in
Intervalve
supra
that it has to be shown that the intention of the applicant in back
dating the payment of the scarce skills allowance for the five
other
employees was to negate the terms of the policy and rather apply this
alternative dispensation. In order to show this intention,
it is
necessary to establish whether the applicant was aware of its rights
under the policy, considered such rights, and then with
that
knowledge decided to abandon the same.
[15]
However, it
must
always be borne in mind that such a waiver is not readily inferred,
considering
the following
dictum
in
Ullman
Bros Ltd v Kroonstad Produce Co
[16]
:
‘… A waiver is not presumed, but must be clearly
established by the party who relies on it. …’. As to
what constitutes ‘
clear
establishment’
,
the Court in
Victoria
Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines
Ltd
[17]
referred with approval to the following
dictum
from the judgment in
Smith
v Momberg
(12
SC 295):
‘
Under
certain circumstances a renunciation of rights may be implied from
the conduct of the person entitled to them, but his conduct
must be
such as to leave no reasonable doubt in the mind that he not only
knew what his rights were, but intended to surrender
them.
’
[47]
Applying
the aforesaid to the facts, it was undisputed that despite the clear
terms of the policy, five other employees stationed
at the STF in
Durban were paid their scarce skills allowances back dated to 2007,
when they joined the STF, upon receiving their
operators’
badges in 2009.
[18]
However, and in order to establish if this proves the required
waiver, the question that must be answered is why this happened.
The
answer was provided by the applicant, which answer was never
disputed. That answer was that the payment made was a mistake
and
should never have happened. It appears that the payment was made
because a request by the Section Head: Special Task Force
made on 17
March 2010 that the scarce skills allowance be paid to these
employees simply reflected an incorrect qualifying date
of 1 December
2007, instead of 1 December 2009. When the Section Head became aware
of this error, the Unit Commander in Durban
was instructed on 2
February 2011 to recover the payments so made in error, and the
employees were then advised that the payments
were made in error and
had to be refunded.
[48]
Two of these employees who received the
back dated allowance were called by the first respondent to testify,
as the first respondent
had no actual and direct knowledge of the
events giving rise to these payments. First, Malgas testified that he
was entitled to
the allowance because he fulfilled operational duties
in the STF since starting there, which constitutes the same argument
raised
by the first respondent as discussed above. He conceded that
he was told by the applicant that the payment had been a mistake
because
of an incorrect date reflected on the payment approval
request relating to the allowance, that he was only entitled to the
allowance
from when he received his operators’ badge, and thus
he had to pay it back. He stated that he did not agree with the
applicant,
and challenged the demand for repayment, which dispute was
still not resolved. The next witness in this regard was Cebekhulu,
who
in essence testified to the same effect as Malgas. What is
significant of this testimony is that it simply does not prove that
the applicant had any intention to waive its rights in terms of the
policy and decided to rather apply an alternative dispensation
where
it came to the payment of the scarce skills allowance.
[49]
In my view, the conduct of the applicant in
this case, as established in the evidence, is indicative of the fact
that the back dated
payments were indeed made as a result of a
mistake, and not based on any deliberate decision to depart from the
terms of the policy.
As reflected above, the applicant informed the
employees accordingly and demanded a refund. When this was not
forthcoming, it then
tried to deduct it unilaterally from the
employees’ salary. This was met with a grievance and a dispute
brought in the SSSBC,
causing the applicant to cease and desist for
the time being. The simple reality is that none of this conduct and
evidence is consistent
with an employer that waived its rights to
rely on the clear terms of a policy.
[50]
I must confess that I find it rather
opportunistic for the first respondent to rely on these events, which
date back several years
before he initiated his claim, especially
considering what happened after the payments were made. The evidence
showed that it fairly
common knowledge that the applicant considered
that the payments were made in error and wanted it back. The
opportunism lies in
the fact that the first respondent only relies on
the payments being made, but he completely ignores the reaction of
the applicant’s
senior management upon realizing what happened.
Surely, the applicant must have appreciated that the applicant never
intended waiving
its reliance on the policy. To rely, in these
circumstances, on the mere fact that the payments were made as a
basis for justifying
similar payment to the first respondent, is an
untenable proposition.
[51]
The third respondent makes much of the fact
that the applicant did not power ahead in claiming back the payments
from these five
other employees, despite the dispute they raised. In
my view, this is however an entirely irrelevant consideration. Again,
the
undisputed evidence was that the applicant still intended to
recover the payments. The applicant hoped the issue would have been
resolved in the SSSBC, but it declined jurisdiction, and determined
that the issue had to be referred to the Labour Court. Even
if the
applicant can be criticized for not being assertive and pursuing its
rights in this regard with due expedition, this cannot
change the
fact that it never waived nor abandoned its right to rely on the
clear terms of the policy, and to ultimately claim
its money back
from the employees paid in error. There was also no evidence that the
situation repeated itself again after 2010.
[52]
In
fact, the evidence showed that when the same issue arose again in
2013, the applicant assertively dealt with it. In 2013, there
were a
number of applications from employees in the STF based in Cape Town,
Durban and Pretoria West, for the payment of a scarce
skills
allowance where such employees did not qualify for payment in terms
of the policy.
[19]
This request was refused for most of these employees because they did
not have an operators’ badge.
[20]
Importantly
in
casu
,
in an information note circulated by the Section Head: Special Task
Force on 29 August 2013, in which all Unit Commanders were
instructed
to make the terms of the policy clear to employees, the following was
recorded:
‘
During
interviews with the Unit Commanders it became clear that members are
deployed during operations, whether they are qualified
operators or
not. Unit Commanders are however familiar with the fact that members
need to be trained in advance courses during
their third year in STF.
By deploying new STF members with qualified operators, these members
tend to argue that they perform the
same function and are also
exposed to life threatening circumstances as those members who are
qualified and who are receiving the
scarce skills allowance. Thus
they are applying to be payed the scarce skills allowance
’
(sic)
The
answer provided by the Section Head to this argument was:
‘
Considering the framework (signed
circulars) in which the scarce skills allowance for STF members are
regulated, the application
for members are …. not
recommended
’. Payment of the
scarce skills allowance to these employees was consequently refused,
with the Divisional Commissioner: Operational
Response Services
recording in the information note that only qualifying members would
receive approval for payment of the allowance.
[53]
In summary, on the undisputed evidence, it
simply cannot be legitimately said that the applicant, with full
knowledge of its rights
under the policy, decided to abandon the same
in favour of an alternative back dated scarce skills allowance
payment dispensation.
If anything, the evidence shows the complete
opposite. When the persons in authority at the applicant came to
realize what happened,
it was clearly intended to remedy the
situation and recover the payments made. Steps were also taken to
ensure that it does not
happen again going forward.
[54]
There is in my view another important
consideration. The fairness of the provisions of the policy was never
under attack. To now
in effect find, as the third respondent did,
that the terms of such policy should be negated because a mistake the
applicant had
made in the past, is simply not appropriate. The first
respondent cannot benefit from what is clearly, in my view, a once
off error
never repeated again. It is not lost on me that this
mistake was in respect of a few individual employees out of what must
clearly
be several hundreds of others. To ascribe to the approach
that the mistake negates the policy will open the doors to all the
hundreds
of other employee to also come and claim back pay of the
scarce skills allowance, which will be entirely unfair to the
applicant
as employer. Fairness, after all, is not a one sided
enquiry, but a two way street.
[55]
But
even if the traditional principles of inconsistency are applied, it
is not just a case of employees being treated differently
per
se
establishing unfair inconsistency.
[21]
Inconsistency, as an element of fair play, is far more than just
establishing different treatment. In other words, the like for
like
comparison is just one element in the conducting of the inconsistency
enquiry. There are two other important elements that
must also be
considered, namely that
the decision
by the employer must not be capricious, or induced by improper
motives or by a discriminating management policy (in
other words the
conduct must be bona fide), and that a value judgment must always be
exercised.
[22]
[56]
For
all the reasons already discussed above, it cannot be said that the
applicant, in not paying the first respondent the back dated
scarce
skills allowance, was induced by improper motives, or acted
capriciously or arbitrary.
[23]
What happened was an error. There was never even a decision by the
applicant as an employer to advantage some employees over others.
It
is understandable that in a large and often complicated organization
such as the applicant, errors would creep in. For that
reason,
fairness dictates that an employer must have the opportunity to right
a wrong.
[24]
An employee should not be allowed to profit from something that was
clearly done in error. All this would be part of the value
judgment
that needed to have been made. In
Mathibeli
v Minister of Labour
[25]
the
Court dealt with what called ‘blunders’ committed by
officials of the Department of Labour relating to upgrading
of the
positions of employees, which then formed the subject matter of an
unfair labour practice dispute. The Court held as follows:
[26]
‘
Furthermore,
no finding was made that the failure to retain the appellant in a
putatively upgraded post constituted a ULP, nor could
it be, because
on the facts found by the arbitrator in regard to the provisions of
the regulations, there could be no legitimate
expectation of
automatic retention in an upgraded post by the appellant.
The
outcome that a ULP had been committed on the basis the arbitrator
thought it had been committed cannot logically be connected
to the
notion that paying the appellant a back-salary at the grade 11 rate
was appropriate. Thus, because it is not justified by
its premises it
is irrational. Accordingly, the award was unreasonable and must be
set aside.
’
[57]
In the result, the second respondent’s
finding of inconsistency, even if inconsistency is considered, cannot
stand. It is
at odds with the evidence, and fails to account for all
the essential legal requirements necessary to establish a case of
inconsistency.
As such, it is unreasonable.
[58]
The third respondent concluded that the
applicant was consistently inconsistent. As humorous as this
statement may be, it is unfortunately
not justified. The bulk of the
evidence leaves me convinced that the policy is in fact being
consistently applied by the applicant
and what happened in this case
where it came to the four other individuals is simply an isolated
error. The third respondent seemed
to be blinded by what she saw as
differentiating between employees where it came to the application of
the policy, without properly
considering, on that facts, whether what
happened was fair or not. The applicant never had any intention to
depart from the clear
terms of the policy. In the end, the first
respondent cannot benefit from the mistake made. The third
respondent’s award
is therefore unsustainable on review.
Conclusion
[59]
For all the reasons as set out above, I
conclude that the third respondent’s finding that the applicant
had committed an unfair
labour practice towards the first respondent
where it came to the issue of the back payment of the scarce skills
allowance cannot
be sustained, and falls to be reviewed and set
aside.
[60]
Having
reviewed and set aside the award of the third respondent, I see no
reason to remit this matter back to the SSSBC for determination
de
novo
before another arbitrator. This matter dates back to 2013, and had
already been before to this Court by way of a review application
brought by the first respondent after he lost his unfair labour
practice case,
[27]
with the matter then being remitted back to the SSSBC for arbitration
de
novo
.
In my view, all the necessary evidence has been fully ventilated and
reflected in a transcript that was in all respects complete.
The
documentary evidence is uncontested and speaks for itself. There is
simply no need to go through the whole exercise of arbitration
again.
Exercising the powers I have under section 145(4) of the LRA,
[28]
I therefore consider it appropriate to finally determine this matter.
I shall accordingly substitute the arbitration award of the
third
respondent with an award that the applicant did not commit an unfair
labour practice towards the first respondent, and that
the first
respondent’s dispute in this regard be dismissed.
Costs
[61]
This
then only leaves the issue of costs. In terms of the provisions of
section 162(1) of the LRA, I have a wide discretion where
it comes to
the issue of costs. Even though
the
applicant was successful, I do not intend to burden the first
respondent with a costs order, especially considering the opportunity
afforded to me to bring this matter finally to an end. The parties
are still in an employment relationship with one another. I
am also
mindful of the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[29]
where it
comes to costs awards in employment disputes before this Court, and I
do not consider there to be sufficient reason to
depart from this.
I
accordingly exercise my discretion as to costs in this matter by
making no order as to costs.
[62]
In the premises, I make the following
order:
Order
1.
The applicant’s review application is
granted.
2.
The arbitration award of the third
respondent, arbitrator E Maree, dated 27 August 2016 and issued under
case number PSSS 262 –
14/16, is reviewed and set aside.
3.
The arbitration award is substituted with
an award that the applicant did not commit an unfair labour practice
towards the first
respondent, and the first’s respondent’s
dispute referral to the SSSBC is dismissed.
4.
There is no order as to costs.
_____________________
S. Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant: Advocate
V Bruinders
Instructed by: The
State Attorney
For the First Respondent: Advocate
L Kalashe
Instructed
by: Mashiyi
Attorneys
[1]
Act 66 of
1995 (as amended).
[2]
The applicant sought to explain the delay as being caused by the
administrative processes in the applicant (SAPS) and the need
to
engage and brief counsel.
[3]
(2007)
28 ILJ 2405 (CC).
[4]
Id at
para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at para
134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[5]
(2018)
39 ILJ 2633 (CC) at para 43
[6]
Id at para 41.
[7]
(2013)
34
ILJ
2795 (SCA)
at para
25. See also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14;
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[8]
Fidelity
Cash Management Service (supra)
at
para 102.
[9]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016) 37
ILJ 116 (LAC) at para 32;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
(2015)
36 ILJ 1453 (LAC) at para 12.
[10]
Section
186(2)(a) reads: ‘
'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 …’
.
[11]
(2013)
34
ILJ
1120 (LAC)
at para 50.
See also
Mawethu
Civils (Pty) Ltd and Another v National Union of Mineworkers and
Others
(2016) 37 ILJ 1851
(LAC) at para 20.
[12]
(JR
2160/15) [2019] ZALCJHB 39 (5 March 2019) at para 42. Also compare
City
of Cape Town v SA Local Government Bargaining Council and Others
(2014) 35 ILJ 163 (LC) at paras 24 – 27.
[13]
(2016)
37 ILJ 902 (LAC) at para 25
[14]
(2015) 36
ILJ 363 (CC) at paras 60 – 61.
[15]
See
Greathead
v SA Commercial Catering and Allied Workers Union
(2001)
22 ILJ 595 (SCA) at para 17;
EHCWAWU
obo Tshabalala and Others v M & P Bodies CC
(1999)
20 ILJ 1787 (LC) at para 26.
[16]
1923 AD 449
at 454.
[17]
1915 AD 1.
[18]
These employees were Warrant Officers Cebekulu, Ntombela, Khubeka
and Bishop, and Lieutenant Malgas.
[19]
There were a total of 21 employees that sought payment of the
allowance.
[20]
The applications by a few individuals were refused for other
reasons, not relevant here.
[21]
SA
Commercial Catering and Allied Workers Union on behalf of Ramontlhe
and Others v Sun City
(2020) 41
ILJ 160 (LAC) at para 25;
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2017)
38 ILJ 860 (LAC) at para 31
[22]
See
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at para 29;
Absa
Bank Ltd v Naidu and Others
(2015) 36
ILJ 602 (LAC) at paras 36 – 37.
[23]
Compare
Maile
v FOSKOR (Pty) Ltd
(JR1148/2014)
[2019] ZALCJHB 71 (2 April 2019) at para 30.4.
[24]
See
Kemp
t/a Centralmed v Rawlins
(2009) 30
ILJ 2677 (LAC) at para 26.
[25]
(2015) 36
ILJ 1215 (LAC).
[26]
Id at paras 8 – 9.
[27]
An award was handed down by arbitrator Matshekga on 17 April 2015 in
which the arbitrator dismissed the first respondent’s
unfair
labour practice claim. This award was successfully reviewed.
[28]
Section
145(4)(a) reads: ‘
If
the award is set aside, the Labour Court may – (a) determine
the dispute in the manner it considers appropriate
…
’
[29]
(2018) 39
ILJ 523 (CC) at para 25.