THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C530/2022
In the matter between:
CITY OF CAPE TOWN Applicant
and
FRANCOIS VAN DER MERWE N.O. First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC) Second Respondent
IRWIN OOSTENDORP Third Respondent
Heard: 5 August 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to SAFLII.
The date and time for handing down judgment is deemed to be 10h00 on 13 October
2025.
______________________________________________________________________
JUDGMENT
2
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application to review the arbitration award
issued by the first respondent (the commissioner) in terms of section 145 of the
Labour Relations Act1 (LRA).
[2] Insofar as the applicant filed the review application late, the application for
condonation was not opposed and the parties agreed to abide by this court’s
decision. The court is satisfied that the delay was not severe, that there is an
explanation for the delay although not entirely satisfactory, and that the applicant’s
prospects of success are good. The court therefore condones the late filing of the
review application.
Background
[3] The background facts relevant to this review application are mostly common cause
between the parties and it is not necessary for purposes of this judgment to
summarise all the background facts. Oostendorp has been working in the labour
relations department of the applicant for some 20 years and occupied the position
of professional officer (PO) for some 15 years. He was placed as a senior
professional officer (SPO), as part of the ORP -process. In 2010 Oostendorp was
placed, via the TASK-process, on the dual-graded position, scale T14/T15 and he
has the same job description as eight of his other colleagues. They perform the
same job as SPOs, and the job descriptions were updated in 2019.
[4] Oostendorp was on the top of the T1 4 scale for the past three to four years and,
according to Oostendorp, he became eligible to be advanced to the relevant T15
notch. The dispute before the SALGBC was, in essence, the applicant ’s failure to
include Oostendorp in a deviation report, in terms of the 2019 Advancement SOP,
1 Act 66 of 1995, as amended.
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for the approval of the City Manager when his colleag ues, who possessed a
national diploma, were included in the deviation report.
Arbitration award
[5] The commissioner, after surveying the evidence, first addresses the question
whether Oostendorp’s complaint does concern a benefit as contemplated in
section 186(2)(a) of the LRA. The question, more aptly described, is whether an
advancement to T15, or the ability to advance, concerns a benefit. The
commissioner finds that it does, without seeing the need to dissect all the
arguments and authorities, and that the wider definition includes an advantage or
privilege in terms of a policy or practice subject to the employer’s discretion. The
commissioner finds that whether more money may be involved does not make
what is being disputed less of a benefit.
[6] The commissioner turns to the next question, i.e., whether the applicant acted
unfairly. The commissioner phrases the question differently by stating that the
question is why the qualification criteria were not relaxed for Oostendorp? Why
was Oostendorp excluded from the recommendation in the deviation reports? Why
was a deviation not granted in respect of Oostendorp? Was it fair to have decided
to not deviate (not open the door/barrier for advancement t o T15) in respect of
Oostendorp? Why was or could a de viation or relaxation not also have been
granted for or to Oostendorp?
[7] The commissioner finds that all criteria and conditions had to be met for
advancement – also from T14 to T15 for a dual -graded person – and that the
educational requirement from about 2019 was a minimum of a degree. This is why
a deviation was sought for r egrading and advancement in respect of inter alia
Collop and Samsodien.
[8] The commissioner finds, semantics aside, that he is satisfied that the ultimate
decision was that of the City Manager and that deciding whether to grant a
deviation or not is a form of exercising a discretion. The commissioner finds that
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the City manager’s ultimate decision directly or indirectly also decided the question
of deviation with regards to Oostendorp. In the deviation reports there was clear
reference to a legacy official with only a matric.
[9] The next question the commissioner asked himself is whether the discretion was
exercised fairly. The only reason or explanation advanced for not lifting the barrier
for Oostendorp to advance to T15 is that he had neither a degree nor a diploma.
The commissioner finds that the exercise of the discretion to exclude Oostendorp
from the deviation report (or rather from the recommendation therein), or from
benefitting from an opened door for advancement to T15 was unfair inter alia for
the following reasons:
a. There is no absolute bar, law, policy or SOP that prevents a deviation for a
person with a matric only.
b. There was no evidence as to why it would be unlawful, unprofessional,
unfair or otherwise untenable to open the salary advancement door for
Oostendorp with his matric.
c. There have been deviations in the past in respect of diplomas.
d. It is common cause that Oostendorp could do his work and was doing it with
distinction and was indeed one of the best. His expertise, knowledge and
performance are of the highest order and fully comparable to those of fellow
SOPs.
e. There are other historic or legacy situations where employees do not satisfy
or did not satisfy the minimum educational qualification requirement but are
at level T15 or are allowed to advance – some with also only a matric.
f. The defense of a risk at one point should there have been a request for
deviation in favour of a matric, the defense of the of the job evaluation unit
– those who worked with advancements – and the defense of the reported
tone or sentiment of or around the delegated authority concerning a matric
5
versus a diploma or a degree, do not sway the commissioner to conclude
otherwise. In any event, the last two of these explanations arguably
constitute hearsay.
g. The unique circumstances of this case are decisive, including the history
and chronology of events. If Oostendorp was or is a legacy, is already
operating highly successfully at T14/15 level, and over many years came to
where he currently is with only a matric, it is more probable than not that the
decision to not open the T15 door for him was arbitrary and unfair.
h. Even if Oostendorp could have studied further, and even if there is a
perception that he should have done so and/or that people with higher
educational qualifications are entitled to better career expectations, all the
surrounding circumstances of this cas e point that it was unfair not to have
granted the deviation also for Oostendorp, even if it meant a kind of
personal ringfencing or grandfathering.
[10] The commissioner concludes that it would be unfair for Oostendorp to continually
be materially prejudiced simply because some people may believe that a tertiary
qualification is better or is more advantageous or is even an absolute requirement
to be regarded as a professional person in the applicant’s employ.
[11] The commissioner finds that the unfairness should be overturned and that the
door/barrier must be opened. The commissioner therefore finds that the applicant
committed an unfair labour practice when it failed to grant a deviation in favour of
Oostendorp that is similar to the deviation in favour of Samsodien and Collop, and
that the applicant is ordered to grant deviation from the minimum requirements
contained in both the job evaluation and advancement systems and procedure for
the purpose of regrading and grading and advancement of Oostendorp and to
include Oostendorp in these processes. The commissioner lastly finds that the
regrading and advancement of Oostendorp must be processed and implemented
regrading and advancement of Oostendorp must be processed and implemented
as if there were approved with effect from 14 December 2021.
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Grounds of review
[12] The applicant challenges the arbitration award on the basis that the commissioner
committed irregularities that had the effect of depriving the parties of a fair hearing
of the issues in the following respects (grounds of review as per the founding
affidavit):
a. The dispute referred to the SALGBC did not concern the provision of
benefits as per the definition of an unfair labour practice.
b. The commissioner failed to indicate the factual basis for his findings that the
dispute related to benefits.
c. The commissioner did not have the power to grant a deviation from the
relevant minimum requirements.
d. The commissioner, by granting the deviation, usurped the duties of the City
Manager and acted contrary to the dictates of section 66 of the Local
Government: Municipal Systems Act (the Systems Act); alternatively acted
ultra vires the provisions of the Systems Act.
e. By granting the deviation, the commissioner created new terms and
conditions of employment without any credible evidence.
f. The findings and conclusions on the issue of benefits are entirely
disconnected from the evidence.
g. The commissioner misconceived the nature of the enquiry and/or arrived at
an unreasonable result.
[13] The applicant supplemented its grounds of review (the supplementary affidavit) as
follows:
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a. The commissioner committed a gross irregularity and/or misconstrued the
enquiry in concluding that “advancement in terms of the Advancement SOP”
in the context of the case constituted a “benefit”.
b. The commissioner committed a gross irregularity and/or misconstrued the
material evidence when he ignored the clear terms of the Advancement
SOP.
c. The commissioner arrived at an unreasonable result when he failed to
recognise that the onus was on Oostendorp to prove the existence of a right,
even if it is subject to an employer’s discretion.
d. The evidence of Oostendorp does not suggest any unfair conduct by the
employer in relation to provision of benefits. It is common cause that
Oostendorp did not meet the qualification criteria.
e. The commissioner’s finding that the conduct complained of falls within the
definition of section 186(2)(a) is a finding that is so unreasonable that no
reasonable decision-maker would have come to it. The decision to exclude
Oostendorp’s name from the repo rt requesting deviation was rational
considering the undisputed communication regarding qualifications
received from the delegated authority.
f. The commissioner committed a gross irregularity and/or misconstrued the
enquiry when he failed to recognise that his discretion to interfere with the
applicant’s substantive decision to approve a deviation was limited to
instances where such a decision was irrational, grossly unreasonable or
mala fide.
g. The commissioner committed a gross irregularity when he ordered
Oostendorp’s advancement where none of the other SPOs who possessed
national diplomas have not been advanced through the SOP up until today.
Review Test
8
[14] In Sidumo & another v Rustenburg Platinum Mines Ltd & others,2 the Court held
that “the reasonableness standard should now suffuse section 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?...” 3. In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as
Amicus Curiae)4 the Court applied this reasonableness consideration as follows:
“In summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in s 145(2)(a) of the LRA. For a defect in the
conduct of the proceedings to amou nt to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the
nature of the inquiry or arrived at an unreasonable result. A result will only
be unreasonable if it is one that a reasonable arbitrator could not rea ch on
all the material that was before the arbitrator. Material errors of fact, as well
as the weight and relevance to be attached to particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only of any
consequence if their effect is to render the outcome unreasonable.”
[15] This test has thus been applied as 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.
it unreasonable.
2 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC).
3 Id at para 110.
4 (2013) 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA) at para 25.
9
[16] Further, the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator, as to whether the outcome of the
arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even
if it may be for different reasons or on different grounds. 5 This necessitates a
consideration by the review court of the entire record of the proceedings before the
arbitrator, as well as the issues raised by the parties before the arbitrator, with the
view to establish whether this material can, or cannot, sustain the outcome arrived
at by the arbitrator. In the end, it would only be if the outcome arrived by the
arbitrator cannot be sustained on any grounds, based on the material, and the
irregularity, failure or error concerned is the only basis to sustain the o utcome the
arbitrator arrived at, then the review application would succeed.6
[17] In Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others 7
the Labour Appeal Court further explained the reasonableness test in the following
terms:
“[15] A ‘process -related review suggests an extended standard of review,
one that admits the review of an award on the grounds of a failure by the
arbitrator to take material facts into account, or by taking into accounts facts
that are irrelevant, and the like. The emphasis here is on p rocess and not
result. Proponents of this view argue that where an arbitrator has committed
a gross irregularity in the conduct of the arbitration as contemplated by
s145(2), it remains open for the award to be reviewed and set aside
irrespective of the fact that the decision arrived at by the arbitrator survives
the Sidumo test. I disagree. What is required is first to consider the gross
irregularity that the arbitrator is said to have committed and then to apply
the reasonableness test established by Sidumo. The gross irregularity is not
a self -standing ground insulated from or standing independent of the
5 Fidelity at para 102.
5 Fidelity at para 102.
6 See Campbell Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC); [2016] 1 BLLR 1
(LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ
1453 (LAC); [2015] 4 BLLR 394 (LAC) at para 12.
7 (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) (4 November 2013) .
10
Sidumo test. That being the case, it serves no purpose for the reviewing
court to consider and analyse every issue raised at the arbitration and
regard failure by the arbitrator to consider all or some of the issues albeit
material as rendering the award liable t o be set aside on the grounds of
process-related review.”
and
“[20] To do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in section 138 of the
LRA which requires the arbitrator to deal with the substantial merits of the
dispute between the parties with the minimum of legal formalities and do so
expeditiously and fairly. This is also confirmed in the decision of CUSA v
Tao Ying Metal Industries. Failing to consider a gross irregularity in the
above context would mean that an award is open to be set aside where an
arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal
in his/her award in some way with an issue which has some material bearing
on the issue in dispute; and/or (iii) commits an error in respect of the
evaluation or considerations of facts presented at the arbitration. The
questions to ask are these: (i) In terms of his or her duty to deal with the
matter with the minimum of legal formalities, did the process that the
arbitrator employed give the parties a full opp ortunity to have their say in
respect of the dispute? (ii) Did the arbitrator identify the dispute he was
required to arbitrate (this may in certain cases only become clear after both
parties have led their evidence)? (iii) Did the arbitrator understand the
nature of the dispute he or she was required to arbitrate? (iv) Did he or she
deal with the substantial merits of the dispute? and (v) Is the arbitrator’s
decision one that another decision-maker could reasonably have arrived at
based on the evidence?”
and
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“[21] Where the arbitrator fails to have regard to the material facts it is likely
that he or she will fail to arrive at a reasonable decision. Where the arbitrator
fails to follow proper process he or she may produce an unreasonable
outcome (see Minister of Health and Another v New Clicks South Africa
(Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again, this is considered
on the totality of the evidence not on a fragmented, piecemeal analysis. As
soon as it is done in a piecemeal fashion, the evaluation of the decision
arrived at by the arbitrator assumes the form of an appeal. A fragmented
analysis rather than a broad based evaluation of the totality of the evidence
defeats review as a process. It follows that the argument that the failure to
have regard to material facts may potentially result in a wrong decision has
no place in review applications. Failure to have regard to material facts must
actually defeat the constitutional imperative that the award must be rational
and reasonable - there is no room for conjecture and guesswork”
[18] The Labour Appeal Court in Head of the Department of Education v Mofokeng
and Others8 provided the following exposition of the review test:
“[33] Irregularities or errors in relation to the facts or issues, therefore, may
or may not produce an unreasonable outcome or provide a compelling
indication that the arbitrator misconceived the inquiry. In the final analysis,
it will depend on the materiality of the error or irregularity and its relation to
the result. Whether the irregularity or error is material must be assessed
and determined with reference to the distorting effect it may or may not have
had upon the arbitrator’s conception of the inq uiry, the delimitation of the
issues to be determined and the ultimate outcome. If but for an error or
irregularity a different outcome would have resulted, it will ex hypothesi be
material to the determination of the dispute. A material error of this orde r
material to the determination of the dispute. A material error of this orde r
would point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision in issue;
8 (JA14/2014) [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC) (1 October 2014) .
12
the range of relevant factors informing the decision; the nature of the
competing interests impacted upon by the decision; and then ask whether
a reasonable equilibrium has been struck in accordance with the objects of
the LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By the
same token, an irregularity or error material to the determination of the
dispute may constitute a misconception of the nature of the enquiry so as
to lead to no fair trial of the issues, with the result that the award may be set
aside on that ground alone. The arbitrator, however, must be shown to have
diverted from the correct path in the conduct of the arbitration and as a result
failed to address the question raised for determination.”
[19] The court w ill now proceed to consider the review application by the applicant
against the above principles and the test applicable to review applications.
Evaluation of grounds of review
Jurisdiction of SALGBC
[20] The applicant is challenging the commissioner’s finding that the dispute before him
is a “benefit” as provided for in section 186(2)(a) of the LRA. It is therefore
necessary, before this court can address the merits of the applicant ’s conduct in
relation to excluding Oostendorp from the deviation report, to first determine
whether the dispute referred to the SALGBC falls within the jurisdictional ambit of
section 186(2 )(a). More specifically , this court must determine whether
advancement from T14 to T15 , in terms of a deviation report, for an employee
already occ upying a dual -graded T14/15 position constitutes a “benefit” as
contemplated.
[21] If the answer is negative, the commissioner would have lacked jurisdiction to
determine the dispute, and the award must be set aside on that basis alone.
However, for the reasons that f ollow, this court i s satisfied that the advancement
opportunity by way of a deviation report, which is subject to t he City Manager ’s
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discretion, clearly falls within the definition of a benefit , and that the applicant ’s
challenge in this regard cannot succeed.
[22] The applicable test to determine this issue of jurisdiction is not the reasonableness
test, but the correctness test. 9 It is therefore not necessary for this court to
determine whether the commis sioner’s decision was reasonable or not. The
commissioner was either correct in concluding that the dispute is one of a “benefit”,
or he was wrong. It is not necessary for this court to evaluate the commissioner’s
reasons for his finding, or his failure to give reasons as argued by the applicant.
This court must de termine whether advancement from a T14 to T15, for an
employee already appointed in a dual-graded post of T14/15, constitutes an unfair
labour practice dispute regarding benefits.
[23] Section 186 (2) (a) of the LRA reads as follows:
‘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;’
[24] The leading authority on the meaning of “benefits” in terms of section 186(2)(a) is
the decision of the Labour Appeal C ourt in Apollo Tyres South Africa (Pty) Ltd v
Commission for Conciliation Mediation and Arbitration and Others 10. The LAC, at
paragraph 50, held:
“… 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
9 SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v
SARPU and Another (2008) 29 ILJ 2218 (LAC)
10 [2013] ZALAC 3; [2013] 5 BLLR 434 (LACE; (2013) 34 ILJ 1120 (LAC)
14
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 section 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...”
[25] This court does not deem it necessary to refer to any further case law to determine
the applicant’s jurisdictional challenge. The above extract from the judgment is
clear and is directly relevant to the dispute that is before this court. Several key
principles arising from this judgment are that the term benefit must be interpreted
widely and not restrictively; a benefit includes any advantage or privilege; benefits
can arise from established practice or policy ; benefits include rights arising ex
contractu or ex lege; benefits include advantages granted in term s of a policy or
practice; the employer’s discretion over the benefit does not exclude it from being
a benefit; and benefits include judicially created rights.
[26] This court is of the view that any dispute abou t advancement opportunities in the
workplace, whether based on policy, practice or standard operating proc edures
and being subject to management ’s discretion, fall squarely within section
186(2)(a). Ther e is no need for employees to establish a contractual right to
advancement in order to challenge the fairness of an employer’s conduct. Career
progression opportunities, where same is based on estab lished practice, policy,
standard operating procedures, and where provision is made for devia tions,
subject to approval by the relevant authority based on discretion , c onstitute a
benefit for purposes of section 186(2)(a).
[27] It is also necessary to consider what the LAC said in Apollo at paragraph 48:
“The facts of this matter clearly illustrate that the Hospersa approach, that
“The facts of this matter clearly illustrate that the Hospersa approach, that
the benefit must be an entitlement that is rooted in contract or legislation, is
untenable. Hoosen had, in terms of her employment contract, a right to
retirement benefits. The contract did not make provision for a right to
voluntary early retirement benefits. She would therefore, on the Hospersa
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approach, be able to challenge, by way of arbitration, any unfairness
relating to the ordinary retirement benefits. When the appellant decided to
accelerate the existing contractual benefits and retained a discretion to
grant the accelerated benefits, the benefits would strangely morph into
something less than benefits because according to the Hospersa approach
she does not have a contractual right to the accelerated retirement benefits.
The employer would then have a license to act with impunity. She
would thus not have recourse in the civil courts, because no contract came
into being, nor would she have a remedy in terms of section 186 (2) (a) of
the LRA to challenge the patent unfairness because there is no underlying
contractual right to the benefits. Being a single employee she would in
accordance with Schoeman v Samsung not have the right to strike. Clearly
the notion that the benefit must be based on an ex contractu or ex lege
entitlement would, in a case like this, render the unfair labour practice
jurisdiction sterile.” (emphasis added)
[28] There is a direct correlation in what the LAC said and to the matter before this
Court. If it is to be found that applying for deviation in the context of this case to
advance employees from T14 to T15 des pite the employees not meeting the
minimum requirements is not a benefit dispute, it will mean that the applicant then
has a license to act with impunity as to who to include, for whatever reasons, and
who not to include in the deviation report. The decision whether to include an
employee in a deviation report or not must be subject to an assessment on the
fairness of the decision taken. It surely cannot be left to a lin e manager to decide
who to include and who not to include for unfair, illogical or arbitrary reasons.
[29] The failure to afford Oostendorp with the opportunity to be part of the deviation
report, which aim was to advance Oo stendorp’s coll eagues who similarly held
report, which aim was to advance Oo stendorp’s coll eagues who similarly held
dual-graded posts of T14/15 from T14 to T15 , despite not meeting the minimum
requirement of a degree, constitutes a dispute about a benefit, as envisaged in
section 186(2)(a). The deviation report for Oostendo rp’s colleagues resulted in
their advancement from T14 to T15 when the City Manager approved the deviation
16
report. The court notes, however, that th e advancement has not taken effect as
yet and is still in process of being implemented subject to certain requirements.
The City Manager, in exercising a discretion to approve the deviation, effectively
granted an advancement. Had Oostendorp been included in the deviation report,
and the City Manager exercised his/her discretion regarding a deviation in favour
of Oostendorp, Oostendorp would similarly have been advanced from T14 to T15.
The possibility of such advancement is sufficient to establish that Oostendorp ’s
dispute relates to a benefit insofar as he was not included in the deviation report
to the City Manager.
[30] This court is therefore satisfied that the commissioner ’s decision that the dispute
is one relating to a benefit is a correct decision and that the SALGBC had the
necessary jurisdiction to determine the dispute. The applicant ’s jurisdictional
challenge is therefore rejected.
Unfair Labour Practice
[31] The next question that needs to be answered is whether the applicant committed
an unfair labour prac tice when Oostendorp was excluded, despite his initial
inclusion, from the deviation report sent to the City Manager for approval . Insofar
as the applicant contended during the arbitration proceedings that the City
Manager approves a deviation and that such approval does not amount to the
exercise of d iscretion in doing so, this court rejects th e argument. The City
Manager, in considering whether to approve a deviation report, clearly uses his/her
discretion.
[32] This dispute cannot be determined on the City Manager ’s failure to approve a
deviation for Oostendorp, as the City Manager was not presented with a deviation
for Oostendorp. Mr Lawrence , Oostendorp’s line manager, took the decision to
exclude Oostendorp from the deviation report and it is Mr Lawrence ’s actions in
doing so that is subject to a determination whether his decision was exercised
doing so that is subject to a determination whether his decision was exercised
fairly. If Mr Lawrence’s actions in excluding Oostendorp from the deviation report
are not subjected to scrutiny for fairness, it will effectively mean that line managers
17
can act with impunity as to who they want to include in a deviation report, even for
malicious reasons . Such a s cenario will be untenable and will be in direct
contradiction to an employee ’s constitutional right to fair labour p ractices and
his/her right not to be subjected to a n unfair labour practice in terms of section
186(2)(a).
[33] The LAC in Apollo, after holding that entry into an earl y retirement scheme
constitutes a benefit, went on to determine whether the employer ’s discretion not
to extend this benefit to the employee was exercised fairly. The LAC held as follows
at paragraph 53:
“It has been said that unfairness implies a failure to meet an objective
standard and may be taken to include arbitrary, capricious or inconsistent
conduct, whether negligent or intended.”
[34] This principle was further elaborated in Protekon (Pty) Ltd v CCMA and Others 11
where the court confirmed that conduct is arbitrary or capricious when it lacks a
rational basis or is based on considerations that are irrelevant to the decision at
hand. The court in Chirwa v Transnet Ltd and Others12 held:
“The LRA includes the principles of natural justice. The dual fairness
requirement is one example; a dismissal needs to be substantively and
procedurally fair. By doing so, the LRA guarantees that an employee will be
protected by the rules of natural justic e and that the procedural fairness
requirements will satisfy the audi alterum partum principle and the rule
against bias. If the process does not, the employee will be able to challenge
her or his dismissal, and will be able to do so under the provisions a nd
structures of the LRA. Similarly, an employee is protected from arbitrary and
irrational decisions, through substantive fairness requirements and a right
not to be subjected to unfair labour practices.
11 [2005] ZALC 75; (2005) 26 ILJ 1105 (LC); [2005] 7 BLLR 703 (LC)
12 (2008) 29 ILJ 73 (CC) at para 42
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[35] It is not this court ’s function to determine whether Mr Lawrence ’s decision to
exclude Oostendorp from the deviation report was the correct decision. This court
must determine whether the commissioner ’s decision is one that falls within the
band of reasonableness . Unless it is shown that the commis sioner’s decision in
respect of the failure to include Oostendorp in the deviation report is one that no
other reasonable decision-maker could reach, this court must reject the applicant’s
challenge in these review proceedings. It must, however, be noted that there are
two issues to be considered here. The first is whether Mr Lawrence ’s failure to
include Oostendorp in the deviation report constituted an unfair labour practice and
the second is whether the commissioner was entitled to grant the relief that he did.
[36] In respect of the first issue, i.e., whether the commissioner’s decision regarding Mr
Lawrence’s actions was a reasonable decision and falls within the bands of
reasonableness, this court can find no reason to interfere with the commissioner’s
decision. This court in fact agrees without any qualification or reservation that Mr
Lawrence’s reasons for excluding Oostendorp from the deviation report, after
initially having included him, w as irrational and unfai r. There wa s no evidence
presented by the people who advised Mr Lawrence that, including Oostendorp who
only has matric, would jeopardise the chances of those who had national diplomas.
[37] In any event, the fact that Oostendorp’s colleagues had national diplomas does
not mean that they met the minimum requirements for advance ment, hence the
deviation report. It is regret table that a long serving employee like Oostendorp,
who served the applicant extremely well and who at the very least is on par with
all his colleagues , was treated in this manner by excluding him from a deviation
report simply because he only had matric. Oostendorp is good enough to perform
report simply because he only had matric. Oostendorp is good enough to perform
the functions associated with a T15 employee and is doing it very well. Despite the
pending advancement of his colleagues to T15 as a result of the deviation report,
Oostendorp is left to continue to perform the same functions and responsibilities
of those employees who will be advanced to T15. This is untenable and completely
unfair towards Oostendorp. At the very least, Oostendorp was entitled to also be
included in the deviation report in order for the City Manager to exercise his/her
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discretion whether to allow Oostendorp , even though he only has matric, to
advance to T15.
[38] Oostendorp’s dispute is similar to an employee applying for a promotion due to
acting in the position for many years, who has not been shortlisted for the position.
The employee will have the right to challenge the employer’s failure to shortlist
him/her and for not being allowed the opportunity to attend an interview and for the
interview panel to properly consider the application. The reason why that employee
was not shortlisted must be subjected to a n assessment as to the fairness of the
decision taken. If the decision not to shortlist was irrational, arbitrary and/or unfair,
the employee will be entitled to appro priate relief. In the matter before this court,
Mr Lawrence ’s decision to exclude Oostendorp from the deviation report was
irrational, arbitrary, baseless and unfair , which led to the City Manager not being
given the opportunity to exercise his/h er discretion regarding Oostendorp’s
advancement.
[39] This court reiterates that it is most unfortunate that the applicant, through the
actions of Mr Lawrence and those who advised him, treated Oostendorp in this
manner. Their actions clearly advantaged Oostendorp’s colleagues at the expense
of Oostendorp. It can never be accepted as a fair labour practice to exclude a long
serving employee like Oostendorp , who has and is still servi ng the applicant
extremely well, from a deviation report simply because his inclusion would hamper
the prospects of advancement of his colleagues with national diplomas. The fact
that Oostendorp’s colleagues have national d iplomas and Oostendorp only has
matric does not make his colleagues any more capable to perform the duties of a
T15 post. As stated already, the fact that his colleagues had national diplomas did
not entitle them to advancem ent hence the deviation report. To exclude
Oostendorp from the deviation report simply because he had matric was irrational,
Oostendorp from the deviation report simply because he had matric was irrational,
arbitrary and unfair.
Relief Granted
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[40] The second issue referred to above is whether the c ommissioner’s decision to
advance Oostendorp to T15 was a reasonable decision and falls within the band
of reasonableness. This court is of the view that the commissioner exceeded his
powers to do so and that he, in the process, bypassed the City Manager’s role in
considering whether to approve or reject the deviation regarding Oostendorp. It is
common cause that due to Mr Lawrence’s actions, the City Manager was not given
the opportunity to consider a deviation in respect of Oostendorp.
[41] In this regard, section 66 of the Municipal Syst ems Act13 vests the City Ma nager
with specific statutory powers regarding the management and administration of the
municipality’s affairs , including human resourc e management. The decision
whether to a pprove deviations fr om minimum employment requirements for
advancement purposes falls squarely within this statutory function. The City
Manager is the designated authority empowered to make such determinations. By
ordering that Oostendorp be advanced to T15 , the commissioner usurped a
statutory function that had never been exercised and substituted his own discretion
for that of the statutory designated decision-maker.
[42] The fact that Oostendorp was unfairly treated regarding his exclusion from the
deviation report does not entitle Oostendorp to be advanced to T15. This decision
must be taken by the City Manager upon receipt of a deviation report. The City
Manager may well exercise his discretion with specific reference to Oostendorp’s
deviation and approve the deviation. If the City Manager fails to approve the
deviation, his/her decision can then be challenged as an unfair labour practice
based on the reasons given for not approving the deviation.
[43] It is essential to distinguish between two separate wr ongs in this matter. The first
wrong was the procedural unfairness committed by Mr Lawrence in excluding
wrong was the procedural unfairness committed by Mr Lawrence in excluding
Oostendorp from the deviation report – thereby denying him the opportunity to be
considered for advancement by the City manager. Mr Lawrence ’s exc lusion of
Oostendorp from the deviation report constitutes the unfair labour practice that has
13 Act No. 32 of 2000
21
been established. The second, separate issue would be whether the City
Manager’s substantive decision to grant or refuse advancem ent was itself unfair.
Only the first wrong occurred in this case. The City Manager never had an
opportunity to consider Oostendorp’s case because the deviation report excluded
him. The commissioner’s role was limited to remedying the procedural unfairness,
not to make the substantive advancement decision himself. By ordering that
Oostendorp be advanced to T15, the commissioner usurped a statutory function
that had never been exerci sed and substituted his own discretion for that of the
statutorily designated decision-maker.
[44] The Labour Court in Ekurhuleni Metropolitan Municipality v SALGBC and Others14
reviewed an arbitration award where the commissioner “overstepped the mark” by
actively engaging in the proceedings. While that case concerned the
commissioner’s conduct during proceedings, the principle is equally applicable
here. Arbitrators must respect proper institutional decision-making processes and
cannot substitute their own judgment for that of desig nated authorities. An
arbitrator cannot bypass a statutory function ary and make a substantive decision
that properly belongs to that authority.
[45] Similarly, in Protekon the Labour Court held that a commissioner ’s decision to
order relief that exceeded the scope of the dispute and the commissioner ’s
jurisdiction was irrational. The court found that the commissioner exceeded his
powers in granting relief that went beyond remedying the unfair labour practice
that was established. The same principles apply in this matter. The commissioner
exceeded his remedial jurisdiction by ordering the substantive outcome
(advancement to T15) rather than remedying the procedural unfairness (exclusion
from consideration).
[46] This court therefore finds that, insofar as the commissioner found that Oostendorp
must be advanced to T15 despite the deviation not having been presented to the
must be advanced to T15 despite the deviation not having been presented to the
City Manager for a decision, the decision was irrational and that the commissioner
14 [2016] ZALCJHB 513; [2017] 4 BLLR 399 (LC); (2017) 38 ILJ 1820 (LC)
22
exceeded his powers in granting that relief. The relief so granted must therefore
be reviewed and set aside.
[47] The proper remedy in these circumstances is to remit the matter to the City
Manager to exercise the statutory function that was bypassed. The commissioner's
role was to remedy the procedural unfairness - Oostendorp's exclusion from
consideration - not to m ake the substantive advancement decision himself. By
ordering direct advancement, the commissioner usurped a statutory function that
had never been exercised. This constitutes a material error that renders the
remedy unreasonable.
[48] In the premises, the following order is made:
Order
1. The application for the arbitration to be reviewed and set aside is granted.
2. It is declared that the exclusion of the thi rd respondent, Mr Irwin
Oostendorp, from the deviation report submitted to the City M anager
constitutes an unfair labour practice relating t o the provision of benefits as
contemplated in section 186(2)(a) of the LRA.
3. The applicant is directed to prepare a proper and comprehensive deviation
report in respect of Mr Oostendorp, and to submit such report to the City
Manager within 30 (thirty) days of th e date on which this judgment is
delivered to the parties.
4. The City Manager is directed to consider the deviation report and to
exercise h is/her discretion whether to grant a deviation in r espect of
Oostendorp, taking into account:
4.1 Oostendorp’s long service and exemplary work performance.
4.2 Oostendorp’s successful performance of T14/T15 functions for many
years with only a matric qualification.
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4.3 The existence of other legacy employees at T15 with matric
qualifications.
4.4 The fact that the deviation process contemplates exceptions to
standard minimum requirements in appropriate circumstances.
4.5 The arbitrary nature of the distinction between diploma and matric
holders in the particular circumstances of this case.
4.6 Any other rele vant considerations the City Manager deems
appropriate.
5. The City Manager shall communicate his decision to Oostendorp in writing,
with reasons, within 30 (thirty ) days of re ceiving the deviation report. The
City Manager retains the discretion, in the event of approving the deviation
report, to determine the effective date of advancement from T14 to T15.
6. Oostendorp retains the right to challenge the City Manager ’s decision, if
required, as an unfair labour practice with the SALGBC within the 90 days
from the date of the City Manager’s decision.
7. Any non-compliance with this order can be enforced by approaching this
court directly.
8. No order is made as to costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
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For the Applicant: CS Hendricks from Marais Muller Hendricks Inc.
For the Third Respondent: Mr Oostendorp representing himself