IN THE LABOUR COURT OF SOUTH AFRICA
Held at Johannesburg Case no
J1907/98
In the matter between:
THE NORTHERN CAPE PROVINCIAL
ADMINISTRATION Applicant
and
COMMISSIONER E HAMBIDGE NO First
respondent
HOSPERSA Second
respondent
ROOS, FREDERICA Third
respondent
___________________________________________________
_________
JUDGMENT
LANDMAN J :
1. Ms Roos was a nursing sister employed at the Gordonia Hospital
by the Northern Cape Provincial Administration. She is a civil
servant. She was asked to act as matron (nursing service
manager) for the period 7 August 1995 to 29 August 1997. She
was not paid for acting in this higher rank. She applied for this post
when it was advertised but was turned down. This was when she
ceased to act in the post.
2. She was unhappy about not being paid for acting as the matron
and applied for a conciliation board in terms of the Public Service
Bargaining council agreement. See item 15 of the 7th Schedule to
the Labour Relations Act 66 of 1995 (the Act). She alleged that she
was the victim of an unfair labour practice concerning the non
payment of a benefit. A conciliation board was not convened.
Consequently Ms Roos referred a dispute to the CCMA for
arbitration.
3. A commissioner, the first respondent, was appointed to arbitrate
the dispute. She found that the dispute related to an alleged unfair
labour practice in terms of item 2(1)(b) of the 7th Schedule to the
Act and not to a matter of mutual interest. She concluded that she
was in any event not bound by the collective agreement (of which
the Staff Code, which indicated that officials acting in a higher post
had no claim to increased salary, was a part) and found that the
employer had committed an unfair labour practice. She ordered the
employer to pay to Ms Roos: “an allowance in an amount which
equals the difference in salary between her own position and the
position she had been acting in for the period 11 November 1996
to August 1997".
4. The employer seeks to review the award of the commissioner in
terms of s 145 of the Act on various grounds. I need only deal with
some of them.
5. Before turning to the grounds of review I should state that this case
was not approached on the basis that Ms Roos was engaged in an
essential service, as prima facie, appears to be the case and for
her dispute to be arbitrated in accordance with s 74 of the Act.
6. The first ground is that the commissioner lacked the jurisdiction to
entertain the dispute concerning the alleged unfair labour practice.
Mr Halgryn, who appeared for the employer, submitted that the
Public Service Labour Relations Act of 1994 (Proclamation 105 of
1994) as modified by item 15 of the 7th Schedule to the Act is
deemed to be a collective agreement. This is of course correct.
See T E Ngcobo v KwaZuluNatal Health Services (unreported,
LC, D228/98). He contended that this agreement has it own
dispute resolution mechanism. See ss 13 (read with s 21) and 18
of the collective agreement. In the face of the existence of these
provisions it was impermissible for the CCMA to arbitrate the
dispute. See s 24(2) of the Act. In my opinion there is no merit in
this. The commissioner was not arbitrating in terms of the
collective agreement she was arbitrating a dispute referred to her
in terms of the LRA. See item 2(3) of the 7th Schedule to the Act.
In any event it is clear that the dispute resolution mechanism in the
collective agreement was inoperative and therefore, in terms of s
24(2) of the Act, the CCMA could attempt to conciliate or arbitrate
the dispute.
7. The next attack was that the dispute concerned a matter of mutual
interest and not a dispute about an unfair labour practice. The
basis of this contention was founded on the definition of “mutual
interest” in s 1 of the collective agreement read with s 13. The
commissioner was not interpreting the collective agreement nor
was she dealing with a dispute about its application. She was
hearing a dispute concerning an alleged unfair labour practice. The
definition of a matter of mutual interest in the collective agreement
(it includes:” ...employee compensation, remuneration and service
benefits..”) may assist in informing the concept as it is found in the
Act but it cannot be decisive.
8. The commissioner was obliged to ask herself whether she had
jurisdiction to entertain the matter. If the matter related to a
dispute of mutual interest as contemplated by the Act, and was not
a matter concerning an alleged unfair labour practice, she would
not have jurisdiction. She found that she was not dealing with a
matter of mutual interest.
9. Was the subject of the complaint a matter of mutual interest? The
jurisdictional point impacts on the merits. I will deal with them
together.
10.It was submitted that Ms Roos’s complaint did not concern a
benefit as contemplated in item 2(1)(b). The true meaning of the
word “benefit” in this item is a vexed question. Its meaning is a
matter of legal interpretation. A commissioner is not vested with
any power to determine the law subjectively and thus if a
commissioner errs on a matter of law and the error is material to
the decision, as it is in regard to jurisdiction, the award will be
defective. The constitutional right to lawful and fair administrative
process envisages that the decisionmaker will apply the law
properly and correctly. See s 33 read with item 23(2)(a) and (b) of
the Schedule to the Constitution of the Republic of South Africa of
1996. Any deviation would, in my view, have to meet the test of
justifiability set in s 36 of the Constitution. A private arbitrator may
err in so far as the law is concerned, save as regards jurisdiction,
as the parties have agreed to run the risk of the arbitrator being
wrong in law. Not so parties who must submit by law to the
decision of a CCMA arbitrator.
11. The commissioner had regard to the judgment in Schoeman and
another v Samsung Electronics (Pty) Ltd (1997) 18 ILJ 1098
(LC). and stated:
12.I am of the opinion that the term `benefit’ as found in
Schedule 7, item 2(1)(b) of the LRA is inclusive of an acting
allowance.
13.
14. It is unnecessary for me to consider the meaning of the term
benefit exhaustively. It was not argued in detail. For a useful
compilation of the authorities and opinions on the meaning of
benefit see SA Chemical Workers Union v Longmile/Unitred
(1999) 20 ILJ 244 (CCMA) at 248253.
15. A salary or wage or payment in kind is an essential element in a
contract of service. See Basson et al Essential Labour Law Vol 1
2223. The definition of remuneration read with the definition of
employee in s 213 of the Act makes this clear. Remunerations in s
213 means: “any payment in money or kind or both in money or
kind ....” remuneration is an essentialia of a contract of
employment. Other rights or advantages or benefits accruing to an
employee by agreement are termed naturalia to distinguish them
from the essentialia of the contract of employment. Some naturalia
are the subject of individual or collective bargaining. Others are
conferred by law. In my view a benefit may be part of the naturalia.
It is not part of the essentialia. Some support for this distinction
may be derived from the definition of fringe benefit in the Shorter
Oxford Dictionary. It reads:
Fringe benefit a perquisite or benefit paid by an employer to
supplement a money wage or salary.
The ILO Wages A Workers’ Education Manual (1988) 70 makes the point that a
fringe benefit is a supplement for which no work is done. Benedictus and Bercusson
Labour Law (1987) 158 speak of wages and nonwage benefits. The word benefit in
item 2(1)(b) means, at least, a nonwage benefit. The decision of my sister Revelas
J in the Samsung case is to the same effect. She says at 1102J1103A:
Remuneration is different from benefits. A benefit is something
extra, apart from remuneration. Often, it is a term and condition
of an employment contract and often it is not. Remunerations is
always a term and conditions of the employment contract.
17.It is unnecessary to refine a benefit further for the purposes of this
case.
18.Mr Pio, who appeared for the second respondent and Ms Roos,
submitted that the relief requested at the arbitration hearing was
clearly a misnomer and should have been labelled compensation.
This was submitted in the context of the remedy but it is precisely
what ms Roos was complaining about. She wanted a monetary
benefit for acting as matron.
19.In the instant case Ms Roos wanted to be paid for acting in the
higher position; one carrying more responsibility. It certainly seems
fair that she should be so paid. However a claim that an employer
has acted unfairly by not paying the higher rate cannot be said to
concern a benefit even if its receipt would be beneficial to the
employee. Its is essentially a claim or a complaint that the
complainant has not been paid more for a certain period for
carrying extra responsibilities. It is a salary or wage issue. It is not
about a benefit. It is about a matter of mutual interest. The
interpretation by the commissioner is wrong in law. It was central to
her decision. She did not have jurisdiction to entertain the dispute
and to decide it in the way she did.
20.Accordingly the review succeeds. Ms Roos was not unreasonable
in opposing the relief sought. It was, so it was stated from the bar,
in the nature of a test case. Cost should not be awarded against
her.
21.The notice of motion which commenced these proceedings was
signed on behalf of Andrew Levy and Associates (Pty) Ltd. It is
common cause that this company has no rights of appearance in
this court. This applies to the preparation of document and the
conducting of pretrial conferences. As the matter was of
importance to the parties I was prepared to condone the
irregularity. However I deem it fit to order that Andrew Levy and
Associates (Pty) Ltd are not entitled to be paid for any services
rendered in connection with litigation in this matter.
22.In the premises:
1. The award of the first respondent is hereby reviewed and set
aside and replaced with an award that the employer did not
commit an unfair labour practice in regard to Ms Roos.
2. There will be no order for costs.
3. Andrew Levy and Associates (Pty) Ltd are not entitled to be
paid
for any services rendered in connection with litigation in this
matter.
SIGNED AND DATED AT JOHANNESBURG THIS 24th DAY
OF MARCH 1999.
A A Landman
Judge of the Labour court
Date of hearing: 19 March 1999
Date of judgment: 24 March 1999
For applicant: Adv L Halgryn instructed by
Joubert Attorneys
For the third respondent: Adv P C Pio