IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN CAPE TOWN
CASE NO C89/98
In the matter between:
DR GABEBA ABRAHAMS Applicant
AND
SOUTH AFRICAN CULTURAL HISTORY MUSEUM(CAPE) 1st Respondent
URSULA BULBRING (in her capacity as commissioner)2nd Respondent
JUDGMENT
MLAMBO J.
1. This is an application in which the applicant seeks to review and set
aside an award issued by the Second Respondent (“Bulbring”) in her
capacity as a commissioner of the Commission for Conciliation Mediation
and Arbitration (“the Commission”).
2. The applicant joined the services of the First Respondent (“the
museum”) in 1980. According to her she was supposed to start as a
museum human scientist which, she says, was in line with her
qualifications. She states that her letter of appointment stated that she
was to start as a human scientist but instead when she started her position
was changed to that of student assistant (nonwhite). Her position as
human scientist (professional officer) was only clarified two years later.
3.The applicant states that in February 1990 she approached the
museum’s assistant director Mr Roux, and complained about being
ignored for promotion over the past ten years. She states that in that
period a number of white employees some similarly qualified and other
with less qualifications were promoted into management above her. She
states that Roux explained the situation away by stating that management
wanted to keep her in research. Roux however undertook to investigate a
specialist scientist position where she could possibly be accommodated.
She was offered this position after some weeks, which she accepted.
However she was paid as an assistant specialist scientist. The situation
was corrected sometime in July 1991 when the post of assistant specialist
scientist was scrapped.
4. In 1995 applicant states that she again applied to have her position
properly regraded. She was asked to submit her curriculum vitae which
she did. Roux later informed her that her request would be treated as an
application for promotion and not for the correction of her grading.
5. On 13 November 1995 she was informed that her promotion was
not possible due to a shortage of funds and a change of priorities in terms
of the future direction of the museum as well as the need to maintain a
balance within the institution in terms of remuneration of professional
officers. The applicant disputed this decision and a number of initiatives
were embarked upon to try and settle the resultant disagreement.
Eventually on 3 April 1996 it was agreed by all concerned that the
applicant had to acquire a doctorate before the upgrading of her position
was reviewed. It was also agreed that the review would be finalised within
six months of the applicant acquiring the doctorate.
6. On 30 July 1996 another meeting was convened and the
Respondent was informed that applicant had acquired her doctorate.
During September 1996 the applicant was requested to submit further
information and documentation which apparently related to her educational
qualifications and experience. On 6 December 1996 she was informed the
her application was again turned down for the same reasons of afford
ability, change of priorities and maintaining some balance.
7. It appears that the applicant appealed unsuccessfully against the
decision. She then referred the dispute to the Commission first for
conciliation and when that failed she requested the Commission to
arbitrate the dispute. Second Respondent was appointed as the
commissioner to resolve the dispute through arbitration.
8. The arbitration proceedings were due to start on 26 November
1997. On that day the applicant sought a postponement as a result of the
illness of her legal representative. This was refused by Bulbring. The
arbitration proceeded on that day and on 27 November 1997. Bulbring
issued her award on 18 December 1997. Her award was :
“AWARD
I find in favour of the museum. Abrahams has no right to upgrading/
promotion to the position of senior specialist scientist and the failure
of the museum to upgrade Abrahams is not an unfair labour
practice.’
9. In this application the grounds advanced to review and set aside the
award are articulated as follows in the applicant’s founding affidavit:
“It is respectfully submitted that the commissioner failed to apply her
mind to the legal and factual status of South African Cultural
Museum and its employees prior to framework autonomy being
granted and its subsequent status.
The commissioner furthermore failed to apply her mind to the nature
and status of the Personnel Administrative Standards (PAS) and
Personnel Administrative Measures (PAM) and the applicability
thereof to employees of the museum.
These two crucial issues play a vital role in determining whether
whether my position within the museum was a correct one and
whether I was entitled to be regraded/promoted to the position of
Senior Specialist Scientist.
It is furthermore submitted that the commissioner’s failure to
postpone the matter so as to allow Mr Spamer to recover was grossly
unfair under the circumstances and resulted in a miscarriage of
justice.”
10. The Labour appeal Court has stated that the standard with which
awards of the Commission should be tested is justifiability. Carephone
(Pty) Ltd v Marcus NO & Another (1998) 19 ILJ 1425 (LAC) . In other
words there should be a rational link between the reasons furnished for the
award and the evidence placed before the commissioner. Therefore the
objective of this court is not to determine whether the conclusion arrived at
by the commissioner is correct, this being the objective of a court
considering an appeal.
11. Central to the applicant’s case is her criticism of the commissioner’s
conclusion that the Personnel Administration Standards (PAS) were not
solely determinative of whether the applicant was entitled to promotion.
The commissioner concluded that in addition to the PAS the museum had
a discretion and was entitled to consider other factors before taking a
decision on whether it should promote the applicant.
12. It is clear from the award that Bulbring considered the impact of the
PAS and the Personnel Administrative Measures (PAM) to the applicant’s
situation. Bulbring found that the status of the PAS was indirectly
preserved. She found that despite such preservation of the PAS it would
be applied in a flexible way until a new system was introduced. She
considered the applicant’s argument that the retention of the PAS did not
allow the museum any discretion. She rejected this argument this objection
stems from her reasoning that the PAS did not remove the Board’s
discretion and that the language of the PAS was not directory. She further
found that the PAS made no provision that once certain requirements were
met upgrading or promotion was an automatic right. She also considered
the lack of evidence showing how the PAS was applied in the Public
Service and as to how other specialist scientists had progressed according
to the PAS. She then concluded that the applicant did not have a right to
promotion.
13. In this regard it is common cause that the Cultural Institutions act was
amended in 1992. Section 6 of this Act provides:
“(1) A council may appoint such persons as it may deem necessary to perform
the functions of the declared institution concerned.
(2) The determination of the remuneration and other conditions of service of
persons appointed under subsection (1) shall be in accordance with a scheme
approved by the Minister...”
In terms of this section the Minister approved framework autonomy which was a
scheme giving increased authority to the museum and its Board. This led to the
PAS being replaced by the PAM. However because no fixed rules and guidelines
were in place the PAS continued to apply but not as before, this time as a
guideline. On the basis that the PAS had status of a guideline this gave the
museum a discretion in matters within its domain and the exercise of this
discretion the museum was entitled to consider other factors which were relevant.
14. The fact of the matter is that at that time the PAS was no longer the sole
determinative measure when it came to promotions. In fact the museum was
enjoyed increased autonomy over certain issues, such as promotions. Even though
the PAS was preserved, it was no longer the only source of reference.
Collogically stated the PAS had been demoted. Viewed from this angle I don’t
see o what basis it is suggested that Bulbring did not apply her mind properly to
the material before her. Her reasons demonstrate clearly that she understood the
PAS and PAM and how these were to be applied. I cannot agree therefore that
there is any basis on which Bulbring can be criticised.
15. Bulbring then went on to consider whether the PAS was applied in a fair
manner in relation to the applicant. In doing so she also considered whether the
criteria relied on by the Board in not promoting the applicant were acceptable
criteria. These criteria were afford ability, changed priorities in terms of the
future dissection of the museum, and balance within the institution in terms of the
remuneration of professional staff. She then says the following in her award:
1. “Each of the criteria of afford ability, changed priorities and balances
of remuneration of professional staff is to my mind a valid consideration and
are contemplated in annexure B. Affordabilty is a valid consideration given
that the museum needs to operate within budgetary constraints. It was
argued by the union that he additional R 18 00.00 to Abrahams ‘s salary
would not “break the bank”. To my mind the question is not whether blood
can be squeezed out of a stone rather how management in its discretion
allocates limited resources. As for changed priorities and the decision not to
focus on archeology, this is a relevant consideration and contemplated in
annexure B. This decision is not to encourage archeology is an exercise of
management prerogative and it is not for me to say whether this is correct. It
is legitimate criterion for the exercise of management discretion. The issue of
balancing employees’ remuneration is expressly contemplated in annexure B
which sees the need to balance career paths between a career in management
and that of specialist scientist and not to skew the balance in either direction.
It appears that the museum has taken a view that archeology is not their
primary priority, that they need to balance other employees’s careers and
institutional needs against the risk of losing Abrahams if they do not promote
her. This is a decision which the museum, in their exercise of its discretion
needs to take. It is not for me to replace the museum’s discretion unless there
is evidence of bias or improper purpose. I do not find that to be the case and
find that the Pas has been applied in a fair manner to Abrahams.”
16. It is clear therefore that Bulbring considered all the issues placed before
her. That she applied her mind to those issues is evidenced by her detailed reasons
in the award. Whilst it is doubtful whether Bulbring is correct in relation to the
in the award. Whilst it is doubtful whether Bulbring is correct in relation to the
applicability of the PAS that howeveron its own is not sufficient to lead to the
award being set aside. Her arrival at the conclusion is backed by careful
consideration of the PAS and the PAM and other relevant documents. It cannot
therefore be said that she failed to apply her mind to the matter before her. Thus
in my view the applicant has failed to persuade the court that Bulbring committed
a reviewable irregularity.
The application is therefore dismissed. There is no order as to costs.
MLAMBO J.
Date of judgment: 26 July 1999.
For the applicant: Theon Smith & Associates.