Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR 536/01
20020905
In the matter between
MINISTER OF ENVIRONMENTAL AFFAIRS Applicant
and
P H STRYDOM Respondent
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J U D G M E N T
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NGCAMU J : The applicant in this matter seeks to have
the award of the first respondent be reviewed and set
aside in terms of Section 145 of the Labour Relations
Act.
The award was issued on 16 March 2001 under the
auspices of the General Public Service Bargaining
Council. The second respondent is employed by the
applicant as an assistant director with the bureau.
On 19 April 1996 an agreement between the state as
the employer was entered into with the Trade Union in
terms of which the employee organisations agreed to the
right to bargain in all the public service.
It was therefore agreed that a voluntary severance
package, known as the VSP, be implemented from 1 May
1996. The objectives were to provide a mechanism which
would facilitate the right sizing of the public service
and create room for the absorption of super numerary
officials within the various departments. The other
objective was to reduce the number of the public
servants Clause 1(a) of this document provides:
"All personnel may volunteer for severance packages in
order to create room for the absorption of super
numerary officials in other
programmes/departments/administrations subject to the
interest of the state and also taking into account the
interest of the officials/departments/administrations
and decide which officials may be allowed to have the
severance under this provision. In the case of key
personnel the executing authority should, after
consulting the relevant official, also consider
utilising the mechanism of postponing the date of
termination of service for a period not exceeding 18
months to allow for suitable successions."
The second respondent applied to be granted the
VSP. His application was declined. The application for
the others who applied were granted. The reason given
for the refusal of the second respondent's application
was that those who applied and granted the package were
nearing retirement.
The applicant applied again when he was nearing
retirement. His application was again refused.
The second respondent then declared a dispute for
unfairly practice in respect of the alleged
inconsistency with regard to the application of
collective agreement on voluntary package.
The Conciliation did not resolve the dispute. The
dispute was then arbitrated. Following the
arbitration the first respondent issued an award in
which he found the department guilty of having
committed an unfairly practice and ordered that the
prearbitration agreement be enforced in terms of which
the second respondent is to be granted the voluntary
service package and that the department had to consult
with the second respondent in terms of the collective
agreement.
This is the award which is the subject of the
review.
The applicant raised several grounds of review on
which it relies for the review of the award. The
applicant has raised a jurisdictional point as its
first ground of review. It contends that the
arbitrator did not have jurisdiction to entertain the
dispute brought by the second respondent.
It was submitted that the dispute concerned is not
an unfairly practice as defined in Schedule 7 of the
Labour Relations Act 66 of 1995 but that of mutual
interest.
The second point is that the General Public
Service Sectorial Bargaining Council under whose
auspices the arbitration was conducted, did not have
jurisdiction.
The second jurisdictional point was not pursued
during the argument, although not specifically
abandoned by the applicant. I will accordingly not
deal with this point.
It was further submitted that the decision on the
VSP lies with the Minister.
The applicant did not argue this jurisdictional
point during the arbitration hearing. Furthermore, on
page 4, line 17 to 21 of the arbitration record, the
following is recorded:
"COMMISSIONER: Prior to the matter being recorded an
informal discussion was held where certain points in
limine were raised by the respondent. After discussion
between both sides, the respondent withdrew both points
in limine . Is that correct, Sir?
MR MOGANEDE : That is correct."
It has been submitted that the points in limine
were the points raised which the applicant intended to
raise regarding the jurisdiction. It appears from the
record that these points were in fact not pursued
during arbitration.
It therefore follows that the applicant accepted
the jurisdiction of the commissioner. He accepted the
jurisdiction during the Consilliation of the dispute.
A certificate issued, recorded the dispute “as alleged
in consistence with regard to the application of
collective agreement on voluntary package”. The
applicant accepted the certificate and did not raise
any issue.
The dispute then went for arbitration. The
arbitrator derives his authority from the certificate
of nonresolution. If one of the parties is disputing
the jurisdiction, that party has to approach the court
to have the certificate declared null and void. If the
applicant did not raise the jurisdictional issue at the
Consiliation and during arbitration, it cannot now in
review attack the jurisdiction of the arbitrator. The
arbitrator was entitled to arbitrate as the certificate
had not been declared null and void.
See in this regard Fidelity Guards Holdings (Pty)
Ltd v Eksteen NO and Others 2000 12B LLR 1389 LAC.
I t was argued that this matter can be
distinguished from the Fidelity Guards as that case
dealt with another issue. In my view there are no
basis for distinguishing the present case from the
Fidelity Guards case. I therefore reject this argument
in that the certificate issued by the commissioner is
the first step for any arbitration. It therefore does
not matter what the dispute was. The dispute in the
present matter was the same as the one in Fidelity
Guards.
I accordingly reject the applicant's contention
that the arbitrator did not have any jurisdiction to
entertain this dispute.
It was also argued on behalf of the applicant that
the decision to grant the severance package lies with
the Minister concerned. It was therefore submitted
that the granting of the VSP is not a benefit or a
right to any employee. The implications of this
submission is that the arbitrator did not have
jurisdiction and again on this point, this was not
raised before the commissioner when the matter was
arbitrated.
It was never at any stage suggested to the
witnesses or in argument before the commissioner that
he had no jurisdiction with regard to a decision
regarding the VSP.
On the contrary, both parties participated in the
arbitration and approached the dispute as an unfairly
practice. The applicant created a special arrangement
in terms of which employees could volunteer to have
their services terminated.
This dispute which the second respondent referred
for consiliation and arbitration related to the
inconsistency in the application of the collective
agreement on voluntary package. In other words, the
dispute related to the manner in which the agreement
was applied. The agreement, in my view, when applied
created a benefit to the employee. This, in my view,
brings the dispute within the ambit of item 2 of
Schedule 7, which defines an unfairly practice as
involving:
"The unfair conduct of the employer relating to the
promotion/demotion or training of an employee or
relating to the provision of benefits to an employee."
The benefit would therefore, in my view, include
an advantage afforded to the employee.
The applicant referred me to the case of Schoeman
and Another v Samsang Electronics SA (Pty) Ltd 1997 18
IFJ 1098. That case dealt with the remuneration and
the court found that the benefit does not include the
remuneration. This case is accordingly, in my view,
not relevant.
I was also referred to the case of Gaylard v
Telkom SA Ltd 1998 19 ILJ 1642 LC. In my view, this
case does not assist the applicant. This case dealt
with the payment of accumulated leave pay and
therefore it is not relevant to the case where a
dispute involves the agreement relating to the payment
of the voluntary severance pay.
However, in Imperial Cold Storage and Supplying
Company Limited v Field 1993 14 ILJ 1221 LAC, a case
decided under the 1956 Labour Relations Act, the court
at page 1229, paragraph A to F stated the following:
"The point remains that to the extent that the fairness
requires payment of a retrenchment package over and
above the application of other guidelines, including
fair prior notice of retrenchment, there is no reason
why the Industrial Court should not be able to
determine this and where appropriate, the amount of
such severance package under the unfairly practice
jurisdiction."
This question was also dealt with in the matter of
Burman Katz Attorneys v Brandt NO and Others 2001 22
ILJ 128 LC. This case was referred to by the
applicant.
This case, however, illustrates the fact that the
commission cannot decide the dispute concerning the
severance pay. In my view, whether that question
arises from the provisions of the Basic Conditions of
Employment Act, Section 196 of the Labour Relations
Act, or arising from the collective agreement, it does
not matter.
The fact that the Minister has the final say with
regard to the granting of the VSP does not mean that
its decision cannot be challenged in an unfair practice
is found to exist. The employee has a right not to
have an unfairly practice visited upon him. In this
case I also refer to the Imperial matter referred to
above at page 1228, paragraph AB.
In the light of what I have said above the
arbitrator can force compliance with the collective
agreement to resolve an injustice perpetrated upon the
employee.
It is therefore my view that the arbitrator was
entitled to deal with this matter and deal with the
collective agreement that had been entered into by the
parties.
Another point raised, was the inconsistency. It
was submitted on behalf of the applicant that there was
no evidence supporting the inconsistencies and that the
second respondent considered that there were no
inconsistencies.
The second respondent set out the names of the
people who were granted severance packages and this was
not disputed. The applicant, however, has not
challenged the findings of the arbitrator regarding the
inconsistencies. Allegations were made that there was
no evidence to support such a finding.
The examination of the award shows that the
inconsistency was found by the arbitrator on the
failure of the employer, the department, to consult the
employee. It was submitted on behalf of the applicant
that the consultation was required if the application
for the severance package was accepted, and therefore
no consultation was required.
It was further submitted that consultation with
the respondent did take place. In my view, these two
submissions are inconsistent with each other. It can
either be that consultation took place or did not take
place.
There is no evidence that the second respondent
was consulted regarding his application before it was
refused and in fact, it was not submitted on behalf of
the applicant that such consultation did take place.
The applicant, however, submits that the
consultation could take place after the granting of the
severance pay, whereas the arbitrator is of the view
that it should take place as the application is
considered. This, in my view, is a difference in the
interpretation of the clause of the agreement and it is
therefore my view that the award cannot be reviewed on
the basis of a wrong interpretation given by the
arbitrator on the clause relating to the consultation.
Whether the interpretation is correct or wrong, it is
not for the court to decide.
Another reason for finding inconsistency was that
the first application was refused on the basis that the
respondent was not close to retirement, when in fact
others were given severance package on the basis that
they were close to retirement and this was not applied
in respect of the second respondent.
The second application was refused because a new
approach had been adopted which was in fact a shifting
of the goal post. The respondent was not given any
reason for such a refusal. These reasons set out by
the arbitrator have not been challenged by the
applicant. In my view, the arbitrator set out his
reasons based on the evidence presented. He concluded
that the conduct of the respondent was arbitrary,
inconsistent and unfair.
This conclusion has not been challenged by the
applicant in this review. I therefore have to accept
that the first respondent gave fair reason for his
findings.
It was also argued that there were no reasonable
expectations given to the second respondent. It was
submitted that the Minister did not promise anything to
the respondent. It was further submitted that there is
nothing in the agreement saying that people nearing
retirement should be allowed the VSP.
This submission is correct, but it overlooks the
fact that the respondent was advised that the others
were granted SVP because they were nearing retirement
and in fact, they did get VSP on the basis of this.
When it came to the second respondent this did not
apply. The respondent, in my view, reasonably expected
that when he was nearing retirement he would also be
considered in granted a severance package. His
expectations were reasonable and were created by the
employer and therefore the shifting of the goal post
caused an unfairness on the part of the second
respondent.
I therefore cannot find anything wrong in the
arbitration award with regard to the reasonable
expectation found by the arbitrator.
Another point raised was that the second
respondent wanted a mandamus and that the commissioner
had no power to order it and also that there were no
requirements set out by the second respondent.
Again this point it was never raised before the
commissioner that the second respondent wanted a
mandamus which the commissioner could not grant.
Be that as it may, this argument runs contrary to
the prearbitration agreement reached by the parties,
that if the finding is made in favour of the second
respondent, the respondent would be entitled to be
granted the VSP. I therefore fail to understand the
submission because it was agreed that if such a finding
is made against the applicant, the VSP would then
follow.
Why this was agreed if the commissioner had no
power to order it, escapes my mind. I do not want to
think that the applicant was not bona fide when it
engaged in the arbitration proceedings. The
commissioner, in my view, ordered what the parties had
agreed in the prearbitration agreement, in the event
of a finding in favour of the respondent.
I therefore reject the submission that the second
respondent wanted a mandamus which arbitrator could not
grant. In my view, that was agreed by the parties
before the arbitration.
In the light of the above, I cannot find any
defect in the award. In my view, the award is
justified for reasons given. The award may seem
unreasonable in the eyes of the applicant for reasons
submitted. It was contemplated by the law makers that
some awards may be unreasonable but still be allowed to
stand, as long as they are justifiable for reasons
given.
In the present case I am satisfied that the
reasons given by the arbitrator do justify the award
given. In the circumstances the review cannot succeed
in respect of all the grounds raised by the applicant.
I accordingly make the following order:
The application for review is dismissed.
The applicant is ordered to pay the cost.