Sneller Verbatim/idm
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1664/02
2003-04-29
In the matter between
Applicant
and
COMMISSION FOR CONCILIATION 1st Respondent
MEDIATION & ARBITRATION
SOUTH AFRICAN NATIONAL
TUBERCULOSIS ASSOCIATION 2nd
___________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN J: The applicant in this matter is Mr Thabo Nqhome.
The first respondent is the CCMA. The second respondent is
the South African National Tuberculosis Association, the
employer of the applicant, and the third respondent is
Commissioner Mthombeni. The applicant has applied for the
third respondent to be joined in these proceedings. That
application was granted.
The applicant referred a dispute to the CCMA for
conciliation and thereafter for arbitration. In his referral for
conciliation he says the following:
"With effect from 1 October 1999 the employer promoted the
employee to a senior post, but has failed to pay the employee
the remuneration attaching to the senior position. The
employer has breached the written condition of employment."
The applicant requests the following result :
"An order that the employer fulfil its contractual obligation and
compensate the employee according to the rate for the job."
The CCMA was unable to resolve the dispute and it proceeded
to arbitration. In his referral of the dispute to arbitration, the
applicant states that the following decision is sought from the
Commissioner:
"An order to the effect that the other party pay the referring
party the salary attaching to the position to which the referring
party was promoted with effect from 1 October 1999."
The matter proceeded before Commissioner Mthombeni who
handed down an award on 11 September 2002. The
commissioner says in paragraph 8 of the award:
"It is common cause that the employee was moved to the
technical services manager position. However, it is in dispute
whether such move constituted a promotion and, therefore
with the increased salary attached to the position. The
employee conceded that the purpose of the move was for him
to understudy the position and no formal appointment was
made. Despite this, he maintained that he had been
promoted.
The LRA does not define the word ‘promotion’. F Barker and
M Holtzhouse in the South African Labour Glossary Juta (1999)
119 define ‘promotion’ as a ‘process of advancing employees
to positions that usually have more responsibilities, increased
salaries and improved benefits’. The South African Pocket
Oxford Dictionary define ‘promote’ as to ‘raise to a higher rank
of office’.
From this perspective I cannot find that the employee
was promoted. The position in question was senior. It is,
therefore, reasonable to expect the employer to formalise the
appointment. Moreover, the employee, and person of his
calibre, should have insisted on this being done. There is
adequate evidence that the position in dispute was stripped of
some functions. Therefore the employee's contention that the
position had more responsibilities cannot be sustained. If
anything, the employee is entitled to an acting allowance.
In the light of the above, I cannot find that the employer
committed an unfair labour practice relating to the employee's
promotion.”
The applicant is dissatisfied with this award and seeks to
review and set it aside in terms of section 145 of the Labour
Relations Act 66 of 1995. It is not the applicant's case that he
was not promoted. He says specifically that he was promoted.
What he wants is the remuneration which is commensurate
with that post. Thus, he contends, the failure of the employer
to pay that remuneration constitutes an unfair labour practice.
Clearly it does not. Does the failure of an employer to pay
remuneration to an employee who has been promoted or who
alleges that he has been promoted constitute "unfair conduct
of the employer relating to promotion" ( See item 2(1)(e) of
the 7th schedule to the LRA) ?. Again the answer must be no.
The applicant's claim is for money. He may pursue this claim
as a dispute of right. It is not a claim adjudicable by the CCMA
under its unfair labour practice jurisdiction.
In the premises therefore the application is dismissed.
SIGNED AND DATED AT BRAAMFONTEIN ON 27 MAY
2003
__________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT: MR THABO NQHOME