IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
REPORTABLE
CASE NO: D1646/02
DATE HEARD: 2005/02/08
DATE DELIVERED: 2005/02/11
In the matter between
DEPARTMENT OF PUBLIC WORKS APPLICANT
and
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL 1ST
RESPONDENT
R RHEEDER N.O. 2ND
RESPONDENT
PAWUSA 3RD RESPONDENT
D DU TOIT 4TH RESPONDENT
________________________________________________________
JUDGMENT DELIVERED BY
THE HONOURABLE MADAM JUSTICE PILLAY
ON 11 FEBRUARY 2005
________________________________________________________
ON BEHALF OF APPLICANT: MR NTSHEBE
ON BEHALF OF 4TH RESPONDENT: MS A GOVENDER
D1646/02-NB/CD - 2 - JUDGMENT
JUDGMENT 11 FEBRUARY 2005
PILLAY D, J
[1] This is an application to review the award of the second
respondent arbitrator. The fourth respondent
employee was employed by the applicant in 1986 as
an artisan. From 1 August 1993 to 1 August 1997 he
acted in the post of Artisan Foreman. Since 1999 he
acted as Senior Artisan Superintendent. He was not
compensated for acting in these positions. The
duration of the acting appointments were also unduly
long.
[2] Aggrieved, the fourth respondent referred a dispute in
terms of item 2(1)(b) of the Labour Relations Act
No 66 of 1995 to the first respondent bargaining
council, alleging an unfair labour practice relating to
the failure to promote him.
[3] The arbitrator issued an award declaring that the
applicant committed unfair labour practices in not
promoting or compensating the fourth respondent for
the period 1 August 1993 to 1 August 1997 (the first
appointment) and 7 June 1999 to the date of the
arbitration (the second appointment), and that the
applicant callously disregarded the provisions of
section 32 of the Public Service Act Proclomation 103
of 1994 (PSA), which stipulates that acting
appointments should be temporary.
[4] She ordered the applicant to promote the fourth
respondent to the rank of Artisan Foreman and Senior
Artisan Superintendent, respectively, for the relevant
D1646/02-NB/CD - 3 - JUDGMENT
periods. She also awarded the fourth respondent’s
and the bargaining council’s costs of the arbitration
to be paid by the applicant.
[5] The applicant pleaded that the arbitrator had exceeded
her powers, committed misconduct and gross
irregularities and rendered an irrational and
unjustifiable award. The applicant was in the process
of shutting down the workshop. Staff who left the
employ of the applicant were not replaced. It was
common cause that the position of Senior Artisan
Superintendent had been abolished.
[6] The question that was not canvassed before the
arbitrator or in these proceedings until it was brought
to the attention of the parties is whether an acting
appointment can be made to a post that has been
abolished. The matter was stood down to the
following day to enable the representatives to
prepare to address the Court on this issue.
[7] Mr Ntshebe, for the applicant, submitted that the
appointment to act in a post that did not exist was
illegal and invalid. Mr Donachie, for the fourth
respondent, countered firstly, that the executing
authority, per the Minister, had the power to create
and abolish posts and to appoint persons additional to
the fixed establishment to perform work of a
temporary nature (section 3(5) read with section 1 of
the PSA).
[8] The executing authority therefore had the power to
appoint the fourth respondent to act in a capacity that was not
a post on the fixed establishment. (Section 3(5)(b) of the PSA;
D1646/02-NB/CD - 4 - JUDGMENT
Public Service Regulations part 3(2)(c), (g) and (f).)
[9] Secondly, it was common cause that the acting
appointment was effected in terms of section 32 of
the PSA. The fourth respondent was obliged to follow
the directive to act in the post. As the directive was
issued in terms of section 32, no agreement was
concluded between the parties that the fourth
respondent would act in the higher post.
[10] Thirdly, if there was any agreement to act, it was not
illegal when it was concluded but could have become
so after twelve months had expired as acting
appointments may not exceed twelve months.
[11] In my view, it is an elementary principle of the rule of
law that Government officials must exercise their
powers lawfully. In this case the executing authority
had the power to make appointments, including
appointments additional to the fixed establishment on
a temporary basis. It also had the power to issue
directives in terms of section 32 of the PSA. Both
provisions are sufficiently wide to encompass the
power to make acting appointments. When making
an acting appointment, however, the executing
authority has to exercise that power in compliance
with the regulations. The material provisions of the
regulations and policy are that the post to which the
acting appointment is made must be vacant and
funded; that the appointee be compensated; that
the period of appointment be uninterrupted and
longer than six weeks but not longer than twelve
D1646/02-NB/CD - 5 - JUDGMENT
months. (Regulation B5, chapter 1, part 7 of the
Public Service Regulations of 2001, Government
Notice R1, Government Gazette 21951, as amended;
resolution No 1 of 2002 of the General Public Service
Bargaining Council.)
[12] A post that is abolished does not exist. No appointment
can be made to a post that does not exist. As the
post does not exist it is not funded. If a post is not
funded it follows that the executing authority will not
be able to comply with the compensation
requirements of the regulations. The executing
authority acted ultra vires in making an acting
appointment to a post that did not exist, was not
funded and for a period exceeding twelve months.
[13] The appropriate remedy therefore is to restore the
parties as far as possible to their status prior to the
appointment.
[14] The arbitrator approached the issues not from the
perspective of the legality of the applicant's actions
but the fairness of them. The applicant's conduct in
not promoting or compensating the fourth respondent
fell within the definition of unfair labour practice in
item 2(1)(b) of the LRA. In respect of the second
appointment the arbitrator found that the applicant
had been unjustly enriched at the expense of the
fourth respondent's career. Not only is this finding
factually correct but also, as a matter of law, it is
unfair to appoint a person for a lengthy period
without compensation. That finding was sufficient to
D1646/02-NB/CD - 6 - JUDGMENT
declare the conduct of the applicant to be an unfair
labour practice in relation to the second acting
appointment.
[15] Whether the dispute relating to the first appointment fell
within the arbitrator's terms of reference is not
evident from the papers. However, it is not a point
that was specifically taken by the parties. The
arbitrator, however, acted ultra vires in making any
award in regard to the first acting appointment,
firstly, because the fourth respondent failed to lodge
a dispute within a reasonable time after that unfair
labour practice arose. Secondly, he was
subsequently appointed to the post in which he
acted. Thirdly, the arbitrator applied the LRA
retrospectively to a period before 11 November 1995,
when it came into operation.
[16] The award in respect of the second appointment is also
ultra vires because no post existed to which the
fourth respondent could be promoted. Furthermore,
the respondent did not meet the minimum
requirements of the post, a fact that the arbitrator
should have established before she promoted the
fourth respondent.
[17] With regard to compensation for the second
appointment, the applicant should restore to the
fourth respondent the amount by which it has been
unjustly enriched. The amount of compensation
payable for acting appointments must be determined
by the Minister through the collective bargaining
D1646/02-NB/CD - 7 - JUDGMENT
process. (Regulation B5.1). That amount is to be
calculated on the basis of the difference between the
salary notch of the employee and the commencing
notch of the higher post. (Paragraph 3.1.3 of
resolution No 1 of 2002 of the GPSSBC). The
regulation came into effect on 1 January 2001. The
resolution came into effect on 1 April 2002. The right
to compensation accrued on 1 January 2001. Only
the method of computing the compensation was
resolved later. In deference to the collectively agreed
method of calculating compensation for acting
appointments, it is fair to apply that computation to
the period 1 January 2001 to 17 October 2002, the
date of the arbitration award. As regards the period
7 June 1999 to 31 December 2000, that is the period
before the regulations authorising compensation
came into effect, the fourth respondent is not entitled
to any compensation because the applicant had no
authority to pay him compensation. Furthermore, he
agreed to act in the position without compensation.
He acknowledged that he was free to refuse to do so.
Given the relatively short period of the acting
(1½ years) which, when considered with the
agreement to act without compensation, the
unfairness is not obvious. It became so with the
effluxion of time. If the respondent was aggrieved
then he should have launched these proceedings
sooner.
[18] The basis of my finding of unfairness is the illegality of
the appointment, as well as the fact that the
applicant was unjustly enriched by the services
D1646/02-NB/CD - 8 - JUDGMENT
rendered by the fourth respondent.
[19] With regard to the arbitrator's award of costs against the
applicant, the fact that the review succeeds
substantially implies that the applicant's opposition at
the arbitration cannot be said to have been frivolous
or vexatious. In this regard too the arbitrator acted
ultra vires her powers.
[20] As neither party appeared to be aware of the illegality of
the appointment the appropriate order for costs
would be to make none.
[21] The order I make is the following:
(1) The application for review is granted with no
order as to costs.
(2) The arbitrator's award is substituted with the
following:
(a) The applicant is directed to compensate
the fourth respondent for the period 1
January 2001 to 17 October 2002, such
compensation to be calculated on the
basis of the difference between the salary
notch of the employee (fourth respondent)
and the commencing notch of the higher
post of Senior Artisan Superintendent.
(b) There is no order as to the costs of the arbitration,
including the costs of the bargaining council.
(3) Any dispute about the computation of the award
D1646/02-NB/CD - 9 - JUDGMENT
for the period 1 January 2001 to 17 October
2002 may be referred to the bargaining council.
__________
Pillay D, J
28 April 2005