IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: JR391/04
In the matter between:
NATIONAL COMMISSIONER OF THE
S.A. POLICE SERVICE APPLICANT
AND
SENIOR SUPERINTENDENT A.S. BASSON 1
ST RESPONDENT
C.J. WESSELS NO. 2
ND RESPONDENT
SAFETY AND SECURITY SECTOTIAL
BARGAINING COUNCIL 3
RD RESPONDENT
JUDGMENT
NGCAMU A.J.:
[1] This an opposed application for the review and setting aside of the arbitration
award issued by the second respondent
[2] The first respondent occupies the post of lega l administration officer at the
rank of senior superintendent at level 2 of the sal ary range applicable in the
SAPS. He wanted to be promoted to the higher rank o f senior legal
administration officer at a salary range of level 12 whilst at the rank of senior
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superintendent. He referred an unfair labour prac tice to the third respondent as
a result of the applicant’s failure to promote him to the position of senior legal
administration officer. The dispute could not be re solved at the conciliation
stage and it was referred for arbitration.
[3] At the conclusion of the arbitration hearing th e arbitrator concluded that the
first respondent’s post was upgraded to senior lega l administration ( post level
12) in terms of the work study investigation dated 12 December 2002. He
found that the applicant had committed an unfair la bour practice by not
promoting the first respondents to the position of senior legal administrative
officer. The applicant was ordered to promote the f irst respondent as from 12
December 2002 and to pay compensation to the respon dent as senior legal
administration officer as from 12 December 2002.
[4] It is as a result of this finding that the app licant has sought to review and set
aside the award. The applicant contends that (a) th e arbitrator committed a
gross irregularity in the conduct of the arbitratio n proceedings.(b) In the
alternative, the arbitrator exceeded his powers alt ernatively the award is not
justifiable as to the reasons given.
[5] The issue the arbitrator was required to decide was whether the applicant had
committed an unfair labour practice by not promotin g the first respondent to
the position of senior legal administration officer post level 12 from 1
February 2002.
[6] The relief sought was promotion to the positio n of senior legal administration
officer post level 12 from I February 2002 alternat ively, payment of
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compensation calculated on the difference between h is current salary and the
salary he would have earned had he been promoted. H e also sought indemnity
against any disciplinary, civil or criminal prosecu tion as a result of the
services and functions he performed.
[7] At the arbitration hearing only the first resp ondent gave evidence. No
evidence was led on behalf of the applicant. The first respondent bore the onus
of proving that the applicant had committed an unfair labour practice.
[8] The first respondent’s version was that he was appointed legal officer on 1
March 2000 by the Head of Legal Services, Director D.D. Pistorious. He was
instructed to perform all functions or competencies and obligations attached to
the component legal services in the absence of the Director. Some of the
functions were delegated by the National Commission er to be performed by a
functionary holding a rank of senior administrative officer attached to the legal
services. No senior legal administration officer ha d been appointed. The
Provincial Commissioner was informed of this by let ter dated 22 February
2002. Director Pistorious indicated that the first respondent’s post had to be
reviewed. The matter was taken up with the applican t. There was no
communication from the applicant.
[9] The divisional commissioner indicated that th e post was not subject to
evaluation process. The first respondent enquired why the upgrading of the
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post of legal administrative officer was not consid ered. The first respondent
was requested to continue performing the duties he performed/
[10] A work study investigation was performed by ef ficiency services concerning
the establishment of a legal services structure at Provincial and area level. The
structure was recommended for legal services. The r ecommendations were
approved on the 15 November 2002 by the Deputy Nati onal Commissioner
Eloff and circulated to the Provincial Commissioner on 12 December 2002.
[11] Resolution 7/2002 dated 20 December 2002 indicated that two (2) senior
superintendent posts were allocated to the legal ad visory services in the
Northern Cape. One was filled by the first responde nt. The first respondent
was never appointed senior legal administration officer.
[12] It was common cause that Director Pistorious c ould not delegate functions or
power delegated to him. It was conceded that the fi rst respondent’s post was
not evaluated in February 2002. The commissioner fo und that if the work
study investigation is read with consolidation noti ce2/02, the 1 st respondent’s
position was upgraded to senior legal administratio n officer. He further found
that the first respondent had performed the duties of senior administration
officer for 22 months and therefore his post had be en upgraded. The
commissioner was at pains to agree that the work st udy did not distinquish
between senior superintendent on post level 11 and post level 12. The
commissioner however, found that no other inference could be drawn but that
the first respondent’s post had been upgraded.
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[13] The first respondent’s case is that the approv al of the formal structure for
legal services upgraded his post and gave him the r ight to promotion. It would
seem that on this line of argument, it is not neces sary to place a date of
implementation of the new structure as the approval automatically puts the
new structure into implementation.
[14] The employment of the members of the South Afr ican Police Services is
regulated by the South African Police Act 68 of 199 5 as well as the
Regulation.
[15] The grading and the remuneration of members is regulated by Regulation 24.
It is important to set out this regulation in full. The regulation states that:
“ (1)
The National Commissioner must determine the grade of a post to
correspond with its job weight and set the commenci ng salary of an
employee on the minimum notch of the salary range a ttached to the relevant
grade, unless the salary proves inadequate under th e criteria in sub
regulation(3)
(2) if a job has a weight that applies more than o ne salary range, the National
Commissioner may set the salary for a post or an em ployee above the
minimum notch of the salary range indicated by the job weight_____
(a) if she or he has evaluated the job, but cannot recruit or retain an employee
with the necessary competencies at the salary indic ated by the job weight,
and,
(b) she or he shall record the reasons why the sal ary indicated by the job weight
was insufficient.
(4) if the job weight demonstrates that a filled p ost is over graded or under
graded, the National Commissioner must either effec t changes to the work
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organisation or regrade the post according to the j ob weight and the relevant
collective agreements as provided for in sub regulations (5), (6) and (7).
(5) The National Commissioner may increase the sala ry of a post to a higher
salary range in order to accord with the job weight, if______
(a) the job weight as measured by the evaluation sy stem indicates that the post
was graded incorrectly and
(b) the budget of service and the medium term expe nditure frame work provide
sufficient funds.
(6) if the National Commissioner raises the salary of a post as provided under
sub regulation (5), she or he may continue to emplo y the incumbent
employee in the higher- graded post without adverti sing the post if the
incumbent-
(a) already performs the duties of the post,
(b) has received a satisfactory rating in her or h is most recent performance
assessment, and
(c) starts employment at the minimum notch of the higher salary range.
(7) if the National Commissioner determines that the salary range of an
occupied post exceeds the range indicated by a job weight, she or he
must________
(a) if possible______
(i) redesign the job to equate with the post grade, or
(ii) transfer the incumbent to another post on the same salary, range, and
(b) abide by relevant legislation and collective a greements
(8) As far as possible, the National Commissioner must set the salary of a part-
time sessional or temporary employee proportional t o the salary of an
equally graded fulltime employee”
[16] In terms of the regulation if the post is upgr aded, the National Commissioner
may decide to advertise the post or retain the incumbent in the same post if the
provisions of sub regulation (6) are satisfied.
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[17] I am of the view that the findings by the comm issioner that the first
respondent’s post was upgraded is rational and cann ot be reviewed for the
reasons that follow. The third respondent was performing functions he was not
permitted to perform. The National Commissioner was aware of this. The
work study was undertaken in order to evaluate the legal administration
structure for the purpose of rendering efficient se rvice. The structure was
recommended which was later approved. The level of the first respondent’s
post was placed at a higher level. He was not told to stop performing his duties
after the approval of the new structure. He perform ed his duties as before. The
fact that the first respondent continued to perform his duties implies that his
post was considered to be at a higher level. The fa ctors considered cannot be
said to be irrational or that he exceeded his power s. The applicant did not give
evidence to dispute that the post level was upgraded.
[18] It was common cause that the National Commiss ioner did not advertise the
post which had been regraded in terms of the work study. The third respondent
continued to work in the post. The Commissioner ack nowledged that the
National Commissioner did not expressly exercise hi s discretion of either
advertising the post or keeping the incumbent in th e same post. He however,
came to the conclusion that the National Commission er did exercise his
discretion because he received the work study inves tigation on 12 December
2002 and continued to employ the first respondent in the higher graded post.
[19] The next question to be considered is whether the award compelling the
applicant to promote the third respondent is ration al. It was submitted on
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behalf of the applicant that there is no obligation on the applicant to promote
the respondent to the post even if the post had bee n upgraded. The respondent
submitted that the failure of the applicant to exer cise his discretion to promote
the first respondent brings the inference that the applicant exercised his
discretion.
[20] In terms of sub-regulation (4), once the Natio nal Commissioner has decided to
either effect changes to the post or regrade it, he has to act in terms of sub-
regulations (5),(6) and(7). Before the commissioner decides to increase the
salary of a post to a higher salary range, he or sh e is obliged to consider if the
budget of the service and the medium term provide sufficient funds to increase
the salary.
[21] If the salary of the post is raised the commis sioner may continue to employ the
incumbent in the higher graded post instead of adve rtising the post if the
incumbent meets the requirements of the sub-regulat ion (6) (a), (b) and (c).
The first respondent contends that he met these requirements.
[22] Ponnan J in the unreported case of The Nationa l Commissioner of the South
African Police Service v The South African Police Union & Other (unreported
case no. 28812/2002(TPD) delivered on 31/10/03, dea lt with the upgrading of
the post. In paragraph 19 of the judgment, the lear ned judge stated:”
The
upgrading of the incumbent’s post, creates notional ly at least, a new vacant post, for which the
applicant is free to compete together with other su itably qualified candidates. In those
circumstances, to confer upon an incumbent a right, to the exclusion of others, to the
9
redesigned post, even if it bears little resemblance to the post previously occupied by her/ him,
is untenable. Such an approach, equates, erroneousl y so, incumbency in a particular post with
the right of employment in the police service. It b ears noting, that a number of the SAPS
,although employed in public service is deployed to a particular post. For the duration of the
member’s employment, s/he may be deployed to a vary ing number of different posts in the
police service”
[23] I fully agree with Ponnan J, the upgraded of the post does not give the right to
the incumbent of an automatic promotion. The first respondent was deployed
to the legal services and it is upon the commission er to redeploy him to
another post. The upgrading of an occupied post doe s not result in the
promotion of the incumbent. The commissioner is obl iged to follow the steps
provided for in Regulation. The upgrading creates a vacant post which the
employer may decide to fill or not to fill.
[24] In paragraph 23 Ponnan J, further stated:
“
Within the framework of the regulations, promotions are made only after the post in
question is advertised. If the retention of an incu mbent in a post with an increase salary was in
each case intended to occur absent the process of a dvertising, the use of the word”may” by the
drafter is irreconcilable with that intent”
I agree with this approach.
[25] The advertisement for the filling of the post is required for the purposes of
transparency. The incumbent in the upgraded post is protected against the lost
of the job but not against competition from other p eople who may be
interested in the higher position. There is no enti tlement to an automatic
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promotion to a more senior rank upon the decision t o continue to employ the
incumbent in a post which has been regraded to a higher grade.
[26] I can find no reason to differ from the conclu sion made by Ponnan J. The
arbitrator came to the conclusion that:
“I am of the opinion that the applicant would only be entitled to promotion if
he can prove on a balance of probabilities that the respondent acted unfairly by
not promoting the applicant. I have already indicat ed that I am of the opinion
that the respondent’s conduct toward the applicant as a whole, was unfair.
[27] The applicant has not filled the post in an ma nner that can be said to have been
unfair to the first respondent. The unfairness refe rred seems to sterm from the
fact that the commissioner has not made his decisio n whilst allowing the first
respondent to perform the duties of a senior legal administration officer. It is
also based on the erroneous view that because the f irst respondent has not
been accused of not acting in the interest of the a pplicant, he is entitled to
promotion. This view is erroneous because the commi ssioner is obliged to
comply with the principle of transparency.
[28] I agree with the arbitrator that the first res pondent ran the risk of disciplinary
action against him as well as the possibility of ci vil or criminal proceedings
being instituted against him. It must however be noted that the first respondent
took that risk and continues to do so. He conceded that the director could not
delegate the delegated powers to him.
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[29] I have mentioned that the National Commissione r is enjoined to consider the
availability of funds when increasing the salary of a post to a higher salary
range. The commissioner did not consider that. Ther e was no evidence
provided by the first respondent regarding the sufficiency of funds. Even if the
funds were available, the respondent does not have a right to promotion to a
higher post.
[30] I cannot find any unfair labour practice wher e the post has not been given to
another person and the first respondent side lined. The National Commissioner
retains a discretion to appoint or promote a member in the SAPS in a manner
that is transparent and open. The failure to promot e an incumbent in an
upgrade post cannot constitute unfair labour practice.
[31] Another difficulty with the respondent’s case is that the powers delegated to
him could not legally be delegated. He therefore ca nnot claim any right to the
position. He cannot have any legitimate expectation to a position he does not
lawfully occupy.
[32] It is on these basis that the arbitrator’s aw ard is irrational. The commissioner
did not take into account the fact that the commiss ioner has a discretion to
promote a member. If he does , he has to satisfy hi mself that he complies with
the Regulation 24.
[33] In the result the application should succeed. The next question I need to
consider is whether the costs should follow the res ult. In coming to the
conclusion that I should not make an order for cost s, I have taken into account
the fact that there is an existing employment relat ionship between the parties.
The situation which caused the respondent to refer a dispute was created by
the inaction of the applicant to make an appointment. The respondent has been
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allowed to perform duties not lawfully delegated to him. This placed the
respondent in a difficult position. In the light of that, to burden him with costs
would be unfair.
The order I make is the following:
(a) The award is reviewed and set aside.
(b) There is no order as to costs.
__________________________
NGCAMU A.J.
DATE OF HEARING:
DATE OF JUDGMENT:
FOR THE APPLICANT:
FOR THE 1
ST RESPONDENT: