Department of Military Veterans v Moche and Others (JR1450/17) [2022] ZALCJHB 44 (7 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR1450/17

In the matter between:

DEPARTMENT OF MILITARY VETERANS

Applicant

and

J MOCHE

First Respondent

GENERAL PUBLIC SERVICE

SECTOR BARGAINING COUNCIL

Second Respondent

PM NGAKO N.O. Third

Respondent

Heard: 16 and 17 February 2022

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down are deemed to be 07 March 2022.

JUDGMENT

MAKHURA, AJ

Introduction

[1] This is an application to review and set aside the arbitration award dated 14 May 2017. The application is brought by the Department of Military Veterans (applicant) after the commissioner declared that the applicant committed an unfair labour practice and ordered that the first respondent be paid a total amount of R612 966.20.

[2] The amount was for the difference in salary that the first respondent should have received for the period 1 August 2013 to 10 June 2016. It was calculated as follows:

R53 357.70 for 2013 – 2014;

R190 513 for 2014 - 2015; and

R168 895.00 for 2015 - 2016.

Material facts

[3] The first respondent was employed as a transport officer, a level 6 position. In or before 2013, Lieutenant Colonel Breytenbach was seconded to the applicant at level 10 as a transport manager. The transport manager

was seconded to assist the applicant to set up a transport division in its initial organisational structure. The first respondent

reported to Colonel Breytenbach.

[4] In or about July 2013, the transport manager passed on. The first respondent took over the transport manager’s responsibilities from July 2013, which added to his scope of work but he was not remunerated for performing these added responsibilities.

[5] In or about June 2015, the first respondent made a request for his post to be evaluated. The first respondent stated in his request that since the passing of the transport manager, he had been entrusted with his responsibilities. His proposal for job evaluation was then amended by the applicant which decided that it would evaluate the functions performed by the first respondent.

[6] On 3 December 2015, a report was compiled dealing with the first respondent’s request. This report was however only communicated or made available to the first respondent on 10 June 2016. In this report, the applicant concluded that it could not perform a job evaluation as it did not have an organisational structure. The report made recommendations that included allocating a higher notch to the first respondent, a higher bonus or both, or to approve a secondment

of an official from the Department of Defence to assist the first respondent. The applicant’s acting director amended and

approved a secondment or to seek and appoint a candidate on a contract basis.

[7] On 29 June 2016, the first respondent declared an unfair labour practice dispute in terms of section 186 of the Labour Relations Act[1] (LRA) and referred it to the General Public Service Sectoral Bargaining Council (GPSSBC or second respondent) relating to benefit.

In his referral, he stated that the dispute arose on 10 June 2016. He explained in his referral that he sent a written request to the applicant to do a job evaluation of his post and that he received the outcome on 10 June 2016 to the effect that he could not be upgraded to level 10.

[8] Under summary of facts, the first respondent stated that he believed that the applicant committed an unfair labour practice for failing to upgrade him from a level 6 to a level 10 position. The relief he sought was to be upgraded to a level 10 position. It was however common cause between the parties, even at arbitration proceedings, that the applicant did not have a level 10 position.

[9] Although the commissioner dismissed the first respondent’s claim to be upgraded to level 10, he ordered the applicant to pay the first respondent the difference in salary between the level 6 and level 10 positions.

The review application

[10] The applicant applied to review and set aside the award. The grounds of review raised by the applicant relate to the findings made by the commissioner.

[11] When the matter came before me on 16 February 2022, I raised, mero motu, the issue relating to the GPSSBC’s jurisdiction to arbitrate the dispute. I raised this issue, having considered the following:

11.1 Section 191(1)(b)(ii) of the LRA provides that a dispute about an unfair labour practice should be referred within 90 days of the act or omission which allegedly constitutes the unfair labour practice, or if it is at a later stage, within 90 days of the date on which the employee became aware of the act or omission. Of course, the GPSSBC may allow the employee to refer the dispute outside the time period on good cause shown. 11.2 The GPSSBC appeared to have assumed jurisdiction without considering whether it was properly clothed with such, particularly in light of the first respondent’s claim to be paid the difference in salary from August 2013, which was almost 3 years back pay. The dispute was only referred on 29 June 2016 and the fact that the first respondent indicated that the dispute arose on 10 June 2016 does not change the actual date when the dispute arose. The issue is that the referral was made outside the time prescribed for referring such disputes and that in the absence of an application for condonation, the GPSSBC may not have had the necessary jurisdiction.

11.3 The Constitutional Court in Commercial Workers Union of South Africa v Tao Ying Metal Industries and Others[2] has held that a Court is enjoined to raise a point of law that is apparent on the papers and require the parties to deal with such point, even where the parties did not raise the point and proceeded on a wrong perception. If the Court does not raise the point with the parties and require the parties to deal with it, it would result in a decision premised on an incorrect application of the law and would infringe the principle of legality.

[12] I gave the representatives an opportunity to discuss how they intend to deal with the matter. They proposed that the matter should stand down until 14h00 on 17 February 2022 to allow them to prepare arguments on the matter and the jurisdictional issue raised by the Court. The Court acceded to the parties’ request.

The GPSSBC’s jurisdiction

[13] The applicant argued in terms of section 191(1)(b)(ii) of the LRA that the GPSSBC did not have jurisdiction because the dispute was referred late and there was no application for condonation. The applicant submitted that the act or omission occurred in July 2013, alternatively that the first respondent became aware of the act or omission in June 2015

when he made a request for job evaluation. The applicant argued that the following extract from the first respondent’s request for job evaluation shows that he was aware of the act or occurrence in June 2015 or prior:

“Hence the contribution I have made by working above my own delegation I greatly feel that I am under compensated, receiving a salary of level 6. I have already raised a concern about my situation whereby I was requesting to be considered for ‘acting allowance’ and nothing was done about it.” (My emphasis)

[14] The first respondent argued that until 10 June 2016, the first respondent could not refer the unfair labour practice dispute because there was no dispute as the applicant had not communicated its decision to the first respondent in respect of his request for job evaluation. Accordingly, the argument was that the first respondent referred the dispute within the required 90-day period after he was informed of the applicant’s decision.

[15] I am unable to agree with the first respondent. Section 191(1)(b)(ii) makes no reference to the dispute being referred within 90 days of the dispute arising. It refers to “90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if at a late date, within 90 days of the date on which the employee became aware of the act or occurrence.”

[16] In Amalungelo Workers’ Union obo Mayisela and 29 Others v CCMA and Others,[3] the Labour Appeal Court held that:

“The ‘act or omission’ referred to in subsection (3) is clearly that which gave rise to the dispute. And the dispute, as long as it is the same one, only has one initial date on which it arose. The fact that the dispute is ongoing, in the sense that it recurs after it arose, may be because it is either never resolved, or satisfactorily resolved. But does that (sic) not imply that the parties, as it were, necessarily have a new ‘act or omission’ or ‘wrong’ every time the same dispute erupts again.”[4]

[17] Although the above judgment was decided in the context of section 198D of the LRA, the legal principle is the same. There can only be one date that gave rise to the unfair labour practice dispute.

[18] In casu, the act or omission that gave rise to the dispute arose in July 2013, or August 2013. The first respondent, prior to requesting a job evaluation, requested to be paid an acting allowance, which proves that he became aware of his right at that time to be paid for the additional responsibilities. Further, in June 2015 when he requested the job evaluation, he was aware of his right. On any reading of section 191(1)(b)(ii), the 90-day period cannot be said to run from the date when the employer communicates its decision of either the grievance referred by the employee or the demand or request made by the employee. This will not accord with the provision itself and will render the 90-day time limit completely useless.[5] If the employee lodged a grievance and the decision was communicated at a later stage such that the referral of dispute to the relevant bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA) is made outside the 90-day period, the fact that there was a grievance that took long to be resolved may be used to motivate for application for condonation.

[19] The commissioner should have, the moment he made such an award that was retrospective from 2013, enquired if he was legally empowered to make it. Put differently, he should have realised that he was not clothed with the

requisite jurisdiction to entertain the dispute and to make such an award, in the absence of an application for condonation for the late referral of the dispute. His failure to enquire and consider whether he had jurisdiction is a material error and, on that ground, the award is not sustainable and falls to be reviewed and set aside. Based on this finding, it is not necessary to deal with the other grounds of review advanced by the applicant dealing with the findings of the commissioner.

Relief

[20] Is this Court able to determine the jurisdictional issue? The first respondent argued that the referral was made within the 90-day period. Essentially, his argument is that there is no jurisdictional issue that needs to be

determined by the GPSSBC. This argument was advanced in the supplementary heads of argument submitted on the Court’s directions and during oral arguments. The first respondent however submitted that if the award is reviewed on the jurisdictional point, the matter should be referred to the GPSSBC. The applicant did not seriously oppose the latter submission to refer the matter to the

GPSSBC so as to afford the respondent to decide on whether to apply for condonation or to insist before a commissioner that the dispute was referred within the prescribed period.

[21] I do not think that this Court can determine this issue. This is because the first respondent was not given the opportunity to decide whether he wants to apply for condonation or whether he sticks to his guns and continues to allege that the matter was referred within the 90-day period. That, in my view, is a case that can only be properly ventilated before the GPSSBC and for the commissioner to decide. To substitute the award with an order dismissing the first respondent’s

claim will not accord with the audi alteram partem rule.

[22] Accordingly, it is my view that fairness dictates that the dispute be referred to the second respondent for the parties to be able to deal with the jurisdictional point.

[23] In the premises, the following order is made:

Order

1. The arbitration award issued by the third respondent under case number GPBC1333/2016 dated 14 May 2017, is hereby reviewed and set aside.

2. The matter is remitted to the second respondent for a hearing de novo before a commissioner other than the third respondent.

3. There is no order as to costs.

__________________________

M. Makhura

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Adv. Kollapen

Instructed by:

The State Attorney, Pretoria

For the First Respondent: Mr H. Pretorius of Pretorius Davies Incorporated

[1] Act No. 66 of 1995, as amended.

[2] (2008) 29 ILJ 2461 (CC); See also the decision of the Labour Court in CTR Protection Services (Pty) Ltd v Alex Wainwright NO and Others (JR2901/10) [2012] ZALCJHB 103 (4 October 2012) at paras. 7 to 14.

[3] Case No. JA07/21, dated 29 November 2021.

[4] Ibid at para. 20.

[5] See: Eskom Holdings SOC Ltd v NUM obo Kyaya and Others (2017) 8 BLLR 797 (LC) and City of Johannesburg v South African Local Government Bargaining Council and Others (JR3204/10) [2014] ZALCJHB68 (10 February 2014).