Department of Water and Sanitation v Commissioner V. Madula and Others (JR 1439/19) [2022] ZALCJHB 24 (18 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1439/19

In the matter between:

THE DEPARTMENT OF WATER AND SANITATION Applicant

and

COMMISSIONER V. MADULA First

Respondent

THE GENERAL PUBLIC SERVICE

BARGAINING COUNCIL Second

Respondent

NEHAWU OBO MITILENI

Third Respondent

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives through email. The date and time for hand-down is deemed to be 18 February 2021.

JUDGMENT

MAHOSI J

Introduction

[1] This is an application brought in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award issued on 12 June 2019 by the first respondent (the arbitrator), under the auspices of the second respondent, General Public Service Bargaining Council (GPSSBC), under case number GPBC 2511/2018.

Material background facts

[2] The third respondent's member (the employee) was employed as an Assistant Director: Human Relations. On 01 July 2016, he was promoted to the position of Deputy Director: Labour Relations level 11 in terms of the Rank Designation Requirement agreement (RDR).

[3] In 2018, he was assessed and he received Class 1 merit, which made him feel that he qualified for promotion to level 12. However, the applicant informed him that he did not qualify for promotion.

[4] On 10 October 2018, the employee lodged a grievance against the decision of applicant that he does not qualify for promotion. The outcome of the grievance was communicated to him on 02 November 2018, stating that he did not meet the requirements for promotion. The reasons proffered were that he was not in his current rank for two years as per the conditions of service and that he was performing six tasks listed under level 12 as opposed to the required 10 tasks. Further that the organizational structure at the Head Office did not have additional positions for level 12.

[5] Dissatisfied with the employer’s decision not to promote the employee, the third

respondent referred an unfair labour practice dispute to GPSSBC. The dispute was conciliated unsuccessfully on 19 December 2018. As a result, the certificate of non-resolution was issued. On 16 January 2016, the third respondent referred the dispute to arbitration, which was set down for 07 May 2019.

Arbitration and the award

[6] The issue before the arbitrator was whether the applicant committed an unfair labour

practice by failing to promote the employee and if so, to determine the appropriate relief.

[7] The employee testified that he was employed as the Deputy Director: Labour Relations, salary level 11. Further that during the 2017/2018 assessment, he received class one merit. It is his testimony that by the time he was assessed, he had eight years’ experience and that previous years are taken into account in arriving at a decision to grant a promotion. Further that he had two years ten months in the rank of Deputy Director salary level 11 (being the period from 01 July 2016 to 30 June 2018).

[8] The employee further testified that he was performing all the tasks for Deputy Director:

Human Relations except monitoring of recruitment and selection processes. He also testified that there were two other colleagues who were not performing all the tasks for Deputy Director salary level 12 as required by the Rank Designation Requirement (RDR) but were promoted to salary level 12.

[9] Furthermore, he testified that he met all the requirements for the post of Deputy

Director salary level 12 as he holds a Diploma in Labour Relations, B-Tech: Labour Relations and Post Graduate Diploma in Labour

Relations. It was the employee’s testimony that the merit committee was not fair when it failed to recommend him for promotion,

because the other colleague Mokoena was not performing all the tasks.

[10] The employee testified that the merit document gave him the right to be promoted even though there was no vacant post in level 12. Further that he was an employee under the public service even though he was appointed in terms of section 76 of the National Water Act.

[11] The applicant led evidence through one of its employees, Mr Letuka Mokoena (Mr Mokoena) who testified

that he was employed as a Deputy Director: Human Relations and that he has been on salary level 12 since 2011.

[12] His testimony sought to raise two points to support the applicant’s decision not promote the employee. These being that there was no vacant post and that the employee did not meet all the requirement for promotion.

[13] Mr Mokoena further testified that before the employee was promoted to the post of Deputy Director

salary 11 he reported to him, whereafter there was an arrangement that the employee should report to the Director as he is now focusing on labour relations issues.

[14] Having assessed the evidence, the arbitrator found that the employee succeeded in proving, on a balance of probabilities, that the employer committed an unfair labour practice. The basis of his finding was that according to the RDR’s, the purpose of assessment of the employees was to rank promote all the qualifying employees within the same occupational group.

[14] Accordingly, the arbitrator ordered the employer to place the employee on salary grade 12 with effect from 12 July 2018 and to pay him an amount of R88 940.25 less tax if applicable, being the difference between minimum notch of salary 12 and his salary as of 01 July 2018. It is this award that is the subject of this application.

Submissions

[15] The applicant’s grounds of review may be summarised as follows:

15.1 The arbitrator committed a gross misconduct or gross irregularity when he ordered the applicant to promote the employee to level 12 post (rank) while there is no such vacant post or rank in the organisational structure.

15.2 The arbitrator’s ruling is against the applicable rank designation requirements as section 76 of the

National Water Act which provides that promotion to a higher rank must fit into the schemes of the organisational structure.

15.3 The arbitrator committed misconduct when he tried to distinguish rank from a post or position

15.4 The arbitrator’s decision to promote the employee is not fitting the organisational structure and is therefore irrational and irregular.

15.5 The arbitrator’s decision is unfair, irrational and unreasonable when regard is had to the facts which

were placed before him.

15.6 The arbitrator failed to consider the policy provision submitted during the arbitration hearing and closing

arguments.

15.7 The arbitrator usurped the Director General’s powers regarding the determination of organisational needs of the department as mandated by the National Water Act and his decision will create unwarranted discord within the department where employees may claim promotion to higher rank even when such rank/post is not available/not vacant or when such is occupied.

[16] In opposition, the third respondent submitted that the arbitrator did not commit gross misconduct or gross irregularities when he ordered the applicant to promote the employee to salary level 12 in that he had to decide on whether or not the applicant committed an unfair labour practice when it failed to promote the employee and was presented with arguments from both parties after which he found that the applicant committed an unfair labour practice as alleged.

[17] The third respondent further submitted that it was incorrect that the arbitrator committed any misconduct in relation to the arbitration proceedings and that the award was not reviewable on any of the grounds listed and should consequently be dismissed with costs.

Analysis

[18] The unfair labour practice is defined in section 186(2)(a) of the LRA as any act or omission that arises between an employer and an employee involving an unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee. It is trite that a promotion for the purposes of section 186(2)(a) involves a move by an existing employee to a higher rank or position that carries greater status, responsibility and authority.[2]

[19] The onus to establish the existence of a decision that constitutes an unfair labour practice as provided in section 186(2) rests on the

employee.[3] An employee may challenge his/her failure to be promoted with reference to the procedure adopted in appointing the successful candidate and the reasons for failing to promote him/her.

[20] In the current matter, the third respondent challenged the applicant’s decision not to promote him on the basis that he met the requirements of the RDR in that when he was assessed during the 2017/2018 assessment year, he received Class 1 merit, he had eight years and 10 months experience, two years of which he was on the rank of Deputy Director salary level 11. He further submitted that there was no need for a vacant post because the provisions of the RDR dealt with rank promotion and not post promotion.

[21] In his analysis of evidence and arguments, the arbitrator noted that although the applicant’s

merit committee remarked that the employee was only doing employment relations duties and not all the other duties within Human Relations, the applicant’s witness distanced himself from the comment in his examination-in-chief.

[22] The arbitrator further noted that the letter of response to the employee’s grievance indicated

that the applicant did not promote the employee because he was only performing six tasks as opposed to 10 tasks as required by RDR. However, this reason was changed during the applicant’s evidence-in-chief and the applicant failed to dispute the employee’s

evidence that he was performing all tasks except only one.

[23] The arbitrator considered the provisions of the RDR and accepted that the employee qualified as he had two years and ten months in the rank of Deputy Director salary level 11. He further found that the provisions of RDR were dealing with rank promotions and not post promotions. Furthermore, he rejected the applicant's evidence regarding the organisational

structure because the evidence was that it was not finalised. It was for these reasons that the arbitrator found that the third respondent proved that the applicant committed an unfair labour practice by not promoting the employee.

[24] However, what the arbitrator ignored was the fact that the RDR required that the promotion must

fit the organisational structure and the old organisational structure set out in the RDR requirement document shows that there is only one level 12 post, which is currently held by Mr Mokoena. In addition, clause 2.3 of Annexure 6, which outlines the requirements for appointment and promotion in terms of section 76 of the National Water Act states that “promotions to higher ranks must fit into the schemes organisational structure.” Had the arbitrator considered the above evidence, he would have found that the applicant was bound to adhere to the RDR requirement.

[25] The arbitrator also ignored the undisputed evidence showing that the promotion of the employees that the applicant was comparing himself to, being Mr Noinyane, Ms Khomulana and Ms Rosa Mufumadi, were implemented in terms of the recruitment process and the revised organisational structure. In addition, these employees do not perform the same functions as the employee, they are not in the same occupational group with him and their designations are not the same with his.

[26] In light of the above, it is apparent that the arbitrator committed a gross irregularity and

exceeded his power, which resulted in him reaching an unreasonable outcome that had an effect of promoting the employee to a position

that is not fitting into the organisational structure and thereby usurping the applicant’s responsibility of job grading and creating a new organisational structure.

[27] The applicant correctly submitted that the arbitrator’s decision would have created a bad

precedent in terms of which every employee would claim promotion in circumstances where there is no position in the organisational

structure. This would clearly not only create a financial burden to the applicant but would also bloat the organisational structure

without addressing the organisational needs at the tax-payers’ costs.

[28] It is, therefore, my view that the applicant has established the basis upon which the Court could find that the award was reviewable. As such, it succeeded to discharge its onus of establishing that the arbitrator committed misconduct in relation to his duties, a gross irregularity in the conduct of the arbitration proceedings and exceeded his powers. Thus, his award stands to be reviewed.

Costs

[27] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[30] In the circumstances, the following order is made:

Order

1. The arbitration award issued by the first respondent under the auspices of the second respondent, under case number GPBC 2511/2018, dated 12 June 2019 is reviewed, set aside and substituted with the following order:

1.1 The third respondent had failed to prove that the applicant has committed an unfair labour practice by not promoting the employee. As such, its claim is dismissed.

2. There is no order as to costs.

__________________

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant: Advocate F. Ramaano

Instructed by:

State Attorney, Pretoria

For the respondent: Advocate N. Rambachu-Naidoo

Instructed by:

Ismail & Dahya Attorneys

[1] Act 66 of 1995 as amended.

[2] Department of Justice v CCMA and Others [2004] 4 BLLR 297 (LAC); (2004) 25 ILJ 248 (LAC) at 315.

[3] See City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others (2013) 34 ILJ 1156 (LC) at para 19.