Minister of Water and Sanitation v Ravhura and Others (JR2367/2018) [2021] ZALCJHB 388 (19 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 2367 /2018

In the matter between:

THE MINISTER OF WATER AND SANITATION Applicant

and

E V RAVHURA AND 14 OTHER First

Respondent

NEHAWU Second

Respondent

D MATHALA N.O Third Respondent

Heard: 7 October 2021

Delivered: 19 October 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 19 October 2021.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award dated 23 July 2018 and issued under case number GPBC133/2017 wherein the Third Respondent (the arbitrator) found that the Applicant’s failure to upgrade the First Respondent (the employees) constituted an unfair labour practice and ordered that the employees’ salary levels be upgraded.

[2] The First and the Second Respondents opposed the application for review.

[3] The Applicant also seeks condonation for the late filing of the review application, which application is also opposed. This Court has a discretion whether or not to grant condonation. I have considered the submissions in support and in opposition of the application for condonation. Although the delay of 9 weeks to file the review application is not insignificant, the Applicant has very strong

prospects of success. The prejudice to be suffered by the Applicant should condonation be refused, is a factor which, in view of the strong prospects of success, weighed heavily in favour of the Applicant. I am of the view that the delay did not cause any

significant prejudice to the other parties. Considering all the factors holistically, I am convinced that it would be in the interest

of justice to grant condonation.

[4] The matter was heard on 6 October 2021 and in accordance with the provisions of the directive issued in respect of access to the Labour Court and the conduct of proceedings during the Covid-19 pandemic, the parties agreed to present arguments virtually via Zoom.

Background facts

[5] The brief history of this matter is as follows:

[6] The employees have been employed by the Applicant on different dates between 2004 and 2013. During their period of employment, the issue of the upgrading of their positions was raised on a number of occasions. In October 2013 the employees lodged an internal grievance with the Applicant wherein they complained that they were all working under the same directorate and performing equal functions but are remunerated differently. The employees stated that it was only fair that they be remunerated accordingly.

[7] The Applicant responded to the employees’ grievance on 9 November 2016, indicating that the employees could not be upgraded to salary level 8 as the relevant structure does not have vacant level 8 positions. It was also recorded that the matter had been referred to the Directorate: Organisational Development in order to perform a job evaluation (JE) to determine the appropriate grading of the employees’ positions.

[8] The issue was not resolved internally and a dispute was referred to the General Public Service Sector Bargaining Council (GPSSBC) on 16 November 2016.

[9] It is evident from the referral form in terms of which the dispute was referred to the GPSSBC that the nature of the dispute was indicated as an unfair labour practice dispute relating to benefits. The summary of the facts of the dispute was that they are all working under the same directorate and are performing equal functions, but are remunerated differently on salary levels 5, 6 and 7. The outcome required was for the employees to be upgraded to salary level 8.

[10] The gist of the employees’ case was that whilst they were employed on salary levels 5-7, they were discharging the responsibilities of salary level 8 employees and as a result they ought to have been upgraded to salary level 8.

The arbitrator’s findings

[11] The arbitrator recorded the issue to be decided as whether the respondents were due for an upgrade to level 8 and if so, whether the Applicant’s conduct in not upgrading the respondents, constituted an unfair labour practice.

[12] As already alluded to, the dispute that was referred was one relating to benefits, as provided for in section 186(2)(a) of the Labour

Relations Act[1] (the LRA) and the issue to be decided was thus whether the Applicant committed an unfair labour practice relating to benefits.

[13] In his analysis of the arguments and evidence, the arbitrator stated that the “case at hand concerned salary level upgrade and it was the applicants’ (the employees) duty to prove the unfairness of the respondent’s conduct in not upgrading them to salary level 8.” The arbitrator accepted as a matter of fact that the employees performed functions that were no different to those performed by level 8 employees. He alluded to the evidence presented by the witnesses in the arbitration proceedings and held that the Applicant failed to rebut the ‘overwhelming case’ put up by the ‘employees or to ‘explain itself’.

[14] The arbitrator referred to the Applicant’s failure to conduct job evaluations on the functions performed by the employees and held that it defied logic as to why no JE was conducted, when the matter was on a previous occasion adjourned for that purpose. The arbitrator found that it would be a futile exercise for the Applicant to conduct a job evaluation.

[15] In conclusion the arbitrator found that the employees made out a ‘probable case’ to be upgraded to salary level 8 and to not do so, would constitute nothing but exploitation. He further found that it would be against the spirit of social justice if the employees were not acknowledged and rewarded by a performance bonus or salary level upgrade.

[16] The arbitrator found that the Applicant’s conduct in not upgrading the employees to salary level 8 constituted an unfair labour practice as defined in the LRA. He ordered the upgrading of the employees’ salary levels from levels 5,6 and 7 to salary level 8 and for such an upgrade to be applied retrospectively, with backpay, from their respective dates of employment.

The test on review

[17] The test that this Court must apply in deciding whether the arbitrator's decision is reviewable is well established and has been rehashed innumerable times since Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2]. It is ultimately a test of reasonableness. The arbitrator's decision must fall within a range of decisions that a reasonable decision

maker could make.

[18] In Goldfields Mining South Africa v Moreki[3] the Labour Appeal Court held that:

“In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts

presented at the hearing and came to a conclusion that is reasonable.”

[19] The Labour Appeal Court held in Head of the Department of Education v Mofokeng and others[4] that the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. It was held that:

‘To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.’

[20] These are the principles this Court should apply in consideration of the review application.

Analysis of grounds for review

[21] The Applicant raised a number of grounds for review in its founding affidavit. I do not intend to deal with each and every ground for review in casu as more grounds for review will not make the award more reviewable. If the award is reviewable on a single ground, so be it.

[22] In my view the gist of the Applicant’s complaint is that the arbitrator misdirected himself and committed a gross irregularity by finding that the Applicant’s conduct in not upgrading the employees to salary level 8, constituted an unfair labour practice.

In short the Applicant’s case is that the failure to upgrade the employees to the position of senior state accountant on salary level 8 does not constitute an unfair labour practice as defined in the LRA.

[23] In my view there is merit in the aforesaid ground for review for the reasons I will fully deal with infra.

[24] In Department of Justice v CCMA and others[5] the Labour Appeal Court (LAC) considered an unfair labour practice and held that:

‘In an unfair dismissal case the employee must first establish the fact of a dismissal before there can be any enquiry into whether the dismissal was unfair. If he fails to prove a dismissal, that is the end of the matter. The same applies to a matter such as this one. An employee who complains that the employer's decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair can then follow.’

[25] The onus to establish the existence of a decision or conduct, constituting an unfair labour practice, as provided for in section

186(2) of the LRA, rests on the employee who complains that the employer’s conduct constituted an unfair labour practice. In casu the employees referred an unfair labour practice dispute relating to benefits to the GPSSBC and the onus was on them to show that the Applicant’s failure to upgrade them to salary level 8, constituted such an unfair labour practice.

[26] The point of departure should have been to ask and consider the question: is the failure to upgrade an employee an unfair labour practice, as defined by the LRA, and more specifically, is it one relating to the provision of benefits. This is a question the arbitrator had to determine prior to deciding to merits of the case or the fairness of the Applicant’s conduct. In considering this first and material aspect, the arbitrator should have recognised the significance of onus and the fact that the employees had to prove the existence of an unfair labour practice in relation to benefits.

[27] The main question in this review application is whether the arbitrator misconceived the enquiry when he failed to recognise that the first and the true issue he had to determine was whether the failure to upgrade an employee to a salary level was indeed an unfair labour practice, subject to scrutiny by the GPSSBC under section 186(2)(a) of the LRA.

[28] As the dispute related to benefits, the arbitrator should have considered the principles set out in Apollo Tyres South Africa (Pty) Ltd v CCMA[6](Apollo Tyres) where the LAC considered the meaning of ‘benefit’ for purposes of section 186(2)(a) of the LRA. It was held that:

‘I also agree, with qualification, with the Labour Court's conclusion that there are at least two instances of employer conduct relating to the provision of benefits that may be subjected to scrutiny by the CCMA under its unfair labour practice jurisdiction. The first is

where the employer fails to comply with a contractual obligation that it has towards an employee. The second is where the employer

exercises a discretion that it enjoys under the contractual terms of the scheme conferring the benefit.’

[29] In Apollo Tyres it was confirmed that in an unfair labour practice dispute relating to benefits the onus is on the employee to prove that he or she has a right or entitlement ex contractu or ex lege or an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s

discretion and that the employer exercised the discretion unfairly[7].

[30] In Pelindaba Workers Union v SA Nuclear Energy Corporation and others[8] the LAC recently considered what constitutes benefits as contemplated by section 186(2)(a) of the LRA and emphasized it to be an existing entitlement. It was held that:

‘On the other hand, where an employee wants to use the same remedy in relation to the provision of benefits such an employee has to show that he or she has a right or entitlement sourced in contract or statute to such benefit.’

[31] The onus was on the employees to show that they were entitled to be upgraded to a higher salary level and that entitlement was to be found ex contractu or ex lege or as an advantage or privilege which has been offered or granted in terms of a policy or practice. A perusal of the facts placed before the arbitrator shows that the employees had not placed any evidence before him to make out a case that they had a right to be upgraded, which right was to be found in their contracts, a statute, a policy or a practice.

[32] The employees had to discharge the aforesaid onus before the arbitrator could embark on any enquiry as to the fairness or not of the Applicant’s conduct.

[33] Even if the arbitrator did not confine the dispute as one relating to the provision of benefits, he still had to consider the question whether the dispute that was referred, could be arbitrated as an unfair labour practice dispute.

[34] In Polokwane Local Municipality v SA Local Government Bargaining Council and others[9] the Court was faced with a matter concerning the issue of upgrading the post of the employee from post level 8 to level 6, where the arbitrator concluded that failure by the employer to 'attend to or follow-up the re-evaluation of the applicant's post constitutes an unfair labour practice'. The Court held that in failing to distinguish between a dispute of right and of interest in as far as the issue of upgrading of the position from level 8 to 6, the arbitrator committed a fundamental error in law. The grading or evaluation of a post is a matter of mutual interest, as there was no agreement between the parties that provided otherwise. The Court held that:

The complaint of the employee was that her position should be evaluated and that she be placed on level 6. In this regard she was seeking to create a new right of being placed and paid a salary at a higher position.

In my view the fact that the employee acted in the position for a long time or performed a function of a higher post did not entitle her to be placed in the higher post or her post to be upgraded from post level 8 to post level 6. In other words the fact that the employee acted in the post for a longer period or performed a function of a higher post did not create an obligation on the part of the applicant to promote or upgrade the post of the employee from level 8 to level 6. See in this regard Spoornet and United Transport & Allied Trade Union obo Holtzhausen (2003) 24 ILJ 267 (BCA) at 270E.

Therefore, the employee did not have a right arising from acting or performing functions of a higher post to be appointed to that post or for her post to be upgraded. Thus, in the absence of a right to be appointed to the higher position or the right to have the post upgraded, the commissioner did not have jurisdiction to entertain the dispute. (Own emphasis)

[35] In casu the arbitrator found that the Applicant indeed committed an unfair labour practice and ordered the Applicant to upgrade the employees from levels 5,6 and 7 to salary level 8 and to adjust their remuneration accordingly and retrospectively. The arbitrator decided an unfair labour practice dispute on its merits without first deciding the material question namely whether the issue in dispute fell within the ambit of section 186(2)(a) of the LRA.

[36] In my view this is where the arbitrator lost his way and where he misconceived the enquiry beyond a point that is defensible or

reasonable.

[37] It is evident from the arbitration award that in his analysis of evidence the arbitrator considered the evidence that was presented

and all that related to the employees’ grading, their skills and the de facto duties performed by them and based on this, the arbitrator concluded that a salary level upgrade would be the only relief, that the employees are entitled to be graded at salary level 8 and that the Applicant has committed an unfair labour practice.

[38] The aforesaid finding is the direct result of the fact that the arbitrator lost his way and once lost, he was not able to find his

way back to the real issue he had to decide. The arbitrator misconceived the enquiry in toto. The issue the arbitrator had to decide was whether the Applicant committed an unfair labour practice relating to benefits. In such a dispute the onus is on the employee to prove that that they were entitled to be upgraded to a higher salary level and that entitlement

was to be found ex contractu or ex lege or as an advantage or privilege which has been offered or granted in terms of a policy or practice.

[39] Be that as it may, a claim for adjustment of salary or a dispute about the grading of a position is not a benefits dispute and cannot be arbitrated as an unfair labour practice, as provided for in section 186(2)(a) of the LRA.

[40] The arbitrator ignored the fact that the employees bore the onus to prove that the Applicant indeed committed an unfair labour practice. He had to apply the principles applicable to unfair labour practice disputes to determine if the unfair conduct complained of was indeed proven and whether the employees discharged their onus. In casu the arbitrator did none of that.

[41] In short: the arbitrator had no regard to the onus the employees’ had to discharge or to the question whether the dispute related to the provision of benefits. The arbitrator misdirected himself when he found that the Applicant’s conduct for not upgrading the employees to salary level 8 constituted an unfair labour practice.

[42] The Applicant’s job evaluation policy clearly sets out the procedure for job evaluation and grading of position in the workplace, which involves a process that is delicate and complicated. How the arbitrator found himself in a position to grade the employees’ posts is unclear. In my view the arbitrator was not competent to regrade positions and at best he should have referred the matter back to the Applicant to conduct a job evaluation, within a specific timeframe.

[43] In conclusion: The findings the arbitrator made reflected not only on the arbitrator’s failure to address the principal issue he had to determine, but shows that he made a decision which no reasonable decision-maker could have made, principally because he wholly misconstrued the nature of the enquiry before him and his duties in connection therewith.

[44] Based on the above, I am persuaded that this award cannot stand and should be interfered with on review.

[45] This Court has a discretion in making a cost order, considering the requirements of law and fairness. In my view this is a case where the conduct of the arbitrator deprived the parties of a reasonable outcome and the interests of justice and fairness would be best served by making no order as to cost.

[46] In the premises I make the following order:

Order

1. The late filing of the review application is condoned;

2. The arbitration award dated 23 July 2018 and issued under case number GPBC 133/2017 is reviewed and set aside;

3. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate

H A Mpshe

Instructed by: State

Attorney

For the First and Second Respondents: Mr Phoko from NEHAWU

Advocate H Bucksteg

Instructed by: Kietzmann

Attorneys

[1] Act 66 of 1995, as amended.

[2] 2007 28 ILJ 2405 (CC) at para 110.

[3] (2014) 35 ILJ 943 (LAC).

[4] (2015) 1 BLLR 50 (LAC).

[5] (2004) 25 ILJ 248 (LAC) at para 73.

[6] (2013) 5 BLLR 434 (LAC), (2013) 34 ILJ 1120 (LAC).

[7] At para 50 – 53.

[8] (2020) 41 ILJ 2602 (LAC).

[9] (2008) 29 ILJ 2269 (LC).