NEHAWU obo Msweli and Others v Msiza N.O and Others (JR 2124/17) [2022] ZALCJHB 361 (25 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2124/17

In the matter between:

NEHAWU obo MBUSO IGNATIOUS MSWELI AND

10

OTHERS

Applicants

and

BHEKI

MSIZA N.O. First

Respondent

GENERAL

PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Second

Respondent

MEC FOR E-GOVERNMENT, GAUTENG PROVINCE Third Respondent

Heard: 01 June 2022

Delivered: This judgment was handed down electronically by circulation to the parties' representatives through email. The date for hand-down is deemed to be 25 November 2022.

JUDGMENT

MAHOSI. J

Introduction

[1] The applicant, NEHAWU, brought an application, on behalf of its members (the employees), in terms of section 145 of the Labour Relations Act[1] (LRA) for an order to review and set aside the arbitration award dated 30 May 2017 issued by the first respondent (the arbitrator) under the auspices of the second respondent, General Public Service Sectoral Bargaining Council (the bargaining council), under case number GPBC 1738/2016.

[2] The aforementioned review application was filed out of the prescribed period. The degree of delay was not too excessive and the explanation for the delay was satisfactory. Therefore, condonation ought to be granted.

Background

[3] The factual matrix in this matter is very straightforward and not in dispute. In the year 2012, the Department of Public Service and Administration (DPSA) issued a directive to all Government departments to upgrade the posts of all employees who were performing and occupying positions similar to the one occupied by the employees before this court, of Archivists, from level 6 to level 7.

[4] On 06 May 2013, the employees approached the employer to request that they be absorbed to the upgraded posts as per the aforementioned directive and that their translation be back-dated to 01 November 2012. The employer did not absorb them until 01 June 2016 and their absorption was not retrospective. In other words, their absorption was with effect from 01 June 2016.

[5] Aggrieved by the employer’s decision, NEHAWU referred a dispute relating to unfair labour practice to the bargaining council. On 29 September 2016, the dispute was unsuccessfully conciliated and the non-resolution certificate was issued. NEHAWU then referred the dispute to arbitration that was set down for 17 May 2017.

At the arbitration

[6] On the one hand, NEHAWU’s case was that the employer’s failure to absorb the employees to the upgraded posts with effect from 01 June 2016 amounted to an unfair labour practice. According to NEHAWU, the absorption should have been backdated to 01 November 2012.

[7] On the other hand, the employer disputed this and submitted that the reason the employees could not be absorbed into the upgraded positions immediately after receiving the directive from the DPSA was because it was established that the employees did not meet the minimum qualifications of the job description. Instead, argued the employer, they were to be placed in the development program, which would enable them to be Archivist and which had to be approved together with its funding.

[8] On 30 May 2017, the arbitrator issued the award in terms of which he found that the employer’s conduct did not amount to unfair labour practice. This appears in paragraph 30 of the award where the arbitrator states as follows:

‘[31] I do not accept the applicant’s representative’s submission that the applicants are entitled to claim their upgrading to the post level seven (7) with effect from the 06th May 2013 and that the failure by the respondent to have retrospectively implemented the upgrading with effect from the 06th May 2013 amounted to an unfair labour practice pertaining to the provision of benefits which have been granted by the respondent.’[2]

[9] It is this award that is the subject of this application.

In this Court

[10] It was common cause that the date of “06 May 2013” was incorrectly stated in the award as the correct date which the employees sought their absorption to be backdated to was 01 November 2012.

[11] The crux of NEHAWU’s matter was that the arbitrator misconceived the nature of the dispute before him, misinterpreted the directive and was biased against the employees.

[12] According to NEHAWU, if the employees qualified for absorption in June 2016 under the same circumstance they were in during October 2012, it simply meant that they should have been absorbed in November 2012 as the directive stipulated that the incumbents may only be absorbed in an upgraded post with effect from the first day of the month following the month during which the executive authority approved the absorption.

[13] The employer defended the award by submitting that the arbitrator properly considered all the evidence before him and committed no gross irregularity or any other act envisaged in section 145(2)(a) of the LRA. It further submitted that the Court should dismiss the application with costs on a punitive scale as the award falls within the bounds of reasonableness.

Applicable law and analysis

[14] Arbitration awards are reviewable in terms of section 145 of the LRA, which provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. Section 145(2) defines a defect as the commissioner’s misconduct in relation to the duties of the commissioner as an arbitrator, gross irregularities in the conduct of the arbitration proceedings, exceeding the commissioner's powers or improperly obtaining an award.

[15] The test for review which has been stated in Sidumo and Another v Rustenburg Platinum Mines and others[3] was reiterated in Herholdt v Nedbank Limited[4] as follows:

“In summary, the position regarding the review of CCMA awards is this. A review of a CCMA award is permissible if the defect in the

proceedings falls in one of the grounds of section 145(2)(a) of the Labour Relations Act. For a defect in the conduct of the proceedings

to amount to gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact as well as the weight and relevance attached to a particular fact are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if the effect is to render the outcome unreasonable.”

[16] The test is, therefore, whether the decision reached by the commissioner is one that a reasonable decision-maker could reach. The question is whether on the evidence before the commissioner, the decision reached by the commissioner is one that fits into the bands of reasonableness.

[17] In casu, NEHAWU contended that the arbitrator misconceived the nature of the dispute, misdirected himself on a point of law and committed an irregularity or an act of misconduct. This was denied by the employer. This Court is, thus, required to ascertain whether the arbitrator considered the principal issue before him, evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he arrived at.[5]

[18] In the referral form, NEHAWU’s nature of dispute was classified as unfair labour practice relating to benefits. NEHAWU further indicated that it followed the internal grievance procedures before approaching the bargaining council, the outcome of which was described as follows:

‘There is no formal response from the employer. Instead, the employer appointed the aggrieved incumbents on the 01 June 2016 on level 7 notch 1. The DPSA, national benchmark for Archivists was not implemented from 2012.’

[19] The facts of the dispute were summarised, in the referral form, as follows:

‘Archivist benchmarking was approved by DPSA on 07/10/2012. The Department of SDF/E-Government did not implement the directive.

NEHAWU lodged a grievance on 28/01/2016 internally, and the Department did not respond, however decided to appoint the aggrieved party effective from 01 June 2016, instead of 07/10/2012.

NEHAWU realised on 01 June 2016 that the employer incorrectly implemented the directive.

[20] The referral form further discloses that the outcome required was that “the DPSA directive must be implemented effective from 07/10/2012.” In his award, the issue in dispute was capsulated by the arbitrator to be whether the employer committed an unfair labour practice as contemplated in section 186(2)(a) of the LRA pertaining to promotion, demotion, probation, training or provision of benefits. This is exactly the dispute that was before him.

[21] The arbitrator then proceeded to outline the parties’ submissions and evidence before assessing the legal considerations.

In doing this, he relied on the evidence presented before him. In this regard, it was common cause that on 01 October 2012, the DPSA issued a directive titled “Implementation of the Co-ordination Process - Benchmark Job Description and Grading Level for Occupation: Archivist.” Attached to this directive was the implementation guidelines/measures, which reads as follows:

‘1. There are indications that due to rank progression in the past and the way posts are defined, the work content of a number of posts is not aligned with their job titles and job levels of posts. This situation dictates that provision should be made for the number of options according to which employees can be absorbed into the benchmark posts. These options should, however, not be utilised to move employees automatically to higher levels.

2. Departments should determine what functions should be performed to ensure that they comply with the service delivery requirements, and secondly the competencies, experience and qualifications required to perform the work. This should be compared with the benchmark job description and posts on the establishment of the Department and should be created on the basis of the benchmark job description that matches the service delivery needs the closest.

3. In cases where post are upgraded and the current incumbents are considered for absorption in the upgraded posts, employees should be absorbed on the basis of their competency of profiles and ability to operate at least at a satisfactory level in these posts. In essence the implementation of the advised grades could entail a restructuring of the relevant units. Department must also comply with the following:

 The requirements of the PSR Chapter 1, Part V C.6 entail that an incumbent must already be performing the duties attached to the post to be upgraded and she/she must have received a satisfactory performance assessment, based on performance of the duties attached

to the post to be upgraded, in his/her most ascent performance assessment. Where employees’ performance has not yet been assessed, they should be assessed with the Department performance management and development system before being considered for absorption in the upgraded posts. No automatic translation to/ absorption into the upgraded posts may be done.

 employees must be awarded the minimum notch of the salary range attached to the upgraded posts.

 PSR Chapter 1, Part V C.6 stipulates that an incumbent may only be absorbed in an upgraded post with effect from the first day of the month following the month during which the executive authority approved the absorption.

4. It should be noted that some departments may have jobs that are graded at a higher level, but performing similar functions to the benchmark jobs at a lower level. In such cases, these jobs have to be re-graded (downgraded) to the same level as the benchmark jobs incumbents will retain their salaries in line with PSCBC Resolution 3/2009. Furthermore, departments should refrain from utilising levels that are not provided for in terms of the outcomes of the co-ordination process for “salary progression purposes”.

(a) Employees currently on salary range 6 and who are performing production functions (Archivist) should be absorbed at salary level 7 provided they meet the requirements as set out in PSR Chapter 1, Part V C.6.

(b) Employees currently on salary levels 7 and who are performing production functions (Archivist) should remain on salary range 7.’[6]

[22] Following the directive, the employees were not absorbed to the upgraded positions. This prompted them to lodge a grievance, the outcome of which did not favour them. Subsequently, the employees were absorbed on 01 June 2016. The employees demanded that the employer backdate their absorption, but the latter declined. Aggrieved by the employer’s decision not to backdate the employee’s absorption, NEHAWU referred a dispute to the bargaining council.

[23] The reason proffered by the employer, at the arbitration, for the delay in absorbing the employees was that the directive did not have an implementation date. Further that the directive provided for a benchmark job description that required the employees to have a three year tertiary qualification, which they did not possess and that it had key performance areas that were not all performed by the employees. Put differently, the employer alleged that the delay in implementing the directive was caused by the fact that the employees did not meet the requirements to be absorbed in the upgraded post. In addition, the employer submitted that the directive could only be implemented upon approval of the Executive Authority.

[24] In his analysis of evidence and arguments, the arbitrator found that the fact that the positions of Archivists were upgraded did not mean that the incumbents could be absorbed without considering the compliance with the terms of the benchmark job description. According to him, the employer had an obligation to ensure that there was compliance with all the necessary requirements prior to implementing the absorption.

[25] In relation to the memorandum dated 19 May 2016, the arbitrator noted the following:

[26] The memorandum dated 19 May 2016, indicates that a request for the approval for the implementation based on the recommendation was sought and approval granted as per DPSA directive.

[27] The memorandum is self-explanatory that there should have been also the requirement of compliance in terms of financial implications which should have been considered.’[7]

[26] It was on the basis of the above consideration that the arbitrator found that it would not have been possible for the employer to implement the DPSA directive immediately after it was issued. The employer had to a duty to consider whether the employees met the requirements or not and whether it would be in a position to pay the salaries according to the upgraded positions.

[27] The arbitrator found that the reason the employer designed a development programme was to assist the employees to comply with the tertiary qualification requirement, which they did not meet. This, according to the arbitrator, could not have been an unfair and unnecessary delay in the implementation of the DPSA directive. The arbitrator further found that the employer

“would not have been justified to immediately implement the DPSA directive when it was clear that the incumbents did not meet the requirements for the translation or absorption into the upgraded positions”.

[28] In addition, the arbitrator found that the employer did not only exercise its discretion, but also developed a program to accommodate the circumstances of the employees. The arbitrator rejected the employees’ submission that they were entitled to claim retrospective absorption.

[29] According to the arbitrator, the fair interpretation of the memorandum was that they had been appointed after due processes were followed, as there were financial implications that were to be considered and that it could not have been an unfair labour practice to implement the directive after the employer had made its own internal job evaluation according to the challenges that it had to deal with. It was on the basis of the above that the arbitrator dismissed the employees’ claim.

[30] The question that arises is what exactly did the employer do between 01 October 2012, when the Directive was issued and 01 June 2016 when the employees were eventually upgraded. The employer submitted that, as part of the implementation of the directive, it held a job evaluation exercise with the employees in 2013, the outcome of which showed that none of the employees qualified for absorption. This was communicated to the employees in 2013 and 2014. NEHAWU did not dispute this evidence.

[31] It was further not disputed that the employer’s HOD, Mr Ngobeni took a decision in 2016, after consulting with the relevant stakeholders, to put together a development plan for the employees that would assist the employees to become fully-fledged Archivist. This would cure their lack of qualification as well as the fact that they were not performing all job functions of Archivist. This led to the issuance of letters to the employees, which reads:

‘UPGRADING OF PRACTITIONER: ARCHIVIST POSITION’

We are pleased to inform you about the position of Practitioner: Archivist within the RMC Business unit has been upgraded as follows:

Level : Level

7, Notch 1

Nature of Employment : Permanent

Effective Date : 01st June 2016

Remuneration Package : R211 194.00 per annum (plus benefits)

Department :

Gauteng Department of e-Government

It must be noted that your existing contractual obligations and condition of service will remain in force. Please note that your job title will now be Practitioner: Archivist.

Please note that this offer is conditional upon you signing a performance contract with the Department of e-Government (GDEG) within three (3) months.

I look forward to welcoming you and trust that your tenure will put you on a growth and development path that will yield visible mutual benefits.

I invite you to take this offer and assure you that it will be a challenging and fulfilling experience. Should you decide to take up this offer, please sign, fax or hand deliver this letter to the Internal HR Unit within GDEG on (011) 634 0292.

Regards,’

[32] To an extent that the employer had an obligation to take various steps prior to implementing the absorption, its failure to effect it from the date it was issued where the requirements were not complied with, did not amount to unfair labour practice. As such, the arbitrator properly interpreted the directive in question and considered all the documentary evidence before him. There is, therefore, no merit to NEHAWU’s submission that the employer provided no explanation why the decision to immediately

translate the employees’ positions could not have been taken earlier or even at the time of the issuance of the directive.

[33] In light of the above, it is my view that the manner in which the arbitrator analyzed the dispute before him does not support NEHAWU’s version that he misconstrued the enquiry he had to conduct. He stated in clear terms that he had to determine whether the employer had an obligation to immediately implement the directive without considering compliance. NEHAWU further failed to establish that the arbitrator conducted the enquiry incorrectly, misdirected himself on a point of law and committed an irregularity or an act of misconduct because, as the award reflects, he dealt with the issue before him correctly.

[34] It follows that NEHAWU has not established any basis upon which this Court could find that the arbitrator’s award was reviewable. There is, therefore, no reason for this Court to interfere with it.

Costs

[35] 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.

[36] Accordingly, the following order is made:

Order

1. The application to condone the late filing of the review application is granted.

2. The application for an order to review and set aside the arbitration award dated 30 May 2017 issued by the first respondent under the auspices of General Public Service Sectoral Bargaining Council under case number GPBC 1738/2016 is dismissed.

3. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Advocate S.J van Vuuren

Instructed by: SW Nkala Attorneys

For the respondent: Advocate SB Nhlapo

Instructed by: State Attorney, Johannesburg

[1] Act 66 of 1995 as amended.

[2] Index to pleadings, p 78 para 31 of the arbitration award.

[3] [2007] 12 BLLR 1097 (CC).

[4] [2013] 11 BLLR 1074 (SCA) at para 25.

[5] See Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine v Commission for Conciliation, Mediation and Arbitration and Others [2014] 1 BLLR 20 (LAC).

[6] Document: Index and Record “C “ p 47

[7] Index to pleadings, p 77.