Office of the Premier: Limpopo Provincial Government v Phooko NO and Others (JR2267/15) [2021] ZALCJHB 106 (26 May 2021)

THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE

Not Reportable

Case no: JR 2267/15

In the matter between:

OFFICE OF THE PREMIER: LIMPOPO PROVINVIAL

GOVERNMENT Applicant

and

M E PHOOKO N. O First Respondent

THE GPSSBC Second Respondent

PSA obo K V MOKUBELA Third Respondent

Heard: 20 May 2021

Delivered: 26 May 2021

Summary: An opposed review application – an award not falling within the bounds of reasonableness is reviewable in law. A commissioner is duty bound the determine the true nature of the dispute in order to firstly establish the jurisdictional power and secondly to arbitrate the true dispute. The true dispute involved herein is that of an interpretation and application of a collective agreement within the contemplation of section 24 of the LRA. The interpretation and application dispute was not an issue in the dispute but an issue in dispute. The third respondent referred an unfair labour practice dispute in relation to the provision of benefits and not a section 24 of the LRA dispute. A finding that the applicant (Office of the Premier) committed an unfair labour practice is not one that a reasonable decision maker may reach. Held: (1) The award is reviewed and set aside and is replaced with an order that the applicant did not commit an unfair labour practice. (2) No order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an opposed review application as well as an opposed counter-review application. The Office of the Premier, the applicant in the main review application seeks an order to review and set aside the entire award issued by Panellist Moloko Ephraim Phooko (Phooko). The Public Services Association (PSA) on behalf of Ms K V Mokubela (Mokubela) effectively seeks a variation of the award by amending a paragraph in the award and replacing it with an order. Both the main review and the counter-review applications were launched outside the prescribed six weeks’ period. Condonations were sought. Given the view I take at end, it may not be necessary to deal with the condonation applications in any detail, particularly the one related to the counter-review. The impugned award found that the Office of the Premier committed an unfair labour practice in relation to provisions of benefits. The Office of the Premier is aggrieved thereby hence this application. Mokubela is aggrieved by only a part of the award.

Background facts

[2] Only a brief rendition of the facts of this matter is necessary. Mokubela commenced employment in the Treasury department as a Senior Manager: Legal services in July 2006. Effective 1 April 2008, she participated in shared services arrangement which was constituted following a resolution by the Provincial Executive of the Provincial government. That shared legal service was housed under the Office of the Premier. The shared legal services arrangement terminated in October 2009.

[3] On 7 February 2008 a collective agreement known as Agreement on the implementation of an occupational specific dispensation (OSD) for legally qualified categories of employees. (Resolution 1 of 2008) (“the Resolution”) was entered into at the bargaining council. On 21 October 2008, the Department of Public Service and Administration (DPSA) issued a circular (Circular 3 of 2008) (“the Circular”) to all the departments seeking to aid the departments in interpreting the Resolution. Mokubela contends that the circular was issued unlawfully and somewhat interfered with the rights obtaining from the Resolution.

[4] Mokubela took a view that she qualifies to be translated in terms of the Resolution. The Office of the Premier disagreed with that view because she does not meet the requirements of the Resolution. The objectives of the Resolution were to introduce an occupational specific dispensation and career progression system for legally qualified professionals that provides for (a) unique salary structure; (b) career-pathing; (c) pay progression; (d) grade progression; (e) recognition of appropriate experience; (f) increased competencies; (g) specialist dispensation; and (h) salary scales and remuneration structure. The agreement spelled out the legally qualified professionals and those are (a) State Attorney; (b) Family Advocate; (c) State Law Advisor; (d) Legal Administration Officer; (e) Master; (f) Registrar; (g) Maintenance Officer; and (h) Estate Controller.

[5] Mokubela contended that she fell under the category of State Law Advisor. In terms of annexure A to the Resolution, Specialist State Law advisors must possess an LLB degree or equivalent, be an admitted Attorney or Advocate; have at least 10 years’ experience and perform at least 80% production work. Mokubela contended that she met all those requirements and qualified to be translated and to be pay progressed. As translation measures, an employee must meet the requirements for the post and must perform the functions of the post.

[6] Mokubela was not translated nor pay progressed. Aggrieved thereby, she referred a dispute alleging an unfair conduct in relation to the provisions of benefits. As indicated above, Phooko issued an award finding that the Office of the Premier committed an unfair labour practice in relation to provisions of benefits and ordered some concomitant reliefs. This aggrieved the Office of the Premier, hence the application to review. Mokubela was displeased by a relief, which in her view limited the application of the Resolution and adopted the unlawful circular, hence the counter-review.

Grounds of Review

[7] The Office of the Premier contends that Phooko failed to apply mind to the true issues to be arbitrated. His award is not one that a reasonable decision maker may reach. He failed to consider the principal issue before him. Given the view I take at the end it is unnecessary to spell out the grounds for the counter-review. Once the entire award is reviewed and set aside, which is the conclusion I ultimately reach in casu, the counter-review remains moot.

Evaluation

[8] In matters of this nature, the test is whether the award issued by a Commissioner is one that a reasonable Commissioner may not issue. In other words, the decision must be so unreasonable that any decision-maker would not make. Applying this test, a Court of review is not at large to substitute the award of a Commissioner if that award falls within the bands of reasonableness.

The true nature of the dispute

[9] It remains the duty of any arbitrator to determine the true nature of the dispute before him or her. This determination assists the arbitrator to firstly determine jurisdictional powers and to secondly arbitrate a true dispute between the parties. Mokubela referred this dispute as an unfair labour practice dispute in relation to the provision of benefits. On proper assessment, the true dispute between the parties is that of interpretation and application of a collective agreement within the contemplation of section 24 of the LRA. In terms of clause 16 of the Resolution should there be a dispute about the interpretation or application of the Resolution any party may refer the matter to the bargaining council for resolution.

[10] It is beyond any doubt that the Office of the Premier and Mokubela are in disagreement on the application of the Resolution to her. It has been the contention of the Office of the Premier that Mokubela was a level 13 SMS and is not covered by the Resolution and that she did not perform 80% production work. All of that suggests a dispute around the applicability of the Resolution. The only way to resolve that dispute is to use clause 16 of the Resolution.

[11] Ms Fourie, appearing for Mokubela submitted that the issue of application and interpretation was an issue in a dispute[1] and not necessarily the true dispute between the parties. I am unfortunately not in agreement with that submission. Regard being had to the decision of Apollo Tyres South Africa (Pty) Ltd v CCMA[2] a benefit must be something extra[3] that arises from a contract, a party claiming a benefit out of a contract must prove the existence of that contract and the term that gives him or her that right to the benefit. This Court accepts that it is possible that during the benefits dispute parties may quibble around the terms of that contract, which may lead an arbitrator into a situation where the terms of the contract are interpreted using the known and accepted interpretative tools to find or not find the right.

[12] However, where a party seeks an interpretation or application of the contract before staking a claim for the right to the benefit then the primary dispute between the parties is one of interpretation and application of a contract. If that contract is a collective agreement, then section 24 must apply to that dispute. In casu, such a dispute was not referred by Mokubela. Failure to establish the true nature of a dispute is a reviewable irregularity that taints and or distort the outcome. Arbitrating a wrong dispute is a reviewable irregularity also.

The unfair labour practice relating to benefits

[13] It has long been held that a benefit is something extra other than remuneration which is contractually, legislatively guaranteed or legitimately expected. The Resolution does not guarantee any benefit but a translation – promotion or a pay progression – salary increment. The salary increment is not something extra but remuneration. This Court takes a firm view that Mokubela has nonetheless failed to show that a benefit is due to her contractually. That being the case, a conclusion that the Office of the Premier has committed an unfair labour practice in relation to the provision of benefits is not one a reasonable decision maker may reach.

[14] Assuming that benefits are involved in this dispute, the question that must follow is whether Mokubela had discharged the onus that the Office of the Premier has committed an unfair labour practice. An unfair labour practice claim is akin to a contractual claim. The employee must prove (a) that a contract is extant, if reliance is placed on one, and that the other party has breached that contract. The collective agreement textually provides that it applies to State Law Advisors (SLA). Mokubela testified in no uncertain terms that she was a level 13 Senior Management Service (SMS). She testified that at a stage she was State Law Advisor. The stage was when the shared legal services arrangement was in place. According to the circular, a State Law Advisor generally deals with government wide activities on national level involving the relationship of government as a body and or other governments. State Law advisors are encountered in offices of the Chief State Law Advisors, Office of the Presidency, Department of Justice and Constitutional Development, Department of Foreign Affairs and in some Offices of the Premier. On the basis of this objective evidence, Mokubela was never a State Law Advisor.

[15] The fact that during the shared legal services arrangement she operated from the Office of the Premier did not convert her into a State Law Advisor. A finding that she was never a State Law Advisor dislodges her claim for translation and pay progression. A reasonable decision maker may have arrived at a finding that Mokubela was not a State Law Advisor and as a result not entitled to a translation and pay progression. It must axiomatically follow that the Resolution does not find application on Mokubela. As stated above akin to a contractual claim, there is no extant contract applicable to Mokubela. Mokubela bore the full overall onus to show that she met the requirements of the contract she was seeking reliance on. A finding that the Office the Premier bore the evidentiary burden to prove that the function was key determinant for an employee to qualify for translation is materially wrong in law. In terms of clause 13.1.2 of the Resolution, in order to qualify for a translation, the employee must perform the functions of the post (job). This squarely put the onus on Mokubela, who alleged that she qualifies for a translation, to prove on the preponderance of probabilities that she performed the functions of a State Law Advisor. To suggest that the Office of the Premier bore evidentiary burden is to impose a reverse onus on the Office of the Premier. In law evidential burden arises when the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. The Office of the Premier did not allege anything in relation to functions, on the contrary, Mokubela did. Phooko rejected a valid contention that the function of job description was the yard stick to qualify for translation to the OSD. This is what clause 13.1.2 demands.

Obvious errors that distorts the outcome

[16] Not all errors vitiate an arbitration award. Only those errors that distorts the outcome are material. Phooko concluded that there was no dispute that Mokubela fell under the category of employees in the Resolution. This finding is materially wrong. The Office of the Premier squarely disputed that Mokubela was a State Law Advisor. Since Phooko recognized that there is no dispute, he clearly did not resolve this important aspect of whether Mokubela was a State Law Advisor or not. This error is material because it distorted the outcome. It was because of that error that Phooko reached a conclusion that “[39] I can therefore safely conclude that the OSD [Resolution] does apply to the applicant [Mokubela].” This allegedly safely reached conclusion was clearly not safely reached as it is predicated on a wrong conclusion that there was no dispute. Ms Maloba who represented the Office of the Premier at the arbitration proceedings opened the case for the Premier in the following manner:

“MR MALOBA: Okay thank you. We are agreeing with the PSA that indeed Ms Mokubela was reporting to the Office of the Premier during the period that (inaudible) were legal services. However, we dispute that Ms Mokubela qualifies to be translated to the OSD because she was not performing the duties aligned in the (inaudible) and therefore Ms Mokubela does not qualify to be translated.

[17] It was made clear from the onset that Mokubela does not qualify to be translated. Nowhere was it mentioned that it was admitted that she was a State Law Advisor. On her own version, Mokubela testified in chief as follows:

“MS MOKUBELA: During 2008 I was employed in the offices of the Premier. Actually what transpired was that in 2007 there was a resolution that there must be shared legal services and because of the shared legal services we were supposed to have been transferred to the offices of the Premier but that did not take place…”

MS MAPONYA: Oh shared legal services it is where you were falling under when you were transferred to the Office of the Premier?

MS MOKUBELA: Yes, shared legal services was in the Office of the Premier and that is where I was falling under.

[18] It was common cause that before being transferred to shared legal services, she was giving legal advice to the Treasury Department. At the Office of the Premier under the banner of shared legal services under the stewardship of Advocate Rammutla, she continued to perform the same duties. Her testimony was as follows:

MS MALOBA: And during shared legal services, what were the difference between, were there any differences or the performance, the job descriptions were the same?

MS MOKUBELA: Ja, practically the same, were are doing legally qualified legal work all of us

[19] Ms Reutener testified extensively and provided the difference between a State Law Advisor and legal administration officer. The evidence of Ms Reutener as a whole persisted that Mokubela did not perform the functions of a State Law Advisor but that of legal administration officer. Such culminated in a conclusion by her that Mokubela did not qualify to be translated.

[20] Mokubela bore the onus to prove that she was appointed as a State Law Advisor. Other than vaguely asserting that at the stage of the shared legal services arrangement she was a State Law Advisor, no other objective evidence was provided that she was so appointed. One of the requirements are that the employee must perform at least 80% production work. Yet again Mokubela bore the onus to prove that she performed 80% of the production work.

[21] In order to be translated, an employee must perform the functions of the job. In other words, Mokubela must perform the functions of a State Law Advisor. The functions of Mokubela were set out in the Senior Management Performance Agreement. That agreement refers to Mokubela as a Senior Manager: Legal administration. Ex facie the agreement those are not the functions of a State Law Advisor. She testified as follows with regard to the 80% requirement.

MS MOKUBELA: In the resolution, again they indicated in the circular, they indicated that those who do production at 80 percent…so far as I am concerned I was doing 80 percent production in relation to what was contained in the performance agreement.

[22] On her own version those functions never changed from 2007-2010. Phooko in a throw away and most cavalier manner reached a conclusion that it is noteworthy that Mokubela was performing 80% production work as envisaged in the Resolution. He did not address himself to the question of 80% production work of what? On Mokubela’s version it is 80% of production work set out in her performance agreement as a Senior Manager: Legal Administration and notably not as a State Law Advisor. The acceptance that Mokubela discharged the onus to prove that she met the requirements of the OSD, is at odds with the testimony reflected above. A reasonable decision maker does not reach a conclusion that is inconsistent with the evidence tendered.

[23] Resultantly, the outcome reached by Phooko is not one that a reasonable decision maker may reach. It is at odds with the evidence tendered before him. Accordingly, his award cannot withstand the constitutional scrutiny of reasonableness and it is bound to be reviewed and set aside.

[24] In light of all the above, it follows that the late filing of the review application must be condoned as the review possessed excellent prospects of success and the Court is satisfied with the explanation proferred. The condonation for the counter-review and the counter-review itself becomes moot and merit no further consideration.

[25] In the results I make the following order:

Order

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

2. The undated award issued by Panelist Moloko Ephraim Phooko under case number GPBC695/14 is hereby reviewed and set aside.

3. It is replaced with an order that the Office of the Premier did not commit an unfair labour practice against Ms Mokubela.

4. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr L Tyatya.

Instructed by: State Attorney, Johannesburg.

For the Respondent: Ms N Fourie.

Instructed by: Chayya Attorneys Polokwane.

[1] See SAPS v Salukazana and Others [2010] 7 BLLR 764 (LC) paras 10-16.

[2] [2013] 5 BLLR (LAC).

[3] Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 18 ILJ 1098 (LC) and A Van Niekerk Law@work 214.