Solidarity obo Kriek v Sasol Synfuels (Pty) Ltd and Others (JR2245/16) [2016] ZALCJHB 190 (13 May 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Of interest to other judges

Case no: jR 2245/16

In the matter between:

SOLIDARITY obo E KRIEK Applicant and SASOL SYNFUELS (PTY) LTD First Respondent NATIONAL BARGAINING COUNCIL FOR THE CHEMICAL INDUSTRY (NBCCI) Second Respondent COMMISSIONER THABO SEKHABISA (N.O.) Third Respondent

Heard: 11 May 2016

Delivered: 13 May 2016

Summary: (Review – jurisdictional ruling – unfair labour practise relating to promotion)

JUDGMENT

LAGRANGE, J

Introduction

[1] The arbitrator in this matter was called upon to determine an unfair labour practice dispute relating to promotion. The arbitrator concluded that the dispute concerned the classification of the applicants new position namely whether or not it was a level 6 post instead of a level 7A. The arbitrator also found that the applicant did not dispute the promotion letter which promoted him to Senior Foreman Production: EW A (level 7A).

[2] The arbitrator concluded that the applicant had failed to establish that his dispute concerned an unfair labour practice relating to promotion because he had not demonstrated that he had a right in contract or more to have his post upgraded to level 6.

[3] The applicant seeks to set aside the award and argues that the decision was an unreasonable one. The first respondent correctly pointed out that where the issue essentially involves the determination of a jurisdictional question, in this case existence of an unfair labour practice dispute relating to promotion, the test is an objective one.[1]

[4] What the arbitrator appears to have overlooked in this matter is that it was not simply the fact that the applicant was appointed to the position of Senior Production Foreman and that there was a dispute over the level of this post, but it was also an issue whether he was promoted to that post at all. The letter announcing his promotion, albeit at a level which he believed was not the correct one, nonetheless described the new post as that of a Senior Production Foreman. Some months later that designation was altered by the employer ostensibly because it had been a mistake. Part of the applicant’s case was that he had been performing

the functions of that position for a number of months and had a reasonable expectation that his promotion to that position would be confirmed. That was more than enough reason to deal with the dispute as an unfair labour practice related to promotion. Consequently, the arbitrator failed to classify the dispute correctly.

[5] It must also be mentioned that the arbitrator’s reliance on the principle that an employee may only raise an unfair labour practice dispute on the basis that they are claiming a right ex contractu or ex lege was misplaced in light of the LAC decision in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others [2] , which confirmed the principle recognized in Gauteng Provinsiale Administrasie v Scheepers & others [3] that this was not a pre-requisite for establishing an unfair labour practice claim, albeit that those cases dealt with benefits :

“The court [in Scheepers] clearly recognized that the unfair labour practice dispensation does create rights. This is a significant shift from the notion espoused in HOSPERSA that the right to a benefit must be derived from statute, contract or a collective agreement.”[4]

[6] In the circumstances the arbitrator’s ruling that the second respondent lacked jurisdiction to entertain the dispute must be set aside.

Order

[7] The ruling of the third respondent in the award issued under case number MP1609-14 dated 12 September 2014 is reviewed and set aside and substituted with a ruling that the second respondent has jurisdiction to entertain the applicants unfair labour practice claim relating to promotion.

[8] The matter is remitted back to the second respondent for a hearing de novo before an arbitrator other than the third respondent on the merits of the unfair labour practice claim.

[9] No order is made as to costs.

_______________________

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT:

A Nel of Solidarity

FIRST RESPONDENT:

A L Cook instructed by Anthony Hinds Attorneys

[1] See SA Rugby Players Association & Others v SA Rugby (Pty) Ltd & Others (2008) 29 ILJ 2218 (LAC)

[2] (2013) 34 ILJ 1120 (LAC)

[3] [2000] 7 BLLR 756 (LAC)

[4] At 1132, para [35].