South African Police Services v Solidarity obo Slingers and Others (JR766/15) [2016] ZALCJHB 409 (25 October 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR766/15

In the matter between

THE SOUTH AFRICAN POLICE SERVICES

Applicant

and

SOLIDARITY obo BRIGADIER SM SLINGERS

First Respondent

BRIGADIER LA VAN WYK

Second Respondent

AMIJ VISSE

Third Respondent

SECTORAL SAFETY & SECURITY BARGAINING

COUNCIL

Fourth Respondent

Heard: 11 August 2016

Delivered: 25 October 2016

TLHOTLHALEMAJE, J.

Introduction and background:

[1] The Applicant approached the Court in terms of the provisions of sections 157 (2) and 158 (1) (h) of the Labour Relations Act (The LRA) to review and set aside the Internal Mediation Certificate issued by its Internal Mediator, Lieutenant Colonel RA Gouws on 18 September 2014.

[2] The Applicant contends that the true nature of its application is one of judicial review under the principle of legality. It seeks that the decision to determine the grievance and subsequent issuing of an internal mediation certificate without an application for condonation by Brigadier Slingers should be reviewed and set aside, particularly to the extent that there was non-compliance with the provisions of Collective Agreement 3/2005.

[3] The Applicant’s further contention is that the Second and Third Respondents acted ultra vires their powers when the internal grievance procedures were followed by issuing the certificate, and that Gouws did not have the power and authority to determine the said grievance. The Applicant further seeks an order that the Fourth Respondent (SSSBC) should not to set down for arbitration, the dispute referred by First Respondent on behalf of Slingers involving certain individuals arising from this matter.

[4] Slingers holds the rank of Brigadier, and is employed by the Applicant in the capacity of Principal Legal Administration Officer in the Legal Services Component, Western Cape Province. A post of Provincial Head: Legal Services, Northern Cape was advertised by the Applicant on 19 June 2011. Slingers had applied for the post as he was of the view that he not only met but also exceeded the minimum requirements for the post.

[5] Slingers was not invited for interviews for the position and subsequently discovered that a Major General Mbana had been appointed to that post, which he took up with effect from 1 September 2011. Slingers then lodged an internal grievance on 13 March 2012, and having formed the view that the Applicant had not taken any steps to resolve that grievance, he had then referred a dispute to the Fourth Respondent on 24 October 2012, and subsequently joined Mbana to the dispute.

[6] During January 2012, another post of Provincial Head, Legal Services, Mpumalanga Province was advertised, and Slingers had applied. He was also not invited for interviews and a Major General Nongwanya was appointed instead. Slingers filed another grievance on 21 January 2013. He subsequently referred a dispute to the SSSBC on 7 February 2013, and joined Nongwanya to the dispute.

[7] On 19 June 2011, a post of Provincial Head: Legal Services, North West Province was advertised. Slingers had also applied, was unsuccessful, and had lodged a grievance on 13 March 2012. He again referred a dispute to the SSSBC on 10 October 2012, and joined the successful candidate, Major General Mpomane.

[8] The disputes referred to the SSSBC were consolidated and were set down for con/arb proceedings on 4 and 5 November 2013. Following preliminary points raised at those proceedings, the appointed Commissioner had determined that the SSSBC lacked jurisdiction to determine the dispute as the internal dispute resolution procedures had not been exhausted.

The Grievance Procedure:

[9] The Applicant’s internal grievance procedure is governed by Collective Agreement 3/2005. Its clause 3.1 provides that a grievant may invoke those procedures within 120 days after the date upon which he/she became aware of the grievance or might reasonably have been expected to become aware of it, or later than 120 days provided condonation has been granted by the National Commissioner.

[10] The agreement (clause 5.2) further provides that a formal grievance should be lodged with an immediate supervisor who shall attempt to resolve it as speedily as possible after meeting, interviewing and consulting with the grievant and other persons concerned. In the event that the supervisor is unable to resolve the grievance within three working days after its receipt, the next step is for the grievant to escalate the grievance to a Grievance officer, who shall endeavour to resolve it within 7 working days of its receipt. Where the Grievance officer fails to resolve that grievance, it would then be referred to the Joint Grievance Resolution Team, which must attempt to resolve it within 10 working days from its referral.

[11] If the grievance still remains unresolved, it would then be referred to internal mediation, which should commence not later than 10 days after its referral. If mediation fails the mediator will then issue a certificate to the parties, which would enable the grievant to refer a dispute to the SSSBC.

The events after the SSSBC Ruling:

[12] Slingers’ contention is that subsequent to the ruling by the SSSBC, and in respect of the Northern Cape, Mpumalanga and North West posts, the grievances were referred back to the Grievance Officers in those provinces. When the Grievance officers in the provinces did not respond, the Grievance officer of Western Cape (The Third Respondent) had in turn contacted the Applicant’s Head Office for assistance. Lieutenant Colonel Gouws of the Applicant’s Head Office and the Labour Relations Officer: Western Cape, Lieutenant Colonel Adams had finalized all the grievance processes on 18 September 2014, on which date Lieutenant Colonel Gouws as Internal Mediator had issued the internal mediation certificate.

[13] Having obtained the mediation certificates, he had then forwarded them to the SSSBC to set the matters down for arbitration. The dispute in respect of the Mpumalanga post under case number PSSS705-12/13 was set down for a hearing on 16 February 2015. The appointed Commissioner, Verhoef had then struck the matter off the roll on the basis that the Council did not have jurisdiction until Slingers and his union had referred the dispute afresh accompanied by an application for condonation. Since the cases in respect of the Northern Cape and North West posts were referred in the same manner, a new referral and an application for condonation were submitted.

[14] The Applicant had opposed the applications for condonation on the grounds that the Second and Third Respondents had acted ultra vires in handling the internal grievance process, and that Gouws did not have the power to determine the internal grievances or issue the mediation certificates as he had. Condonation was nevertheless granted, prompting the Applicant to the launch this application.

The grounds of review:

[15] The Applicant’s contention in its review application was that prior to the determination of a grievance, Slingers was required to have applied for condonation for its late filing as determined by the SSSBC on 5 February 2014. The basis for insisting on Slingers seeking condonation was that he had launched his grievances outside of the 120 days stipulated in clause 3.1 of the Collective Agreement, and that without an application for condonation, the grievance procedures could not have been invoked. This was even moreso since the Commissioner who had issued a ruling on 5 February 2015 had pointed out that the internal processes had to be exhausted first.

[16] A further ground of review raised was that the Second and Third Respondents should not have dealt with the grievance without first dealing with condonation. It was contended that they should not have referred the dispute to Mpumalanga and requested a Joint Grievance Resolution Team to deal with the matter, and that only the National Commissioner was vested with the authority to determine condonation applications, unless the authority was delegated.

[17] To the extent that the Second and Third Respondents had no inherent powers or authority to ignore the fact that there was no condonation application, it was submitted that the mediation certificate was obtained unlawfully, and issued irrationally by Gouws; and further that the decision to issue it was in contravention of the principle of legality for non-compliance with the provisions of the Collective agreement.

[18] Slingers’ contentions on the other were as follows;

18.1 In terms of section 158(1B) of the LRA the Labour Court may not review the proceedings until they have been finalised before the Bargaining Council;

18.2 The Applicant has failed to set out clear grounds for review, and has simply made broad allegations which are insufficient for the purposes of passing the review test;

18.3 The purpose of the internal grievance procedure was to attempt to resolve disputes as equitably and as speedily as possible, and his grievance had not been handled in like manner. Gouws was approached for assistance to finalise the dispute as it had been outstanding over a prolonged period. In dealing with the matter, Gouws was assisted by Adams, the Labour Relations Officer;

18.4 Gouws had listened to the parties with the intention of determining whether the dispute could be resolve, and when this was not possible, had issued the internal mediation certificate as was required of him. Gouws had therefore acted appropriately in the circumstances as per the internal grievance resolution procedure;

18.5 Gouws’ decision is a decision that a reasonable decision maker could have made based on the evidence in front of him after listening to the parties, including Adams, the Labour Relations Officer. It could not therefore be said that Gouws had acted ultra vires in the approach he took in attempting to resolve the grievance.

The legal framework and evaluation:

[19] The first issue to be disposed of is whether the provisions of section 158 (1B) of the LRA[1] finds application in this case. As it was correctly pointed out on behalf of the Applicant, the decision sought to be reviewed and set aside was clearly not made within the context of a conciliation or arbitration proceedings under the Bargaining Council. That decision was purportedly taken in accordance with the internal grievance procedures.

[20] The decision to issue a mediation certificate was taken internally by a state official in purported compliance with an internal grievance resolution procedure, and it cannot by all accounts, be a decision contemplated within the meaning of section 158 (1B) of the LRA, nor can it be construed as a decision taken within the context of those processes as contemplated under sections 135 and 138 of the LRA. It follows that the provisions of section 158 (B) of the LRA are not applicable in the employer’s own internal processes.

[21] In regards to the main application, the Applicant’s primary contention was that the true nature of this application was one of judicial review under the principle of legality, which principle required that all exercise of public power be at minimum, lawful and rational.

[22] Having re-looked at the interpretation of section 158(1)(h) of the LRA as postulated by the Supreme Court of Appeal in Ntshangase v MEC for Finance, Kwa-Zulu Natal and Another[2], Murphy AJA in Hendricks v Overstrand Municipality and Another[3] had confirmed that the assertion that a determination by a presiding officer appointed under a collective agreement applicable in the public sector, was reviewable on grounds of lawfulness, rationality, reasonableness and procedural fairness, was not at odds with the Constitutional Court decisions in Gcaba[4] and Chirwa[5].

[23] In this case, it was common cause that a grievance procedure was in place as regulated by the Collective Agreement 3/2005. There was no dispute that the Agreement had a binding effect on the parties as contemplated in section 23 of the LRA[6]. This required of the parties to adhere strictly to its prescripts in the resolution of internal grievances. Central to this review

application is whether in issuing a mediation certificate, Gouws had acted within the confines of the provisions of that agreement.

[24] Clause 3.1 of the Agreement specifically sets the timelines for the lodging of grievances, and if those timelines are not complied with, there is an obligation on the grievant to seek condonation from the National Commissioner (or the delegated official). Emanating from the decision of the Bargaining Council Commissioner on 5 February 2015, it was therefore incumbent upon Slingers to apply for condonation prior to his grievance being dealt with.

[25] In respect of the dispute pertaining to the appointment of Mbana, the Applicant’s case was that he commenced his employment in the new post on 1 September 2011. Slingers had lodged his grievance on 13 March 2012 as he alleged that he only became aware of Mbana’s appointment on 30 January 2012. He had submitted an application for condonation in which he had conceded that he became aware of the shortlisting in August 2011.

[26] Slingers however relied on an application for condonation that was granted by Commissioner Matshekga of the SSSBC on 4 May 2015 in contending that he had complied. That application for condonation was however in respect of a late referral of the dispute to the SSSBC, and not in terms of clause 3.1 of the Collective Agreement. Essentially then, the ruling of Matshekga does not assist Slingers insofar as he may contend that he had indeed applied for condonation for the late lodging of his grievance internally. The ruling of Matshekga in terms of which condonation was granted cannot overrule the one issued on 5 February 2014 by Commissioner Ndzombane, which required Slingers to exhaust internal processes, and this included an application for condonation to be considered by the National Commissioner.

[27] In respect of the dispute and appointment of Mpomane, the Applicant’s contention was that the appointment was with effect from 1 November 2011, whilst the shortlisting took place on 6 July 2011. Slingers had only lodged his grievance on 13 March 2012 despite Mpomane’s appointment having been confirmed in a circular of 1 November 2011.

[28] Slingers, despite it being the Applicant’s contention that he had indeed applied for condonation which was refused, denied that he had made any such application. On his version therefore, to the extent that no such application was made in the light of the late lodging of the grievance, it follows that it cannot be said that the internal grievance processes were exhausted.

[29] In respect of Nongwanya’s appointment, Slingers’ contention was that despite the appointment having been made in April 2012, he had only discovered on 15 January 2013 that he had not been shortlisted on account of not meeting some of the requirements of the post.

[30] In all these matters, there is no indication that condonation was sought internally. Slingers’ approach is that following upon the Commissioner’s ruling of 5 February 2014, those grievances were referred back to their respective provinces, and when the Grievance Officers did not respond, the grievance officer in Western Cape where he was based had after contacting the head office for assistance, finalized those grievances with Gouws on 18 September 2014. The issue however remains that he had not applied for condonation internally as required in terms of clause 3.1 of the Collective Agreement.

[31] To the extent that this was the case, the internal mediation certificates could not have been procedurally and lawfully issued by Gouws, as this was not in compliance with the provisions of the Collective Agreement. It therefore follows that for these certificates to have been issued in circumstances where on 5 February 2014 Slingers had been directed to exhaust the internal grievance processes prior to re-referring the dispute, the act of their issuance was equally irrational and irregular, and in these circumstances, they ought to be set aside.

[32] In regard to the issue of costs, this application could have been avoided by a simple compliance by Slingers with the provisions of clause 3.1 of the collective agreement after the SSBC had declined to assume jurisdiction over the matter. The Applicant is nonetheless equally at fault in that it had taken longer than necessary to address the grievances once they were referred back to the respective provincial offices. Slingers’ frustration with the slow pace regarding the resolution of the grievances is equally understandable. This however did not entitle Gouws to issue the internal mediation certificates in the manner he did. In these circumstances, considerations of law and fairness dictate that a cost order should not be made.

Order:

(i) The decision to determine the grievances as lodged by the Brigadier Slingers, and the subsequence issuance of an internal mediation certificate by Lieutenant Colonel R Gouws on 18 September 2014 without an application for condonation as required in clause 3.2 of Collective Agreement 3/2005 is reviewed and set aside.

(ii) The Fourth Respondent is ordered not to set down for arbitration, the dispute referred by the First Applicant involving Major General FT Mpomane, Major General L Mbana, and Major General MN Nongwanya, until such time that procedures stipulated in Collective Agreement 3/2005 pertaining to grievances have been complied with.

(iii) There is no order as to costs

_________________

Tlhotlhalemaje J

Judge of the Labour Court of South Africa

Appearances:

For the applicant:

Adv. SB Nhlapo

Instructed by:

State Attorney

For the First Respondent: N. Greef of Solidarity

[1] Which provides that; ‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any Bargaining Council in terms of the provisions of this Act before the issue in dispute has finally be determined by the Commission or the Bargaining Council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has finally been determined’

[1] Which provides that;

‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any Bargaining Council in terms of the provisions of this Act before the issue in dispute has finally be determined by the Commission or the Bargaining Council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has finally been determined’

[2] 2010 (3) SA 201 (SCA)

[3] [2014] 12 BLLR 1170 (LAC) at para [29] where it was held that; “In sum therefore, the Labour Court has the power under section 158(1)(h) to review the decision taken by a presiding officer of a disciplinary hearing on i) the grounds listed in PAJA, provided the decision constitutes administrative action; ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or iii) in accordance with the requirements of the constitutional principle of legality, such being grounds “permissible in law”. The findings of the LAC and the SCA in that regard in Ntshangase are not inconsistent with the findings of the Constitutional Court in Gcaba or Chirwa, which are restricted to conclusions that unfair dismissals and unfair labour practices will normally not constitute administrative action on account of adequate alternative remedies existing under the LRA. Neither Gcaba nor Chirwa made any reference to Ntshangase, or, as I have said, section 158(1)(h) of the LRA. Chirwa was decided before Ntshangase, while Gcaba was handed down shortly after it. More recently, in Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal,[23] the Constitutional Court cited Ntshangase with approval, indicating implicitly that it saw no inconsistency in the approach followed in that case with its own earlier pronouncements.”

[3] [2014] 12 BLLR 1170 (LAC) at para [29] where it was held that;

“In sum therefore, the Labour Court has the power under section 158(1)(h) to review the decision taken by a presiding officer of a disciplinary hearing on i) the grounds listed in PAJA, provided the decision constitutes administrative action; ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or iii) in accordance with the requirements of the constitutional principle of legality, such being grounds “permissible in law”. The findings of the LAC and the SCA in that regard in Ntshangase are not inconsistent with the findings of the Constitutional Court in Gcaba or Chirwa, which are restricted to conclusions that unfair dismissals and unfair labour practices will normally not constitute administrative action on account of adequate alternative remedies existing under the LRA. Neither Gcaba nor Chirwa made any reference to Ntshangase, or, as I have said, section 158(1)(h) of the LRA. Chirwa was decided before Ntshangase, while Gcaba was handed down shortly after it. More recently, in Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal,[23] the Constitutional Court cited Ntshangase with approval, indicating implicitly that it saw no inconsistency in the approach followed in that case with its own earlier pronouncements.”

[4] Chirwa v Transnet and others (2008) 29 ILJ 73 (CC)

[5] Gcaba v Minister of Safety and Security and Others 2010 (1) SA 238 (CC).

[6] Section 23 of the LRA provides that; ‘Legal effect of collective agreement - (1) A collective agreement binds – (a) The parties to the collective agreement; (b) each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions are applicable between them; (c) the members of a registered trade union and the employers who are members of a registered employers’ organisation that are party to the collective agreement if the collective agreement regulates – (i) terms and conditions of employment; or the conduct of the employers in relation to the employees or the conduct of the employees in relation to the employers; (d) employees who are not members of the registered trade union or trade unions party to the agreement if – (i) the employees are identified in the agreement; (ii) the agreement expressly binds the employees; and (iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.’

[6] Section 23 of the LRA provides that;

‘Legal effect of collective agreement -

(1) A collective agreement binds –

(a) The parties to the collective agreement;

(b) each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions are applicable between them;

(c) the members of a registered trade union and the employers who are members of a registered employers’ organisation that are party to the collective agreement if the collective agreement regulates –

(i) terms and conditions of employment; or the conduct of the employers in relation to the employees or the conduct of the employees in relation to the employers;

(d) employees who are not members of the registered trade union or trade unions party to the agreement if –

(i) the employees are identified in the agreement;

(ii) the agreement expressly binds the employees; and

(iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.’