Visser v National Commissioner South African Police Service and Others (D18/20) [2022] ZALCD 30 (27 July 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case No: D18/20

In the matter between:

G VISSER

Applicant

and

NATIONAL COMMISSIONER SOUTH AFRICAN

POLICE SERVICE

First Respondent

MINISTER OF POLICE

Second Respondent

P JAIRAJH N.O.

Third Respondent

SAFETY & SECURITY SECTORAL BARGAINING

COUNCIL

Fourth Respondent

Heard: 07 July 2022

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 10h00 on 27 July 2022

Summary: Opposed Review

JUDGMENT

VAN NIEKERK, AJ

Introduction

[1] This is an application to review an arbitration award in terms of section 145(2)(a) of the Labour Relations Act, 1995 (“LRA”), issued by the third respondent (“the arbitrator”) delivered under the auspices of the fourth respondent, the purpose of which is to set aside the arbitration award delivered on 7 November 2019.

[2] The arbitrator was called upon to decide two issues, namely whether or not the South African Police Services (“SAPS”) committed an unfair labour practice related to demotion and whether the non-payment of an acting allowance to the applicant in performing the duties of a Relief Commander is an unfair labour practice related to benefits.

[3] The arbitrator concluded that no unfair labour practice had been committed and she accordingly decided that the applicant is not entitled to any relief. It is this decision which gives rise to the application for the review of the award.

The Background

[4] The background to the dispute is set out succinctly in paragraphs [7] – [10] of the arbitration award which I quote here below:

“[7] The applicant is a warrant officer at SAPS Westville on salary level 7, claimed he was appointed as the Relief Commander in the component, Visible Policing Community Service. All Relief Commanders at Westville SAPS have the ranks of Captain in salary level 8 or B and C. Previously there was a Captain in this specific post and when she moved out of this shift, the applicant was appointed to the Relief Commander position from approximately the 17 January 2013 to 17 July 2017.

[8] The applicant contended that he was not paid any acting allowance despite performing the functions, duties, responsibilities of a Relief Commander in the higher post, the applicant was also PEP (Performance Enhancing Process) evaluated in this higher post. When his attorneys wrote the employer regarding the issue of the acting allowance and appointment in the higher post, he was suddenly demoted from his position as a relief commander to a normal relief member.

[9] The respondent contended that in order for one to qualify for an acting allowance, there are certain requirements that the incumbent has to meet and also processes that must be followed before one can be entitled to an acting allowance that is governed by Agreement 2 of 2002 which the respondents believe form the basis of the case relating to acting allowance.

[10] The respondent contended that with regards to the issue of demotion, the applicant was never appointed in that position as a captain and that position was for a captain. Further, the applicant never suffered any financial loss and the issue of him being stripped of the powers, responsibilities and the changing of the KPA’s under the circumstances were academic and of no practical effect.”

[5] It must be borne in mind that it is common cause that as far as the promotion dispute is concerned, the applicant was not appointed to the rank of Captain. He has, however, recently been appointed to the rank of Captain. It is also common cause that throughout the period that he performed the duties of a Relief Commander he was not paid an acting allowance which gave rise to the disputes referred to the fourth respondent.

The Evidence

[6] The applicant testified that at Westville SAPS, the Vispol Community Service Centre has four Captains, one for each relief, being relief A, B, C and D. As is reflected on SAP 15, he was the new member in charge of B relief from 17 January 2013. He testified that in terms of the organisational placement, he held the position of Relief Commander Community Service Centre and that the comments made by his supervisor on his PEP reflected that his performance was good and his support was appreciated.

[7] The applicant further stated that he acted for four years and six months on salary level 7 although the position, if he were appointed Captain, would have been at salary level 8. He was not removed on grounds of misconduct, incapacity or operational requirements and was not rotated at any stage during this period.

[8] The applicant further stated that in respect of the unfair labour practice pertaining to his demotion, he was removed as Relief Commander as a result of his request for payment of an acting allowance and the lodging of a grievance in respect thereto.

[9] The applicant referred to his SAP 15 and PEP and stated that his specific portfolio was Relief Commander but at the rank of a Warrant Officer. His rank and salary remained the same but his decision-making status in the police station changed from a commander to a normal patrolman in July 2017 and no reasons were given for this by the first and second respondents.

[10] The applicant had approximately thirty years of service in the SAPS. He was appointed to the position of Relief Commander by the Station Commissioner at the time who had the rank of a Colonel. When asked if he had an appointment letter to reflect that he was appointed to the position of a Relief Commander, he stated that he had requested such a letter but it had not been forthcoming.

[11] The applicant was referred to the SSSBC Collective Agreement Number 2 of 2002 which governs the payment of acting allowances. It states:

“1 An Employee appointed in writing by any Assistant Commissioner at Provincial or National level or higher rank or any area Commissioner… shall be paid an acting allowance to act in a vacant post provided that:

1.1 the post is vacant and funded post, and

1.2 the acting period is no longer than six weeks.

2 The Employee must accept the acting appointment in writing.”

[12] When asked whether his appointment had been in writing, he stated he did not receive an appointment letter but that he considered the documentation such as his SAP 15 and other like, documents, to be sufficient. It was put to him that a further requirement for him to qualify for an acting allowance is that the appointment in writing should be by an Assistant Commissioner who is at the level of Major General and above. He stated that although this is what the collective agreement states, in his opinion if a Station Commissioner appoints him, he cannot go over his head.

[13] It was put to the applicant that he was never appointed as a Captain Relief Commander and he agreed that he was never appointed Commander in the post of a Captain.

[14] The first and second respondents called Colonel Z J Zondi as a witness. He has been with the SAPS for thirty-one years working at Vispol. He commenced work as the Station Commander at Westville SAPS on 10 April 2017.

[15] After he had established that the applicant was performing duties as a Relief Commander and that he was not being paid an acting allowance, he established that the applicant had not been appointed in accordance with the collective agreement and that the applicant was accordingly not entitled to an acting allowance.

[16] As far as the question of the demotion of the applicant is concerned, he placed Captain Nxumalo in that position to run the shift because there was no need to appoint another Captain. He denied that the applicant had been demoted and he stated that SAPS members are organised into ranks and if the applicant had been demoted, he would have been demoted from a Warrant Officer to a Sergeant.

[17] Colonel Zondi conceded under cross-examination that a person who performs relief command duties has certain responsibilities, functions, KPI’s, status and decision-making powers. It was put to him that the removal of these attributes and functions constitute demotion. He disputed that and stated that in the SAPS that is not regarded as demotion.

The Arbitrator’s Findings

[18] In her analysis the arbitrator essentially agreed with the reasoning of Colonel Zondi and pointed out that the applicant could not produce any letters of appointment and that the applicant had claimed that he was appointed verbally into the Relief Commander post. The arbitrator concluded that the applicant had never been appointed to the position of Captain in the post of Relief of Commander and that he remained a Warrant Officer who had not been demoted.

[19] As far as an acting allowance is concerned, the arbitrator referred to the collective agreement and took the view that the applicant had failed to provide proof that the provisions of the collective agreement had been fulfilled. It was for those reasons that he was not entitled to an acting allowance.

Submissions

[20] During argument it was submitted to me that the applicant was entitled to an acting allowance and that the arbitrator misunderstood that the case made out on behalf of the applicant is based on an unfair labour practice in terms of section 186(2)(a) of the LRA relating to “benefits”. The point was made that the case had not been made out in terms of the collective agreement. It was further submitted that the collective agreement had not been applied consistently by the SAPS and that the arbitrator had overlooked the concession made by Colonel Zondi that the non-payment of an acting allowance was unfair to the

applicant.

Conclusion

[21] The arbitrator took the view that an acting allowance could only be paid to a SAPS member provided that the provisions of the collective agreement had been complied with. While it is correct that the applicant’s case is based on the provisions of section 186(2)(a) of the LRA that does not mean that the collective agreement can simply be ignored. Its relevance is that it was raised as a defence by the first and second respondents which the arbitrator considered to be valid.

[22] The arbitrator, however, did not take into account material evidence regarding the consistency with which the collective agreement was applied. There was evidence that the Station Commander Westville, Lt-Colonel J Sikhosana made an application on behalf of an employee, Captain D Nxumalo, on the 7th June 2017 for an acting allowance and appointment retrospective for the period 1 December 2016 to 20 May 2017. There was further evidence that the Acting Station Commander, Pinetown, Colonel A Myburgh, made an application on behalf of an employee, Major B W Magubane, on the 9th and 12th November 2015 for an acting allowance for the period 1 March 2015 to 30 April 2015 which was supported by Brigadier M T Janse van Rensburg on the 16th November 2015.

[23] These cases were not refuted and no reason was given why the applicant too could not have been paid a retrospective acting allowance particularly as Colonel Zondi conceded that the applicant had been treated unfairly. The first and second respondents bore the onus to rebut the allegations of inconsistency (see S A Police Service v Safety & Security Sectoral Bargaining Council & Others (2011) 32 ILJ 715 (LC).

[24] It is clear from a reading of the arbitration award that the arbitrator did not consider the allegations and evidence regarding the inconsistent treatment of the applicant and that she decided the issue of failure to pay the applicant an acting allowance by mere reference to the provisions of the collective agreement. The arbitrator’s failure to take into account the evidence of inconsistent treatment in my view resulted in an award that is unreasonable.

[25] As far as the case based on demotion is concerned, that too is an unfair labour practice dispute in terms of section 186(2)(a). Ms Naidoo, who appeared for the applicant, referred me to the judgment of Van Wyk v Albany Bakeries

Limited (JR1658/01) [2003] ZALC 107 (26th September 2003). Although this case was decided in the context of a constructive dismissal, the reasoning is nonetheless compelling. In paragraph [17] the court, after having considered the dictionary meaning of the word “demote” stated that:

“A demotion therefore has less to do with the demoted employee’s salary. It would seem the reduction of salary is only a secondary factor. The primary and decisive factor being the reduction in rank, position or status of the employee concerned.”

[26] In paragraph [18] reference was made to Matheyse v Acting Provincial Commissioner, Correctional Service & Others (2001) 22 ILJ 1653 (LC) at 1658 – 1659 where the following is stated:

“In a series of decisions (which predated the LRA) the Civil Courts have gone further and applied a wider definition to the concept of demotion in the Labour Relations context, holding that it applies even where employees retain their salaries, attendant benefits, and rank but have suffered a reduction or demotion in their ‘dignity’, ‘importance’ and ‘responsibility’ or their ‘power’ or ‘status’.”

[27] In the applicant’s case it is clear that although he retained the rank of Warrant Officer, he was placed in the post of a Relief Commander at SAPS Westville and that he faithfully performed his duties in that position for a period in excess of four years. It was only when he complained about not being paid an acting allowance that he was removed from the post and reduced to performing duties as a patrolman. As a result of this he suffered a reduction or demotion of his dignity, importance, responsibility, power and status which all amounted to a degrading of his status as a SAPS member.

[28] In paragraph [75] of the arbitration award the arbitrator in her reasoning concluded that … “… the applicant was never appointed to the position of Captain in the post of Relief Commander. He was a Warrant Officer and remains a Warrant Officer.” This finding does not take into account that for a period in excess of four years the applicant had performed the duties of a Relief

Commander and that removing him from that position to that of a patrolman did constitute a demotion constituting an unfair labour

practice. In this regard I consider the arbitrator’s conclusion to be irrational and unreasonable.

[29] During argument I was informed that the applicant has since the institution of this review application been promoted to the rank of Captain. I do not, however, know what duties he performs and whether there is any purpose in reinstating the applicant into his former position. This is not, therefore, a case in which the remedy is a forgone conclusion and that it would merely be a waste of time to order the fourth respondent to reconsider the matter (see Department of Justice v CCMA & Others (2004) 25 ILJ 248 (LAC at 304 para 48).

[30] I also take the view that the arbitrator should properly quantify the acting allowance payable to the applicant for the period 17 January 2013 to 17 July 2017.

Order

[31] For these reasons I order as follows:

(a) the application for the review of the arbitration award in respect of the unfair labour practices based on the failure to pay the applicant an acting allowance for the period 17 January 2013 to 17 July 2017 and demotion is upheld and the arbitration award is set aside;

(b) the third and fourth respondents are directed to consider;

(i) the acting allowance payable to the applicant for the period 17 January 2013 to 17 July 2017;

(ii) the appropriate remedies that the applicant is entitled to arising out of the aforesaid unfair labour practices;

(c) there is no order as to costs.

Applicant’s Attorneys:

Angeni Naidoo Law Firm

(Ref: AN/G Visser)

First Respondent’s Attorneys: State Attorney (Kwazulu-Natal)

(Ref: Ms M Dlamini/32/000187/2020/G/P14)