IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD IN POLOKWANE. NEHAWU obo MAHLAULE, RG DEPARTMENT OF HEALTH: LIMPOPO ARBITRATION AWARD

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1 IN THE PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL HELD IN POLOKWANE Case No PSCB701-16/17 In the matter between NEHAWU obo MAHLAULE, RG Applicant and DEPARTMENT OF HEALTH: LIMPOPO Respondent ARBITRATION AWARD Date of Ruling: 09 October 2017 Panellist: D Nkadimeng

2 Details of Hearing and Representation 1.1 This award is rendered in accordance with the provisions of section 138(7) of the Labour Relations Act, 1995 (Act No. 66 of 1995 the Act ). 1.2 The hearing took place at the Department of Health: Limpopo, Polokwane, on 06 September The applicant was represented by Mr R Lour, an attorney of Tzaneen, while the respondent was represented by Mr R Mollo. 1.4 The parties agreed that the dispute be decided on written arguments to be presented within certain time frames. The parties obliged and their submissions were taken into account in the writing of this award. 1.5 This award is based solely on the parties written representations, and the bundles of documents submitted at the hearing. Nature of the Dispute The dispute was about the interpretation and application of Resolution 7 of Background to the Dispute 3.1 The applicant worked for the respondent as Admin Officer: Risk and Security between 2004 and The post was then rationalized out of existence. 3.2 The applicant was declared to be in excess, and the respondent was guided by PSCBC Resolution 7 of 2002 to place the applicant into a post that would fit his profile. 3.4 The applicant disputes the respondent s contention that the post into which he was appointed fits his profile as required by the Resolution, and seeks to be appointed in a post one level above it or be interviewed for such higher post, as directed by Circular 131 of 2009.

3 Issues to be Decided 4.1 Whether or not the applicant should be appointed into one of two Level 8 posts allegedly existing in the Risk department and in the Security department, alternatively, be granted an opportunity to make representations to the Head of Department for appointment into one of those posts. Survey of the Submissions and Arguments No oral evidence was presented as there was hardly any dispute of fact between the parties on the issues to be interpreted. The dispute was decided on the parties written representations, their bundles of documents and arguments. 5 Applicant s Submissions The applicant submitted, through his attorney, that He had 23 years experience in the department of security and risk before the restructuring. 5.2 The post that he currently occupied, which was a Level 7 post in the department of Information and Records (which the respondent refers to as Patient Administration) was not in line with the applicant s profile and was in contravention of Resolution 7 of 2002 ( the Resolution ). 5.3 The applicant was either entitled to be appointed into a Level 8 post that exists in the Risk department, or Level 8 post that exists in the Security department. 5.4 If the respondent had followed the letter of the Resolution, these two posts would have been advertised internally, and the applicant would have had the opportunity to be interviewed for them, and possibly appointed into one of them. 5.5 The applicant s career path was adversely affected by his transfer to the Patient Administration department because his experience and training was in the

4 security and risk departments. In the new post, the applicant will not grow because he lacked the experience and qualifications that could see him being promoted. 5.6 The applicant should either be appointed into one of the existing two level 8 posts, or be afforded the opportunity to make representations to the Head of Department, who has the power to appoint him into a post one level higher than the one he occupied prior to the restructuring. 6 Respondents Submissions The respondent submitted that the applicant had no case because The applicant was declared to be in excess when his post was rationalized, and such employees could only claim to be appointed into posts that were at the same level as those at which they were at the time of restructuring. 6.2 The applicant was in a level 7 post in Patient Administration, and he did not lose any benefits as a result of the transfer. 6.3 The applicant did not possess any post-matric qualifications or degree at NQF level, which is a requirement of the level 8 post that the applicant sought to be appointed into. The applicant was not entitled to a promotion, but only to be placed in a post that matched his profile. The present post did just that. 6.4 The respondent has complied with the letter and spirit of the Resolution, and the applicant s claim ought to be dismissed. Analysis and Evaluation of the Submissions and Arguments, and Findings 7.1 Clause 3 of this Resolution reads as follows: 3 IMPLEMENTATION This Agreement comes into effect on the date of signing, and remains in force for

5 twelve months. In the event that the terms of this Agreement have not been implemented in the period stipulated herein, the duration of this Agreement will be extended by a further three months. 7.2 The Resolution was signed at Pretoria on 06 March It was, therefore, valid until 05 March 2003, after which the period of its validity was automatically extended by a further three months. After 05 June 2003 this Resolution expired and was of no further force and effect. 7.3 None of the parties argued this point, nor were they invited to do so. 7.4 It is clear from section 23 of the Act that the parties to a collective agreement may decide whether the Agreement shall be for a limited duration, or for an indefinite period. Clause 3 of this Resolution is unequivocal. It specifically limits the binding effect of this Resolution to at most fifteen months. 7.5 In the premises, Resolution 7 of 2002 does not apply to the dispute before me, and the interpretation thereof shall be academic exercise. Award 8. The applicant s claim is hereby dismissed. D Nkadimeng Panellist