Panellist: M Naidoo Case No: PSCB690-15/16 Date of Award: 14 December In the ARBITRATION between:

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1 ARBITRATION AWARD Panellist: M Naidoo Case No: PSCB690-15/16 Date of Award: 14 December 2017 In the ARBITRATION between: PSA obo LEPADIMA, P AND 5 OTHERS (Union / Applicant/s) And GOVERNMENT PENSION & ADMINISTRATION AGENCY - GAUTENG (1 ST RESPONDENT) DEPARTMENT OF PUBLIC SERVICE & ADMINISTRATION (2 ND RESPONDENT) (Respondent/s) Page 1

2 Details of hearing and representation [1] The arbitration took place on 30 November 2017 at the offices of the Public Service Co-ordinating Bargaining Council ( PSCBC ), 260 Basden Road, Lyttleton Village Office, Centurion. The proceedings were digitally recorded. [2] The first applicant is Mr Lerato Bakode Frank Petje. The second applicant is Mr Phillipos Lepadima. The third applicant is Mr Khutjo Sehlodimela. The fourth applicant is Mr Mlungisis Simon Masango. The fifth applicant is Mr Simon Mokobane. The sixth applicant is Ms Nosia Nombebe. The fifth applicant was absent. The other applicants were present. The applicants were represented by Mr Andre Eagar and official of the Public Servants Association (PSA). [3] The first respondent, the Government Pension and Administration Agency Gauteng, was represented by Mr Tebogo Marobela, its labour relations official. The second respondent, the Department of Public Service and Administration, was represented by Mr Lehlohomole Adonis, an attorney of the law firm Msikinya Attorneys and Associates. The proceedings were conducted in English. No interpretation services were used. Issues to be decided [4] I am required, in this interpretation and application dispute; to make a finding on whether clause 18.1 of PSCBC Resolution 1 of 2012 ( the 2012 resolution ) ( clause 18.1 ) is applicable to the applicants and, if so, whether, in terms of clause 18.1, the first applicant is entitled to be placed on job level ( JL ) 10 with effect from 1 September 2013, the second applicant is entitled to be placed on JL12 with effect from 1 June 2012, the third applicant is entitled to be placed on JL10 with effect from 1 May 2015, the fourth applicant is entitled to be placed on JL10 with effect from 1 November 2008, the fifth applicant is entitled to be placed on JL12 with effect from 1 August 2008 and the sixth applicant is entitled to be placed on JL10 with effect from 17 June Background to the issue in dispute [5] In 1 September 2013 the first respondent appointed the first applicant as an assistant manager: taxation on JL9. On 1 June 2013 the first respondent appointed the second applicant as a manager: management accounts and budget on JL11. On 1 May 2015 the first respondent appointed the third applicant as a manager: fleet management and coordination on JL9. On 1 November 2008 the first respondent appointed the fourth applicant as an assistant manager: purchase of service and additional liability on JL9. On 1 August 2008 the first respondent appointed the fifth applicant as an Page 2 of 9

3 operational security manager on JL9. On 17 June 2008 the first respondent appointed the sixth applicant as a project administrator: project support office on JL9. [6] The first respondent emerged as a separate entity from the Government Employees Pension Fund (GEPF) by proclamation in The first respondent thereafter embarked on a restructuring process which included a regrading of all its employees. This process, particularly the regrading process, has, to date, not been completed. [7] In July 2015 the applicants lodged respective grievances with the first respondent. The first applicant claimed that he was entitled, in terms of clause 18.1, to be placed on JL10 with effect from 1 September The second applicant claimed that he was entitled to be placed on JL12 with effect from 1 June The third applicant claimed that he was entitled to be placed on JL10 with effect from 1 May The fourth applicant claimed that he was entitled to be placed on JL10 with effect from 1 November The fifth applicant claimed that he was entitled to be placed on JL12 with effect from 1 August The sixth applicant claimed that he was entitled to be placed on JL10 with effect from 17 June The grievances were not resolved to the satisfaction of the applicants. [8] On 30 March 2016 the applicants referred the dispute to the PSCBC as an interpretation/application dispute. On 13 May 2016 PSCBC Panelist, Mr Saber Ahmed Jazbay, issued a certificate, in terms of section 135(5) of the Labour Relations Act of 1995 ( the LRA ), to the effect that the dispute remained unresolved. On 6 June 2016 the applicants referred the dispute to the PSCBC for arbitration. On 1 December 2016 the applicants and the first respondent concluded a pre-arbitration minute. [9] The matter was scheduled, for the first time before me, on 29 June 2017; on which date I issued directives, at the joint request of the parties, that they make written submissions on their stated cases by 27 July I also joined the second respondent to the proceedings. The parties exchanged their respective bundles of documents. The applicants and the first respondent filed, respectively, a bundle of documents. On 31 August 2017 I extended the deadline for the filing of the written submissions to 15 September [10] On 19 October 2017 the PSCBC sent a notice to the parties setting the dispute down to be arbitrated on 30 November In response to the directives I issued on 29 June 2017 and 31 August 2017 the parties filed written submissions on their stated cases. They also filed written closing arguments. On 30 November 2017 the parties representatives asserted that the parties do not want to call any witnesses. Page 3 of 9

4 Summary of the evidence and arguments The applicants arguments [11] Mr Eagar explained that the first applicant s predecessor, in the post of assistant manager: taxation, was on JL10. Although the applicant s application for the post was in response to a recruitment process that advertised the post as JL9, Mr Eagar argued that the applicant was entitled to be placed on JL10, in terms of clause 18.1, on the basis of the principle of equal pay for equal work. Moreover, the first respondent s delay in grading the first applicant against the work he has been doing has been pending since 2010, which is an unreasonably long period. [12] The second applicant was similarly aggrieved, except that he was appointed on J11 and he had replaced his predecessor who was on JL12. [13] The third applicant, who had commenced his employment in his post on JL11 after the 2012 resolution came into operation, should have, in terms of clause 18.1, been rightfully appointed on JL12. [14] Mr Eagar argued that, although the fourth applicant was appointed in his post on JL9 before the 2009 resolution came into operation; the coming into effect of the 2012 resolution entitled him to be upgraded to JL10. This is because he was on a lower salary level than those of his peers in other units. [15] Mr Eagar explained that the fifth applicant was appointed on an advertised JL9 post in He pointed out that another official was, however, appointed in the post of vetting supervisor on JL10 in that very same year. The said post was advertised as a JL10 appointment. This, he argued, was inconsistent. [16] Mr Eagar explained that the sixth applicant was appointed in an advertised post of project administrator: project support on JL9 in He pointed out that another official was, however, appointed in the post of project administrator on JL10 in the same unit in This amounted to discrimination as it was in violation of the principle of equal pay for equal work. Th respondents arguments Re: the fourth applicant [17] Mr Adonis pointed out that the CCMA had, under case under GATW , issued an award against the fourth applicant on the same facts. In that matter Commissioner Skhosana had dismissed an unfair labour practice dispute referred to the CCMA by the fourth applicant. Mr Adonis argued that the Page 4 of 9

5 current dispute, in so far as the fourth applicant is concerned, is therefore res judicata. I not have the necessary jurisdiction to arbitration the dispute as the applicant s only remedy is to issue a review application against Commissioner Skhosana s award. [18] Mr Adonis also averred that, as the fourth applicant was appointed in his post on JL9 in 2008, the 2012 resolution is not applicable to him. Re: the fifth applicant [19] Mr Adonis pointed out that the fifth applicant had resigned from his employment with the first respondent on 1 March He argued that he does not have the necessary locus standi to institute the current dispute as he is not an employee of the first respondent any longer. [20] Mr Adonis also averred that, as the fifth applicant was appointed in his post on JL9 in 2008, the 2012 resolution is not applicable to him. Re: the sixth applicant [21] Mr Adonis averred that, as the sixth applicant was appointed in her post, which was advertised as a JL9, she lacks the necessary locus standi to institute the current dispute. He argued that, as she was appointed as per an advertised post, before the 2012 resolution came into operation, the said resolution therefore is not applicable to her. Re: applicants alleged non-compliance with my directive [22] Mr Adonis argued that the applicants were supposed to have filed a statement/s of case, as per my directives. Mr Eagar, however, instead filed heads of arguments, which were not in compliance with the strict requirements of a stated case. Hence, the applicants dispute should be dismissed on the basis of their non-compliance of my directives. Re: Generally on the merits [23] Mr Adonis argued that the first respondent is not under a duty, in terms of clause 18.1, to escalate all JL9 and JL11 employees to be on JL10 and JL12 respectively. He avers that the only obligation clause 18.1 imposes on the employer is to ensure that an employee who is graded to be on 10 and 12 are indeed so accordingly paid. In the case of the applicants, however, they have not been graded to be on JL10 and JL12. Such an exercise is underway and has been delayed due to various obstacles which the applicants did not dispute. Until such grading takes place, which may alter their current JLs; Page 5 of 9

6 they are correctly placed in their salary levels for the purpose of clause In essence, his argument is that the status quo remains unless a grading exercise justifies any upgrade. Analysis of evidence and arguments The second respondent s points in limine [24] It is clear, from Mr Adonis submissions, that Commissioner Skhosana was, in CCMA case GATW , not seized with an interpretation/application dispute, as I am in the current matter. Hence, the fourth applicant s current dispute is not res judicata. Mr Adonis point in limine, on this issue, is dismissed. [25] The fifth respondent s claim is for a claim relating to his employment spanning the period from 1 August He filed his dispute with the PSCBC on 30 August 2016, which was before he had resigned. The applicant s resignation does not stop his right to continue with his current dispute. Mr Adonis point in limine, on this issue, is dismissed. [26] My directive was aimed at curtailing the proceedings. It was by agreement. It did not exclude the parties their right to still lead further evidence at the arbitration proceedings which was scheduled after the written submissions were filed. The fact that Mr Eagar erroneously headed the applicants founding stated case as heads of arguments does not diminish the value of the content. The document clearly sets out the applicants stated case sufficiently to allow the respondents to respond with their answering submissions. Mr Adonis argument on this issue is a red erring and unnecessarily technical. His point in limine, on this issue, is dismissed. [27] Clause 18.1 states: 18 AMENDMENT TO PSCBC RESOLUTION 3 OF Clause of PSCBC Resolution 3 of 2009 is hereby amended to allow employees whose posts are graded on salary levels 10 and 12 to be appointed and remunerated on salary levels 10 and 12 respectively. [28] Clause of PSCBC Resolution 3 of 2009 (Clause ) ( the 2009 resolution ) states: Salary levels 9-10 and salary levels The commencement salary for all employees on posts not covered by any OSD as per PSCBC Resolution 1 of 2007 and 3 of 2008, and appointed as Assistant Directors and Deputy Directors shall, with effect from 1 July 2010, be on salary levels 9 and 11 respectively. Page 6 of 9

7 [29] Panellist Matji considered clause 18.1, read with clause , in an interpretation dispute, in the following award: PSA obo Z Gashe and 40 Others / Department of Rural Development and Land Affairs and Department of Public Service and Administration, case number PSCB150-15/16 ( the Gashe award ). At paragraphs [24] and [25] Panellist Matji [30] reasoned: [23] I took the liberty to refer to PSCB88-13/14 at paragraph [64] and found the following: The Respondent must apply the clause indiscriminately to all employees whose posts on 1 August 2012 were graded on salary levels 10 and 12 and to appoint and remunerate them accordingly on salary levels 10 and12 respectively. It does not need the wisdom of Solomon to realise that an employee must have been employed on 1 August 2012 to be entitled to the benefits arising from Resolution 1 of [25] It is immaterial whether the post existed or not as on that date. (W)hat the resolution clearly aimed to address was the employees who as at the date of 1 August 2012 occupied posts graded on level 10 or 12 who were remunerated on salary level 9 and 11 as per resolution 3 of Therefore clearly, the resolution is not applicable to the applicants as they were appointed after 1 August (My emphases) [31] I am in agreement with Panellist Matji. Even Panellist Mbileni similarly reasoned in the following award: PSA obo Zuko April & Seven Others / Department of Trade & Industry, case number PSCB /15 ( The Zuko award ). Panellist Mbileni concluded in the Zuko award at paragraph [14]: The correct interpretation or application of clause 18.1 is that it has been made applicable to all employees of the State provided that they occupy positions which have been graded at levels 10 and 12 prior to the resolution (My emphasis ) [32] In the current matter the first and third applicants were appointed on JL9 after the 2012 resolution came into effect. The 2012 resolution is therefore not applicable to them. [33] The 2012 resolution is also not applicable to the second, fourth, fifth and sixth applicants as they were not appointed on JL10 or JL12 before the 2012 resolution came into effect. They were in fact employed on JLs 9 and 11. This is apparent from a mere reading of clause There is no ambiguity or obscurity in the language used in clause 18.1 on this score. [34] Clause 18.1, clearly, only allows the employees an upgrade from JL9 to JL10, on the one hand, and JL11 to JL12, on the other hand, if such employees posts are graded on JL10 and JL12 respectively. Page 7 of 9

8 Clause 18.1 uses the present tense. The practical impact of clause was that JL10 and JL12 were in effect abolished when the 2009 resolution came into effect. About three years later, when the 2012 resolution came into effect, JL10 and JL12 were re-introduced as an increment within the public service with effect from 1 August Clause 18.1 did not, simultaneously, abolish JL9 and JL11. It also did not automatically escalate such employees onto JL10 and JL12. [35] The only practical and reasonable obligation that clause 18.1 placed on the public service was that its departments must, in the normal course of promoting its employees, grade them to establish whether they met the requirements of the JL11 and JL12 increments. The respondents are indeed in the process of conducting such a grading exercise. Until this grading is done none of the applicants can claim, in terms of clause 18.1, that they have an entitlement to be promoted to JL10 or JL12. [36] Panellist Hanekom very aptly reasoned, in this regard, at paragraph [17] of the following award: PSA obo R Hall / Department of Premier Western Cape and Department of Public Service and Administration, case number PSCB148-16/17 ( the Hall award ): Mokgalapha further gave a plausible explanation as to why years of service may lead to higher salaries for equal work performed and why an Assistant Director like the Applicant would initially be appointed on salary level 9 [37] If the applicants dispute is that the grading exercise is in fact being conducted unfairly or that they are not being remunerated fairly; then they have clearly misconceived their cause of action in the current dispute. I am not seized, in the current dispute, with any unfair treatment relating to the grading that is underway or that they may be unfairly paid for the work they perform. I am seized with an interpretation/application dispute. I do not have the necessary jurisdiction or authority to convert such an interpretation/application dispute into something as different that. [38] What the applicants have lost complete sight of is that it is still possible that they may be retained on JL9 and JL11 even after such a grading exercise takes place. Clause 18.1 contemplates the possibility that such a scenario may play itself out. This is because, with effect from 1 August 2012, both JL9 and J10 continue to exist within the assistant director post; and both JL11 and J12 continue to exist within the deputy director post. This implies that it is not the post that has been affected by the 2012 resolution; but the JL that an individual employee may be entitled to. Hence, the resolution impacts on the competence of the employee. The only way an employee can be placed on either JL10 or JL12, is if he/she is a candidate for promotion. Such promotions generally take place when an employee successfully applies for and/or is appointed to such an escalated JL. In the current matter none of the applicants have demonstrated that they have such an entitlement (in terms of any grading that may have taken place after 1 August 2012) in terms of clause Page 8 of 9

9 AWARD [39] Clause 18.1 of PSCBC Resolution 1 of 2012 ( the resolution ) is not applicable to the first applicant, Mr Lerato Bakode Frank Petje, and the third applicant, Mr Khutjo Sehlodimela, as they were employed by the first respondent after 1 August 2012, when the resolution came into operation. [40] The resolution is not applicable to the second applicant, Mr Phillipos Lepadima, fourth applicant, Mr Mlungisis Simon Masango, fifth applicant, Mr Simon Mokobane and sixth applicant, Ms Nosia Nombebe as they were not appointed on JL10 or JL12 before the 2012 resolution came into effect. [41] The applicants have failed to prove that they are entitled to be placed on either JL10 or JL12, as they respectively claim; as they have not been so graded since 1 August [42] The applicants claims that they be placed in either JL10 or JL12 in compliance with the resolution, with effect from their dates of employment, are accordingly dismissed. PSCBC Panellist M Naidoo Page 9 of 9