Farre v Minister of Defence (C450/2015) [2016] ZALCCT 23 ; (2017) ILJ 174 ; [2016] JOL 36399 (12 July 2016) per Rabkin-Naicker J.

In the process of reviewing a decision in terms of s 158(1)(h) of the LRA the LC declined to set aside the decision concerning the alleged demotion or withdrawal of benefits of an employee in the public service. Applying Psa obo De Bruyn v Minister Safety & Security  [2012] 9 BLLR 888 (LAC) the LC decided it did not have jurisdiction but ordered the parties to complete the internal grievance process and allow the matter to be arbitrated in the bargaining council.

Cited:

For discussion of the De Bruyn judgment see:

Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis 2015) at pages 203, 290 and 318.

Excerpts without footnotes

[3]        In October 2008 the Job Evaluation Committee of the South African Navy noted that the applicant’s work was inappropriately classified as administrative and recommended that such classification be amended from administrative to scientific.  At that time the change in classification had no financial implications, it remained a level 9 post.

[4]        In July 2011, a collective agreement, “the Occupational Dispensation for Quantity Surveyors, Professional Surveyors, Architects, Town and Regional Planners, GISC Professionals and Scientists (OSD)” came into effect.   The applicant’s colleagues were translated to the OSD in July 2011.  The applicant was translated in July 2014, and as a result, her salary increased and she became entitled to a housing allowance and medical aid subsidy.  In July 2013, the applicant received notice of her registration as a Certified Natural Scientist with the South African Council for Natural Scientific Professions.  .  The translation of the applicant was backdated to 1 March 2014.

[5]        The applicant filed a grievance requesting that her translation be backdated to July 2009 like that of her colleagues.  It would appear that the grievance triggered the events giving rise to the application before me.  On 13 April 2015 the applicant’s salary advice revealed that she would receive zero take home pay.  Her superiors enquired as to the reasons therefore.  The decisions taken by the employer in considering her grievance regarding the backdating of her translation, which applicant refers to as the ‘impugned decisions’ were the following: . . . .

. . . . .

[9]        The respondents further submit that Section 35(4) of the Public Service Act  provides that an employee may only refer a dispute to the relevant bargaining council in the public service, or institute court proceedings, if she has lodged a grievance and the Department has not resolved the grievance to her satisfaction, as prescribed.  Only after an employee has exhausted her internal remedies, is she able to refer this dispute to the GPSSBC in terms of clause 18 of the OSD, read with section 24(1) and (2) of the LRA.

[10]     This court has to determine whether it has jurisdiction to hear this application on the basis of the pleadings before it as set out in Gcaba v Minister for Safety and Security and Others . . . . .

[11]      In order to establish whether a proper interpretation of the pleadings establishes  a claim that the LRA provides is to  be dealt with in another forum, and not a claim justiciable in this court, i.e.  the review and setting aside of two decisions of applicant’s state employer in terms of section 158(1)(h) of the LRA, I must consider, among others, the basis of applicants claim.  The applicant submits that she brings a “legality review” but at the same time the submissions on her behalf  are clearly based on the premise that the impugned decisions amounted to administrative action.  Her founding papers stated that she was advised that “the Respondents’ decisions to change my job classification is unlawful, invalid, and inconsistent with the Constitution, PAJA, the Public Service Act, 1994 and the regulations thereto”.  This ‘catch-all’ description of the nature of the review before court is not the most helpful.

. . . . .

[13]      In Public Servants Association of SA on behalf of de Bruyn v Minister of Safety & Security & another the LAC per Mlambo JP (as he then was), had this to say:

“[24] The review powers entrusted to the Labour Court in terms of s 158(1)(h) must be understood in the context when this section (indeed the entire LRA) was enacted.  At that time, the employment   of public servants was regulated by the common-law contract of employment, the unfair labour practice jurisdiction of the Industrial Court in terms of the Labour Relations Act 28 of 1956, other statutes and by means of common-law judicial review.

[25] Public servants were in a privileged position with regard to other employees as their choice of remedies extended to judicial review.  Section 158(1)(h) was intended to preserve the common-law judicial review remedy of public servants.  The permissible grounds of common-law review are well known.

[26] The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis-à-vis public servants, evaporated when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not ‘an administrative act’ as defined in PAJA and therefore not capable of judicial review in terms of that Act.  Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others.    The result is that a public servant is confined to the other remedies available to him or her.

[27] One of the effects of Chirwa is that a dismissal is not to be regarded as an ‘administrative act’ by the state but merely as the act of the state in its capacity as an employer.  This decision brought us to the situation where the pre-Chirwa substratum of s 158(1)(h) fell away, although there may conceivably still be employer acts which are almost indistinguishable from administrative acts.  The post-Chirwa meaning of s 158(1)(h) has received the attention of the Labour Court in De Villiers v Head of Department: Education, Western Cape Province,  SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others,   and National Commissioner of Police & another v Harri NO & others.

[28] But it does not follow that because the remedy of judicial review may still exist for public servants that the Labour Court will entertain  an application to review ‘any act performed by the State in its capacity as employer’ as a matter of course.  Recourse to review proceedings, in terms of s 158(1)(h), takes place in the context of the law relating to judicial review as well as the other elements of the system of dispute resolution which the LRA has put in place and also other applicable statutes.  (my emphasis)

[29] One limitation or restriction is relevant to the case at hand.  The LRA may oust the s 158(1)(h) review jurisdiction of the Labour Court.  Section 157(5) of the LRA, as the court a quo appreciated, provides that if the LRA requires an unresolved dispute to be resolved through arbitration, the Labour Court does not have jurisdiction to adjudicate the dispute.  Notwithstanding this, the Labour Court could acquire jurisdiction in terms of s 158(2) of the LRA but such a situation does not arise in this case.”

[14]     In De Villiers v Head of Department: Education, Western Cape Province  this court per Van Niekerk J had considered the implications of a deemed dismissal and of the power given to a public functionary to reinstate an employee in terms of s 14 of the Employment of Educators Act 76 of 1998.  He summed up the considerations relevant to determining whether a particular decision constitutes administrative action as follows:

“In summary: as a general rule, conduct by the state in its capacity as an employer will generally have no implications or consequences for other citizens, and it will therefore not constitute administrative action.  Employment related grievances by state employees must be dealt with in terms of the legislation that gives effect to the right to fair labour practices, or any applicable collective agreements concluded in terms of that legislation.

Departures from the general rule are justified in appropriate cases.  An assessment must be conducted on a case-by-case basis to determine whether such a departure is warranted.

The relevant factors in this determination (following SARFU) are the source and nature of the power being exercised (this would ordinarily require a consideration of whether the conduct was rooted in contract or statute …, whether it involves the exercise of a public duty, how closely the power is related to the implementation of legislation (as opposed to a policy matter) and the subject-matter of the power).

I venture to suggest that the existence of any alternative remedies may also be a relevant consideration — this was a matter that clearly weighed with the court in both Chirwa and Gcaba, who it will be recalled, were found to have had remedies available to them under the  applicable labour legislation.’

Evaluation

[15]      The applicant’s version before me is that the decision-maker in this case, (based on the record provided by the respondents), was a functionary in the Human Resources Department and not the Minister of Defence, who she submits is the person authorised to ‘classify jobs on the establishment’.  The letter which set out the ‘impugned decisions’ referred to by the applicant in her pleadings is written on behalf of the Grievance Committee of the Department of Defence.  It predicates its decisions on the allegation that the applicant was incorrectly translated in terms of the OSD in question.  As a result it restores her to her pre-OSD position her and seeks to recover monies paid to her in terms of section 38 of the Public Service Act.

[16]      In respect of the deductions that were made to her salary, the applicant pleads that section 38 of the PSA is not applicable because the payments made to her were not ‘erroneous’ and submits that she was properly and not erroneously paid in accordance with the applicable provisions of the OSD.  Further reference is made to the provisions of section 34 of the BCEA dealing with constraints on the ability of an employer to deduct remuneration from an employee.  In my view, the essence of the case as pleaded concerns the interpretation and application of a collective agreement to an individual employee.

[17]      Taking the approach as set out in the de Bruyn judgment, there is merit in the respondents’ stance on the jurisdiction of this court.  This is not a case which is an exception to the general rule set out in Gcaba.  On the basis of applicant’s pleadings properly construed, I am of the view that the section 158(1)(h) jurisdiction in regard to this dispute is ousted by the provisions of the LRA which require the real dispute between the parties, the interpretation and application of the OSD to the applicant, to be arbitrated.  In addition, the conduct of the employer in relation to the alleged demotion of the applicant may also fall to be dealt with by an arbitrator.