Imatu obo Thomas / City of Cape Town (2016) 25 SALGBC 10.10.4 – WCM011502 dated 8 December 2015 (SALGBC) per Thuthuzela Ndzombane.

A bargaining council arbiter found that the City of Cape Town unfairly demoted a Technician.  The City was ordered to re-instate him to the post of Principal Technician at Grade T:13 effective from 1 July 2012 with salary adjustments and back-pay from that date.  The City failed to justify its grading process based on the Tuned Assessment of Skills and Knowledge (TASK) job evaluation system owned by Deloitte & Touche and used in local government.

Comment:

This award only dealt with an alleged unfair labour practice concerning ‘demotion’ and its authority is persuasive and not binding.  It is more than likely that job evaluation systems will be called into question when consideration is given to alleged claims of unequal pay for work of alleged equal value.

As previously mentioned employers are not forced to adopt any particular ‘job evaluation’ system, provided they eliminate disproportionate income differentials and have a rational framework that has seven proportional occupational levels as set out in form EEA 9.

Earlier posts:

Excerpts from the award

[15]      Ms Monita Robinson stated that she is employed by Deloitte as a Manager and she presented the following evidence under oath.  She has been working for the company for a period of 20 years.  Her main tasks are “rewarding” consulting and include job profiling, job evaluation, pay structuring and reward strategy.  For many years the company was involved in training the Evaluation Committee for the City of Cape Town.  Deloitte was involved in actual evaluation of certain posts and audits certain grades.  They were responsible for the appeal process which was coming out of the job evaluation and grading.  She was the main client contact and a project leader of the project.  There was a project team comprised of six which dealt with two thousand appeals.  Mr Troskalanski was one of the team members.

[16]      She has more than 15 years experience in implementation of the TASK in the public and private sector.  She trained the people as to how to implement it and assess individuals.  TASK came into effect in 1960 as a job evaluation system and includes methodology.  Deloitte owns the TASK methodology.

She is aware of the inconsistency of the job evaluation of the applicant.  During the appeal project certain members were dealing with appeal which included Mr Troskalanski.  Once the TASK appeal has been concluded it would be sent to the City.

Thereafter the unions and the respondent would be given presentation [sic] on the results.  In February 2014 Frank Ruggeiro alerted them to the inconsistency and they identified that Messrs Barnard, Thomas and Ntsheyiya received inconsistent job gradings.  In June 2013 the post was evaluated and graded but it was job graded at T:12.  When they received the job description of the applicant and they compared it to City of Cape Town principal technician and senior technician.

. . . . .

[24]      It is common cause that the parties within the Council had concluded a collective agreement which regulated the process of job evaluation and grading.  This Agreement has ceased to exist as parties have failed to conclude or extend the Agreement which expired on 30 November 2009.

As a result of the deadlock the respondent concluded its own policy regulating the evaluating and grading process.  Evidence shows that an external company namely Deloitte was appointed to adjudicate the appeals lodged by the employees.

[25]      The TASK Toolkit on appeals process stated that:

“Employees who receive a TASK outcome (and) are dissatisfied with it will have an opportunity to submit an appeal.  Appeals must be submitted within 15 days of employees receiving their TASK results.  All appeals will be based on the job description that was submitted during the TASK process.  The City Manager will appoint an independent TASK specialist or an independent panel to consider the appeals.

The regrading process will be attended by two reps (one from each union) and two job evaluation specialist from the City’s job evaluation unit.  They will be free to provide verbal comment and clarification during the appeals process.  The independent evaluator or panel will submit recommendations to the City Manager, who will apply his mind to the final results.  The City Manager’s decision following the appeals process will conclude the TASK process for the affected position, and will be final and binding.”

[26]      Based on the above it is clear that the process of evaluating and grading is regulated by the policy of the respondent.  Obviously the policy creates rights and obligations between the parties, even though the respondent retains its discretion to offer or to refuse to give a post.  It is trite law that when an employer is exercising its discretion such should be done transparently and fairly.

Failure to do so will lead to employees challenging such decisions and the specialist labour forums will be called upon to determine whether the discretion was exercised fairly.  In casu the respondent has a discretion in terms of this policy and in terms of section 66 of the Local Government Municipal Systems Act to exercise the discretion.

. . . .

[37]      I have also taken into account that the process of evaluation and grading was to solely focus on the job description nothing else but in this case benchmark was also taken into account.  There is no rationale as to why the scope of job grading was broadened in the circumstances.

Obviously the whole process was flawed and unfair to the extent that it was unlawful because the process is not regulated by the policy.

[38]      If the applicant was given an opportunity to make representations maybe the parties might have agreed to a fair process.

But I do not believe that such a process might have cured the defects, because it is clear this methodology of TASK has brought irregularities and cannot reconcile any of its results.  It kept producing inconsistent results which did not assist the parties.  In the circumstances the respondent should have offered the employees the higher results to avoid any dispute emanating from this process.

[39]      Grogan Workplace Law at 54 states that:

“A demotion occurs if the change to the employee’s terms or conditions of employment is such that they result in a material reduction of employee’s remuneration, responsibilities and status.  The mere fact that an employee’s title and remuneration remain the same is not necessarily proof that a demotion has not occurred.”

[40]      I have no doubt that the applicant’s remuneration, status and benefits were substantially reduced without the consent of the applicant.  In the light of the above I find on balance of preponderance that the applicant has proved that the respondent committed an act of unfair labour practice by demoting him unfairly when it retracted the post of Principal Technician at T:13 and instead it offered Senior Technician T:12.

Consequently; the respondent was involved in an act of unfair labour practice by demoting the applicant to a lower grade of the spectrum.