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The Labour Court Of South Africa,

Held At Cape Town

 

Case : C 47/2020

Of interest to other judges

 

In the matter between:

 

CITY OF CAPE TOWN		First Applicant
And
SOUTH AFRICAN LOCAL, GOVERNMENT   BARGAINING COUNCIL		First Respondent
COMMISSIONER T NDZOMBANE N.O		Second Respondent
IMATU obo FADIAH SULAIMAN		Third Respondent

 

Date of Hearing: 19 October 2022        

Date  of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 15h00 on 12 February 2024

 

Summary: (Review – ULP s 186(2)(c) – Failure to re-evaluate post despite intrinsic merit of doing so – Employer taking into account issues not envisaged in Job Evaluation Policy and elevating the importance of such factors above the importance of ensuring employees’ job descriptions and grading are correct – job evaluation to be timeously conducted – arbitrator’s decision that employer committed an unfair labour practice by deciding not to submit a post for re-evaluation and delaying the evaluation process upheld)

 

JUDGMENT

LAGRANGE J

 

Introduction

 

[1]  This is an opposed application to review and set aside an arbitration award in which the arbitrator found that the applicant municipality’s failure to timeously submit the third respondent's job description for job grading evaluation amounted to an unfair labour practice and was procedurally unfair. The arbitrator awarded the employee a solatium of R 90,000, which amounted to approximately two months remuneration for Sulaiman.

 

[2]  In January 2013, the third respondent, Ms F Sulaiman (‘Sulaiman’) was promoted to the position of professional officer (‘PO’) in the Collective-Bargaining department of the applicant (‘the City’).

 

[3]  Following a restructuring process, around early August 2015 she was moved from the Collective Bargaining department to the Labour Relations department. At that point she was required to represent the City in arbitration proceedings. This function was not specified in her job description but did appear in the job description of a senior professional officer (‘SPO’).

 

[4]             Despite assurances that her job description would be updated and participating in two processes during a three-year period that were supposed to lead to an updating, on both occasions the decision to amend her job description was put on hold ostensibly owing to internal restructuring processes which might have led to further changes. An accurate job description is a prerequisite for conducting a job evaluation of a post.

 

[5]  The last occasion, when the City declined to re-evaluate the post was when Mr Craig Kesson, Executive Director: Corporate Services (‘Kesson’) Took a decision on 2 November 2018 not to submit the job for re-evaluation, even though he agreed with the motivation for doing so, because he was unsure if the job might be affected by an as yet incomplete restructuring of the City’s Human Resources services delivery model (‘HRSDM’) model.

 

[6]  Subsequently, on I l October 2019, when the proposed model was at a more advanced stage but still not finalised, Kesson did approve the revised job-descriptions of SPO, PO and APO and submitted them to the Job Evaluation Committee (‘the JEC’).

 

[7]  Sulaiman referred her unfair labour practice dispute to the second respondent (‘the council’) on 4 February 2019.

 

The arbitration award

 

[8]  The core of the arbitrator's reasoning appears in paragraphs 74 to 86 of the award. Her reasoning may be summarised as follows:

8.1           The updated job description (‘JD’) of Saiman’s position shows that professional officers support senior professional officers, but do not conduct arbitrations themselves. Another professional officer who refused to perform arbitrations, was permitted not to. This demonstrated that it was part and parcel of Sulaiman's duties or functions to perform arbitration work for the City from 2015, and the fact that she was threatened with disciplinary action if she did not do such work confirmed this.

8.2  Because the City agreed that her JD should be updated and approved for submission for job evaluation this indicated that the City accepted that the function of conducting arbitrations was a complex one. By the second half of 2017, Sulaiman had persuaded the head of the Labour Relations, to approve her amended job description to reflect the fact that she appeared in arbitrations and was not subject to the supervision of an SPO. It was expected that her new job description would be submitted to the director for approval and thereafter to job evaluation.

8.3  However, with the arrival of a new HR director in November 2017, the anticipated steps were stalled. The new director decided that she wanted to change the job titles of professional officers in the department and change the way they worked, which would necessitate relooking at all their job descriptions. Even when the revised JD was finally approved in 2019, it was still not submitted for job evaluation because the HRSDM was changed to achieve greater efficiencies and less work duplication. The impact of these changes on labour relations work was still uncertain.

8.4   The arbitrator identified two components of the City's defence of its conduct. Firstly, the City argued that just because Sulaiman’s professional officer function did not contain a supervisory element, a job evaluation would not change "the form of the position". Secondly, the City claimed it was or was about to implement a restructuring process and hence delayed the job evaluation process. In relation to the first point, the arbitrator accepted that the job description of POs did not include a supervisory function. However, some SPOs, whose job description included supervisory functions, do not actually perform any. This illustrated precisely why the job evaluation of these positions was necessary. He found that there was a disparity between employees who perform the same functions not being paid in accordance with their duties and the policy was intended to rectify such an anomaly.

8.5  It was the City's responsibility to ensure that JDs were updated and approved so they could be submitted for job evaluation. As the functions have become permanent in nature this triggered one of the requirements for conducting a job evaluation because the policy required this had to be done if an employee had performed new functions for a period of six months.

8.6  There was no reason why Sulaiman's JD was not updated, approved and submitted for job evaluation in 2016.

8.7  Considering the justification for not proceeding with a job evaluation, the arbitrator found, given the staff shortages which made it necessary for professional officers to conduct arbitrations, that logic dictated this function could not be taken away from them as a result of any restructuring, which could only affect reporting lines of staff and not their functions. This was according to the evidence of Lawrence, the HOD of the City’s labour relations. As the functions and duties would remain the same after restructuring there was no basis for not submitting the post to the JE process.

8.8  The executive director's view that he had to decide whether to submit the post for job evaluation according to what was in the City's best interest was legally flawed. He should have been guided by the policy. The policy determined the factors that had to be considered to update, approve and submit a JD to the JEC. Nothing in the policy indicated that ongoing restructuring processes was a legitimate reason for not proceeding with the process. The executive director had no authority to suspend the operational policy. The City manager as the accounting officer was the best person to do that and a moratorium should have been reduced to writing and ought to have identified a reasonable period during which it would remain in force. No evidence was presented that such a power had been delegated to the executive director.

8.9  All of the above reasons indicate why it was unfair of the City not to submit Saiman’s JD for evaluation and it was also prejudicial to her. Even when the JD was completed in November 2018, it took another 10 months to submitted for evaluation. Accordingly, she was entitled to solatium.

 

[9]  In determining a fair and equitable amount of compensation, the arbitrator took into account of the excessive delay, the absence of any valid reasons for not submitting it, and also that Saiman had contributed to the delay because she did not lodge a grievance or referred her case to the council. Consequently, the arbitrator only considered the period from November 2018 to October 2019 in awarding compensation. It is unclear if this period of ten months directly related to the sum of R 90,000 awarded as compensation.

 

Grounds of review

 

[10]  The City advanced five grounds of review:

 

First ground of review

 

[11]  The arbitrator committed an error of law in deciding that Kesson was not empowered to consider the City's organisational and restructuring objectives when deciding whether to approve and submit revised job descriptions to the JEC.

11.1  In particular, the arbitrator erroneously found that, provided that one of the listed factors in clause 5.4.4 of the policy existed, the City was obliged to update and approve a job description and submit it to the JE process. The City argues Kesson had a discretion to consider all factors relevant to the decision including the HRSDM, operational needs and restructuring plans. It contends that if the arbitrator had approached Kesson’s decision on the basis that he had such a discretion, he would have come to a different result. Clause 5.4.3 of the policy requires that before new functions resulting in a permanent change can be allocated the changes must be considered and approved by the delegated authority. Accordingly, the arbitrator was wrong in assuming that the performance of the additional function automatically required it to be included in the new job description.

11.2  Further, the City argues that a proper interpretation of clause 5.4.4 of the policy, which states that "the evaluation of jobs or posts is triggered by one of the following processes…", merely indicates what would activate the evaluation process, which is not the same as describing the relevant factors the delegated authority may consider when deciding whether or not to approve a revised job evaluation. This is reinforced by clause 5.5.6 which requires the executive director to ensure that funding is available for any possible upgrading "prior to approval and submission of the revised JD". This demonstrates that clause 5.4.4 could never have been intended to lay down a closed list of factors which determine when a JD should be revised. The policy does not contain a closed list of factors to be considered.

11.3  Case authority supports an approach that an employer exercising a discretion over the provision of benefits can consider any objective fact, which was relevant to the purpose for which the discretion is exercised, and operational requirements were undoubtedly one such factor. In this regard, Kesson had to consider the impact of any change on the directorate. The restructuring consisted of a full-scale review of the human resources department which had the potential to change all job descriptions and functional areas and at the time he took the decision it was unclear what effect the decision would have on the PO role. In this regard, the City points out that it made sound business sense and was logical to decline to motivate for the re-creation/revision of the PO position to allow, pending the finalisation of the model, and this is what was done when the model was at an advanced stage in 2019 when he submitted the revised job descriptions of SPO, PO and APO to the JEC. Kesson had testified that, to achieve the City's organisational needs, both the job description and the most financially responsible use of public resources had to be considered.

 

[12]  In the circumstances, the arbitrator could not have concluded that Kesson did not exercise his discretion in a fair and prudent manner, and the arbitrator’s finding that the human resource model was irrelevant to the exercise of his discretion was a material error of law leading him to an unreasonable conclusion.

 

[13]  IMATU, representing Sulaiman, argues that it is the City which misconstrues the nature of the decision Kesson had to make once the job evaluation process is triggered. Kesson had to decide if the approved JD should be approved, based on the actual job content and description in the proposed JD. He was not required to consider wider issues, such as whether the timing suited the City or not. Moreover, the City could not point to any policy source to support its contention that he exercised a wide discretion. Kesson did not have any difficulty with the content of the proposed JD and acknowledged that the business motivation for the new JD was a reasonable one. Lastly, he did not raise lack of funding (clause 5.5.6), or the need to approve new permanent functions being allocated to a post before being allocated to employees (clause 5.4.3). In fact, the assignment of the functions in question had been done before Kesson was appointed as Executive Director and he was satisfied that they continued to perform them.

 

Second ground of review

 

[14]  The arbitrator exceeded his power in deciding on how the City’s human resource service delivery model would affect future reporting lines and job descriptions. In this respect, the City argues that there was simply no basis for the arbitrator to assume that any changes in HRSDM would have no impact on job descriptions, when Kesson himself did not know at the time if it would. Moreover, it is a non sequitur of the arbitrator to conclude that just because a function might still be required, namely the conduct of arbitrations, that this would necessarily remain part and parcel of the job description of a PO once the HRSDM was finalised.

 

[15  IMATU points out that this was highly improbable it would fall away as the department had a shortage of personnel to perform arbitrations. The only issues were whether the department would be centralized or decentralized. The City contends that the arbitrator adopted an omniscient approach, without an evidentiary foundation in order to bolster his conclusion. IMATU retorts that the City advanced no evidence to suggest there was a prospect that other factors arising from restructuring would have an impact on the JD. Moreover, IMATU argues, such evidence that was available, which Kesson and Lawrence provided, was compatible with the arbitrator’s findings on the potential impact of the HRSDM, which was not yet finalized.

 

Third ground of review

 

[16]  The arbitrator misconstrued the nature of the enquiry by finding that he was required to determine the fairness of the City failing to submit Sulaiman's revised job description over a period of three years from 2016 to 2018 and in consequently considering the City’s conduct from early 2016, which was irrelevant to the dispute. The City maintains that the real dispute concerned the exercise of a discretion about granting a benefit at a specific time, namely when Kesson decided not to approve the revised job description on 2 November 2018. The City contends that as it was never claimed that the failure to upgrade Sulaiman’s position was an ongoing unfair labour practice, the arbitrator had no power to entertain the City’s earlier conduct.

 

[17]  The City maintains that its conduct and alleged omissions, which predated the exercise of Kesson's discretion, are relevant only to the extent that they ought to have influenced Kesson's decision as to whether to submit Sulaiman's job description to the JEC or not. It contends that, in any case, the earlier period could not be considered without condonation having been granted for dealing with events prior to Kesson’s decision, because this is not an instance of an ongoing unfair labour practice. Moreover, it argues that the history of functions performed by one individual such as Sulaiman are not directly relevant to the decision to revise a job description for all persons in a particular post.

 

[18]  Sulaiman concedes that Kesson's decision was the trigger for the dispute. However, in considering whether he had exercised his discretion in a fair and rational manner, his refusal to approve the JD had to be considered in the context of a matter that had remained unresolved over a period of four years. The decision could not just be viewed as an isolated act devoid of any consideration of the long delay and history of inaction preceding it. Sulaiman had been instructed to perform arbitration work in 2016 and the issue of re-grading the job had been under consideration at least since then. It was obviously prejudicial to Sulaiman for the decision to be deferred yet again after so long, and if Kesson was unaware how long POs had been performing the additional arbitration function at the time he took the decision, that was a consequence of the City’s own failure to place that information before him.

 

[19  However, the City points out that the arbitrator did not merely regard the preceding years of inaction as the context in which Kesson decided not to approve the JD, but actually made a finding that the previous conduct was unfair, citing these extracts from the award:

“"There is no evidence that in 2016 the respondent had attempted to subject the JD for job evaluation and there is no reason provided as to why this was not done.

"There is no reason as to why the applicant's job description was not updated and approved and submitted to the Job Evaluation Committee in 2016. This conduct was unfair on the part of the respondent.

This finding, it submits, was simply not within the remit of the dispute the arbitrator had to determine.

 

[20  IMATU also argues that the arbitrator was required to determine whether the conduct of the City amounted to an unfair act relating to the provision of benefits to an employee, which is an objective enquiry into the fairness of the employer’s actions, and not an assessment of any particular shortcomings of Kesson’s decision based on his failure to ascertain the full picture before taking the decision.  

 

Fourth ground of review

 

[21]  The arbitrator committed an error of law in failing to evaluate the City’s conduct in accordance with the legal standard of fairness applicable in such circumstances. In Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[1] the court characterized unfairness as:

“…a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.”[2]

 

[22]   The City submits that the arbitrator subjected the City's conduct to a more stringent test than required, because he ought to have recognized that determination of fairness of its conduct, required him not only to consider the impact of the decision on Sulaiman, but required him to also weigh up the City’s business rationale for the decision. Instead of considering whether Kesson's discretion was exercised arbitrarily, capriciously, with mala fides, irrationally or grossly unreasonably, the arbitrator purported to evaluate whether the City had exercised its discretion without undue delay.

 

[23]   Conversely, Imatu retorts that Kesson’s decision reflected a complete disregard for the impact of his decision on employees and argues that no important business considerations were advanced which would obviously outweigh other considerations.

 

Fifth ground of review

 

[24]   The arbitrator made various errors in his factual findings which resulted in his award being one that no reasonable arbitrator could reach. Some of these criticisms overlap to an extent with grounds of review already canvassed, but for the sake of completeness, I will mention them. The City argues that the arbitrator, amongst other things, did not evaluate the following:

24.1   Kesson’s reason for not approving and submitting the revised job description to the JEC as he believed it prudent to wait for a short time period for the operational restructuring (the Model) to be completed, in order to see whether any of the job descriptions might be affected in the process and it would have been irresponsible of him approve the JDs if they might change again in the near future.

24.2   He had to think of the interests of the City as a whole rather than the just considering the position of individuals in the positions.

24.3   He was willing to reconsider the situation once the implications of the new model were understood and made this clear in rejecting the approval of the JD.

 

[25]  The City submits that the arbitrator failed to consider that Sulaiman was not disadvantaged relative to other PO staff who were paid the same or less than she was and were doing the same work and paid the same grade. There was evidence that POs as a matter of course were required to perform arbitrations and the advertised requirements for the post included an obligation to perform that work.

 

[26]  Kesson did not have Sulaiman’s personal circumstances before him when he deferred the JE decision on PO posts, though he had testified it would not have affected his decision in any event because of the broader reasons he gave for not proceeding with the evaluation. In any event, the arbitrator failed to appreciate that JE was not a means to address individual grievances. Quite apart from this, the Employee Relations manager’s motivation in November 2018 for approval of the new JD for the PO posts, did not make any mention of Sulaiman’s own circumstances, though certain other staff affected by the issue were identified.

  

[27]  The arbitrator concluded Sulaiman had been threatened with disciplinary action if she did not perform arbitration work, yet she provided no evidence to corroborate this despite witnesses supposedly being present and her version was denied by her line manager. The arbitrator preferred her version without explaining why.

 

Evaluation

 

Legal Principles

 

[28]  The review in question concerns questions of jurisdiction and whether the arbitrator’s reasoning is assailable on the reasonableness standard as originally stated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[3], namely: “Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”[4]. The nuances of the reasonableness test have been refined in subsequent LAC decisions. For present purposes the most relevant ones are Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others [5], and Head of Department of Education v Mofokeng & Others [6]

 

[29]  It has been accepted by the Labour Appeal Court that a failure to correctly grade employees falls within the remit of an unfair labour practice claim relating to the provision of benefits under s 186(2)(a) of the Labour Relations Act, 66 of 1995 (‘the LRA”). In National Union of Mineworkers on behalf of Coetzee & others v Eskom Holdings SOC Ltd ^[7] the employer had declined place employees in higher grades even though they were performing work associated with such grades. Although the dispute had been referred as one relating to promotion, the arbitrator characterised it as a dispute about the provision of benefits. The LAC dismissed the cross-appeal of the employer, in terms of which it argued the dispute was in truth a promotion dispute, thus:

“[66] … The failure to properly grade an employee is related to the provision of benefits for the simple reasons that benefits (including status, remuneration, eligibility for promotion etc.) are normally determined by grade. As Ms Harvey, on behalf of NUM, correctly submitted, an employee who complains that his or her job is wrongly graded does not seek promotion to a new, higher or different job. Any re-grade of the job to coincide with the actual work done does not change the job contents. A re-grade does not promote an employee into a new position it merely recognises the correct value to be attached to what the employee, in fact, is already doing. A promotion gives an employee a different or revised task. A dispute about an unfair incorrect grading is thus an unfair labour practice dispute relating to the provision of benefits over which the CCMA will normally have jurisdiction.”

 

[30]  In this case there is no dispute between the parties that the correct grading of a post is a benefit, though the City maintained that its job evaluation procedure for the grading of posts, was not a remedy for an individual grading complaint, but was simply concerned with ensuring that a particular job was correctly captured in a job description and that job description was properly graded.

 

Merits of the review

 

[31]  Before proceeding with the evaluation, it is necessary to set out the most pertinent provisions of the City’s Job Evaluation System and Procedure:

“2. PURPOSE OF JOB EVALUATION SYSTEM AND PROCEDURE

To establish a process and mechanism according to which jobs and posts are established on the City’s staff establishment. This enables a basis for defining the relative worth of size of jobs and posts in order to establish internal relativities and provide the basis for the grade and pay structure

….

5.4 JOB EVALUATION SYSTEMS AND PROCEDURES PROVISIONS

5.4.1 All submissions which require grading must be submitted timeously to allow the JE Unit to follow its due diligence process which includes clarity on job content, organisational structure, context and any additional research which may be required.

5.4.2. The grading of-existing and new jobs or posts shall be based on approved JDs onIy. JDs may only be approved and submitted by the relevant delegated authority.

5.4.3. Prior to the allocation of new functions resulting in a permanent change, such must be considered and approved by the delegated authority.

5.4.4. The evaluation of jobs or posts js triggered by one of the following processes:

a)  JDs resulting from a registered business improvement process

b)  JDs resulting from, an approved restructuring process:

c)  A progressive, incremental and logical change in job focus; responsibility. or complexity of a   job of post, which has occurred as a result of technological, legislative or operational changes;

d)  a new job or post.”

(emphasis added)

 

[32]  The provisions applicable to the regrading of an existing post are set out as follows:

“5.5. RE-GRADING OF AN EXISTING POST

5.5.1   These posts could be occupied or vacant,

5.5.2.  Any re-grade request should not result in a major changed post. The following are indicators of a major changed post:

a)  substantial change in purpose, job content, authority, scope or span of control;

b)  change in career stream;

c)   more than a 2 grade change; or

d)  a move from a non-supervisory/rnanagerial post into a supervisory/managerial post

5.5.3 The Head Job Evaluation, taking the above into consideration shall advise whether a re-grade application constitutes a major change post. If deemed major change/ such post will be referred back to line management in order to consider the creation of a post based on the description submitted. 

5.5.4, Job.evaluation may result in either the upgrading, downgrading or unchanged grading of a job,

5.5.5. The functions included in the revised Job Description:

a)  Must be of a permanent nature and where the post is occupied, must have been performed by the current for a minimum of six months prior to submission of a revised JD.

b)  May not form part of another vacant post, including a vacancy in which the incumbent may be acting.

c)  May not conflict with approved advancement conditions (in such instances the advancement process must be followed rather than the evaluation process).

5.5.6. The delegated authority must ensure, prior to approval and submission of the revised JD, that the required funding for any possible upgrading is available.

5.5.7. Managers are responsible for managing work allocated to employees. Managers must therefore ensure that the employee meets the minimum requirements attached to the work to be performed.

5.5.8. The re-grading of a post must not be used as an alternative to existing Human Resource Policies or Systems, and Procedures e.g. the Recruitment and Selection process, Advancement process etc.”

 

Alleged errors of law

 

[33]         A number of the City’s criticisms concern errors of law, which it contends render the award fatally defective. For the sake of convenience, it is easier to group grounds one, two and four of the review together.

 

[34]  With reference to clause 5.4.3 of the policy, the City argued that because the allocation of new functions on a permanent basis cannot take place unless they have been considered and approved by the delegated authority, who also had to approve the grading of jobs and submit them for evaluation under clause 5.4.2, this meant that the relevant executive had to apply his mind to the relevant factors involved in deciding to approve a revised job description. The City then advanced the proposition that there were a number of other relevant considerations which the Kesson had to consider, in making that decision. It correctly points out that the factors which trigger a job evaluation process are not criteria to be considered whether to approve a new job description, but merely preconditions for an evaluation process to take place. Nevertheless, that does not necessarily mean that the delegated authority is still at large to decide not to proceed with a job evaluation process, despite one of the triggers that activates the process is present. Nothing in the policy suggests that Kesson had an overriding discretion to stall the process activated by the presence of a trigger factor.

 

[35]  The City sought support for the existence of such broader discretion in the judgment of the Labour Appeal Court in Skinner and Others v Nampak Products Limited and Others[8]. In the judgement, the LAC stated at one point:

“When assessing whether the employer has acted reasonably or fairly in exercising its discretion to alter its prestation, its operational requirements are undoubtedly a relevant consideration. An intention to increase profitability is an entirely legitimate commercial rationale. The unfair labour practice jurisdiction is not meant to restrict the proper pursuit of profit by the employer.”[9]

 

[36]  However, the passage should not be detached from its context. In that matter, the case concerned the payment of post-retirement medical aid benefits in terms of a policy, which specifically stipulated that the employer ‘at its sole discretion’ could set the maximum level of contributions it would make towards medical aid society benefits of future pensioners[10]. The employer had a contractual right to exercise its discretion, which the court held it had to exercise reasonably, namely in good faith, and not in an arbitrary and capricious manner and which balanced in a proportional way the adverse and beneficial effects of its decision[11].  The City cited two other unfair labour practice cases involving the unfair labour practices in which the employer exercised a discretion over whether a benefit should be granted or not. In City of Cape Town v SA Local Government Bargaining Council & others[12] and Solidarity obo Oelofse v Armscor (SOC) Ltd and Others[13] this court was court with whether it was unfair of the employer to withhold a reimbursive car allowance and a performance bonus respectively.  In the first case, the court held that the employer was entitled to stop reimbursing the employee when he ceased submitting log sheets and in the second, the court held that it was not an unfair labour practice to withhold a performance bonus, when the employee had been found guilty of serious misconduct, even though she had met the qualifying criteria for receiving the bonus. In Oelofse the court upheld the arbitrator’s decision that this did not amount to an unfair labour practice. The basis for the court’s decision was that the company’s performance policy rewarded employees not only for the value they added but also to reinforce their alignment with the company’s vision, mission and objectives. The court concluded:

“[27]   In the end, and what is clear from both these practices is that despite the objective qualifying criteria prescribed, that must be met by an employee, the decision whether or not to pay a performance bonus to an employee was always subject to the exercise of a discretion by the first respondent as employer, in order to ensure adherence to organizational objectives and values as well.”

 

[37]  A discretion of this nature is not in issue in this application. The judgment Kesson was required to exercise was to determine if there was a logical basis for re-grading the PO position in light of an additional significant job function which was not part of the existing job description, but which had been performed by PO’s in the department for longer than a six month period. In making that decision he would have to consider not only the intrinsic merit of submitting the post for re-evaluation, but also whether all necessary conditions for proceeding with the JE process had been satisfied, such as the existence of funding. Nowhere in the policy was provision made for him to elect not to set in motion the process of a job evaluation exercise, if he was satisfied on the merits that a re-evaluation of the job was necessary, provided the conditions in the policy were met. Obviously, if he disagreed with the intrinsic merits of the motivation for a job re-evaluation or that one of the factors in clause 5.5 were not satisfied, that would lie within the proper scope of his discretion.

 

[38]  In fact, Kesson accepted that the business motivation for the re-evaluation of the PO post was sound. In other words, he agreed with the intrinsic merits of the submitting the post for re-evaluation.  What made him defer submitting the proposal was a pending operational restructuring, which he speculated might have impacted on job descriptions.

Was the arbitrator acting outside of his powers in finding that the arbitration function was unlikely to fall away or that it would remain part of the PO function?

 

[39]  If Kesson ought to have been focussed on the fact that the PO’s had already been performing a significant additional function that was not part of their job description for a period far in excess of six months, instead of focussing exclusively on what might happen under a restructured HRSDM then, equally so, the arbitrator had no reason to speculate on what would most probably have happened at the finalisation of the HRSDM. To that extent she ought not to have taken such speculation into account.  The question still remains whether, despite this misdirection, her ultimate finding is one no reasonable arbitrator could have reached.

 

[40]  As it happens, it seems that it was common cause that the need for appearing in arbitration proceedings would not disappear under any restructuring. The only unknown factor was whether the HRS function would be devolved to departmental level or remain centralised.

Did the arbitrator commit a reviewable irregularity in taking account of the City’s prior failure to initiate the job process since 2016?

 

[41]  It is obvious that the arbitrator did believe he could make a finding that the failure to update the job description in 2016 was unfair. He also found it was unfair to further delay processing the re-evaluation of the job description in November 2018 for the reasons provided by Kesson.

 

[42]  The City argued that the fairness of Kesson’s decision had to be evaluated as a decision taken at a point in time, without regard to any prior conduct of the City. When Kesson testified he claimed to have no knowledge how long PO staff had been waiting for an alignment between the work they had to perform and their job descriptions. However, he also said it would not have altered his decision if he had known, which tends to emphasise how little importance he attached to the value of staff having accurate job descriptions and being graded accordingly.

 

[43]  It is true that Kesson did not personally know of Sulaiman’s circumstances, but he read the written motivation for the revision of the JD, which explained that the change in PO job functions had been in place since 2017 at least. I do not see how the failure to give effect to a job evaluation policy by deferring the decision to an indeterminate date, despite the policy itself requiring all submissions on grading to be submitted timeously (clause 5.4.1), in circumstances where already no action had been taken for a year, could be construed as fair conduct by an employer. The City is required by its own policy to ensure employees job descriptions and grading are aligned with the functions they actually perform. It is true this is not something employees may pursue in isolation for individual redress, but where it applies to a whole class of persons in the same post in a department there is no justification for the employer not giving effect to the policy, which will affect everyone in the same post. In that context, there is nothing inherently untoward about any individual in the affected group of employees pressing for a re-evaluation of the post, because the outcome of the JEC process will relate to the post itself and thereby impact every other individual occupying such a position.

 

[44]  In Coetzee, the LAC was dealing with a case where the employer had failed to give effect to a recommendation to place certain employees on the correct grade. In that case, giving effect to the recommendation would have resulted in their posts being upgraded and their remuneration being improved. The LAC recognised the importance of fairly remunerating employees for their work, which was dependent on them being correctly graded, and found that by not giving effect to the correct grading of their positions, they were “unfairly denied the benefit of being allocated to a grade commensurate with the work they actually do.”[14]  Although it was unclear at the time Kesson declined to approve the re-evaluation of the PO post whether or not it would result in an upgrade or not, the principle that employees are entitled to be allocated to a grade commensurate with the work they do, is equally applicable in this case.  Sulaiman, as an occupant of the PO post, together with the other incumbents of that position, were entitled to work in accordance with job descriptions which are accurate and properly graded, and, as matter of fairness, the employer had the obligation to give effect to hat benefit by acting accordance with its job evaluation policy, which would ensure that occurs.

 

[45]  It was evident there was a material discrepancy between the existing PO job description and the fact that the incumbents of the post were performing arbitration functions, which was a task of some complexity requiring a special skill. That anomaly should have been addressed timeously and not left hanging for an indeterminate period after already being unresolved for at least a year, leaving aside previous inaction by the City prior to 2017.

 

Remaining grounds

 

[46]  As mentioned, the remaining grounds of review set out under the fifth ground, are largely subsumed in the analysis above.  The only one which is addressed directly or indirectly is Sulaiman’s claim that she was threatened with disciplinary action if she refused to perform arbitration work.  I agree that the evidentiary basis for the arbitrator accepting this particular allegation as true was simply insufficient on any reasonable basis to sustain it, and it should not have played a part in his reasoning. However, even if he had not made that error, I do not think it would have required him to reach a different outcome as a matter of necessity. The outcome was still one that a reasonable arbitrator could have reached, leaving this issue out of contention.

 

[47]  The City suggested that the arbitrator might have been improperly influenced by its delay in resolving the grading issue since 2016 in determining the amount of the solatium he awarded Sulaiman. The arbitrator made it clear that he was concerned with the period from Kesson’s decision in November 2018 until the job evaluation was approved in October 2019 as the relevant period of delay. As mentioned above, Kesson must have been aware at the time he declined to process the job evaluation in 2018 that it had already been pending for a year, so there was ample basis for concluding that the delay was unreasonably long. The solatium awarded of R 90,000-00 was roughly equivalent to three months salary. Apart from his finding that City’s conduct was unfair and that it took too long to authorised a re-evaluation of the post, it is correct that the arbitrator did not provide any further justification for the quantum of compensation he decided on. Another reasonable arbitrator might have awarded less, but in the absence of a compelling reason to hold that it was so completely disproportionate that no reasonable arbitrator could have ordered the same relief, and bearing in mind that second guessing the exercise of this type of discretion should be approached with caution[15], I do not think this court is entitled to review it and substitute the amount.

 

[48]  In light of the discussion above, I am satisfied that on a broad based evaluation of the evidence, the arbitrator’s award was not one that no reasonable arbitrator could have arrived at.

 

Costs

 

[49]  As a matter of law and fairness, I do not think this is the kind of case which warrants any cost award being made.

 

Order

 

[1]  The review application is dismissed.

[2]  Each party must bear their own costs.

 

Lagrange J

Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant:		L Macfarlane of Norton Rose Fulbright Inc.
For the Respondent:		N Geldenhuys of IMATU.

 

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