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FLYNOTES: LABOUR – Promotion – Collective agreement – Applicants referred dispute regarding interpretation and application of agreement – Arbitrator dismissed referral, finding respondent had correctly implemented agreement – Error of law committed by arbitrator – Failure to properly appreciate material fact that MEC had approved promotions in 2013 and Treasury in 2016 – Arbitrator had no jurisdiction to entertain dispute in second award as matter was res judicata – Arbitration awards reviewed and set aside.

In the Labour Court of South Africa, Gqeberha

 

Reportable

Case no: PR 59/21

 

In the matter between:

 

BIERMAN & 8 OTHERS	Applicant
And
MEC: FREE STATE DEPARTMENT OF HEALTH	First Respondent
PUBLIC HEALTH AND SOCIAL DEVELOPMENT SECTOR BARGAINING COUNCIL	Second Respondent
VAN DER MERWE, MINETTE N.O	Third Respondent
SKINNER, ELSABE N.O	Fourth Respondent

Summary: Nine physiotherapists (the Applicants) were overlooked for promotion to the post of “Chief Physiotherapist” during the Occupational Specification Dispensation (“OSD”) implementation process in 2010. The state had concluded a collective agreement with unions to improve salaries and conditions of service for specialists and professionals. The Applicants referred an ULP as contemplated in section 186(2)(a) of the LRA to the PHSDSBC (the Second Respondent). The arbitrator (the Third Respondent) found that she had no jurisdiction to entertain the matter as it concerned the fairness of a collective agreement. She advised the Applicants to refer a dispute about the interpretation and application of a collective agreement as per section 24 of the LRA. They did so. The arbitrator (the Fourth Respondent) dismissed the referral finding that the Free State Department of Health (the First Respondent) had correctly implemented the agreement. The Applicants initiated review proceedings in the Labour Court. The Labour Court reviewed and set aside both arbitration awards. The first award on the basis of an error of law committed by the arbitrator, and a failure to properly appreciate the material fact that the MEC had approved the promotions in 2013, and so had Treasury in 2016; and the second award on the basis of res judicata. The Court ordered the promotions to take effect from April 2016.

 

JUDGMENT

 

NORTON AJ

 

Introduction

 

1.  The Applicants are physiotherapists employed at Universitas Academic Hospital in Bloemfontein (the “hospital”). The Applicants claim that in 2012 they should have been “rank translated” from the category “Physiotherapist” to “Chief Physiotherapist” during the Occupational Specification Dispensation (“OSD”) implementation process. This process arose from the collective agreement entitled “Public Health Social Development Sector Bargaining Council  Resolution 2 of 2010”. The difference in salary between the two posts amounted to between R100 000 to R140 000 per annum.

 

2.  The trade unions were NEHAWU, DENOSA, PSA, HOSPERSA and NUPSAW-SADNU. The employer party was the State.

 

3.  The objective of the collective agreement was to give effect to Resolution 1 of 2007 which provided for salary increases and improvements in conditions of service to attract and retain specialists and professionals. Examples of professionals listed in the 2010 collective agreement were podiatrists, dental assistants, orthopaedic assistants, speech therapists, physiotherapists, radiographers and psychologists.

 

4.  Revised salaries were to take effect from 1 July 2010.[1] There was also to be “accelerated grade progression” to be based on above average performance was to take place from 1 April 2012.[2]

 

5.  The Applicants submit that they were inadvertently omitted from the OSD process, whilst similarly situated physiotherapists were promoted to Chief Physiotherapists. Nine of the 18 physiotherapists at the hospital were overlooked.

 

6.  The Applicants pursued a grievance about the matter, with little success.

 

7.  In 2013 the MEC granted approval for the promotion after an evaluation of the Applicant’s job descriptions. Treasury endorsed this approval on 6 December 2016.[3] Implementation of this decision was to have taken effect retrospectively to April 2016.[4] No such promotion was put into effect.

 

8.  The Applicants referred an unfair labour practice (“ULP”) dispute with respect to promotion to the Bargaining Council in terms of section 186(2)(a) of the Labour Relations Act 1995 (“the LRA”). This was to be the first referral. The Applicants were represented by a union official from the Public Servants Association of South Africa (the “PSA”), Mr Nico Cloete.

 

9.  There were no factual disputes and the parties prepared a joint statement of case. They then argued the matter. The following was common cause:

9.1.  All the Applicants were employed by the Respondent;[5]

9.2.  All sought to be translated to Chief Physiotherapists;

9.3.  All were approved for translation with effect from 1 April 2016 as a result of approval from the MEC: Health, as well as Treasury; and

9.4.  All the Applicants were overlooked, whereas other physiotherapists were approved.[6]

 

10.  The Respondent argued that approval was withdrawn as there was none compliance with regulations to the Public Service Act, 2016.[7]

 

11.  The first arbitration award (case number PSH 644-18/19) was handed down on 28 April 2019. The arbitrator (the Third Respondent) found that she had no jurisdiction to entertain the matter and that it should be pursued as a dispute about the interpretation and application of a collective agreement as per section 24 of the LRA. She explained that a commissioner does not have jurisdiction to deal with the fairness of a collective agreement. The arbitrator disregarded the Health Department’s argument that there had been a contravention of the regulations, by noting that the Applicants were not on a list prepared by the department with names of employees with respect to which consent for promotion had been withdrawn.[8] She commented further that the Applicant’s claim was largely undisputed by the Respondent and that they could not proffer a “reasonable and justifiable explanation as to why they had failed to implement the approved translation.”[9]

 

12.  On 16 May 2019 the Applicants made a referral in terms of section 24 of the LRA.

 

13.  The matter proceeded to arbitration over 3 days in September and November 2020. The Applicants explained that they should have been promoted as they supervised and trained student physiotherapists from the University of Free State as well as performed their usual clinical responsibilities. Their “translation” should have been automatic. A job evaluation assessment was carried out by the  Respondent in which it was confirmed that their clinical and administrative duties justified the promotion to Chief Physiotherapist.

 

14.  The Applicants testified that there were 2 phases to the implementation of the OSD. In the first phase, there was notch movement – a lateral / horizontal movement – based on years of experience, which led to salary increases. (For example, one of the Applicants, Ms Valla’s salary increased from R144 453.00 to R173 949.00). In the second phase there was vertical movement with respect to job functions and job titles. Both movements led to increases in remuneration.

 

15.  Noting that there had been salary increases in Phase 1 with respect to the Applicants, the Respondent argued that there had been compliance with the collective agreement.

 

16.  The Respondent led no evidence at the arbitration, and their case may be gleaned from the cross examination of the Applicant’s witnesses.

 

17.  The second arbitration award (case number PSHS212-19/20) was handed down on 20 November 2020. The arbitrator found that the first phase arose from the collective agreement, but not the second phase which arose from memoranda of meetings and reports. She found that the Respondent had correctly interpreted and applied Resolution 2 of 2010.[10] In obiter she commented that that the dispute should have been pursued as an ULP. Ironically the Applicants had come full circle and were nowhere closer to achieving the relief they sought.

 

18.  The Applicants launched a review application on 3 May 2021. The Respondent makes the point that the application with respect to the first award is 23 months late and the second award 4 months late. The Applicants sought condonation for the delay.

 

19.  The Respondent, in their Answering Affidavit to the Applicant’s Founding and Supplementary Affidavits, challenged the locus standi (authority to act or appear to represent a party) of Mr Cloete to represent the Applicants. Mr Cloete at this stage in the litigation was no longer a union official.

 

20.  On the 28 April 2022 the Honourable Judge Lallie ordered that Mr Cloete lacked locus standi to represent the Applicants. The issue of the condonation for the late review application, as well as the review itself remained in abeyance.

 

21.  On 22 August 2022, the law firm Joubert Galpin Searle (“JGS”), became the Applicant’s attorneys of record.[11]

 

22.  On 21 October 2022 JGS amended the Notice of Motion in the review application to reflect MJ Boyens as the legal representative of the Applicants.

 

23.  On 8 November 2022 MJ Boyens amended the orders sought in the Notice of Motion to read,

23.1.  Condonation for the late filing of the review proceedings;

23.2.  That the arbitration awards under case numbers PSH644-18/19 and PSHS212-19/20 be reviewed and set aside;

23.3.  That the awards be substituted as follows: That First Respondent rank translates Applicant from Physiotherapist to Chief Physiotherapist  as from 19 December 2012;

23.4.  Costs; and Further and or alternative relief.[12]

 

24.  On 1 February 2024, I heard the condonation and review application.

 

Grounds of review

 

25.  The Applicants submit with respect to the first award that the commissioner committed a reviewable error by finding that she “did not have jurisdiction to deal with the fairness of a collective agreement”, when called upon to determine “the fair application of a collective agreement”. In essence, the Applicants infer that the Third Respondent committed a material error of law.

 

26.  The Applicants submit with respect to the second award, that the commissioner misconstrued the evidence presented. [13]

 

The Applicant’s evidence and arguments on the merits

 

27.  As mentioned previously, at the first arbitration, the parties submitted a joint statement of case and then argued on the facts and legal issues which arose.

 

28.  At the second arbitration the Applicants led two key witnesses, Mrs Valla (Senior Physiotherapist) and Mrs Jansen van Vuuren (Deputy Director of Physiotherapy). They testified that the Applicants were performing supervisory tasks akin to those performed by Chief Physiotherapists and therefore should have been grade progressed under the OSD dispensation, but were overlooked. The witnesses explained that the hospital was an academic one, and that the Applicants supervised students from the University of Free State. Mrs Jansen Van Vuuren testified that supervising students could take between 4 – 5 hours a day.[14]

 

29.  Mrs Jansen van Vuuren explained that here were 2 stages to the OSD implementation process – the one was a lateral movement, or notch increase and another was a horizontal movement up a grade. [15] She said the lateral translation happened automatically.[16] She said that if employees names were presented by the Supervisor, the vertical progression took place.[17]

 

30.  The witnesses explained that the Applicants were inadvertently left off a list for approval and that half of the physiotherapists at the hospital were promoted to Chief Physiotherapists. Mrs van Vuuren stressed that after the job evaluation the Applicants should have been ”upgraded or translated to Chief Physiotherapists. And it was approved by the MEC”.[18]

 

31.  The Applicants were aggrieved by the omission and Kanna Alberts, Manager Organisational Development in the Department of Health, prepared a memorandum motivating and recommending the promotion of the Applicants as well as other physiotherapists at 10 public hospitals.[19]

 

The Respondent’s lack of evidence and arguments on the merits

 

32.  The Respondents led no evidence at the second arbitration (the first arbitration proceeded by way of a joint statement of case). The Respondent’s Heads of Argument at the end of the arbitration consisted simply of a replication of sections of the Public Service Regulations 2016. There was no application of the regulations to the facts before the commissioner.

 

33.  What may be gleaned from the cross examination and the reference to the Regulations with respect to the State’s defence is the following:

33.1.  The collective agreement was applied correctly because the Applicants were paid the notch increases (ie the horizontal automatic progression in July 2010)

33.2.  The Applicants were not entitled to be promoted from Physiotherapist to Chief Physiotherapist because the amount of supervision as set out in their job descriptions was only 5%[20] and by implication did not amount to the extent of supervision performed by Chief Physiotherapists.

33.3.  The job evaluation report indicating that the Applicants were entitled to be appointed as Chief Physiotherapists contravened the Public Service Regulations because regulation 41(3)(b) reads, “An executive authority may evaluate or re-evaluate any jobs in his or her department, except jobs determined in terms of an OSD”.

 

Legal Issues

 

34.  There are 3 issues before me:

34.1.  Condonation for the late review application.

34.2.  The status of Mr Cloete, the Applicant’s representative, and the weight if any to be placed on evidence elicited under his watch.

34.3.  The merits of the review, assuming condonation is granted.

 

35.  Condonation

35.1.  The Applicants referred an unfair labour practice dispute to the Bargaining Council. This led to the first award, which was handed down on 15 May 2019. The arbitrator found that she had no jurisdiction to hear the matter, because the dispute concerned the fairness of the collective agreement. The arbitrator recommend that the Applicant pursue a section 24 dispute– a dispute about the interpretation and application of a collective agreement. The Applicants heeded this advice, but lost again. The Applicant approached the Labour Court on review on 3 May 2021. The delay is some 22 months for the first award.

35.2.  The Applicants referred a section 24 dispute on 15 May 2019 (the same day the first award was handed down), The Second Award was handed down on 2 December 2020. The six week period ended on 18 January 2021. The Applicants attempted to engage with union officials but it was the festive season, and they were unavailable. Generally the union was unresponsive to numerous attempts by the Applicants to meet and discuss their case. Ultimately the review was filed on 3 May 2021, some 3.5 months late.

35.3.  It is trite that Melane v Santam Insurance Co Ltd[21] sets out the relevant factors to be considered: the degree of lateness, the explanation thereof, the prospects of success and the importance of the case. In Chetty v Baker Mackenzie[22] the Honourable Coppin JA held,

“In terms of that approach, the court has a discretion that has to be exercised judicially upon a consideration of all the facts, and that basically it is a matter of fairness to both sides.”[23]

35.4.  Noting the tenacity with which the Applicants have pursued the matter, and that the reasons for the delay of the review application with respect to the first arbitration award was upon the advice of the Third Respondent that they refer a S24 dispute, and with respect to the second arbitration award, (of 3.5 months) because of the Christmas holiday period, and thereafter the unavailability or unresponsiveness of the PSA officials, I find the delay lengthy but the explanation plausible. The Applicants have prima facie prospects of success in the review application noting that the Respondent led no evidence in the second arbitration. The Applicants would be severely prejudiced if condonation was not granted as they would lose an opportunity to have their dispute fully ventilated before the Labour Court. The weight of convenience favours the Applicants. Accordingly condonation is granted.

 

36.  Locus Standi

36.1.  Nico Cloete was the representative for the Applicant. He was an official of the PSA. Mr Cloete acted for the Applicants during both arbitrations. He later ceased to be a union official, and in November 2021 the Respondents challenged his authority to represent the Applicants in the Labour Court.[24]

36.2.  On 28 April 2022 the Honourable Judge Lallie ordered that Mr Cloete lacked locus standi to represent the Applicants and removed the matter off the court roll.

36.3.  On 22 August 2022, the law firm Joubert Galpin Searle (“JGS”), became the Applicant’s attorneys of record.[25]

36.4.  On 21 October 2022 JGS amended the Notice of Motion in the review application to reflect MJ Boyens as the legal representative of the Applicants.

36.5.  At the review hearing on 1 February 2024, Adv Jonase for the Respondent urged me to ignore the papers before the court, and to dismiss the review on the basis that Mr Cloete had no standing, that the review application was late, and that the Applicants challenge to the arbitration awards lacked merit.

36.6.  It is true that when Mr Cloete launched the review application in May 2021 he had no locus standi  to do so. He was no longer a union official and did not enjoy the right to represent the Applicants as contemplated in section 161(c) of the LRA.[26] This was confirmed by Judge Lallie’s order a year or so later. He had though acted in that capacity during the arbitrations, and as based on the pleadings before me, the Respondents (correctly) do not challenge his right to do so during that process. They challenge his right to do so in the Labour Court review proceedings.

36.7.  In August 2022, legal representatives from JGS replaced Mr Cloete. The Respondents did not object to the notice to amend which was filed by JSG. In my view JSG has cured the Applicant’s representative’s defective capacity in the Labour Court. There can be no challenge to Mr Cloete’s representation in the arbitration proceedings. All in all the attack on locus standi cannot be sustained.

 

37.  The merits of the review

37.1.  In the first arbitration award the Applicants submit that the Third Respondent committed a material error of law by assuming that she was called upon to arbitrate a dispute about the fairness of a collective agreement, when in truth she wasn’t – she simply had to decide whether or not the Respondent had committed an ULP by not promoting the Applicants to the post of Chief Physiotherapist.

37.2.  The commissioner’s reasoning appears to vacillate between on the one hand her concern about jurisdiction, with authority sourced from the case PSA obo Strauss and Others v Department of Public Works NO and Others,[27] and on the other hand the persuasive evidence that the Respondent had committed an ULP – she says as much in her award: “Essentially the Applicant’s claim was largely undisputed by the Respondent. A reasonable and justifiable explanation was not proffered as to why the Respondent had failed to implement the approved translations”.[28]

37.3.  In Strauss the Labour Court held that a Commissioner did not have the jurisdiction to deal with the fairness of a collective agreement as a species of an unfair labour practice. When the true nature of the dispute is that of the interpretation and application of a valid collective agreement, the dispute should be pursued under section 24 of the LRA.[29]

37.4.  Noting the reliance of the commissioner on Strauss as authority for dismissing the Applicant’s case, some interrogation is required as part of this review. The Applicants were employed as Chief Construction Project Managers in the Cape Town office of the Department of Public Works. A collective agreement called “Occupation Specific Dispensation for Engineers” applied in 2009. The Applicants were translated to  Chief Construction Project Manager Grade A. So were their subordinates – project managers. An anomalous situation arose in which the project managers and the Chief Construction Project Managers were located at the same level, and both with the title “Chief Construction Project Manager Grade A.” The Chief Construction Project Mangers initiated an ULP dispute arguing that they should be promoted to a higher level (Grade B) to maintain the meaningful professional differential between themselves and the project managers.

37.5.  The late Honourable Judge Steenkamp referred to the unintended consequences of the collective agreement, and quoting IMATU v SALGBC wrote

An elementary tenet of collective bargaining is that the constituency is bound by the bargain, good or bad, that its representatives make on it’s behalf…The bargain however stands unless it is manifestly unconstitutional…”[30]

37.6.  Steenkamp J concluded that the Bargaining Council did not have jurisdiction to arbitrate the dispute, and dismissed the review with costs.

37.7.  The reasoning is compelling. However the facts before the arbitrator considering the physiotherapists case were distinguishable for three reasons: Firstly the case does not deal with a uniform class of professionals (like the Chief Construction Project Managers who are aggrieved); but with half of the physiotherapists at the hospital who weren’t translated to Chief Physiotherapists. Secondly there was no justification to distinguish those promoted from those who weren’t – they are described as “overlooked” by both the Applicants and the Respondent. Thirdly the MEC: Health had approved their translation in August 2013, and the CEO: Treasury had endorsed this approval in December 2016. The implementation was to take place in April 2016.

37.8.  In the circumstances the arbitrator failed to consider the evidence before her and misconstrued the jurisprudence by ignoring distinguishing factors. She committed a gross irregularity as contemplated in section 145(2)(a)(ii) of the LRA. The Third Respondent arrived at a finding which fell outside the realm of reasonableness and constituted a material defect in the arbitration. Accordingly this award should be set aside.

37.9.  I now turn to the second award. In short that too may be reviewed and set aside, but for a different reason - the principle of res judicata. In sum the dispute had been determined by the Third Respondent, and the parties were not allowed to relitigate on essentially the same matter. The decision in Public Service Association of South Africa obo Traut v Department of Correctional Services and others[31] is relevant to the case before the court as the litigation history of this matter is similar.

37.10.  Traut a pharmacist supervisor, claimed that she should have been placed in a higher wage band (R423 846) pursuant to the OSD which came into effect in April 2010. She had however accepted the appointment at a lower salary (R381 000) as had been advertised in March 2010. She referred a dispute concerning the interpretation and application of a collective agreement to the Bargaining Council (section 24 dispute). The arbitrator found that the collective agreement did not apply to her. She then referred an ULP dispute pertaining to demotion (section 186(2)(a) to the Bargaining Council. She was unsuccessful. On review Judge Rabkin-Naiker set aside the second arbitration award on the basis that the arbitrator had no jurisdiction to arbitrate the second referral as the dispute between the parties was res judicata.

37.11.  The Honourable Judge Rabkin-Naiker explained that the two arbitration proceedings were between the same parties, the application of the OSD was an essential element in both arbitrations, and whilst the causes of actions differed (in the arbitration reliance is placed on section 24, and in the second on section 186(2)(a), they ultimately had the same objective (to raise Traut’s remuneration). [32]

37.12.  In the physiotherapists’ case they had first referred an ULP dispute in terms of section 186(2)(a) to the Bargaining Council, and when that failed and upon suggestion from the arbitrator (the Third Respondent) they then referred an interpretation and application dispute in terms of section 24 to the Bargaining Council. Similarly with Traut, the essential issue concerned the application of OSD, which gave rise to the same demand for a higher wage (whether through the lens of section 186(2)(a) or the lens of section 24); and the parties were the same. In the circumstances I am persuaded that the second arbitration should be reviewed and set aside on the basis that the arbitrator lacked jurisdiction to arbitrate the dispute as the matter was res judicata.

37.13.  For completion I mention that I am mindful of the 2021 Labour Appeal Court (LAC) decision in Public Servants Association obo Ramukhesha and others v Department of Agriculture, Forestry and Fisheries and others[33] in which the LAC upheld the Labour Court’s finding that only job descriptions should be taken into account in OSD translations and individual employee arguments about the scope of their duties which may extend beyond the job descriptions should not be considered, because that would make the implementation of the translation unmanageable in the public sector. That is a defensible view, but that principle does not square with the facts in the dispute with the physiotherapists because the MEC had agreed to the translation, as had treasury, and implementation had not occurred for no good reason.

 

Discussion and analysis

 

38.  The Applicants argue that from 2012 they should have been promoted (or to use the terminology of the OSD dispensation – “translated”) from Physiotherapists to Chief Physiotherapists. Half of the physiotherapists at the hospital were, and the Applicants maintain that they were “overlooked”. The Respondent in the joint statement of case submitted in the first arbitration agreed that they were overlooked.

 

39.  The Applicants have pursued their dispute for some 12 years: as an internal grievance and in two arbitrations before the Bargaining Council, characterised initially as an ULP relating to promotions as contemplated in section 186(2)(a) of the LRA, and thereafter as a dispute pertaining to the interpretation and application of a collective agreement as contemplated in section 24 of the LRA. The Respondent has successfully defended the claims. In the first arbitration the department argued that the MEC may not evaluate jobs determined under the OSD dispensation, as set out in regulation 41(3) of the Public Service Regulations 2016. The MEC had done so in 2013, some 3 years before the regulations came into effect, and the MEC formed the view that the Applicants should be promoted. The Respondent’s reliance on regulations which had no retrospective effect is misplaced. The Respondent led no witnesses in the second arbitration. There simply was no defence.

 

40.  In the first arbitration the arbitrator found that she had no jurisdiction to consider the fairness of the implementation of the collective agreement, and relied on the Labour Court’s decision in Strauss. In my view the facts in Strauss are materially distinguishable because the physiotherapists were overlooked for no apparent good reason, and the MEC and treasury agreed to the promotion, which should have taken effect in April 2016, but didn’t. (These facts are also distinguishable from those in the LAC decision in  Ramukhesha). In my analysis the arbitrator committed a material defect by misapplying the jurisprudence of Strauss, and by failing to give weight to the common cause facts. This award cannot withstand review scrutiny.

 

41.  The test for review is set out in section 145 (2) of the LRA – an arbitration award may be set aside if the commissioner committed misconduct, a gross irregularity or exceeded his or her powers, or if the award was irregularly obtained. The test is infused with the standard of reasonableness, established by the Constitutional Court in Sidumo and another v Rustenburg Platinum Mines.[34] The standard is expressed in the negative, “Is the decision reached by the commissioner one that a reasonable decision maker could not reach?”

 

42.  Over the years, various courts have espoused related principles, and one apposite to the case before us is Herholdt v Nedbank.[35] In that case the Supreme Court of Appeal stated

“A review of a CCMA award is permissible if the defect in the proceedings fall within one of the grounds in section 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii) the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside but are only a consequence if their effect is to render the outcome unreasonable.”

 

43.  The first arbitration award is indicative of a defect which is material, and has a distorting effect, such that the result is unreasonable, and vulnerable to review along the lines analysed in Heroldt.

 

44.  With respect to the second arbitration award, I have found that the arbitrator had no jurisdiction to entertain the dispute as the matter was res judicata. The parties were the same, and whilst the two legal characterisations (section 186 (2)(a) and section 24) were different they both ultimately led to the same claim for an increased wage. In light of the authority in Traut, the arbitrator had no jurisdiction to arbitrate the matter, and the award must be reviewed and set aside.

 

45.  I have considered the challenge of Mr Cloete’s legal standing to represent the Applicants. There was no difficulty in him doing so during the arbitration process, and when his standing changed when the Applicants pursued the review in the Labour Court, after the Honourable Judge Lallie ruled that he had no locus standi, he was substituted by JGS attorneys. JGS pursued the dispute for the Applicants until the review was argued before me in February 2024. The challenge therefore holds no water.

 

46.  On the issue of costs I am not inclined to order costs, as the parties have an ongoing relationship, and I am mindful of the Constitutional Court’s views in Zungu v Premier of the Province of Kwazulu-Natal and Others.[36]

 

47.  In the circumstances I make the following order

 

Order

 

48.  The Applicant’s late service and filing of the review application is condoned.

 

49.  The arbitration award under PSHS644-18/19 is reviewed and set aside.

 

50.  The arbitration award under PSHS212-19/20 is reviewed and set aside.

 

51.  The First Respondent is to translate / promote the Applicants to the position of Chief Physiotherapists as from April 2016.

 

52.  The First Respondent is to effect the translations / promotions by 1 June 2024.

 

53.  The First Respondent is to pay the Applicants the amounts they would have earned as if they had been promoted in April 2016 by 1 June 2024. Any dispute about that quantum may be decided by the Labour Court.

 

54.  No order as to costs.

 

D Norton

Acting Judge of the Labour Court

 

Appearances:

For Applicants:                Mr Boyens

                                        From Joubert Galpin Searle Attorneys

For Respondents:           Adv SS Jonase

                                        State Attorney, Bloemfontein

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