Case Number: PSCB /18 Commissioner: Minette van der Merwe Date of Award: 22 November And

Transcription

1 ARBITRATION AWARD Case Number: PSCB /18 Commissioner: Minette van der Merwe Date of Award: 22 November 2017 In the ARBITRATION between PSA obo ME Mpholo (Union/Applicant) And Department of Agriculture & Rural Development Free State (Respondent) Union/Applicant s representative: Union/Applicant s address: Mr Jaco Greeff (PSA - Manager: Employment Relations) Bloemfontein 9300 Telephone: (051) / Telefax: (051) jacogreeff@psa.co.za Respondent s representative: Respondent s address: Mr GPC Norval (Manager: Employee Relations) Bloemfontein 9300 Telephone: (051) Telefax: gnorval@agric.fs.gov.za Page 1

2 DETAILS OF HEARING AND REPRESENTATION: 1. The matter was scheduled for arbitration on 07 November 2017 in Bloemfontein. 2. Parties were represented as per the cover page of this award. 3. The Respondent submitted bundle A into evidence. The authenticity of the bundles was not disputed, and the bundles were accepted as they purported to be. 4. Parties agreed to argue the merits of the dispute on heads of arguments as there were not factual disputes, but only disputes of law that needed determination. Parties agreed to submit heads of arguments as follows: (a) PSA to submit heads of arguments on or before 14 November 2017 (b) The Respondent to submit heads of arguments on or before 21 November 2017 (c) PSA to submit heads of arguments if it needed to clarify any issued raised in the replying heads of arguments of the Respondent, on or before 24 November 2017 ISSUE(S) TO BE DECIDED: 5. The matter was referred to the PSCBC as a dispute relating to the interpretation or application of PSCBC Resolution 3 of The dispute is specifically related to the interpretation and application of clause 4.3 (a) of Resolution 3 of I am called upon to determine whether or not the Respondent was in contravention of said Resolution. BACKGROUND TO THE ISSUE: 7. It was common cause that the Applicant was Job Evaluated and approved on 24 November 2014 to be at salary level 7 (Bundle A page 32). 8. The Applicant sought to be upgraded in terms of Resolution 3 of 1999, clause 4.3 (a) and in accordance with her Job Evaluation, to salary level 7. The upgrade should be with retrospective effect from 01 December Page 2 of 8

3 SURVEY OF ARGUMENTS AND EVIDENCE: Heads of Arguments on behalf of the Applicant: 8. It is common cause that the Applicant s position was JE d and approved on 24 November 2014 to be at salary level 7, at page 32 of the Respondents bundle. The Applicants position should be upgraded from the first day of the month following the approval, being the 01 st December She was ever since the JE, performing the duties until today. The Respondent did not remove her from the position. In terms of Collective Agreement 03 of 1999 clause 4.3 (a) read as follows: Within a reasonable time endeavor to upgrade the position of an incumbent employee. At page 69 of the Respondent s bundle. From 2014 to date is not reasonable to fill the position on the other hand expecting the Applicant to perform the duties. Therefore, our request for an upgrade of the Applicant from 01 December 2014 to salary level The bottom line is that the Applicants position was Job Evaluated and the Respondent failed to upgrade the Applicants salary within a reasonable time. This is extremely unfair seeing that she was performing the duties without any complaints and or compensation. The principle of equal pay for equal work has not been complied with. Therefor the conduct of the Respondent is malicious and frivolous. Our humble request is for an Arbitration Award in favor of the Applicant. Heads of Arguments on behalf of the Respondent: 10. The Applicant was transferred from the Directorate: Finance & Management Accounting to the Directorate: Human Resources due to shortage of staff where she was carried out of adjustment in the post of Occupational Health and Safety Coordinator. With the new organisational structure of the Department which was approved on 26 October 2010 she was correctly placed in the Employee Wellness Sub-directorate under the Directorate: Human Resources Management in the post of Admin Clerk with retention of her salary position as was confirmed by letter signed by the Head of Department on (Bundle A, Page17, Paragraph 1 to 3) 11. The Head of Department on 4 August 2011 appointed the Applicant to act as Health and Safety Coordinator for a period not exceeding 12 months with payment of Acting Allowance. (Bundle A, Page 15). The Applicant accepted the Acting Appointment in writing on 10 August 2011 (Bundle A, P16). The Applicant was again appointed to act as Occupational Health and Safety Coordinator for a period not exceeding 12 months with payment of acting allowance on 30 July 2014 (Bundle A, Page 18). The Page 3 of 8

4 Applicant accepted the acting appointment by means of a written note Accepted 5/8/2014 at the right bottom of this letter. The Applicant formally accepted this acting appointment by a letter dated 29 September 2014 (Bundle A, Page19). 12. The post of Occupational Health and Safety Clerk was eventually job evaluated (Bundle A, Page 24 to 34). The Chairperson of the JE Panel recommended on 24 November 2014 that the post of JE Clerk be placed at salary level 7 (Bundle A, Page 32). Job evaluations are executed in line with the Job Evaluation Implementation Strategy (Bundle A, Page 35 to 54) which was approved by EXCO on 14 July 2010 (Bundle A, Page 35). The Equate Job Evaluation Report 19/11/2014 SOUTH AFRICAN PUBLIC SERVICE which is the administrative tool giving effect to the process is included in Bundle A Page 55 to The MEC: Agriculture and Rural Development (the Executing Authority ) granted approval on 11/05/2017 to implement the job evaluation results of a post of OHS Clerk on salary level 5; and to create a new post of OHS Coordinator on salary level 7 on the approved organisational structure; and that such post be advertised and filled through the normal recruitment and selection process (Bundle B, Page 23). 14. Such approval was arrived at after the recommendations of the JE Panel Chairperson had been properly considered and the key responsibilities of both the OHS Clerk and the OHS Coordinator had been properly weighed up against each other. In paragraph 2.2 of the submission to the Executing Authority the key responsibilities were compared with each other (Bundle A, Page 21). 15 At Paragraph 2.3 of the submission (Bundle B, Page 22) is was argued that, quoted: In view of the above, it is clear that the key responsibilities of the OHS Coordinator post were used for the job evaluation of the OHS Clerk post. Therefore the existing post of OHS Clerk are split into two posts (one on a higher level and one on a similar level) due to restructuring. The existing incumbent to remain in the one post on the same salary grading as his/her salary level if the job content has changed considerably (more than 30% in comparison to his/her job content (Attached Annexure B: Job Evaluation Implementation Strategy, Par ). (See Bundle A, Page 49). A new post, OHS Coordinator, be created on the approved organisational structure and that the post be filled through the normal recruitment and selection process. Page 4 of 8

5 JURISDICTIONAL ARGUMENT 16. Paragraph of the JE Implementation Strategy (Bundle A, Page 49 second Paragraph from the bottom of the page) determines that: quoted: the implementation date of an upgrade should be from the first day of the month following the month during which the executing authority approves the continued employment of the incumbent against the upgraded post. It is important to note that the upgrading of an incumbent whose post has been upgraded may not be retrospective. 17. At the same Paragraph at Bundle A, First Bullet at Page 50, it is indicated as a guideline when an existing filled post is upgraded and in terms of which the job content have not changed at all the post stayed 70% and more the same the existing incumbent to be promoted accordingly, subject to a satisfactory performance assessment. 18. The Equate documents 19/11/2014 at Bundle A, Page 61, middle of the page dictates a Diploma as minimum requirement for the post. Public Service Regulations, 2016 CHAPTER 4 Regulation 45(2)(c) determines that if an executive authority increases the grade of a filled post he or she shall continue to employ the incumbent employee in the higher graded post without advertising the post if the incumbent meets the inherent requirements of the upgraded in the post. (Included in Bundle B as Page 77 for convenience). 19. The Applicant, according to the record of the Respondent does not have the required diploma as per Equate Document (Bundle A, middle of Page 61) and can therefore not be just employed in the higher post. 20 It is clear that the post of OHS Clerk was not upgraded. It has been argued that the key responsibilities of the OHS Coordinator post were used for the job evaluation of the OHS Clerk. It appears that the key responsibilities of the post of OHS Coordinator were used to inflate the post of OHS Clerk to the higher level. 21 The Applicant claims that the recommendation of the Chairperson: JE Panel dated 24 November 2014constitutes an approval. In terms of Paragraph 5.2 of the Job Evaluation Strategy as approved by EXCO on 14 July 2010, the Executing Authority is responsible for the final approval of job evaluation results (Bundle A, Page 39). The Chairperson: JE Panel only recommends the Employer (Executing Authority shall endeavour to upgrade the post or restructure the duties with agreement of the incumbent. In this matter the post has not been upgraded due to reasons advanced. The Page 5 of 8

6 Executing Authority has exercised his discretion and the incumbent has stayed in her position of OHS Clerk at salary level The Applicant has received acting allowance while she acted in the (higher) post of OHS Coordinator. She was compensated for the responsibilities in the higher post. The applicant claims that ever since the Job Evaluation she was performing the duties until today. However, according to the records of the Respondent, the Applicant is performing the functions of OHS Clerk as indicated in Paragraph 2.2 of Bundle A, Page 21. Kindly be referred to her Performance Development Plan for the period 1 April 2016 to 30 September 2016 (a copy of which is attached hereto, marked BUNDLE B ) as an example showing that the Respondent did remove her from the position. The whole job evaluation process of the applicant has been executed in line with the governing Public Service Regulations and that the same Regulation preclude back dated appointment of an employee in such post. 16. The above considered it is clear that the post of OHS Clerk was not upgraded to a higher level due to reasons advanced. The Executing Authority has considered the recommendations of the Chairperson: JE Panel but has decided that the post of OHS Clerk be kept at the existing salary level, while a post of OHS Coordinator has been created to be filled through the recruitment and selection process. The Applicant did not provide any proof that she still performs the duties of the higher post. ANALYSIS OF EVIDENCE AND ARGUMENTS: 17. It is common cause that the Applicant as Job Evaluated (pages of A ) from salary level 5 to salary level Resolution 3 of 1999 states in Chapter XXXVI clause 4.3: If a job evaluation as provided under the Public Service Regulations indicates that a job has been undergraded, the employers shall either: (a) within a reasonable period of time, endeavor to upgrade the position of an incumbent employee, or (b) with the agreement of the affected employee, restructure her or his duties to reflect the grade determined by the job evaluation. 19. The Respondent alleged that the job evaluation was conducted to implement the job evaluation results of a OHS Clerk on salary level 5 and to create a new post of OHS Coordinator on salary level 7, yet there was no evidence to support such an averment. The purported reasons for the job evaluation of the Page 6 of 8

7 Applicant during 2014 was stated in a document issued in 2017 (pages of A ) and was clearly issued after the fact. On the face of it, the Applicant was prima facia job evaluated at the time, and the Respondent failed to implement same. The Respondent then, instead if rectifying the situation, tried to manufacture a paper trial. 20. Item 4 of the Request to determine the Level of a Posts (page 25 of A ) indicated that the Applicant s last performance assessment for the assessment period 2013/2014 scored her satisfactory. 21. The Job Evaluation Implementation Strategy states in paragraph (page50 of A ) as follows Existing filled posts that are split into two or more posts (one on a higher level and one on a similar level) due to restructuring: - Existing incumbent to be promoted into the higher post subject thereto that the job content has not changed considerably (post stayed 70% and more the same in comparison to his/her approved job content) and subject to a satisfactory performance assessment. 22. Even if the Respondent s arguments had been accepted, which it was not, the Applicant would still have qualified to have the recommended and approved job evaluation implemented. 23. The Respondent submitted that the Applicant did not possess the required Diploma to enjoy a higher position (page 61 of A ) of OHS Clerk. This argument of the Respondent is rejected. The Applicant was requested to act in said position by the Respondent, whist it having full knowledge of the Applicant s tertiary qualifications or the lack thereof. Further, the Applicant was job evaluated from salary level 5 to salary level 7, on the approved post of OHS Clerk. This job evaluation was at the behest of the Respondent, recommended and approved by the Chairperson of the Job Evaluation Panel on 24 November The Applicant should have been upgraded to a salary level 7 in terms of Resolution 3 of The Respondent has breached Resolution 3 of 1999 by failing to implement the Applicant s upgrade from salary level 5 to salary level It then follows that the Respondent is ordered to implement its approved and recommended upgrade of the Applicant from salary level 5 to salary level 7 with effect from 01 December Page 7 of 8

8 AWARD: 27. The Respondent was in contravention of Resolution 3 of The Respondent is ordered to implement its approved and recommended upgrade of the Applicant from salary level 5 to salary level 7 with effect from 01 December The implementation of said upgrade as stated in paragraph 28 herein above must be finalized by no later than 15 January I make no order as to cost. Signature: PSCBC Panelist: Minette van der Merwe Page 8 of 8