JELE v PREMIER OF THE PROVINCE OF KWAZULU-NATAL & OTHERS JUDGEMENT

Transcription

1 JELE v PREMIER OF THE PROVINCE OF KWAZULU-NATAL & OTHERS FORUM : LABOUR COURT JUDGE : PILLAY J CASE NO : D 1772/01 DATE : 2 MAY 2003 JUDGEMENT Judgment: Pillay J: [1] This review turns on whether the application for the position of Chief Director in the Department of Transport, KwaZulu-Natal would have amounted to an appointment or promotion if the applicant were successful. If it was a promotion, then the applicant would have been entitled to challenge the second respondent s decision not to promote him by proceeding in terms of item 2(1)(b) of Schedule 7 to the Labour Relations Act 66 of 1995 ( the LRA ). [2] The fifth respondent arbitrator had found that it was not a promotion, and consequently that the fourth respondent bargaining council did not have jurisdiction to arbitrate the residual unfair labour practice claim. That ruling is the subject of this review. [3] Item 2(1)(b) of Part B of Schedule 7 to the LRA read as follows before its repeal in 2002: 2 (1) For the purposes of this item an unfair labour practice means an unfair act or omission that arises between an employer and an employee involving (a)... (b) the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee. [4] The first question that arises is: Who is the employer? The applicant rendered services, and continues to do so, in the Department of Health, KwaZulu-Natal. Attorney Mr Purdon for the applicant submitted that by inference from the definition of employee in the LRA, the employer is the State.

2 [5] Counsel Mr Soni for the second respondent submitted that with the repeal of the definition of employer in the Public Service Act, Proclamation 103 of 1994 ( the PSA ), regard must be had to the definition of executing authority in section 1 and to section 7 of the PSA to determine who the employer is. In the applicant s case, he submitted, his employer was the Department of Health, KwaZulu-Natal, and not the second respondent, the Minister of Transport, KwaZulu-Natal, who refused to appoint him. [6] At the outset, it must be stated that the LRA and PSA must be interpreted consistently with each other and the Constitution of the Republic of South Africa, Act 108 of 1996 ( the Constitution ) to avoid a conflict of laws. If a conflict is unavoidable, the LRA must prevail over the PSA (section 210 of the LRA). [7] The LRA and PSA define employee as follows, respectively: Employee means (a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration. Employee means a person contemplated in section 8(1)(c). Section 8(1)(c) of the PSA provides as follows: The Public Service shall consist of persons who (i) hold posts on the fixed establishment, other than posts referred to in paragraph (a); (ii) are employed temporarily or under special contract in a department, whether in a full-time or part-time capacity additional to the fixed establishment or in vacant posts on the fixed establishment. [8] Section 8(1)(a) provides as follows: The public service shall consist of persons who (a) hold posts on the fixed establishment (i) classified in the A division and the B division; (ii) in the services; (iii) in the agency or the service; (iv) in state educational institutions. [9] The LRA definition of employee embraces the definition of employees and officers in the PSA. That is the definition I intend to apply, not only because a provision of the LRA is being interpreted but also because section 210 of the LRA requires it. [10] Besides, there is no evidence before me as to whether the applicant is an officer or an employee, as defined in the PSA. Given his position as Deputy Director, he might well be an officer, as defined in section 1, read with section 8(1)(a) and therefore be excluded from the definition of employee in section 8(1)(c) of the PSA. In any event, the amendment of the PSA by the

3 Public Service Amendment Act 13 of 1996 to remove unjust differentiation between officers and employees and between the A and B divisions makes these distinctions academic for the purposes of this case. None of the parties made any submissions about this amendment, and in particular, about whether it is appropriate in the circumstances to maintain a distinction between employees and officers. I accordingly take this issue no further. [11] By applying the definition of employee in the LRA, I infer that the State is the employer of anyone who works for it. The primary reason for defining employee thus was clearly to eliminate difficulties in identifying the employer, especially in the public service. [12] Sandra Fredman and Gillian S Morris in The State as Employer, Labour Law in the Public Services Mansell Publishing Limited (1989) at 21, confirm that there is no straightforward definition of the civil service. Civil servants are servants of the Crown, which is formally the head of the civil service. Real control, the learned authors continue, is exercised by the Prime Minister and ministers. Each minister is responsible for his or her department, while the Civil Service Commission is responsible for ensuring that appointments are made on the basis of open competition. [13] Defining the State as the employer also provides a basis for the continuity of employment in the public service without interruption of benefits when the employees are transferred, seconded or promoted from one department to another. [14] McCarrie GJ in Aspects of Public Sector Employment Law at 74 raised the question whether promotion is a re-engagement and notional termination of the previous engagement. He argues as follows: Surely in the public sector, if nowhere else, the original contract or engagement entered into by the parties contemplates that the worker is entering into a career service with the prospect of competing for and, if selected, obtaining promotion from time to time in accordance with the relevant statutes. If promotion, or at least the opportunity to compete for promotion, is something agreed to in the beginning, the later attainment of the contemplated promotion is surely part of what was contracted for and so would not even be a variation of the original contract, let alone a novation or re-engagement. [15] Such a strained construction is not necessary once the employer is identified as the State. Moreover, it could run counter to the transformative agenda contemplated for the public service in section 195 of the Constitution (discussed below). [16] However, Graham F Smith in Public Employment Law, The Role of the Contract of Employment in Australia and Britain Butterworths (1987) at 80 writes about the definition of Crown servants as follows: In a practical sense, the definition includes persons employed in the administration of an executive function of Government under the control of the Crown (which excludes holders of political and judicial offices). Fox v Government of Newfoundland [1898] AC 667 at 671 2, established that the test is essentially one of Ministerial

4 control. Does the Minister (representing the Crown) have legal authority to control the activities of the servant or the relevant authority? Thus all civil servants in Government departments in England are Crown servants. [17] However, to identify the State as employer is not the complete answer to the question, for the State is represented by various organs of state, functionaries and institutions. Section 239 of the Constitution defines an organ of state thus: organ of state means (a) any department of state or administration in the national, provincial or local sphere of government; or (b) any other functionary or institution, (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation; but does not include a court or judicial officer. [18] The PSA ascribes the powers and functions of the State as employer to particular organs of state, functionaries and institutions. Section 9 of the PSA defines the powers of an executive authority as follows: (1) The appointment of any person or the promotion or transfer of any officer or employee in the employ of the department shall be made by the relevant executing authority or by an officer or officers to whom the said authority has delegated his or her power of appointment, promotion or transfer. (2) Subject to the provisions of this Act, appointments and promotions in, and transfers in or to, the public service shall be made in such manner and on such conditions as may be prescribed. [19] The public service itself, as defined, is structured and organised in terms of section 7(1) of the PSA, into national and provincial departments, provincial administrations and organisational components. The relevant executing authority for a provincial department within an Executive Council portfolio is a Member of the Executive Council ( MEC ) responsible for such portfolio (section 1 of the PSA). [20] Section 11 of the PSA prescribes the criteria to be considered by the MEC or his or her delegate when making appointments and filling posts. The MEC may, subject to certain prescribed conditions, approve the appointment, transfer or promotion of persons to promote the basic values and principles enshrined in section 195(1) of the Constitution. [21] The power to discharge officers and employees for reasons other than misconduct also vests in the MEC, who may delegate that power to an officer (section 17 of the PSA).

5 [22] Grievances of officers and employees must be lodged with the relevant executing authority, that is, the MEC for the particular provincial department having the authority to resolve those grievances. Usually this would be the MEC for the department in which the employee has rendered services. There is no reason why an employee cannot lodge a grievance with the MEC of another department if the authority to resolve that grievance vests in that MEC. A non-appointment or refusal to promote is an example of such a grievance. [23] In summary, the MEC has the power to make appointments, promote and discharge employees and respond to employee grievances lodged with him or her in respect of that provincial department of which s/he is MEC. [24] Mr Soni s argument, as I understand it, was that these are acts of an employer which, in relation to the applicant, can only be performed by the MEC for the provincial Department of Health where he rendered services. I do not agree with this construction, firstly because, by definition, a person is an employee of the State, irrespective of where in the public service he or she renders services. Secondly, the State, as employer, is represented by that organ of state, functionary or institution where the authority to perform the particular act is vested. As shown above, the power to perform particular acts of the State as employer is vested in each MEC (or his or her delegate) of a provincial department for that department. [25] On the facts of this case, the MEC for Health (or his or her delegate) represents the State as employer in matters in respect of which he has authority. The MEC for Health has no authority to represent the State in filling posts in the Department of Transport. That authority vests in the MEC for transport or his delegate. [26] The nexus between the applicant and the second respondent is that the former renders services to the State, and the State represented in this instance by the second respondent refused to appoint him to the position of Chief Director in the Department of Transport. [27] The second respondent is accordingly an employer for the purposes of item 2(1)(b) of Schedule 7 to the LRA. [28] The next question is whether the applicant would have been appointed or promoted if he had been successful. The ordinarily accepted meaning of promotion is advance, raise to a higher rank or position, advancement in position or preferment (Mashegoane & another v The University of the North [1998] 1 BLLR 73 (LC); McCarry GJ at 73). But, as the learned author McCarry points out, both words can have different meanings in different contexts, depending on the statute under consideration. Promotion and appointment may not be mutually exclusive. He makes a similar observation about the transfer and promotion of officers under Australian law. One test for promotion, he says, perhaps the best test, if not the only one, is the increase of remuneration to the employee. In Mashegoane Mlambo J found that the employee s status was elevated from a lecturer to a dean because of the additional powers and authority attached to the latter position. [29] Mr Soni argued before Waglay J in Department of Justice v the CCMA & others [2001] 11 BLLR 1229 (LC) at paragraphs 17 and 19, that the posts in

6 that case were appointment and not promotion posts. The posts had been advertised externally and the Minister had used the word appointment and not promotion. The employees had to apply for the positions and attend interviews. The issue was not their promotion but their appointment. Accordingly, it could not be determined in terms of item 2(1)(b) of Schedule 7 to the LRA, so Mr Soni submitted in that case. [30] Mr Steltzner, counsel for the employees in that case, contended that the two requirements that distinguished appointments from promotion are that there must be an existing employment relationship between the parties and that there must be some advancement, elevation in rank or rise in status (at paragraph 20 of the judgment). [31] Mr Soni accepted these two requirements in that case, and urged me to do likewise in this case. In agreeing with Mr Soni in this regard, it occurs to me that these two requirements may be the only two remaining features that distinguish promotions from appointments. [32] Prior to 1 July 1999, promotion and appointment in the public service were conceptually and procedurally distinct. Conceptually, employment in the public service was seen as a life-time career. Procedurally, promotion enabled the advancement of those already in the service, provided they met certain criteria, including service in the post for a prescribed minimum period. Once the criteria were met, eligibility for promotion was almost automatic, subject to the employee s performance evaluation. This is evident from clause 4 of Chapter 6 Part III of the Public Service Staff Code, which states: 1. Stages for consideration for promotion Officers become eligible as follows to be considered for promotion in accordance with the different promotion bases (a) Where the post or interchangeability promotion basis applies In a merit year (1 April to 31 March) if they have completed the prescribed qualifying periods of service contained in the relevant Personnel Administration Standard before 31 March which precedes that merit year. In cases where no specific qualifying periods of service have been laid down, the period of two years service as indicated in chapter B.X/IV/4(1)(a)(ii) applies. (b) Where the rank or leg promotion bases applies On completion of the prescribed qualifying periods of service as contained in the relevant Personnel Administration Standards. [33] When effecting rank and leg promotion, the positions were not advertised. Moreover, a vacancy need not have existed when effecting an interchangeability, rank or leg promotion (clause 2.2 to 2.4 of Chapter B.VI/III of the Public Service Staff Code). [34] However, by notice dated 1 July 1999 Government Gazette No the Minister withdrew the Public Service Staff Code and other prescripts, subject to the provisions of the Public Service Regulations. Since the promulgation of those Regulations in Government Gazette No of 1 July 1999, regulation F of Chapter 1 of Part 7 provides as follows:

7 F1 An executing authority may promote an employee to a vacant post on the approved establishment of the department if (a) sufficiently budgeted funds, including funds for the remaining period of the relevant medium-term expenditure framework are available for filling the vacancy, and (b) the vacancy has been advertised and the candidate selected in accordance with the regulations VII C and D. F2... F3 No employee has any right to promotion to a vacant post until the promotion has been approved in writing by the executing authority. [35] Regulation VII C and D deal with recruitment and selection respectively, which also apply to the filling of posts by appointment. [36] This procedural shift of requiring all vacant posts to be advertised is conceptually underpinned by the mandate to transform the public services enshrined in section 195 of the Constitution. More specifically, that section provides : (1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles... (h) Good human resource management and career-development practices, to maximise human potential, must be cultivated. (i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation. [37] In summary, therefore, all appointment and promotion posts have to be filled after advertising so as to reach, as efficiently and effectively as possible, the entire pool of potential applicants, especially persons historically disadvantaged (regulation C2(1) Chapter 1 Part 7). [38] It follows that the posts may be filled by new recruits to the public service or serving public employees. In the former instance, the filling of the post would be an appointment. In the latter case it would be a promotion if it also amounts to an advancement or elevation in status. [39] Mr Soni contended that appointment and promotion were recognised as entirely separate acts, having regard to sections 9(1) and (2), 11(2)(a) and 13(1) of the PSA. Similarly, he had submitted in the Department of Justice case before Waglay J that it was illogical to speak of those positions as being promotional posts, because they could have been filled by outsiders. Waglay J upheld this objection on the basis that in respect of certain candidates the advertised position constituted a promotion, whilst in respect of others it would be an appointment (at paragraph 22 of the judgment).

8 [40] In my respectful view, I do not see why a position should not be a promotion for a candidate who is already in the public service and an appointment for one who is not. [41] Additional to any other remedies they might have, public servant candidates may have recourse to item 2(1)(b) of Schedule 7 to the LRA if they are not promoted. The new recruits cannot prosecute a similar claim because there is not a pre-existing employment relationship with the State. That provides a rational and factual basis for differentiating between public servant and non-public servant candidates who vie for the same post. The differentiation flows from a literal interpretation of item 2(1)(b) of Schedule 7 to the LRA. Contextually, it is also consistent with the provisions relating to promotion in the Constitution, the PSA and its Regulations discussed above. If non-public servant candidates are disadvantaged by not having the same remedy, it is not unfair. [42] The applicant in this case meets the criteria of a pre-existing employment relationship and an advancement or elevation in status. Accordingly, the dispute was about the refusal to promote the applicant. The arbitrator ought therefore to have found that the bargaining council did have jurisdiction. An error about jurisdiction is so fundamental as to amount to a reviewable irregularity (Department of Justice case (supra) at paragraphs 5 8; Toyota South Africa Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 440 (LAC) at 351 F 352 A.) [43] I accordingly grant an order in terms of paragraphs 1(a) to (d) (inclusive) of the notice of motion.