Panellist/s: Nkosinathi Mkhize Case No.: PSCB350-17/18 Date of Award: 09 January In the ARBITRATION between: (Union / Applicant) (Respondent)

Transcription

1 ARBITRATION AWARD Panellist/s: Nkosinathi Mkhize Case No.: PSCB350-17/18 Date of Award: 09 January 2018 In the ARBITRATION between: NEHAWU obo Kekae MJ (Union / Applicant) and Department of Health North West & DPSA (Respondent) Union/Applicant s representative: Union/Applicant s address: Mr. Godfrey Chimule N/A Telephone: Telefax: nd Respondent s representative: Mr. Joseph Dlamini Respondent s address: N/A Telephone: Telefax: Page 1

2 DETAILS OF HEARING AND REPRESENTATION 1. This is the award in the matter between NEHAWU obo Kekae MJ ( the applicant ) and the Department of Health North West and DPSA ( the respondents ). 2. The arbitration was held at the offices of the Moses Kotane Hospital in North West on 11 December The applicant was present and represented by Mr. Godfrey Chimule, trade union official. 4. The first respondent attended the proceedings whilst the second respondent did not attend the proceedings and no reason for their absence was provided. 5. The proceedings were manually and digitally recorded. BACKGROUND 6. The parties agreed to treat the respondent s bundle of documents as common. The applicant however submitted another bundle of documents of his own. ISSUE TO BE DECIDED 7. I had to decide whether the applicant s post was at salary level 5 or 6 and whether in terms of the PSCBC Resolution 3 of 2009 ( the Resolution ), the applicant qualified for grade progression to salary level 7. SURVEY OF EVIDENCE AND ARGUMENT APPLICANTS SUBMISSION Mr. Chimule 8. Mr. Chimule submitted that the applicant started working for the respondent in 1979 and was currently at salary level 6, as a Supply Chain Accounting Clerk, Grade II. 9. Their dispute was that the applicant had completed 15 years of service and qualified for grade progression in terms of clause of the Resolution 3 of 2009 ( the Resolution ). 10. The applicant qualified to be translated (grade progress) to salary level 7 in line with clause 3.5 of the Resolution. The clause of particular dispute to the applicant was clause of the Resolution, which covered the applicant. 11. Clause of the Resolution also applied as the job post of the applicant was grade at salary level 6. If that post was to be advertised, it would be advertised at salary level 6. 1 st RESPONDENT S SUBMISSION Mr. Dlamini 12. Mr. Dlamini submitted that it was common cause that the applicant had indeed more than 15 years of experience as the applicant started as an Accounting Clerk on 01 July Page 2 of 6

3 13. The respondent accepted that the applicant had complied with sub clauses and of the Resolution. The respondent denied that the applicant had complied with sub clause 3.5.1, hence could not grade progress. 14. His submission was that the main clause that applied to the applicant was clause of the Resolution. The clause stated that no employee who was appointed on salary level 4, 5 and 6 can grade progress to salary level 6,7and 8 respectively, i.e. grade progress over 2 salary levels. These employees must apply for vacant funded posts graded on those salary levels. 15. He pointed out that the DPSA had issued a directive referenced as file 16/6/2/1 (page 12 of the bundle). In terms of that directive, clerk positions were divided into two, the first being the production clerk at grade level 5 and the other being supervisory level clerk at grade level There was also a narrative (Annexure B Clerks Implementation measures) that provided clarity on the grading of posts at the clerk level. The narrative was on page 17 of the bundle. In terms of the narrative, a Clerk / Production level / senior Clerk Grade 1 used to be grade level 5 and now was called Clerk at grade level 5, whilst a Clerk / Production level / Senior Clerk Grade II used to be at grade level 6 and higher and was now at grade level 6. The applicant was in the former category. 17. If the applicant s post was to be advertised today, it would be advertised at salary level The applicant was already on salary level 6 and therefore could not grade progress to the next level. 19. Clause still applied to the grade progression of the employees. That clause provided that: This provision does not do away with the provisions of the Job Evaluation system in the public service. 20. He made reference to the following awards PSCB592-15/16; PSCB665-11/12; PSCB85-14/15 & 64-14/15; PSCB152 12/12 and PSCB366-16/ What was in dispute in essence was whether the applicant s post was at grade level 5 or 6 and whether the applicant should grade progress to level The applicant was promoted from grade 5 to grade 6 through leg and rank system. The DPSA had then sought to correct discrepancies through the implementation of the job evaluation system. 23. The document submitted by the applicant indicated the salary level and not grade level and therefore not much weight should be put on it. 24. The respondent had complied with the resolution. ANALYSIS OF EVIDENCE AND ARGUMENTS 25. It was submitted on behalf of the applicant that he had 15 years of service and was remunerated at salary level 6 and qualified for grade progression to salary level 7. That was based on the submitted Job Information Summary and Annexure A - Performance Agreement Proforma. 26. The respondent submitted that the applicant s position was at salary level 5 but he was remunerated at salary level 6 through the leg and rank system and not job evaluation system. Page 3 of 6

4 27. The DPSA issued a directive referenced 16/6/2/1, dated 12 December 2012 wherein it was clarified that a coordination committee was established to develop benchmark job descriptions and grading levels for clerks. The coordination committee clustered job descriptions into five broader categories namely: Human Resource, Finance, Supply Chain Management (my emphasis), Registry and General Administration Clerks. Through this process two levels were developed, i.e. the production clerk level and supervisory clerk level. Both positions were evaluated and the results were that, the production clerk came out at grade 5 and the supervisory clerk came out at grade 6. The directive at paragraph 5 noted that the coordination process did not detract from the executing authority s power to manage his / her department, define the posts and determine an organizational structure that suited the service delivery requirements of the environment in which that department operated. If jobs were required that differed from the benchmarked job descriptions, they may be created and graded with the job evaluation system. However, clerk jobs appeared transversely in the Public Service in all departments and operated within the same regulatory framework and applied the same processes. There was therefore limited scope to define unique clerk posts that justified different salary grades. Grading similar jobs at different salary grades created labour relations issues. It also had the effect that the Public Service was in competition with itself for the same employees with resulting in unjustifiable higher expenditure. 28. Paragraph 6 of the same directive indicated that the Minister for Public Service and Administration approved that the co-ordinated benchmarked job descriptions, job evaluation results and implementation strategy be issued to departments / provinces as formal advice in terms of Chapter 1, Part III.1.4 of the Public Service Regulations (PSR), The implementation strategy, containing translation measures, was attached as Annexure B (Annexure B Clerks Implementation measures). 29. The respondent had indicated that the applicant was on salary level 6 (as per page 23 of the common bundle) through rank or leg system and not through a system of job evaluation as envisaged by subsection of the Resolution. The applicant did not submit any proof that the salary level 6 was as a result of any job evaluation system. Since the respondent had submitted the directive as referred to above which indicated the grade level of a production clerk post to be level 5, I found on balance of probability that the actual grade of the applicant s post was level 5. The system of rank/leg promotions is incompatible with a salary grading system which is based on job evaluation (as implemented with effect from 1 July 1999 in the Public Service). All salary progressions in such a system are normally confined within the boundaries of salary grades SOURCE: PUBLIC SERVICE COMMISSION: REPORT ON CAREER MANAGEMENT IN THE PUBLIC SERVICE [page 35]. 30. The translation measures (Annexure B) referred to above, noted at paragraph (h) that there appeared to be cases where the rank progression levels (Clerk grade I, II and III and Senior Clerk Grade I and II) applicable under the old rank and leg progression system were still being applied. Following that the perception existed that there were three work levels for clerks. Even under the previous system the rank of Page 4 of 6

5 senior clerk was actually a grade progression level. Clerks operated in a routine environment and under the philosophy of flatter structures a supervisory level between clerk and chief clerk was not justifiable. That excluded the situation in the HR environment where provision was made for an assistant director HR administration. That exercise did not consider the assistant director and therefore remained as was. Paragraph (i) noted that it should be noted that in terms of PSCBC Resolution 3 of 2009 the clerk post actually consisted of salary levels 5/6 (5 being the basic salary and 6 being the grade progression level) and 7/8 for supervisory level. 31. Section (6) (a) of the Public Service Act, 1994 (PSA) stipulated that: 1.1 Any provision of a collective agreement contemplated in subsection (4) concluded on or after the commencement of the Public Service Amendment Act 2007, shall in respect of conditions of service of employees appointed in terms of this Act be deemed to be a determination made by the Minister in terms of section (3) (5) The Minister may for the proper implementation of the collective agreement elucidate or supplement such determination by means of a directive provided that the directive is not in conflict with or does not derogate from the terms of the agreement. It was therefore clear that the directive and implementation measures issued by the Minister had to be followed as they were issued in terms of the Public Service Act. 32. It was also clear from the implementation measures (page 17 of the common bundle) that since the issuing of the directive, the department could only create or regrade existing posts to salary level I therefore found on balance of probabilities that since the applicant s job could not have been at salary level 6 through a job evaluation system and that the implementation measures had noted that some clerks were at salary level 6 through the rank or leg system and that the rank of a senior clerk (salary level 6) was a grade progression rank, that therefore the applicant does not qualify for further grade progression. For an employee to grade progress in terms of clause 3.5 of the Resolution, the employee must meet all the three grade progression model criteria / principles and in the present case, there was no evidence that the applicant met sub criteria / principle The implementation measures further noted that in terms of the Resolution, salary level 6 was a grade progression for a production clerk grade. AWARD 34. In light of the analysis of the aforesaid submissions, I therefore make the following award: a. That the grade of the applicant s post was salary level 5 for the purposes of the Resolution. b. The respondents correctly interpreted or applied Resolution 3 of 2009; hence the applicant did not qualify for grade progression to salary level 7. c. The application is dismissed. Page 5 of 6

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