AWARD Panellist/s: Eddie Tlhotlhalemaje Case No.: PSCB500-10/11 Date of Award: 06 JUNE 2011 In the ARBITRATION between: PSA OBO NORAH METHAPI (Union/Employees) And THE GAUTENG DEPARTMENT OF HEALTH & SOCIAL DEVELOPMENT (Employer) Employee s Representative: MS. F. MARTIN (PSA) Union/Applicant s address: P O BOX 30656 BRAAMFONTEIN Telephone: 082 880 8975/011 718 5400 Telefax: 011 718 5419 Respondent s representative: Respondent s address: MR. M. LELAKA PRIVATE BAG X85 MARSHALLTOWN 0001 Telephone: 011 355 3186/011 792 0607 Telefax: 011 355 3358 1
DETAILS OF THE HEARING AND REPRESENTATION: [1] These arbitration proceedings were held at the premises of the Respondent in Johannesburg on 27 May 2011. The Employee, Methapi, was represented by Ms. F. Martin from the PSA. The Employer was represented by Mr. M. Lelaka. The proceedings, which mainly entailed oral submissions by the representatives given the nature of the dispute, were digitally recorded. BACKGROUND TO THE DISPUTE [2] The PSA had referred this dispute on behalf of the Employee on 18 January 2011. A conciliation meeting held on 18 February 2011 failed to resolve the dispute, which was then referred for arbitration on 22 February 2011. [3] The dispute was referred in terms of s24 (2) and s24 (5) of the LRA pertaining to the interpretation or application of the provisions of the Co-ordinating Chamber of the PSCBC for the Gauteng Province (CCPGP) Resolution 1 of 2004. It was contended that the Employer had failed to assess the Employee for the financial year 2008/2009 resulting in her not being eligible for a performance bonus in that financial year COMMON CAUSE FACTORS AND THE ISSUE TO BE DETERMINED: [4] In terms of the parties signed pre-arbitration minutes, the following factors were agreed upon as being common cause; [5] The Employee is employed as a Deputy Director, Human resources in the EMS. She qualified for assessment for the financial year 2007/2008 for PMDS, and she was to be assessed after submitting her contract and quarterly reports, and secondly, during the 2008/2009, the Employee was placed on precautionary suspension and was not assessed in that financial year. [6] The issue I am required to determine is whether the Employee qualified to be assessed for PMDS in terms of the provisions of Resolution 1 of 2004. THE PSA S SUBMISSIONS AND ARGUMENTS: [7] Ms. Martin on behalf of the Employee submitted the following; 2
[8] The Employee was placed on Precautionary suspension pending investigations into allegations of misconduct. The suspension was with effect from 31 March 2008 until it was lifted on 01 August 2009. It was common cause that the suspension was with pay. It was however submitted that as a result of the prolonged suspension and delay in finalising the investigations which had cleared the Employee, she was not assessed in that financial year. [9] Reference was made to Clause 5.3.1 of the Resolution which provides that Each official who is appointed on a permanent basis shall be subjected to an annual formal performance evaluation. It is in the light of this clause that it was argued that the Employee should have been assessed for the year in question, it further being argued that she was prejudiced by the prolonged suspension. Ms. Martin further argued that if employees who take maternity leave or any other special leave can be assessed as is the practice, there was no reason why the Employee should not have been assessed. THE RESPONDENT S SUBMISSIONS AND ARGUMENTS: [10] Mr. Lelaka on behalf of the Employer had submitted that any assessment was based on performance, which implied that one had to be on duty in order to be properly assessed in any particular financial year. In this case, the Employee was off duty for 18 months due to precautionary suspension, and there was no basis upon which to assess her. It was further argued that if the Employee was aggrieved by her suspension she should have pursued an unfair labour practice dispute, but had not done so. It was further argued that even if the Employee was suspended for the required maximum of three months, she would still not have been assessed as she would not have had a third quarterly review as per the provisions of clause 5.3.1 of the Resolution. Thus if an employee did not complete 12 months in a post, she would not qualify, more specifically if regard is had to clause 4.3 of the Resolution which provides that performance management shall be a continuous process of managing the efforts/activities of every official in order to ensure that performance is achieved. ANALYSIS OF THE SUBMISSIONS AND ARGUMENTS: [11] Clause 5.1.4 of the Resolution provides that the performance cycle for the management of an official performance shall commence annually on 01 April each year in respect of officials on salary ranges 1-12 and shall remain in effect for a period of 12 continuous calendar months. The management of performance derives from a performance agreement as per clause 5.1.1 of the Resolution, and as already indicated as per clause 4.3, performance management shall be a continuous process of managing the efforts/activities of every official in order to ensure that performance (results/outcomes) is achieved. 3
[12] The principles of performance management are outlined in clause 3 of the Resolution. Other than the intention to reward employees, the process is meant to ensure that the employees add value to the organisation. In this case, the Employee was on precautionary suspension between 31 March 2008 and 01 August 2009. If the Employee is of the view that she is eligible for assessment, the question that needs to be posed is what would be the basis of the assessment when she had not added any value to the organisation for a period of 18 months. I am baffled by the sense of entitlement when the Employee was in any event remunerated during that period for literally staying at home. Inasmuch as one is appalled by the fact that the investigations against the Employee took 18 months and yielded nothing, this cannot in any event entitle the Employee to an assessment as there is nothing or no basis upon which to assess her. [13] Clearly the prolonged suspension prejudiced the Employee to the extent that she would have been assessed but for the suspension However, the fact that she had failed to pursue any action in regard to her prolonged suspension can only be indicative of her sense of contentment to be remunerated for merely staying at home. One even wonders whether this referral was not an afterthought in view of the fact that it took her a whole 17 months after her suspension was lifted before it was lodged. [14] Performance management and assessment and the concomitant rewards are intrinsically related. Thus if there is no performance, there can be no rewards. Worst still there can be no assessment in a vacuum. Furthermore, a precautionary suspension of 18 months cannot be comparable to maternity leave of a maximum of six months. Even if employees that come back to work six months after maternity leave are indeed assessed, I fail to understand the basis upon which they would be assessed in respect of the period they were not on duty. There is in this case, no basis for a claim or an entitlement for an assessment for the 2008/2009 as the Employee did no stitch of work during that period. To rule otherwise would be ridiculous and create an untenable situation for the Employer. To grant any relief to the Employee would inculcate and reinforce a culture of entitlement amongst state officials who are content to stay at home, earn a good salary and worst still, expect a performance bonus when they have not added any value to the public service. To conclude, the Employee has no claim based on the Resolution in question, and it further needs to be added that this referral is indeed frivolous and vexatious in the extreme. AWARD: I. The Employee is not entitled to any relief in terms of the provisions of Resolution 1 of 2004. II. Her referral is dismissed III. There is no order as to costs. 4
Dated and signed at Johannesburg on this the day of 06 th day of June 2011 E. Tlhotlhalemaje Panellist: 5