Case Number: PSES 14-05/06
Province: Western Cape
Respondent: Western Cape Education Department
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 30 May 2005
Arbitrator: Arthi Singh
IN THE ARBITRATION UNDER THE AUSPICES OF THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case No.: PSES 14-05/06
In the matter between:-
Western Cape Education Department Respondent
DETAILS OF HEARING AND REPRESENTATION
The arbitration was Con/Arb took place on the 18 May 2005. The parties failed to resolve the dispute at conciliation and the matter proceeded to arbitration. Brenden Guy from the firm of Attorneys Guy & Associates represented the Applicant and Ilsa February represented Respondent (WCED).
Point in limmine
The WCED raised a jurisdictional point in limmine that this forum lacked jurisdiction to hear this dispute at all. It was agreed that the parties submit written arguments to me in this regard, the last of which was received on 30 May 2005.06.30.No evidence was presented on the merits of the case at this stage. I was merely requested to decide whether this forum had the necessary jurisdiction to hear the dispute.
SUMMARY OF ARGUMENT
The WCED argued that the dispute was referred under clause 14 of the ELRC constitution as an unfair labour practice relating to appointment and promotion . Applicant’s dispute is based on the failure of the WCED to recognise prior experience, for which he is seeking compensation. This does not fall within the definition of unfair labour practice as defined by the Labour Relations Act , section 186(2), and cannot therefore be classified as an unfair labour practice relating to appointment and promotion.
The dispute also stems from the interpretation of a collective agreement 5 of 2003. This agreement does not provide for a procedure for resolution of dispute. Section 51(3) of the Labour Relations Act ,in footnote 11 specifies which disputes may or may not be referred to a council.
The WCED argued further that recognition of previous work experience cannot be regarded as a benefit in the light of the fact that Mr Cox is claiming compensation.I was referred to the following case law references in this regard:
P.J.Viljoen vs DOE(GPSSBC case no.PSGA 1138; Schoeman vs Samsung Electronics (Pty) Ltd.,J155/97;Northern Cape Provincial Administration vs Hambridge NO and others (1999); Gauteng Provincial Administrasie vs Scheepers & Others (2000) 7 BLLR 756 (LAC).
In the light of the fact that this dispute has been registered as a dispute of interest under clause 14 of the ELRC constitution, this dispute can only be resolved by the mechanisms of collective bargaining. An arbitrator in this forum has no jurisdiction to hear this matter.
In his replying argument , applicant’s legal representative conceded that this matter does not relate to either a benefit or a promotion. My attention was drawn to Section 6 of Resolution No.5 of 2003 of the collective agreement on which applicant bases his dispute , which states that any dispute about the interpretation of this agreement shall be resolved in terms of the dispute resolution procedure of the council. It was submitted that the Collective Agreement defines the ‘Council’ in section 7.2 as meaning the ELRC.
I was also referred to the decision in the case of Hospersa & Another V Northern Cape Provincial Administration (2000)21 ILJ 1066(LAC) which dealt with the difference between a dispute of right and a dispute of mutual interest.
It was also submitted that the jurisdiction of this forum to arbitrate this matter can also be found in the discriminatory nature of the grading procedure. I was referred to the decision in Mara v Telkom SA Ltd (1999) 20 ILJ 1964 (CCMA) where it was stated that the onus is on the employee to prove unfair labour practice existed in the procedures used to assess gradings. It was submitted that even when the issue involves a mere upgrading , the relevant commission or council may still have jurisdiction if the employee can show that the process of upgrading is fundamentally unfair.
ANALYSIS OF ARGUMENT
The argument of the WCED regarding unfair labour practice based on the provision of benefits dos not warrant any consideration since applicant has conceded that the dispute does not involve the provision of benefits.
The dispute was referred as a dispute of interest under clause 14 of the ELRC constitution. The WCED is quite correct in arguing that a dispute of interest can only be resolved by the process of collective bargaining and that an arbitrator in this forum lacks jurisdiction. Despite the fact that the dispute was referred under clause 14, applicants representative argues that the this dispute is a dispute of right in that it relates to the ‘infringement, interpretation and application of an existing right embodied in…(a) collective agreement.”
It would appear from the brief outline of the facts put to me by the parties, as well as my reading of the summary of the facts on which this case is based ,contained in the referral form, that applicant applied for the recognition of prior learning based his relevant experience. His application was refused. The application appears to stem from applicant’s interpretation of a collective agreement which deals with the recognition of prior learning . Applicant’s representative would be correct in arguing that this case involves the interpretation and application of a collective agreement which specifically gives jurisdiction to the ELRC to arbitrate such matters , and furthermore that this case involves a dispute of right.
I would therefore conclude that the dispute was wrongly referred under clause 14 when it should have been referred under clause 15.I see no reason why the referral form should not be amended to correctly reflect the nature of the dispute. Amendments to pleadings are routinely allowed in our courts. Proceedings in the CCMA and Bargaining Councils are less formal. Furthermore, the amendment would not change the facts of the case, but would merely provide clarity on the nature of the dispute.
The facts of the case also involve the issue of upgrading. I agree with the submission of applicant’s representative that the jurisdiction to arbitrate the dispute in this forum in terms of unfair labour practice may be found in the discriminatory nature of the grading procedure.
Accordingly, my ruling is as follows:
1. This forum does have the necessary jurisdiction to arbitrate this dispute.
2. The referral form should be amended to correctly reflect the nature of the dispute.