PSES 517-16/17WC
PSES 517-16/17WC
Award Date:
27 March 2018
Case Number: PSES 517-16/17WC
Province: Western Cape
Applicant: PETRUS HERBERT
Respondent: 1st HOD Department of Education Western Cape and 2nd Respondent Department of Education
Issue: Unfair Labour Practice - Interpretation of collective agreements
Award Date: 27 March 2018
Arbitrator: D P Van Tonder
Case No PSES 517-16/17WC
In the matter between
PETRUS HERBER Applicant
and
HOD, WESTERN CAPE DEPARTMENT OF EDUCATION 1st Respondent
DEPARTMENT OF BASIC EDUCATION 2ND Respondent
ARBITRATOR: D P Van Tonder
HEARD: 1 March 2018
FINALISED: 26 March 2018
DELIVERED: 27 March 2018
SUMMARY: Labour Relations Act 66 of 1995 – Section 24(1) – Collective agreement – Dispute about the interpretation and application of Collective Agreement
ELRC Resolution 1 of 2012 – Occupational Specific Dispensation for psychologists employed in public education – Whether experience gained as school psychologist after registration with HPCSA as psychometrist but prior to registration as psychologist should be taken into account for purposes of OSD translation of psychologist
ARBITRATION AWARD
Table of Contents
I THE PARTIES 3
II PROCEDURAL HISTORY 3
III THE ISSUES TO BE DETERMINED 4
IV BACKGROUND TO THE DISPUTE 4
V THE COLLECTIVE AGREEMENT 7
VI THE EVIDENCE 12
VII ARGUMENTS 17
VIII DISCUSSION 17
IX RELIEF 48
AWARD 53
I THE PARTIES
Applicant
[1] The applicant is Dr, P Herbert, a member of SAOU. Applicant was represented by Mr John MacRobert, a practising attorney.
Respondents
[2] First respondent is the Provincial Head of Department of the Western Cape Department of Education. Second respondent is the Department of Basic Education. Both respondents were represented by Mr E De Villiers-Jansen, an advocate and member of the cape bar, instructed by the state attorney
II PROCEDURAL HISTORY
[3] The matter was first scheduled for arbitration for 30 May 2017. On 2 May 2017 the ELRC however removed the matter from the roll and informed me that the matter has been postponed sine die because of a joinder application that had to be finalised first. The second respondent was joined as a party on 27 May 2017. The matter was scheduled again for arbitration for 22 August 2017. On that day the matter again did not proceed as Mr De Villiers-Jansen applied for a postponement on behalf of second respondent. The reasons for that postponement are contained in my ruling of 22 August 2017.
[4] Evidence was heard and finalised on 1 March 2018. The proceedings were digitally recorded. I received the final written closing arguments on 26 March 2018.
III THE ISSUES TO BE DETERMINED
[5] I am required to interpret the meaning of certain provisions of an ELRC collective agreement and determine appropriate relief should I find in favour of the applicant.
IV BACKGROUND TO THE DISPUTE
[6] Applicant has been employed by first respondent and its predecessors in title as an office based educator since 1978. He is currently still employed as office based educator and psychologist by first respondent. He is 64 years old and due to retire at the age of 65. On 5 March 1990 applicant registered with the HPCSA as a psychometrist. Since 1 January 1991 applicant was employed by first respondent’s predecessor in title as school psychologist. On 9 March 2001 applicant registered with the HPCSA as a psychologist. Between 1991 and 2001 applicant performed the same duties as colleagues who were registered as psychologists.
[7] In 2007 the PSCBC concluded PSCBC Resolution 1 of 2001. That agreement inter alia provided that:
• Revised occupational specific salary structures would be negotiated and implemented per identified occupation to attract and retain professionals and other specialists
• The OSD system will include unique salary structure per occupation, and career pathing opportunities based on competencies, experience and performance
• The revised OSD salary structures will put in place a proper career pathing model per identified occupational category and that such model should be a forward looking plan to systematically increase salaries after pre-determined periods based on specific criteria such as performance, qualification, scope of work and experience
[8] Based on this collective agreement, each bargaining council in the public service was under an obligation to negotiate and conclude collective agreements to give effect to this PSCBC collective agreement.
[9] The PSHSDSBC was the first bargaining council who concluded a collective agreement governing OSD for therapeutic, diagnostic and related allied professionals (such as phycologists).
[10] In 2012 the ELRC concluded ELRC Resolution 1 of 2012, which is also reproduced in clause B.3.5 of the 2016 PAM, and which governs the OSD for education therapists, counsellors and psychologists employed in public education. It was agreed that this resolution would be backdated to 1 July 2010.
[11] When applicant was translated in terms of this collective agreement, he was translated to an education psychologist grade 2. Respondents claim that this translation was correct because applicant had at the time more than 8 years but less than 16 years’ experience gained after registration as psychologist with the HPCSA. Applicant claims that the translation was not correct and that he should have been translated to an education psychologist grade 3. In support of this argument, applicant claims that his 10 years’ experience after registration as psychometrist should also have been taken into account when he was translated in terms of the collective agreement.
[12] Respondents admit that applicant’s 10 years’ experience after registration as psychometrist was not taken into account, but argues that that they were not permitted to take this experience into account. It is common cause that if applicant had been translated to psychologist grade 3 with effect from 1 July 2010 (as opposed to the translation to psychologist grade 2), he would for the period between 1 July 2010 to 31 March 2018 have earned an additional income of R691 678 (less deductions for income tax, pension fund and UIF).
[13] The relief that applicant seeks is an order directing first respondent to pay to him the amount of R691 679 less deductions together with an order that as from 1 April 2018 applicant be placed on grade 3 and be paid accordingly.
V THE COLLECTIVE AGREEMENT
[14] I do not intend to quote the entire collective agreement here but will only refer to the most relevant parts which read as follows:
2. OBJ ECTIVES
2.1 To give effect to paragraph 4 of PSCBC Resolution 1 of 2007 Agreement on improvement in salaries and other conditions of service for the financial years 2007/2008 to 2010/2011.
2.2 To introduce an occupation specific remuneration and career progression dispensation (OSD) for Physiotherapist, Speech Therapists, Occupational Therapists (hereafter referred to as Education Therapists), counsellors and psychologists employed in public education.
2.3 To provide within the OSD for:
2.3.1 Career pathing opportunities based on competencies, experience and performance;
2.3.4 Recognition of appropriate experience for the purpose of grade progression; and
2.4 To introduce differentiated salary scales for education therapists, counsellors and
psychologists based on a new remuneration structure.
2.5 To provide for translation measures to facilitate the implementation process.
5.1.4 REQUIREMENTS FOR APPOINTMENT AND SALARY/ GRADE/
CAREER PROGRESSION
The introduction of appointment requirements. grade and career progression requirements for education therapists, counsellors and psychologists, subject to any statutory requirements determined by the Health Professions Council of South Africa and the South Africa (SACE) where applicable.
5.1.10 RECOGNITION OF RELEVANT EXPERIENCE
5.1.10.1 This agreement provides a basis for the recognition of appropriate/relevant experience on appointment as provided in Annexure A3, B3 and C3 of this agreement. (emphasis added)
5.1.10.3 The recognition of relevant experience of serving education therapists. counsellors and psychologists covered by this agreement shall be based on verified proof of such experience. Proof of such experience, where not available on the personnel record of an employee, must be submitted to the employer by 30 September 2012 in order to qualify for any recognition with effect from 1 July 2010 in terms of this agreement. Where such proof of experience is submitted after 30 September 2012, recognition for salary purposes, where provided for in the agreement, shall be with effect from the first day of the month following the month in which the proof was submitted by the employee.
5.1.12 TRANSLATION MEASURES
5.1.12.1 Translation from the existing dispensation to appropriate salary grades (scales) attached to the OSD based on the principle that no serving education therapist's, counsellor's or psychologist's salary position (notch or package) will be less favourable with the implementation of the revised salary and career progression dispensation.
5.1.12.3 The translation to the new dispensation provides for the recognition of relevant experience of serving employees (refer to paragraph 5.1.11).
[15] Annexures A, B and C to the collective agreement (reproduced in clause B.3.5 of the 2016 PAM) provide for the criteria applicable to the translation to various posts and job levels. Annexure C2 requires the following experience for translation of psychologists:
For Education Psychologist Grade 1 (office based)
None after registration with the HPSCA in respect of RSA qualified psychologists who performed community service as required in South Africa;
One (1) year relevant experience after registration with the HPSCA in respect of foreign qualified psychologists of whom it is not required to perform community service as required in South Africa
For Education Psychologist Grade 2 (office based)
Minimum of eight (8) years relevant experience after registration with the HPSCA in respect of RSA qualified psychologists who performed community service as required in South Africa;
Minimum of nine (9) years relevant experience after registration with the HPSCA in respect of foreign qualified psychologists of whom it is not required to perform community service as required in South Africa
For Education Psychologist Grade 3 (office based)
Minimum of sixteen (16) years relevant experience after registration with the HPSCA in respect of RSA qualified psychologists who performed community service as required in South Africa;
Minimum of seventeen (17) years relevant experience after registration with the HPSCA in respect of foreign qualified psychologists of whom it is not required to perform community service as required in South Africa
For Senior Education Psychologist Grade 1 (office based)
Minimum of three (3) years appropriate experience as psychologist after registration with the HPSCA as psychologist;
[16] And Annexure B2 requires the following experience for translation of counsellors/psychometrists:
For Education Counsellor/Psychometrist Grade 1 (office based)
None after registration with the HPSCA as Counsellor or Psychometrist;
For Education Counsellor/Psychometrist Grade 2 (office based)
Minimum of eight (8) years appropriate experience as Counsellor after registration with the HPSCA as Counsellor or Psychometrist;
For Chief Education Counsellor/Psychometrist Grade 1 (office based)
Minimum of three (3) years appropriate experience as Counsellor after registration with the HPSCA as Counsellor or Psychometrist;
VI THE EVIDENCE
[17] The bundles of documents of applicant were marked A and B, and the bundle of respondents was marked as C.
Evidence on behalf of applicant
[18] Morné Jansen testified that he is employed by the trade union SAOU as provincial secretary. With reference to the applicable collective agreements, he expressed the view that applicant should have been translated to Education psychologist Grade 3 instead of grade 2. He further testified that if applicant did not register as psychologist but remained a psychometrist, then in terms of the Annexures to the OSD agreement, applicant would have been placed at a higher salary scale effective from 1 July 2010 as psychometrist, than the salary scale he was placed on as psychologist grade 2 on 1 July 2010. After translation on 1 July 2010 to psychologist grade 2, applicant was on salary scale R468 777. If however he remained a psychometrist then on translation on 1 July 2010 he would have been on salary scale R512 583.
[19] During cross-examination he conceded that the express terms of the collective agreement provide that in order to be translated under the OSD, only experience gained after registration with the HPSCA as psychologist may be taken into account and that there was no express term in the agreement that states that experience gained prior to registration with the HPSCA as psychologists may be taken into account. He was however nevertheless of the view that the intention was that the 10 years’ experience that applicant gained after registration as psychometrist should also have been taken into account.
[20] Petrus Du Toit Herbert, the applicant gave evidence under oath and read his written witness statement (contained in Bundle C1-5) into the record. Since his evidence in chief is contained in Bundle C, and since I have already summarised the most important aspects of his evidence as part of the background facts, I do not see the need to summarise his evidence here in detail.
[21] He further testified that when he registered as psychologist in 2001 there was not yet any requirement that psychologists must perform community service before being registered.
[22] He also testified that in any event the community service requirement has to date never been complied with in the public education sector, that none of his colleagues have performed community service, and that he is aware that recent graduates who commenced their employment recently with first respondent and recently registered as psychologists, were not required to perform community service.
[23] He concedes that the annexure to the collective agreement requires experience gained after registration with the HPSCA as psychologist to be taken into account for purposes of translation, but he is of the view that this is unfair and that his additional 10 year’ experience after registration as psychometrist should also have been taken into account. He conceded that if only experience gained after registration with the HPSCA as psychologist could be taken into account, then he had to be placed on grade 2 as he would then have had more than 8 years but less than 16 years’ experience. However if his additional 10 years’ experience after registration as psychometrist was also taken into account, then he would have had more than 16 years’ experience which would have placed him on grade 3.
[24] He cannot understand why the experience that he gained after registration as psychometrist, but prior to registration as psychologist cannot be taken into account because he has been performing exactly the same functions after registration as psychologist than before registration, and before registration he performed exactly the same functions as his colleagues who were registered as psychologists. Recently all the psychologists and psychometrists employed by first respondent were required to sign exactly the same job description.
Evidence on behalf of respondents
[25] Letitia Munday testified that she is employed by second respondent as director, and is responsible for HR planning. She has been employed in public education for 25 years and by second respondent for 11 years. She is involved in collective bargaining and was involved in the negotiations leading up to ELRC Resolution 1 of 2012. This Resolution was largely based on PHSDSBC Resolution 2 of 2010. She testified that the intention was to recognise experience for OSD purpose for psychologists only in relation to that period gained after registration as psychologist with the HPSCA. She testified that the reason for this was that the OSD was occupation specific and that the employer could recognise the employee for OSD translation purposes only from the date that they became professional in their occupational group, which is the date of registration.
[26] She was not prepared to concede that experience gained after registration as psychometrist, but prior to registration as psychologist could be taken into account for the translation of a psychologist.
[27] In respect of the requirements provided for in the Annexures to the schedules in relation to grade 1, 2 and 3 education psychologists who qualified in the RSA, she could not explain why there was a requirement that they had to perform community service, whereas in the case of senior education psychologists there was no such requirements. She said that this requirement was imply taken over from the PHSDSBC Resolution, as the parties felt that because the PHSDSBC operated in the health sector, they would no best.
[28] Rudolph Oosthuizen testified that he is employed by first respondent as deputy director, and is responsible for implementation of Resolution 1 of 2012. He testified that first respondent must simply follow the requirements of this resolution and that this resolution did not allow first respondent to consider applicant’s experience gained after registration as psychometrist, but prior to registration as psychologist for purpose of the OSD.
VII ARGUMENTS
[29] Written arguments were submitted by both representatives. I am indebted to both representatives for the detailed heads of argument. Because these arguments have been reduced to writing and form part of the record, I do not intend to summarise them. I have read and carefully considered these arguments and will refer to certain parts of it if and where necessary during my evaluation.
VIII DISCUSSION
A THE PRINCIPLES OF INTERPRETATION
[30] The fundamental consideration in determining the terms of a written contract or its application, is to establish the intention of the parties from the words used in the context of the document as a whole, the factual matrix surrounding the conclusion of the agreement and its purpose, or the mischief the term was intended to address. There is an assumption that the ordinary meaning of the language used by the parties in the contract is the prima facie and most probable meaning intended by the parties.
[31] One must consider the meaning of words by having regard to their context in relation to the contract as a whole and by taking into account the nature and purpose of the contract . In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18 Wallis JA said:
‘Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.’
[32] A court or arbitrator is at liberty to depart from the words used, even when they are clear and unambiguous when considered in the context of the document as a whole if it is evident that they would lead to a result contrary to the purpose and intention of the parties.
[33] The words must be taken as the starting point and construed in the light of their context and purpose and where applicable the dictates of the Constitution. The enquiry must however not necessarily always commence by examining the words used. While the object is to determine the meaning to be given to the words used, it remains the primary function of the court or an arbitrator to gather the intention of the parties by reference to those words; and this can only occur if the object and purpose of the contract and the mischief sought to be remedied, are brought into consideration when examining the words used in the context of both the document as a whole and the context or factual matrix in which the document came to be produced.
[34] The interpretational process is integrated. There is no immutable starting point in the enquiry to determine the meaning of the words used. That is more likely to be governed by the dictates of the case or individual judicial preference. Neither an examination of the words used, nor a consideration of their context as a whole or the factual matrix in which the document came into existence, can be looked at in isolation.
[35] In North East Cape Forests v SA Agricultural Plantation & Allied Workers Union, the Labour Appeal Court however cautioned that a collective agreement is not an ordinary contract, and that one cannot apply solely with reference to the ordinary rules of construction that apply in relation to the commercial contracts:
'If the collective agreement is to be interpreted and applied purely by reference to contractual principles, the strike would have been unprotected…. But a collective agreement in terms of the Act is not an ordinary contract, and the context within which a collective agreement operates under the Act is vastly different from that of an ordinary commercial contract…On a purely contractual approach, therefore, there was no enforceable right to strike….. Such a course of action would frustrate the overall scheme of the Act, viz to promote effective, fair and speedy resolutions of labour disputes. On the other hand, an approach based on the objectives of the Act itself, seems better suited to overcome such difficulties.… The purpose of the Act itself is to advance economic development, social justice, labour peace and the democratization of the workplace by giving effect to its primary objects (s 1)….It is, in my view, quite clear that these primary objects of the Act are better served by the practical approach to the interpretation and application of the collective agreement as set out in the judgment of Myburgh JP, rather than by reference to purely contractual principles.'
[36] In SAMWU v SALGBC the Labour Appeal Court held that under the LRA, arbitrators interpreting and applying collective agreements may adopt a “slightly more adventurous approach” (as Dr. Grogan calls it), through a purposive approach to interpretation to promote 'effective, fair and speedy resolution of disputes and that in adopting this approach it would not be unreasonable for the arbitrator to resolve the matter in a practical manner that he deems fair and equitable. Mlambo JP said:
[15]…In National Education Health & Allied Workers Union v University of Cape Town & others, the Constitutional Court stated:
'The declared purpose of the LRA "is to advance economic development, social justice, labour peace and the democratisation of the workplace". This is to be achieved by fulfilling its primary objects, which include giving effect to s 23 of the Constitution. It lays down the parameters of its interpretation by enjoining those responsible for its application to interpret it in compliance with the Constitution and South Africa's international obligations. The LRA must therefore be purposively construed in order to give effect to the Constitution.'
[16] That is the approach adopted by the commissioner in this case. Perusal of the award shows that the commissioner clearly understood the issues before him and the task he was expected to perform. He understood that there was a lacuna in the collective agreement insofar as the annual leave situation of shift employees was concerned and that his task was to interpret and apply the collective agreement in a manner that encompassed these employees. He identified the purpose of the collective agreement, ie the provision of an annual leave benefit to eThekwini's employees, in particular those working according to a shift system. He then proceeded to interpret the agreement in a practical manner that he deemed was fair and equitable in those circumstances and which would cater for shift employees as well…. Based on considerations of fairness and equality of treatment, he reasoned that it was proper to interpret the collective agreement as if the shift employees worked a normal five-day cycle as was done by eThekwini.
[19] I am satisfied therefore that the commissioner properly applied his mind to the issues before him, that he considered all the material before him and adopted an approach that gave effect to the purpose of the collective agreement in a manner that achieved equity and fairness amongst eThekwini's employees. If one interprets the collective agreement within the context of the shift workers, considering one of the purposes of the LRA which is to promote fair labour practices, then without doubt the commissioner's approach of fairness cannot be said to be unreasonable”
[37] And in Western Cape Department of Health v Van Wyk the Labour Appeal Court gave further guidance and stated:
[22] In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements, namely, to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
[38] Dr. Grogan points out that this does not mean that the ordinary principles of interpretation of contracts have now become redundant when interpreting collective agreements:
This is not to say that the ordinary principles of interpretation of contracts are never appropriate when interpreting and applying collective agreements. In Northern Cape Forests the court merely stressed that the interpreter should ask the further question whether the interpretation yielded by these principles accords with the objectives of the LRA. The fact is that a collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time they concluded the agreement. The courts and arbitrators must therefore strive to give effect to that intention.
[39] Hence, the ordinary rules of interpretation of commercial contracts are still relevant when interpreting collective agreements. But there is more to interpreting a collective agreement than merely applying the ordinary rules of interpretation of commercial contracts. In this regard, the Labour Court with reference to the LAC authorities that I have referred to, explained that what is in essence required, is a healthy balance between the two approaches:
[31]…. I doubt very much that in the North East Cape Forests decision, Froneman DJP was advocating a disregard of ordinary and grammatical meaning in the exercise of interpretation of collective agreements. My understanding of his words is that not too much emphasis should be placed on the literal meaning so as to frustrate the object of the LRA and to the complete disregard of purposive interpretation. There needs to be a healthy balance between the two approaches to interpretation.
[40] What this in essence all means is that when applying the ordinary rules of interpretation when interpreting a collective agreement, an arbitrator must interpret the agreement in a practical manner, through the prism of the Bill of Right (which includes the right to fair labour practices and the right to equality), and through the prism of the primary objectives of the LRA (which is to advance economic development, social justice, labour peace and the democratization of the workplace) and must endeavor to adopt an interpretation and application that is fair and equitable to the parties.
[41] There is however a caveat, and that is that all these principles are subject to the following qualifications namely that:
A purposive interpretation is not a licence to ignore the language used by the parties where the language in a contract is clear and reveals the common intention of the parties and does not lead to absurdity,
Courts and arbitrators must interpret contracts, but have no jurisdiction to make a new contract for parties or to change the terms of their contract.
B THE NATURE OF THE DISPUTE
[42] In their closing arguments the representatives debated the nature of the dispute before me. On behalf of respondents it was submitted that there is no application dispute before me, whereas applicant’s representative submitted that there is a dispute between the parties about what the collective agreement means, and that once I have determined the meaning, the next step would be for me to apply it to the applicant.
[43] Although Mr MacRobert did not refer to any authorities for his submission in this regard, his submission is supported by the learner author Professor Cornelius, who relies on well-known authorities for his views. In this regard Cornelius states that once the meaning of a contract has been determined, the next step is to apply the meaning (which has been ascribed to that contract) to the facts of the specific case and that during this second phase, effect is given to the contract, and the legal consequences of the contract are determined.
[44] For his submissions on this point, respondents’ counsel relied on HOSPERSA obo Tshambi v Department of Health, Kwazulu-Natal. In the HOSPERSA case the court held that a dispute about the breach of a right emanating from a collective agreement is not automatically a dispute about the interpretation and application of a collective agreement. It further held that interpretation of a collective agreement requires, at minimum, a difference of opinion about what a provision of the agreement means and that a dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked.
[45] The court further held that the phrase “interpretation or application” are not disjunctive terms, and ought to be read as being related; i.e., disputes about what the agreement means and what it is applicable. In elaborating on what is meant by the word “application” the Court referred to the following citation of Grogan:
‘‘The dividing line between ‘interpretation’ and ‘application’ disputes may not always be absolutely clear. A dispute over the interpretation of a collective agreement exists if the parties disagree over the meaning of a particular provision. A dispute over the application of a collective agreement arises when the parties disagree over whether the agreement applies to or in a particular set of facts and circumstances. It is quite possible that both types of disputes may arise in same case.’
[46] Thereafter the court remarked:
In my view, what Grogan articulates in this passage is the suggestion that there might be two sets of circumstances contemplated under the rubric “application”. First, a difference of opinion whether the collective agreement is applicable at all; eg the relevant workers are not covered by its terms. Second, whether, eg, the activity which gives rise to controversy is covered by the collective agreement. It is not apparent that Grogan in this passage intended to address the question of whether “application” embraces “enforcement”, as Thompson and Benjamin casually assume. Moreover, a fair reading of Grogan’s statement cannot construe it as intended to be a comprehensive account of the permutations of possible meanings of section 24 because the burden of the text is plainly to distinguish the terms “interpretation” and “application” and to alert the reader to the potential for seamlessness between these notions in a real dispute, a sound reason why they ought not to be read disjunctively.
[47] In this case there is clearly a dispute between the parties about the meaning of words in the collective agreement. That brings the dispute squarely within the ambit of section 24 of the LRA. Once I have determined the meaning of the words, the next step is to determine whether the agreement (more particularly the meaning of it as determined by me) applies to the set of facts before me, and if so, to determine the appropriate relief.
C THE OPINIONS OF WITNESSES ABOUT INTERPRETATION
[48] The next aspect that I want to discuss relates to the usefulness and admissibility of the opinion evidence of witnesses about the interpretation of the collective agreement. During evidence in chief and during cross-examination witnesses (including applicant) were asked to express opinions and asked to make concessions about the interpretation of certain parts of the collective agreement. In closing arguments, emphasis was again placed on the evidence that witnesses had given in this regard and concessions that they have made.
[49] While the evidence of witnesses may be useful in an interpretation dispute on certain aspects, the personal opinions and beliefs of lay and expert witnesses about what words, phrases or sentences in the agreement may mean, are completely unhelpful and inadmissible. In KPMG Chartered Accountants (SA) v Securefin the SCA remarked that
“Interpretation is a matter of law and not of fact and, accordingly, interpretation is a matter for the court and not for witnesses”
[50] Harms DP went on to remark:
Trollip JA in Gentiruco AG v Firestone (SA) (Pty) Ltd 1972 (1) SA 589 (A) at 617F-618C dealt with the admissibility of expert evidence in interpreting a document (a patent specification in that case) and quoted with approval from a speech of Lord Tomlin in British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 (HL):
‘The area of the territory in which in cases of this kind an expert witness may legitimately move is not doubtful. . . . He is entitled to explain the meaning of any technical terms used in the art. . . . He is not entitled to say nor is counsel entitled to ask him what the [document] means, nor does the question become any more admissible if it takes the form of asking him what it means to him as an [expert].’
Lord Tomlin spelt out the disadvantages of allowing expert evidence on interpretation:
‘In the first place time is wasted and money spent on what is not legitimate. In the second place there accumulates a mass of material which so far from assisting the Judge renders his task the more difficult, because he has to sift the grain from an unnecessary amount of chaff. In my opinion the trial Courts should make strenuous efforts to put a check upon an undesirable and growing practice.'
That was in 1935, but the chaff is still heaping up, the undesirable practice keeps growing and courts make no effort to curtail it. An expert may be asked relevant questions based on assumptions or hypotheses put by counsel as to the meaning of a document. The witness may not be asked what the document means to him or her. The witness (expert or otherwise) may also not be cross-examined on the meaning of the document or the validity of the hypothesis about its meaning. Dealing with an argument that a particular construction of a document did not conform to the evidence, Aldous LJ quite rightly responded with ‘So what?’ (Scanvaegt International A/s v Pelcombe Ltd 1998 EWCA Civ 436). All this was sadly and at some cost ignored by all.
[51] Although arbitrators who are required to interpret collective agreements are not confined to the common law principles of interpretation, I am not aware of any jurisprudence in which our courts have held that when interpreting collective agreements, the personal opinions and beliefs of witnesses are relevant and admissible. And logically there is no reason why this principle as summarized by Harms DP in the KPMG-case, should not apply when interpreting collective agreements. For this reason I do not intend to evaluate all the personal beliefs and opinions expressed by witnesses regarding their interpretation of the agreement. Their personal beliefs, opinions and concessions in this regard, are unhelpful and inadmissible. The submissions of the representatives on the other hand, as contained in the written closing arguments, were helpful.
D THE PAROL EVIDENCE RULE
[52] On behalf of respondents, reliance was placed on the evidence of Ms Munday that the intention of the parties was to recognize the experience of psychologists only from the date that they became professional in their occupational group, which is the date that they registered as psychologist with the HPSCA.
[53] The Labour Court has held that the parol evidence rule must be considered when interpreting collective agreements. The parol evidence rule provides that when a transaction is reduced to writing and integrated into a written instrument, evidence of any other statements, negotiations, mental reservations or other facts relating to that transaction, becomes inadmissible to determine the extent of the words, expressions, sentences and terms which constitute the text of the contract . In general, no words, expressions, sentences or terms may be added to the text, no words, expressions, sentences or terms may be replaced with other words, expressions, sentences or terms and no words, expressions, sentences or terms may be omitted from the contract.
[54] But the parol evidence rule does not necessarily prevent all extrinsic (parol) evidence and there have always been many exceptions to the rule. For many years our courts drew a distinction between background evidence and surrounding evidence for purposes of determining whether extrinsic evidence was admissible and held that extrinsic evidence would only be admissible when there was ambiguity. This view has now been firmly rejected. The courts no longer draw a distinction between background evidence and surrounding evidence for purposes of determining whether extrinsic evidence is admissible and the existence of ambiguity no longer has any bearing on the admissibility of extrinsic evidence to prove the meaning of the terms in a contract. This however does not mean that the parol evidence rule no longer exists. Neither does it mean that this “signals a free-for-all in which all possible evidence can now be submitted in an attempt to sway a court towards a particular meaning”. In this regard Harms DP made the following remarks in KPMG Chartered Accountants (SA) v Securefin: :
‘First, the integration (or parol evidence) rule remains part of our law. However, it is frequently ignored by practitioners and seldom enforced by trial courts. If a document was intended to provide a complete memorial of a jural act, extrinsic evidence may not contradict, add to or modify its meaning.
Second, interpretation is a matter of law and not of fact and, accordingly, interpretation is a matter for the court and not for witnesses.
Third, the rules about admissibility of evidence in this regard do not depend on the nature of the document, whether statute, contract or patent.
Fourth, to the extent that evidence may be admissible to contextualise the document (since 'context is everything') to establish its factual matrix or purpose or for purposes of identification, 'one must use it as conservatively as possible'
[55] With reference to SCA judgement in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd Professor Cornelius, provides the following summary, explaining when exactly extrinsic evidence will be admissible in terms of the KPMG-test:
The evidence must relate to the context, the apparent purpose to which it is directed and the material known to those responsible for its production;
Extrinsic evidence will only be admissible if it is submitted to prove a meaning which can reasonably be ascribed to the text as it stands;
Because contracts are based on consensus and because the purpose of interpretation is to determine the (collective) intention of the parties evidence is generally only relevant if it tends to prove what the consensus and collective intention of the parties were at the time when the contract was concluded. Evidence to prove the individual intention of a party is therefore irrelevant and therefore inadmissible.
[56] I am satisfied that when the parol evidence rule is applied, Ms Munday’s evidence about the intention of the parties is simply not admissible:
For reasons that will become apparent later in this award, the evidence of Ms Munday in this regard does not prove a meaning which can reasonably be ascribed to the text as it stands.
Ms Munday’s evidence on this aspect was not truly evidence about the “common intention” of the parties. She did not testify that the parties had specifically discussed the issue that we are debating in this case, and neither did she give evidence about the existence of any memorandums or other documents in which the parties had expressly deliberated this issue and made a decision in this regard. Under these circumstances, her evidence about the intention of the parties is nothing more than what she personally believes the common of the intention of all the parties was. She is in no better position than I am to determine the common intention of the parties. She bases her opinion on her own believes, perceptions, logic and arguments. And this is not permissible. As Harms DP remarked in the KPMG case - interpretation is a matter for the arbitrator and not for witnesses.
[57] However, even I am wrong in this regard, and even if her evidence on this aspect should not be excluded in terms of the parol evidence rule, then for reasons that will become apparent later in this award, her evidence about the intention of the parties should in any event be rejected because it is not consistent with the probabilities, the established principles of construction, the plain meaning of the words, and the meaning of the words when regard is had to other provisions in the agreement.
E THE INTERPRETATION AND APPLICATION OF THE AGREEMENT
[58] One of the primary objectives of ELRC Resolution 1 of 2012 is career pathing based on the recognition of experience. This is confirmed in several clauses of the agreement itself, and also on the PSCBC collective agreement, which gave rise to this collective agreement. The collective agreement however makes it clear that recognition of experience on appointment must take place as provided for in the annexures to the agreement, and not in any other manner. This is so because clause 5.10. expressly provides:
This agreement provides a basis for the recognition of appropriate/relevant experience on appointment as provided in Annexure A3, B3 and C3 of this agreement.
[59] In their closing arguments, the representatives intensely debated the meaning of the phrase “on appointment” in clause 5.1.10.1 of the agreement. Mr MacRobert submitted that the provisions of annexure C are at odds with this phrase and that the words used in clause 5.1.10.1 must prevail over the words used in the annexures. On behalf of respondents it was submitted that one cannot simply focus on the phrase “on appointment” but that one must read this in the context of the remaining words in the clause namely “as provided in Annexure A3, B3 and C3 of this agreement”.
[60] It was further submitted on behalf of respondents that read in context the words “on appointment” can only mean “on translation”. Applicant’s attorney did not agree with this submission and argued that it would be absurd to interpret the phrase “on appointment” in this manner.
[61] Where different provisions in a contract appears to be in apparent conflict, then instead of simply preferring one provision over the other, every attempt should be made to harmonise the two provisions using rules of contract interpretation. It is after all trite law that any interpretation which would render any part of a contract meaningless, should, if at all possible, be avoided.
[62] However, because of the approach that I have adopted in this matter and because of the plain meaning of the words used in the annexures, nothing much turns on the debate between the representatives about the meaning of the words “on appointment”. I will return to this aspect later in this award.
[63] The dispute between the parties essentially revolves around the required minimum experience that a psychologist should have had when the collective agreement was implemented and the translation to the OSD made. More particularly the interpretation of the following phrases, especially the underlined part of it, is in dispute:
“in order to be translated to education psychologist Grade 2 a minimum of eight (8) years relevant experience after registration with the HPSCA is required in respect of RSA qualified psychologists of whom it is not required to perform community service as required in South Africa
“in order to be translated to education psychologist Grade 3 a minimum of sixteen (16) years relevant experience after registration with the HPSCA is required in respect of RSA qualified psychologists of whom it is not required to perform community service as required in South Africa
[64] Applicant claims that his experience after registration with the HPSCA as psychometrist should also be taken into account and that he should accordingly have been translated to psychologist grade 3, whereas respondents claim that only the experience gained after registration with the HPSCA as psychologist can be taken into account and that he was accordingly correctly translated to psychologist grade 2.
[65] It is common cause that applicant was registered with the HPCSA as psychometrist on 5 March 1990 and was continuously employed by first respondent since 1 January 1991 as school psychologist and that on 9 March 2001 applicant was registered with the HPCSA as a psychologist. Applicant’s evidence that since his registration as psychometrist on 1 January 1991 he had always been performing the same functions he is currently performing and that his functions did not change on registration as psychologist in 2001, was not challenged by respondents. I must therefore also accept this evidence. Applicant’s evidence that his colleagues who were psychologists between 1991 and 2001 performed exactly the same functions that he performed during that period was also not challenged. I must accordingly also accept his evidence in this regard.
[66] I am of the view that the phrase “in respect of RSA qualified psychologists of whom it is required to perform community service as required in South Africa” is of no significance in resolving the dispute before me. I say so for the following reasons:
It is common cause that when applicant registered as psychologist in 2001 there was not yet any requirement that in order to be registered, community service was required;
From what I could establish, the requirement of community service for RSA qualified psychologists was introduced by the Minister of Health in 2003 for the first time;
Irrespective of whether respondents’ interpretation that applicant should be on grade 2, or applicant’s interpretation that applicant should be on grade 3, is accepted, the fact is that the experience requirements for both these grades contain this additional phrase “of whom it is not required to perform community service as required in South Africa”;
If the experience criteria for education psychologist Grade 2 are not applicable to applicant because of the fact that he has not performed community based service (and was not required to), then the experience criteria for education psychologist Grade 3 would also not be applicable to him because the same phrase contained in the experience requirements for that position. The result would then lead to an absurdity because that would mean that there is no provision in the agreement that gives practical guidance as to how applicant’s experience should be translated under the agreement;
[67] This entire phrase is clearly not applicable to psychologists who registered before 2003. It could only be applicable to psychologists who registered after the date in 2003 when community service was introduced. Since applicant was registered before 2003, this phrase can therefore not be applicable in relation to him when his translation has to be made. Only the first part of the sentence up to and including the words “after registration with the HPSCA is required” can be applicable to psychologists who registered before the applicable date in 2003 when community service was introduced.
[68] The first indication that respondents’ interpretation of the collective agreement is probably not correct, is the fact that on their interpretation, applicant’s experience as school psychologist between 1991 and 2001 would be ignored. Given the fact that one of the objectives of the agreement appears to have been to recognise “relevant” or “appropriate” experience in order to retain and retract professionals in public education, such interpretation does not appear to be consistent with the primary objectives of the agreement.
[69] The second indication that the parties to the collective agreement probably never intended that the previous experience of a person in applicant’s position gained after registration as psychometrist with the HPCSA (but before registration as psychologist) should be ignored when doing the translation of a psychologist, is to be found in the inequitable and absurd result namely, that should applicant never have improved his qualifications to register as a psychologist and should he still have been registered as psychometrist on the date of translation, his salary on translation as psychometrist would actually have been more than what it was on translation as psychologist grade 2.
[70] There is a presumption that an interpreter of contracts should lean towards an equitable interpretation of a contract unless it is manifestly clear that the parties intended a seemingly unreasonable result. Contracting parties are further presumed not to intend absurd results and to this extent an interpreter is permitted to depart from the ordinary meaning of words in order to avoid absurd results.
[71] However even if I were wrong in this regard, there is in any event a more compelling reason why respondents’ interpretation is wrong, and that is to be found in the plain meaning of the words used by the parties in the agreement and annexures. The agreement does not provide that only experience gained after registration as psychologist with the HPSCA may be taken into account for purposes of translation to grade 2 and 3 psychologists. It merely states that “relevant” experience gained “after registration with the HPSCA” must be considered. That necessarily implies that any relevant experience in any capacity (for example counsellor or psychometrist) after registration with the HPSCA must be considered for purposes of translation to grade 2 and 3 psychologists, because the provision does not restrict the experience to experience gained after registration as psychologist.
[72] My conclusion in this regard is fortified when the provisions in relation to translation of grade 2 and 3 psychologists are compared with the provisions in relation to translation of certain other professionals as provided for in the Annexures:
For translation to grade 2 and grade 3 psychologist, the annexure requires a minimum of X years “relevant experience after registration with the HPSCA…”
For translation to senior education psychologist grade 1, the annexure requires a minimum of X years “appropriate experience as psychologist after registration with the HPSCA as psychologist”
For translation as Counsellor/Psychometrist Grade 2 and Chief Education Counsellor/Psychometrist Grade 1 the annexure requires a minimum of X years “appropriate experience as counsellor after registration with the HPSCA as Counsellor or Psychometrist”
[73] What is clear from the words used by the parties is that whereas in the case of senior education psychologists, certain minimum years of experience “as psychologist” after registration with the HPSCA “as psychologist” is required and whereas in the case of counsellors and psychometrists, certain minimum years of experience “as counsellor” after registration with the HPSCA “as counsellor or psychometrist” is required, the provisions in respect of grade 2 and 3 psychologists do not read the same and simply require “relevant experience after registration with the HPSCA…”, without laying down any further requirements as to the nature of the experience or the position in which such experience should have been acquired.
[74] In this regard several rules and presumptions of interpretation are relevant namely (1) that words are intended in their ordinary sense, (2) that the same words or expressions in the same contract has the same meaning while different words or expressions indicate different meanings, (3) that if parties expressly mentioned one matter, they intended to treat other similar matters that were not mentioned on a different basis (“inclusio unius est exclusio alterius”), and (4) that contracting parties chose their words precisely and exactly.
[75] There must be a reason why the parties chose different words for the requirements for the translation of grade 2 and 3 psychologists than the words they chose when dealing with the requirements for the translation of other professionals. If they wanted to treat them the same, they would have used the same or similar words. The fact that they chose different words, means that they wanted to lay down different requirements. In the case of senior education psychologists and psychometrists they expressly stated that the experience must be experience “as counsellor” or as “psychologist” after registration “as counsellor”, “as psychometrist” or “as psychologist”.
[76] The parties wanted to make it clear that in the case of counsellors and psychometrists no other experience than experience as counsellor after registration as counsellor or psychometrist would be acceptable for translation purposes and that in the case of senior education psychologists no other experience than experience as psychologist after registration as psychologist would be acceptable for translation purposes. But in the case of grade 2 and 3 psychologists they did not impose this restriction and provided that “relevant experience after registration with the HPSCA would be acceptable. There is no specific requirement that the experience must have been gained after registration as psychologist. Clearly then any relevant experience after registration with the HPSCA in any capacity (including psychometrist) must be taken into account. That is what the provision says and that is what the parties agreed and intended.
[77] I am mindful that the sentence in the annexures goes on to read “in respect of……..performed community service in South Africa” but I have already held that this additional phrase does not apply to applicant because he was registered before community service was introduced. Furthermore the phrase “in respect of….” does not have the same meaning as the phrase “experience “as psychologist” after registration with the HPSCA “as psychologist”. This phrase therefore does not assist respondents’ interpretation.
[78] For all these reasons Ms Munday’s evidence about the intention of the parties, cannot possibly be correct and must be rejected. It is also for these reasons that I have held that nothing much turns on the debate between the representatives about the meaning of the words “on appointment”. These words are clearly qualified by the further phrase “as provided in Annexure A3, B3 and C3 of this agreement”. But if one has regard to the annexures on which respondents so strongly rely for their argument, then, for the reasons that I have already discussed, the plain meaning of the words used in the annexures simply do not support the meaning attached to it by respondents.
[79] I now need to determine whether the meaning that I have given the words in the agreement so far, apply to the set of facts before me. I have already held that the functions that applicant performed between January 1991 and 9 March 2001 (when applicant registered with the HPCSA as a psychologist) were exactly the same as those that he performed after registration as psychologist. I have also already held that applicant’s colleagues who were registered as psychologists between 1991 and 2001 performed exactly the same functions that he performed during that period.
[80] This necessarily means that the experience that applicant had gained after 1 January 1991 (including the period up to March 2001) is ”relevant experience after registration with the HPCSA” as required by the collective agreement. This means that when the collective agreement came into operation in 2012 applicant had more than 16 years’ relevant experience after registration with the HPCSA as intended in the collective agreement. Accordingly applicant complied with all the requirements for translation to Education Psychologist Grade 3 (office based) and should have been translated to that position and not to grade 2. Respondents’ interpretation and application of the collective agreement was accordingly wrong.
Conclusion
[81] In the circumstances my finding is that respondents’ interpretation and application of the collective agreement is wrong. Applicant’s claim is not only supported by the rules of construction and the plain meaning of the words, but also by the objectives of the LRA, the objectives of the collective agreement and principles of fairness.
IX RELIEF
[82] The LRA provides that an arbitrator is entitled to make any award that includes, but is not limited to an award that gives effect to the provisions and primary objects of the LRA and that includes, or is in the form of a declaratory order.
[83] It is common cause that if applicant had been translated to psychologist grade 3 with effect from 1 July 2010 (as opposed to the translation to psychologist grade 2), he would for the period between 1 July 2010 to 31 March 2018 have earned an additional income of R691 678 (less deductions for income tax, pension fund and UIF).
[84] The relief that applicant asks for in the event that I accept his interpretation of the collective agreement, is an order directing first respondent to pay to him the amount of R691 679 less deductions. I am satisfied that it would be appropriate to award this amount as relief and will accordingly make an appropriate order in this regard.
X COSTS
[85] Mr MacRobert asked for a costs order in favour of applicant, arguing that applicant had to expend considerable amounts in legal costs to obtain success.
[86] In terms of section 138(10) of the LRA, an arbitrator may make an order for the payment of costs according to the requirements of law and fairness. Costs is a matter of discretion which should be approached in a fair manner. Costs is entirely at the discretion of the arbitrator. This discretion must be exercised judicially and in accordance with recognized principles. In civil and commercial litigation and arbitration proceedings, the general rule is that a party who is substantially successful is entitled to be awarded costs in the absence of special circumstances. That “default” principle however does not apply in employment disputes under the Labour Relations Act. In employment disputes, each and every case must be considered on its own merits by the arbitrator in determining whether costs should be awarded.
[87] Under the previous Labour Relations Act, the Courts held that when an employment tribunal consider the issue of costs, it should consider “law and fairness” and that arriving at its decision it should also take into account the following considerations, namely that:
Parties should not be discouraged from invoking the dispute resolution principles of the LRA;
Costs should not be ordered too lightly if a party acts in good faith, especially where the matter involves issues of importance to the wider industrial community;
A costs order should not damage an ongoing employment relationship between the parties;
The conduct of the parties.
[88] Clause 54 of the 2016 ELRC dispute resolution rules incorporates most of these principles and provides as follows:
54 Costs
54.1 In any arbitration proceedings, the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regards to:
54.1.1 The measure of success that the parties achieved;
54.1.2 Considerations of fairness that weigh in favour of or against granting a cost order;
54.1.3 Any with prejudice offers that were made with a view to settling the dispute;
54.1.4 Whether a party or the person who represented that party in the arbitration proceedings acted in frivolous and vexatious manner-
54.1.4.1 By proceeding with or defending the dispute in the
arbitration proceedings, or
54.1.4.2 In its conduct during the arbitration proceedings;
54.1.5 The effect that a cost order may have on a continued employment relationship;
54.1.6 Any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded:
54.1.7 The importance of the issues raised during the arbitration to the parties as well as to the labour community at large;
54.1.8 Any other relevant factor.
54.3 A commissioner may make an award of costs in respect of the legal fees of a party that Is represented in an arbitration by a legal practitioner, only if the other parties to the arbitration were represented by a legal practitioner.
[89] Taking into account all the relevant principles, the facts of this case and more particularly the following factors, I do not believe that it would be just and equitable to make a costs order in this case:
There is an ongoing employment relationship between the parties;
The respondents acted in good faith in defending the proceedings. They did not act in a frivolous and vexatious manner;
The dispute involved issues of importance to the wider industrial community in the public education sector;
Instead of using the services of an attorney, applicant could have chosen to use his union to represent him, which would have made it unnecessary to expend considerable amounts in legal costs;
Parties who act in good faith, should not be discouraged from enforcing or defending their rights under social legislation by the possibility of facing cost orders should they be unsuccessful.
[90] In the circumstances, there will be no costs order and each party shall bear their own costs.
AWARD
In the premises I make and publish the following award and order:
1. Applicant’s claim succeeds:
1.1 Respondents’ interpretation and application of ELRC Resolution 1 of 2012 is wrong;
1.2 In terms of the correct interpretation and application of ELRC Resolution 1 of 2012, any relevant experience after registration with the HPCSA must be considered when translating a psychologist (other than a senior psychologist) for purposes of the agreement. Such experience is not limited to experience as psychologist after registration as psychologist with the HPCSA, but includes experience after registration with the HPCSA as psychometrist (counsellor);
1.3 On the date that the collective agreement was implemented and applicant translated, applicant should have been translated to Education Psychologist Grade 3 and not to Education Psychologist Grade 2.
2. Respondents are directed to correct applicant’s designation to Education Psychologist Grade 3;
3. As from 1 April 2018 applicant must be remunerated on the scale of Education Psychologist Grade 3;
4. First respondent is directed to pay to the applicant, on or before 30 April 2018 the amount of R691 679 less deductions (such as income tax, UIF and pension fund contributions);
5. Interest on the aforesaid amount will accrue at the applicable interest rate from 30 April 2018 to date of payment;
6. No order as to costs is made.
D P Van Tonder
Senior ELRC Arbitrator
Western Cape
Province: Western Cape
Applicant: PETRUS HERBERT
Respondent: 1st HOD Department of Education Western Cape and 2nd Respondent Department of Education
Issue: Unfair Labour Practice - Interpretation of collective agreements
Award Date: 27 March 2018
Arbitrator: D P Van Tonder
Case No PSES 517-16/17WC
In the matter between
PETRUS HERBER Applicant
and
HOD, WESTERN CAPE DEPARTMENT OF EDUCATION 1st Respondent
DEPARTMENT OF BASIC EDUCATION 2ND Respondent
ARBITRATOR: D P Van Tonder
HEARD: 1 March 2018
FINALISED: 26 March 2018
DELIVERED: 27 March 2018
SUMMARY: Labour Relations Act 66 of 1995 – Section 24(1) – Collective agreement – Dispute about the interpretation and application of Collective Agreement
ELRC Resolution 1 of 2012 – Occupational Specific Dispensation for psychologists employed in public education – Whether experience gained as school psychologist after registration with HPCSA as psychometrist but prior to registration as psychologist should be taken into account for purposes of OSD translation of psychologist
ARBITRATION AWARD
Table of Contents
I THE PARTIES 3
II PROCEDURAL HISTORY 3
III THE ISSUES TO BE DETERMINED 4
IV BACKGROUND TO THE DISPUTE 4
V THE COLLECTIVE AGREEMENT 7
VI THE EVIDENCE 12
VII ARGUMENTS 17
VIII DISCUSSION 17
IX RELIEF 48
AWARD 53
I THE PARTIES
Applicant
[1] The applicant is Dr, P Herbert, a member of SAOU. Applicant was represented by Mr John MacRobert, a practising attorney.
Respondents
[2] First respondent is the Provincial Head of Department of the Western Cape Department of Education. Second respondent is the Department of Basic Education. Both respondents were represented by Mr E De Villiers-Jansen, an advocate and member of the cape bar, instructed by the state attorney
II PROCEDURAL HISTORY
[3] The matter was first scheduled for arbitration for 30 May 2017. On 2 May 2017 the ELRC however removed the matter from the roll and informed me that the matter has been postponed sine die because of a joinder application that had to be finalised first. The second respondent was joined as a party on 27 May 2017. The matter was scheduled again for arbitration for 22 August 2017. On that day the matter again did not proceed as Mr De Villiers-Jansen applied for a postponement on behalf of second respondent. The reasons for that postponement are contained in my ruling of 22 August 2017.
[4] Evidence was heard and finalised on 1 March 2018. The proceedings were digitally recorded. I received the final written closing arguments on 26 March 2018.
III THE ISSUES TO BE DETERMINED
[5] I am required to interpret the meaning of certain provisions of an ELRC collective agreement and determine appropriate relief should I find in favour of the applicant.
IV BACKGROUND TO THE DISPUTE
[6] Applicant has been employed by first respondent and its predecessors in title as an office based educator since 1978. He is currently still employed as office based educator and psychologist by first respondent. He is 64 years old and due to retire at the age of 65. On 5 March 1990 applicant registered with the HPCSA as a psychometrist. Since 1 January 1991 applicant was employed by first respondent’s predecessor in title as school psychologist. On 9 March 2001 applicant registered with the HPCSA as a psychologist. Between 1991 and 2001 applicant performed the same duties as colleagues who were registered as psychologists.
[7] In 2007 the PSCBC concluded PSCBC Resolution 1 of 2001. That agreement inter alia provided that:
• Revised occupational specific salary structures would be negotiated and implemented per identified occupation to attract and retain professionals and other specialists
• The OSD system will include unique salary structure per occupation, and career pathing opportunities based on competencies, experience and performance
• The revised OSD salary structures will put in place a proper career pathing model per identified occupational category and that such model should be a forward looking plan to systematically increase salaries after pre-determined periods based on specific criteria such as performance, qualification, scope of work and experience
[8] Based on this collective agreement, each bargaining council in the public service was under an obligation to negotiate and conclude collective agreements to give effect to this PSCBC collective agreement.
[9] The PSHSDSBC was the first bargaining council who concluded a collective agreement governing OSD for therapeutic, diagnostic and related allied professionals (such as phycologists).
[10] In 2012 the ELRC concluded ELRC Resolution 1 of 2012, which is also reproduced in clause B.3.5 of the 2016 PAM, and which governs the OSD for education therapists, counsellors and psychologists employed in public education. It was agreed that this resolution would be backdated to 1 July 2010.
[11] When applicant was translated in terms of this collective agreement, he was translated to an education psychologist grade 2. Respondents claim that this translation was correct because applicant had at the time more than 8 years but less than 16 years’ experience gained after registration as psychologist with the HPCSA. Applicant claims that the translation was not correct and that he should have been translated to an education psychologist grade 3. In support of this argument, applicant claims that his 10 years’ experience after registration as psychometrist should also have been taken into account when he was translated in terms of the collective agreement.
[12] Respondents admit that applicant’s 10 years’ experience after registration as psychometrist was not taken into account, but argues that that they were not permitted to take this experience into account. It is common cause that if applicant had been translated to psychologist grade 3 with effect from 1 July 2010 (as opposed to the translation to psychologist grade 2), he would for the period between 1 July 2010 to 31 March 2018 have earned an additional income of R691 678 (less deductions for income tax, pension fund and UIF).
[13] The relief that applicant seeks is an order directing first respondent to pay to him the amount of R691 679 less deductions together with an order that as from 1 April 2018 applicant be placed on grade 3 and be paid accordingly.
V THE COLLECTIVE AGREEMENT
[14] I do not intend to quote the entire collective agreement here but will only refer to the most relevant parts which read as follows:
2. OBJ ECTIVES
2.1 To give effect to paragraph 4 of PSCBC Resolution 1 of 2007 Agreement on improvement in salaries and other conditions of service for the financial years 2007/2008 to 2010/2011.
2.2 To introduce an occupation specific remuneration and career progression dispensation (OSD) for Physiotherapist, Speech Therapists, Occupational Therapists (hereafter referred to as Education Therapists), counsellors and psychologists employed in public education.
2.3 To provide within the OSD for:
2.3.1 Career pathing opportunities based on competencies, experience and performance;
2.3.4 Recognition of appropriate experience for the purpose of grade progression; and
2.4 To introduce differentiated salary scales for education therapists, counsellors and
psychologists based on a new remuneration structure.
2.5 To provide for translation measures to facilitate the implementation process.
5.1.4 REQUIREMENTS FOR APPOINTMENT AND SALARY/ GRADE/
CAREER PROGRESSION
The introduction of appointment requirements. grade and career progression requirements for education therapists, counsellors and psychologists, subject to any statutory requirements determined by the Health Professions Council of South Africa and the South Africa (SACE) where applicable.
5.1.10 RECOGNITION OF RELEVANT EXPERIENCE
5.1.10.1 This agreement provides a basis for the recognition of appropriate/relevant experience on appointment as provided in Annexure A3, B3 and C3 of this agreement. (emphasis added)
5.1.10.3 The recognition of relevant experience of serving education therapists. counsellors and psychologists covered by this agreement shall be based on verified proof of such experience. Proof of such experience, where not available on the personnel record of an employee, must be submitted to the employer by 30 September 2012 in order to qualify for any recognition with effect from 1 July 2010 in terms of this agreement. Where such proof of experience is submitted after 30 September 2012, recognition for salary purposes, where provided for in the agreement, shall be with effect from the first day of the month following the month in which the proof was submitted by the employee.
5.1.12 TRANSLATION MEASURES
5.1.12.1 Translation from the existing dispensation to appropriate salary grades (scales) attached to the OSD based on the principle that no serving education therapist's, counsellor's or psychologist's salary position (notch or package) will be less favourable with the implementation of the revised salary and career progression dispensation.
5.1.12.3 The translation to the new dispensation provides for the recognition of relevant experience of serving employees (refer to paragraph 5.1.11).
[15] Annexures A, B and C to the collective agreement (reproduced in clause B.3.5 of the 2016 PAM) provide for the criteria applicable to the translation to various posts and job levels. Annexure C2 requires the following experience for translation of psychologists:
For Education Psychologist Grade 1 (office based)
None after registration with the HPSCA in respect of RSA qualified psychologists who performed community service as required in South Africa;
One (1) year relevant experience after registration with the HPSCA in respect of foreign qualified psychologists of whom it is not required to perform community service as required in South Africa
For Education Psychologist Grade 2 (office based)
Minimum of eight (8) years relevant experience after registration with the HPSCA in respect of RSA qualified psychologists who performed community service as required in South Africa;
Minimum of nine (9) years relevant experience after registration with the HPSCA in respect of foreign qualified psychologists of whom it is not required to perform community service as required in South Africa
For Education Psychologist Grade 3 (office based)
Minimum of sixteen (16) years relevant experience after registration with the HPSCA in respect of RSA qualified psychologists who performed community service as required in South Africa;
Minimum of seventeen (17) years relevant experience after registration with the HPSCA in respect of foreign qualified psychologists of whom it is not required to perform community service as required in South Africa
For Senior Education Psychologist Grade 1 (office based)
Minimum of three (3) years appropriate experience as psychologist after registration with the HPSCA as psychologist;
[16] And Annexure B2 requires the following experience for translation of counsellors/psychometrists:
For Education Counsellor/Psychometrist Grade 1 (office based)
None after registration with the HPSCA as Counsellor or Psychometrist;
For Education Counsellor/Psychometrist Grade 2 (office based)
Minimum of eight (8) years appropriate experience as Counsellor after registration with the HPSCA as Counsellor or Psychometrist;
For Chief Education Counsellor/Psychometrist Grade 1 (office based)
Minimum of three (3) years appropriate experience as Counsellor after registration with the HPSCA as Counsellor or Psychometrist;
VI THE EVIDENCE
[17] The bundles of documents of applicant were marked A and B, and the bundle of respondents was marked as C.
Evidence on behalf of applicant
[18] Morné Jansen testified that he is employed by the trade union SAOU as provincial secretary. With reference to the applicable collective agreements, he expressed the view that applicant should have been translated to Education psychologist Grade 3 instead of grade 2. He further testified that if applicant did not register as psychologist but remained a psychometrist, then in terms of the Annexures to the OSD agreement, applicant would have been placed at a higher salary scale effective from 1 July 2010 as psychometrist, than the salary scale he was placed on as psychologist grade 2 on 1 July 2010. After translation on 1 July 2010 to psychologist grade 2, applicant was on salary scale R468 777. If however he remained a psychometrist then on translation on 1 July 2010 he would have been on salary scale R512 583.
[19] During cross-examination he conceded that the express terms of the collective agreement provide that in order to be translated under the OSD, only experience gained after registration with the HPSCA as psychologist may be taken into account and that there was no express term in the agreement that states that experience gained prior to registration with the HPSCA as psychologists may be taken into account. He was however nevertheless of the view that the intention was that the 10 years’ experience that applicant gained after registration as psychometrist should also have been taken into account.
[20] Petrus Du Toit Herbert, the applicant gave evidence under oath and read his written witness statement (contained in Bundle C1-5) into the record. Since his evidence in chief is contained in Bundle C, and since I have already summarised the most important aspects of his evidence as part of the background facts, I do not see the need to summarise his evidence here in detail.
[21] He further testified that when he registered as psychologist in 2001 there was not yet any requirement that psychologists must perform community service before being registered.
[22] He also testified that in any event the community service requirement has to date never been complied with in the public education sector, that none of his colleagues have performed community service, and that he is aware that recent graduates who commenced their employment recently with first respondent and recently registered as psychologists, were not required to perform community service.
[23] He concedes that the annexure to the collective agreement requires experience gained after registration with the HPSCA as psychologist to be taken into account for purposes of translation, but he is of the view that this is unfair and that his additional 10 year’ experience after registration as psychometrist should also have been taken into account. He conceded that if only experience gained after registration with the HPSCA as psychologist could be taken into account, then he had to be placed on grade 2 as he would then have had more than 8 years but less than 16 years’ experience. However if his additional 10 years’ experience after registration as psychometrist was also taken into account, then he would have had more than 16 years’ experience which would have placed him on grade 3.
[24] He cannot understand why the experience that he gained after registration as psychometrist, but prior to registration as psychologist cannot be taken into account because he has been performing exactly the same functions after registration as psychologist than before registration, and before registration he performed exactly the same functions as his colleagues who were registered as psychologists. Recently all the psychologists and psychometrists employed by first respondent were required to sign exactly the same job description.
Evidence on behalf of respondents
[25] Letitia Munday testified that she is employed by second respondent as director, and is responsible for HR planning. She has been employed in public education for 25 years and by second respondent for 11 years. She is involved in collective bargaining and was involved in the negotiations leading up to ELRC Resolution 1 of 2012. This Resolution was largely based on PHSDSBC Resolution 2 of 2010. She testified that the intention was to recognise experience for OSD purpose for psychologists only in relation to that period gained after registration as psychologist with the HPSCA. She testified that the reason for this was that the OSD was occupation specific and that the employer could recognise the employee for OSD translation purposes only from the date that they became professional in their occupational group, which is the date of registration.
[26] She was not prepared to concede that experience gained after registration as psychometrist, but prior to registration as psychologist could be taken into account for the translation of a psychologist.
[27] In respect of the requirements provided for in the Annexures to the schedules in relation to grade 1, 2 and 3 education psychologists who qualified in the RSA, she could not explain why there was a requirement that they had to perform community service, whereas in the case of senior education psychologists there was no such requirements. She said that this requirement was imply taken over from the PHSDSBC Resolution, as the parties felt that because the PHSDSBC operated in the health sector, they would no best.
[28] Rudolph Oosthuizen testified that he is employed by first respondent as deputy director, and is responsible for implementation of Resolution 1 of 2012. He testified that first respondent must simply follow the requirements of this resolution and that this resolution did not allow first respondent to consider applicant’s experience gained after registration as psychometrist, but prior to registration as psychologist for purpose of the OSD.
VII ARGUMENTS
[29] Written arguments were submitted by both representatives. I am indebted to both representatives for the detailed heads of argument. Because these arguments have been reduced to writing and form part of the record, I do not intend to summarise them. I have read and carefully considered these arguments and will refer to certain parts of it if and where necessary during my evaluation.
VIII DISCUSSION
A THE PRINCIPLES OF INTERPRETATION
[30] The fundamental consideration in determining the terms of a written contract or its application, is to establish the intention of the parties from the words used in the context of the document as a whole, the factual matrix surrounding the conclusion of the agreement and its purpose, or the mischief the term was intended to address. There is an assumption that the ordinary meaning of the language used by the parties in the contract is the prima facie and most probable meaning intended by the parties.
[31] One must consider the meaning of words by having regard to their context in relation to the contract as a whole and by taking into account the nature and purpose of the contract . In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18 Wallis JA said:
‘Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.’
[32] A court or arbitrator is at liberty to depart from the words used, even when they are clear and unambiguous when considered in the context of the document as a whole if it is evident that they would lead to a result contrary to the purpose and intention of the parties.
[33] The words must be taken as the starting point and construed in the light of their context and purpose and where applicable the dictates of the Constitution. The enquiry must however not necessarily always commence by examining the words used. While the object is to determine the meaning to be given to the words used, it remains the primary function of the court or an arbitrator to gather the intention of the parties by reference to those words; and this can only occur if the object and purpose of the contract and the mischief sought to be remedied, are brought into consideration when examining the words used in the context of both the document as a whole and the context or factual matrix in which the document came to be produced.
[34] The interpretational process is integrated. There is no immutable starting point in the enquiry to determine the meaning of the words used. That is more likely to be governed by the dictates of the case or individual judicial preference. Neither an examination of the words used, nor a consideration of their context as a whole or the factual matrix in which the document came into existence, can be looked at in isolation.
[35] In North East Cape Forests v SA Agricultural Plantation & Allied Workers Union, the Labour Appeal Court however cautioned that a collective agreement is not an ordinary contract, and that one cannot apply solely with reference to the ordinary rules of construction that apply in relation to the commercial contracts:
'If the collective agreement is to be interpreted and applied purely by reference to contractual principles, the strike would have been unprotected…. But a collective agreement in terms of the Act is not an ordinary contract, and the context within which a collective agreement operates under the Act is vastly different from that of an ordinary commercial contract…On a purely contractual approach, therefore, there was no enforceable right to strike….. Such a course of action would frustrate the overall scheme of the Act, viz to promote effective, fair and speedy resolutions of labour disputes. On the other hand, an approach based on the objectives of the Act itself, seems better suited to overcome such difficulties.… The purpose of the Act itself is to advance economic development, social justice, labour peace and the democratization of the workplace by giving effect to its primary objects (s 1)….It is, in my view, quite clear that these primary objects of the Act are better served by the practical approach to the interpretation and application of the collective agreement as set out in the judgment of Myburgh JP, rather than by reference to purely contractual principles.'
[36] In SAMWU v SALGBC the Labour Appeal Court held that under the LRA, arbitrators interpreting and applying collective agreements may adopt a “slightly more adventurous approach” (as Dr. Grogan calls it), through a purposive approach to interpretation to promote 'effective, fair and speedy resolution of disputes and that in adopting this approach it would not be unreasonable for the arbitrator to resolve the matter in a practical manner that he deems fair and equitable. Mlambo JP said:
[15]…In National Education Health & Allied Workers Union v University of Cape Town & others, the Constitutional Court stated:
'The declared purpose of the LRA "is to advance economic development, social justice, labour peace and the democratisation of the workplace". This is to be achieved by fulfilling its primary objects, which include giving effect to s 23 of the Constitution. It lays down the parameters of its interpretation by enjoining those responsible for its application to interpret it in compliance with the Constitution and South Africa's international obligations. The LRA must therefore be purposively construed in order to give effect to the Constitution.'
[16] That is the approach adopted by the commissioner in this case. Perusal of the award shows that the commissioner clearly understood the issues before him and the task he was expected to perform. He understood that there was a lacuna in the collective agreement insofar as the annual leave situation of shift employees was concerned and that his task was to interpret and apply the collective agreement in a manner that encompassed these employees. He identified the purpose of the collective agreement, ie the provision of an annual leave benefit to eThekwini's employees, in particular those working according to a shift system. He then proceeded to interpret the agreement in a practical manner that he deemed was fair and equitable in those circumstances and which would cater for shift employees as well…. Based on considerations of fairness and equality of treatment, he reasoned that it was proper to interpret the collective agreement as if the shift employees worked a normal five-day cycle as was done by eThekwini.
[19] I am satisfied therefore that the commissioner properly applied his mind to the issues before him, that he considered all the material before him and adopted an approach that gave effect to the purpose of the collective agreement in a manner that achieved equity and fairness amongst eThekwini's employees. If one interprets the collective agreement within the context of the shift workers, considering one of the purposes of the LRA which is to promote fair labour practices, then without doubt the commissioner's approach of fairness cannot be said to be unreasonable”
[37] And in Western Cape Department of Health v Van Wyk the Labour Appeal Court gave further guidance and stated:
[22] In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements, namely, to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
[38] Dr. Grogan points out that this does not mean that the ordinary principles of interpretation of contracts have now become redundant when interpreting collective agreements:
This is not to say that the ordinary principles of interpretation of contracts are never appropriate when interpreting and applying collective agreements. In Northern Cape Forests the court merely stressed that the interpreter should ask the further question whether the interpretation yielded by these principles accords with the objectives of the LRA. The fact is that a collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time they concluded the agreement. The courts and arbitrators must therefore strive to give effect to that intention.
[39] Hence, the ordinary rules of interpretation of commercial contracts are still relevant when interpreting collective agreements. But there is more to interpreting a collective agreement than merely applying the ordinary rules of interpretation of commercial contracts. In this regard, the Labour Court with reference to the LAC authorities that I have referred to, explained that what is in essence required, is a healthy balance between the two approaches:
[31]…. I doubt very much that in the North East Cape Forests decision, Froneman DJP was advocating a disregard of ordinary and grammatical meaning in the exercise of interpretation of collective agreements. My understanding of his words is that not too much emphasis should be placed on the literal meaning so as to frustrate the object of the LRA and to the complete disregard of purposive interpretation. There needs to be a healthy balance between the two approaches to interpretation.
[40] What this in essence all means is that when applying the ordinary rules of interpretation when interpreting a collective agreement, an arbitrator must interpret the agreement in a practical manner, through the prism of the Bill of Right (which includes the right to fair labour practices and the right to equality), and through the prism of the primary objectives of the LRA (which is to advance economic development, social justice, labour peace and the democratization of the workplace) and must endeavor to adopt an interpretation and application that is fair and equitable to the parties.
[41] There is however a caveat, and that is that all these principles are subject to the following qualifications namely that:
A purposive interpretation is not a licence to ignore the language used by the parties where the language in a contract is clear and reveals the common intention of the parties and does not lead to absurdity,
Courts and arbitrators must interpret contracts, but have no jurisdiction to make a new contract for parties or to change the terms of their contract.
B THE NATURE OF THE DISPUTE
[42] In their closing arguments the representatives debated the nature of the dispute before me. On behalf of respondents it was submitted that there is no application dispute before me, whereas applicant’s representative submitted that there is a dispute between the parties about what the collective agreement means, and that once I have determined the meaning, the next step would be for me to apply it to the applicant.
[43] Although Mr MacRobert did not refer to any authorities for his submission in this regard, his submission is supported by the learner author Professor Cornelius, who relies on well-known authorities for his views. In this regard Cornelius states that once the meaning of a contract has been determined, the next step is to apply the meaning (which has been ascribed to that contract) to the facts of the specific case and that during this second phase, effect is given to the contract, and the legal consequences of the contract are determined.
[44] For his submissions on this point, respondents’ counsel relied on HOSPERSA obo Tshambi v Department of Health, Kwazulu-Natal. In the HOSPERSA case the court held that a dispute about the breach of a right emanating from a collective agreement is not automatically a dispute about the interpretation and application of a collective agreement. It further held that interpretation of a collective agreement requires, at minimum, a difference of opinion about what a provision of the agreement means and that a dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked.
[45] The court further held that the phrase “interpretation or application” are not disjunctive terms, and ought to be read as being related; i.e., disputes about what the agreement means and what it is applicable. In elaborating on what is meant by the word “application” the Court referred to the following citation of Grogan:
‘‘The dividing line between ‘interpretation’ and ‘application’ disputes may not always be absolutely clear. A dispute over the interpretation of a collective agreement exists if the parties disagree over the meaning of a particular provision. A dispute over the application of a collective agreement arises when the parties disagree over whether the agreement applies to or in a particular set of facts and circumstances. It is quite possible that both types of disputes may arise in same case.’
[46] Thereafter the court remarked:
In my view, what Grogan articulates in this passage is the suggestion that there might be two sets of circumstances contemplated under the rubric “application”. First, a difference of opinion whether the collective agreement is applicable at all; eg the relevant workers are not covered by its terms. Second, whether, eg, the activity which gives rise to controversy is covered by the collective agreement. It is not apparent that Grogan in this passage intended to address the question of whether “application” embraces “enforcement”, as Thompson and Benjamin casually assume. Moreover, a fair reading of Grogan’s statement cannot construe it as intended to be a comprehensive account of the permutations of possible meanings of section 24 because the burden of the text is plainly to distinguish the terms “interpretation” and “application” and to alert the reader to the potential for seamlessness between these notions in a real dispute, a sound reason why they ought not to be read disjunctively.
[47] In this case there is clearly a dispute between the parties about the meaning of words in the collective agreement. That brings the dispute squarely within the ambit of section 24 of the LRA. Once I have determined the meaning of the words, the next step is to determine whether the agreement (more particularly the meaning of it as determined by me) applies to the set of facts before me, and if so, to determine the appropriate relief.
C THE OPINIONS OF WITNESSES ABOUT INTERPRETATION
[48] The next aspect that I want to discuss relates to the usefulness and admissibility of the opinion evidence of witnesses about the interpretation of the collective agreement. During evidence in chief and during cross-examination witnesses (including applicant) were asked to express opinions and asked to make concessions about the interpretation of certain parts of the collective agreement. In closing arguments, emphasis was again placed on the evidence that witnesses had given in this regard and concessions that they have made.
[49] While the evidence of witnesses may be useful in an interpretation dispute on certain aspects, the personal opinions and beliefs of lay and expert witnesses about what words, phrases or sentences in the agreement may mean, are completely unhelpful and inadmissible. In KPMG Chartered Accountants (SA) v Securefin the SCA remarked that
“Interpretation is a matter of law and not of fact and, accordingly, interpretation is a matter for the court and not for witnesses”
[50] Harms DP went on to remark:
Trollip JA in Gentiruco AG v Firestone (SA) (Pty) Ltd 1972 (1) SA 589 (A) at 617F-618C dealt with the admissibility of expert evidence in interpreting a document (a patent specification in that case) and quoted with approval from a speech of Lord Tomlin in British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 (HL):
‘The area of the territory in which in cases of this kind an expert witness may legitimately move is not doubtful. . . . He is entitled to explain the meaning of any technical terms used in the art. . . . He is not entitled to say nor is counsel entitled to ask him what the [document] means, nor does the question become any more admissible if it takes the form of asking him what it means to him as an [expert].’
Lord Tomlin spelt out the disadvantages of allowing expert evidence on interpretation:
‘In the first place time is wasted and money spent on what is not legitimate. In the second place there accumulates a mass of material which so far from assisting the Judge renders his task the more difficult, because he has to sift the grain from an unnecessary amount of chaff. In my opinion the trial Courts should make strenuous efforts to put a check upon an undesirable and growing practice.'
That was in 1935, but the chaff is still heaping up, the undesirable practice keeps growing and courts make no effort to curtail it. An expert may be asked relevant questions based on assumptions or hypotheses put by counsel as to the meaning of a document. The witness may not be asked what the document means to him or her. The witness (expert or otherwise) may also not be cross-examined on the meaning of the document or the validity of the hypothesis about its meaning. Dealing with an argument that a particular construction of a document did not conform to the evidence, Aldous LJ quite rightly responded with ‘So what?’ (Scanvaegt International A/s v Pelcombe Ltd 1998 EWCA Civ 436). All this was sadly and at some cost ignored by all.
[51] Although arbitrators who are required to interpret collective agreements are not confined to the common law principles of interpretation, I am not aware of any jurisprudence in which our courts have held that when interpreting collective agreements, the personal opinions and beliefs of witnesses are relevant and admissible. And logically there is no reason why this principle as summarized by Harms DP in the KPMG-case, should not apply when interpreting collective agreements. For this reason I do not intend to evaluate all the personal beliefs and opinions expressed by witnesses regarding their interpretation of the agreement. Their personal beliefs, opinions and concessions in this regard, are unhelpful and inadmissible. The submissions of the representatives on the other hand, as contained in the written closing arguments, were helpful.
D THE PAROL EVIDENCE RULE
[52] On behalf of respondents, reliance was placed on the evidence of Ms Munday that the intention of the parties was to recognize the experience of psychologists only from the date that they became professional in their occupational group, which is the date that they registered as psychologist with the HPSCA.
[53] The Labour Court has held that the parol evidence rule must be considered when interpreting collective agreements. The parol evidence rule provides that when a transaction is reduced to writing and integrated into a written instrument, evidence of any other statements, negotiations, mental reservations or other facts relating to that transaction, becomes inadmissible to determine the extent of the words, expressions, sentences and terms which constitute the text of the contract . In general, no words, expressions, sentences or terms may be added to the text, no words, expressions, sentences or terms may be replaced with other words, expressions, sentences or terms and no words, expressions, sentences or terms may be omitted from the contract.
[54] But the parol evidence rule does not necessarily prevent all extrinsic (parol) evidence and there have always been many exceptions to the rule. For many years our courts drew a distinction between background evidence and surrounding evidence for purposes of determining whether extrinsic evidence was admissible and held that extrinsic evidence would only be admissible when there was ambiguity. This view has now been firmly rejected. The courts no longer draw a distinction between background evidence and surrounding evidence for purposes of determining whether extrinsic evidence is admissible and the existence of ambiguity no longer has any bearing on the admissibility of extrinsic evidence to prove the meaning of the terms in a contract. This however does not mean that the parol evidence rule no longer exists. Neither does it mean that this “signals a free-for-all in which all possible evidence can now be submitted in an attempt to sway a court towards a particular meaning”. In this regard Harms DP made the following remarks in KPMG Chartered Accountants (SA) v Securefin: :
‘First, the integration (or parol evidence) rule remains part of our law. However, it is frequently ignored by practitioners and seldom enforced by trial courts. If a document was intended to provide a complete memorial of a jural act, extrinsic evidence may not contradict, add to or modify its meaning.
Second, interpretation is a matter of law and not of fact and, accordingly, interpretation is a matter for the court and not for witnesses.
Third, the rules about admissibility of evidence in this regard do not depend on the nature of the document, whether statute, contract or patent.
Fourth, to the extent that evidence may be admissible to contextualise the document (since 'context is everything') to establish its factual matrix or purpose or for purposes of identification, 'one must use it as conservatively as possible'
[55] With reference to SCA judgement in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd Professor Cornelius, provides the following summary, explaining when exactly extrinsic evidence will be admissible in terms of the KPMG-test:
The evidence must relate to the context, the apparent purpose to which it is directed and the material known to those responsible for its production;
Extrinsic evidence will only be admissible if it is submitted to prove a meaning which can reasonably be ascribed to the text as it stands;
Because contracts are based on consensus and because the purpose of interpretation is to determine the (collective) intention of the parties evidence is generally only relevant if it tends to prove what the consensus and collective intention of the parties were at the time when the contract was concluded. Evidence to prove the individual intention of a party is therefore irrelevant and therefore inadmissible.
[56] I am satisfied that when the parol evidence rule is applied, Ms Munday’s evidence about the intention of the parties is simply not admissible:
For reasons that will become apparent later in this award, the evidence of Ms Munday in this regard does not prove a meaning which can reasonably be ascribed to the text as it stands.
Ms Munday’s evidence on this aspect was not truly evidence about the “common intention” of the parties. She did not testify that the parties had specifically discussed the issue that we are debating in this case, and neither did she give evidence about the existence of any memorandums or other documents in which the parties had expressly deliberated this issue and made a decision in this regard. Under these circumstances, her evidence about the intention of the parties is nothing more than what she personally believes the common of the intention of all the parties was. She is in no better position than I am to determine the common intention of the parties. She bases her opinion on her own believes, perceptions, logic and arguments. And this is not permissible. As Harms DP remarked in the KPMG case - interpretation is a matter for the arbitrator and not for witnesses.
[57] However, even I am wrong in this regard, and even if her evidence on this aspect should not be excluded in terms of the parol evidence rule, then for reasons that will become apparent later in this award, her evidence about the intention of the parties should in any event be rejected because it is not consistent with the probabilities, the established principles of construction, the plain meaning of the words, and the meaning of the words when regard is had to other provisions in the agreement.
E THE INTERPRETATION AND APPLICATION OF THE AGREEMENT
[58] One of the primary objectives of ELRC Resolution 1 of 2012 is career pathing based on the recognition of experience. This is confirmed in several clauses of the agreement itself, and also on the PSCBC collective agreement, which gave rise to this collective agreement. The collective agreement however makes it clear that recognition of experience on appointment must take place as provided for in the annexures to the agreement, and not in any other manner. This is so because clause 5.10. expressly provides:
This agreement provides a basis for the recognition of appropriate/relevant experience on appointment as provided in Annexure A3, B3 and C3 of this agreement.
[59] In their closing arguments, the representatives intensely debated the meaning of the phrase “on appointment” in clause 5.1.10.1 of the agreement. Mr MacRobert submitted that the provisions of annexure C are at odds with this phrase and that the words used in clause 5.1.10.1 must prevail over the words used in the annexures. On behalf of respondents it was submitted that one cannot simply focus on the phrase “on appointment” but that one must read this in the context of the remaining words in the clause namely “as provided in Annexure A3, B3 and C3 of this agreement”.
[60] It was further submitted on behalf of respondents that read in context the words “on appointment” can only mean “on translation”. Applicant’s attorney did not agree with this submission and argued that it would be absurd to interpret the phrase “on appointment” in this manner.
[61] Where different provisions in a contract appears to be in apparent conflict, then instead of simply preferring one provision over the other, every attempt should be made to harmonise the two provisions using rules of contract interpretation. It is after all trite law that any interpretation which would render any part of a contract meaningless, should, if at all possible, be avoided.
[62] However, because of the approach that I have adopted in this matter and because of the plain meaning of the words used in the annexures, nothing much turns on the debate between the representatives about the meaning of the words “on appointment”. I will return to this aspect later in this award.
[63] The dispute between the parties essentially revolves around the required minimum experience that a psychologist should have had when the collective agreement was implemented and the translation to the OSD made. More particularly the interpretation of the following phrases, especially the underlined part of it, is in dispute:
“in order to be translated to education psychologist Grade 2 a minimum of eight (8) years relevant experience after registration with the HPSCA is required in respect of RSA qualified psychologists of whom it is not required to perform community service as required in South Africa
“in order to be translated to education psychologist Grade 3 a minimum of sixteen (16) years relevant experience after registration with the HPSCA is required in respect of RSA qualified psychologists of whom it is not required to perform community service as required in South Africa
[64] Applicant claims that his experience after registration with the HPSCA as psychometrist should also be taken into account and that he should accordingly have been translated to psychologist grade 3, whereas respondents claim that only the experience gained after registration with the HPSCA as psychologist can be taken into account and that he was accordingly correctly translated to psychologist grade 2.
[65] It is common cause that applicant was registered with the HPCSA as psychometrist on 5 March 1990 and was continuously employed by first respondent since 1 January 1991 as school psychologist and that on 9 March 2001 applicant was registered with the HPCSA as a psychologist. Applicant’s evidence that since his registration as psychometrist on 1 January 1991 he had always been performing the same functions he is currently performing and that his functions did not change on registration as psychologist in 2001, was not challenged by respondents. I must therefore also accept this evidence. Applicant’s evidence that his colleagues who were psychologists between 1991 and 2001 performed exactly the same functions that he performed during that period was also not challenged. I must accordingly also accept his evidence in this regard.
[66] I am of the view that the phrase “in respect of RSA qualified psychologists of whom it is required to perform community service as required in South Africa” is of no significance in resolving the dispute before me. I say so for the following reasons:
It is common cause that when applicant registered as psychologist in 2001 there was not yet any requirement that in order to be registered, community service was required;
From what I could establish, the requirement of community service for RSA qualified psychologists was introduced by the Minister of Health in 2003 for the first time;
Irrespective of whether respondents’ interpretation that applicant should be on grade 2, or applicant’s interpretation that applicant should be on grade 3, is accepted, the fact is that the experience requirements for both these grades contain this additional phrase “of whom it is not required to perform community service as required in South Africa”;
If the experience criteria for education psychologist Grade 2 are not applicable to applicant because of the fact that he has not performed community based service (and was not required to), then the experience criteria for education psychologist Grade 3 would also not be applicable to him because the same phrase contained in the experience requirements for that position. The result would then lead to an absurdity because that would mean that there is no provision in the agreement that gives practical guidance as to how applicant’s experience should be translated under the agreement;
[67] This entire phrase is clearly not applicable to psychologists who registered before 2003. It could only be applicable to psychologists who registered after the date in 2003 when community service was introduced. Since applicant was registered before 2003, this phrase can therefore not be applicable in relation to him when his translation has to be made. Only the first part of the sentence up to and including the words “after registration with the HPSCA is required” can be applicable to psychologists who registered before the applicable date in 2003 when community service was introduced.
[68] The first indication that respondents’ interpretation of the collective agreement is probably not correct, is the fact that on their interpretation, applicant’s experience as school psychologist between 1991 and 2001 would be ignored. Given the fact that one of the objectives of the agreement appears to have been to recognise “relevant” or “appropriate” experience in order to retain and retract professionals in public education, such interpretation does not appear to be consistent with the primary objectives of the agreement.
[69] The second indication that the parties to the collective agreement probably never intended that the previous experience of a person in applicant’s position gained after registration as psychometrist with the HPCSA (but before registration as psychologist) should be ignored when doing the translation of a psychologist, is to be found in the inequitable and absurd result namely, that should applicant never have improved his qualifications to register as a psychologist and should he still have been registered as psychometrist on the date of translation, his salary on translation as psychometrist would actually have been more than what it was on translation as psychologist grade 2.
[70] There is a presumption that an interpreter of contracts should lean towards an equitable interpretation of a contract unless it is manifestly clear that the parties intended a seemingly unreasonable result. Contracting parties are further presumed not to intend absurd results and to this extent an interpreter is permitted to depart from the ordinary meaning of words in order to avoid absurd results.
[71] However even if I were wrong in this regard, there is in any event a more compelling reason why respondents’ interpretation is wrong, and that is to be found in the plain meaning of the words used by the parties in the agreement and annexures. The agreement does not provide that only experience gained after registration as psychologist with the HPSCA may be taken into account for purposes of translation to grade 2 and 3 psychologists. It merely states that “relevant” experience gained “after registration with the HPSCA” must be considered. That necessarily implies that any relevant experience in any capacity (for example counsellor or psychometrist) after registration with the HPSCA must be considered for purposes of translation to grade 2 and 3 psychologists, because the provision does not restrict the experience to experience gained after registration as psychologist.
[72] My conclusion in this regard is fortified when the provisions in relation to translation of grade 2 and 3 psychologists are compared with the provisions in relation to translation of certain other professionals as provided for in the Annexures:
For translation to grade 2 and grade 3 psychologist, the annexure requires a minimum of X years “relevant experience after registration with the HPSCA…”
For translation to senior education psychologist grade 1, the annexure requires a minimum of X years “appropriate experience as psychologist after registration with the HPSCA as psychologist”
For translation as Counsellor/Psychometrist Grade 2 and Chief Education Counsellor/Psychometrist Grade 1 the annexure requires a minimum of X years “appropriate experience as counsellor after registration with the HPSCA as Counsellor or Psychometrist”
[73] What is clear from the words used by the parties is that whereas in the case of senior education psychologists, certain minimum years of experience “as psychologist” after registration with the HPSCA “as psychologist” is required and whereas in the case of counsellors and psychometrists, certain minimum years of experience “as counsellor” after registration with the HPSCA “as counsellor or psychometrist” is required, the provisions in respect of grade 2 and 3 psychologists do not read the same and simply require “relevant experience after registration with the HPSCA…”, without laying down any further requirements as to the nature of the experience or the position in which such experience should have been acquired.
[74] In this regard several rules and presumptions of interpretation are relevant namely (1) that words are intended in their ordinary sense, (2) that the same words or expressions in the same contract has the same meaning while different words or expressions indicate different meanings, (3) that if parties expressly mentioned one matter, they intended to treat other similar matters that were not mentioned on a different basis (“inclusio unius est exclusio alterius”), and (4) that contracting parties chose their words precisely and exactly.
[75] There must be a reason why the parties chose different words for the requirements for the translation of grade 2 and 3 psychologists than the words they chose when dealing with the requirements for the translation of other professionals. If they wanted to treat them the same, they would have used the same or similar words. The fact that they chose different words, means that they wanted to lay down different requirements. In the case of senior education psychologists and psychometrists they expressly stated that the experience must be experience “as counsellor” or as “psychologist” after registration “as counsellor”, “as psychometrist” or “as psychologist”.
[76] The parties wanted to make it clear that in the case of counsellors and psychometrists no other experience than experience as counsellor after registration as counsellor or psychometrist would be acceptable for translation purposes and that in the case of senior education psychologists no other experience than experience as psychologist after registration as psychologist would be acceptable for translation purposes. But in the case of grade 2 and 3 psychologists they did not impose this restriction and provided that “relevant experience after registration with the HPSCA would be acceptable. There is no specific requirement that the experience must have been gained after registration as psychologist. Clearly then any relevant experience after registration with the HPSCA in any capacity (including psychometrist) must be taken into account. That is what the provision says and that is what the parties agreed and intended.
[77] I am mindful that the sentence in the annexures goes on to read “in respect of……..performed community service in South Africa” but I have already held that this additional phrase does not apply to applicant because he was registered before community service was introduced. Furthermore the phrase “in respect of….” does not have the same meaning as the phrase “experience “as psychologist” after registration with the HPSCA “as psychologist”. This phrase therefore does not assist respondents’ interpretation.
[78] For all these reasons Ms Munday’s evidence about the intention of the parties, cannot possibly be correct and must be rejected. It is also for these reasons that I have held that nothing much turns on the debate between the representatives about the meaning of the words “on appointment”. These words are clearly qualified by the further phrase “as provided in Annexure A3, B3 and C3 of this agreement”. But if one has regard to the annexures on which respondents so strongly rely for their argument, then, for the reasons that I have already discussed, the plain meaning of the words used in the annexures simply do not support the meaning attached to it by respondents.
[79] I now need to determine whether the meaning that I have given the words in the agreement so far, apply to the set of facts before me. I have already held that the functions that applicant performed between January 1991 and 9 March 2001 (when applicant registered with the HPCSA as a psychologist) were exactly the same as those that he performed after registration as psychologist. I have also already held that applicant’s colleagues who were registered as psychologists between 1991 and 2001 performed exactly the same functions that he performed during that period.
[80] This necessarily means that the experience that applicant had gained after 1 January 1991 (including the period up to March 2001) is ”relevant experience after registration with the HPCSA” as required by the collective agreement. This means that when the collective agreement came into operation in 2012 applicant had more than 16 years’ relevant experience after registration with the HPCSA as intended in the collective agreement. Accordingly applicant complied with all the requirements for translation to Education Psychologist Grade 3 (office based) and should have been translated to that position and not to grade 2. Respondents’ interpretation and application of the collective agreement was accordingly wrong.
Conclusion
[81] In the circumstances my finding is that respondents’ interpretation and application of the collective agreement is wrong. Applicant’s claim is not only supported by the rules of construction and the plain meaning of the words, but also by the objectives of the LRA, the objectives of the collective agreement and principles of fairness.
IX RELIEF
[82] The LRA provides that an arbitrator is entitled to make any award that includes, but is not limited to an award that gives effect to the provisions and primary objects of the LRA and that includes, or is in the form of a declaratory order.
[83] It is common cause that if applicant had been translated to psychologist grade 3 with effect from 1 July 2010 (as opposed to the translation to psychologist grade 2), he would for the period between 1 July 2010 to 31 March 2018 have earned an additional income of R691 678 (less deductions for income tax, pension fund and UIF).
[84] The relief that applicant asks for in the event that I accept his interpretation of the collective agreement, is an order directing first respondent to pay to him the amount of R691 679 less deductions. I am satisfied that it would be appropriate to award this amount as relief and will accordingly make an appropriate order in this regard.
X COSTS
[85] Mr MacRobert asked for a costs order in favour of applicant, arguing that applicant had to expend considerable amounts in legal costs to obtain success.
[86] In terms of section 138(10) of the LRA, an arbitrator may make an order for the payment of costs according to the requirements of law and fairness. Costs is a matter of discretion which should be approached in a fair manner. Costs is entirely at the discretion of the arbitrator. This discretion must be exercised judicially and in accordance with recognized principles. In civil and commercial litigation and arbitration proceedings, the general rule is that a party who is substantially successful is entitled to be awarded costs in the absence of special circumstances. That “default” principle however does not apply in employment disputes under the Labour Relations Act. In employment disputes, each and every case must be considered on its own merits by the arbitrator in determining whether costs should be awarded.
[87] Under the previous Labour Relations Act, the Courts held that when an employment tribunal consider the issue of costs, it should consider “law and fairness” and that arriving at its decision it should also take into account the following considerations, namely that:
Parties should not be discouraged from invoking the dispute resolution principles of the LRA;
Costs should not be ordered too lightly if a party acts in good faith, especially where the matter involves issues of importance to the wider industrial community;
A costs order should not damage an ongoing employment relationship between the parties;
The conduct of the parties.
[88] Clause 54 of the 2016 ELRC dispute resolution rules incorporates most of these principles and provides as follows:
54 Costs
54.1 In any arbitration proceedings, the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regards to:
54.1.1 The measure of success that the parties achieved;
54.1.2 Considerations of fairness that weigh in favour of or against granting a cost order;
54.1.3 Any with prejudice offers that were made with a view to settling the dispute;
54.1.4 Whether a party or the person who represented that party in the arbitration proceedings acted in frivolous and vexatious manner-
54.1.4.1 By proceeding with or defending the dispute in the
arbitration proceedings, or
54.1.4.2 In its conduct during the arbitration proceedings;
54.1.5 The effect that a cost order may have on a continued employment relationship;
54.1.6 Any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded:
54.1.7 The importance of the issues raised during the arbitration to the parties as well as to the labour community at large;
54.1.8 Any other relevant factor.
54.3 A commissioner may make an award of costs in respect of the legal fees of a party that Is represented in an arbitration by a legal practitioner, only if the other parties to the arbitration were represented by a legal practitioner.
[89] Taking into account all the relevant principles, the facts of this case and more particularly the following factors, I do not believe that it would be just and equitable to make a costs order in this case:
There is an ongoing employment relationship between the parties;
The respondents acted in good faith in defending the proceedings. They did not act in a frivolous and vexatious manner;
The dispute involved issues of importance to the wider industrial community in the public education sector;
Instead of using the services of an attorney, applicant could have chosen to use his union to represent him, which would have made it unnecessary to expend considerable amounts in legal costs;
Parties who act in good faith, should not be discouraged from enforcing or defending their rights under social legislation by the possibility of facing cost orders should they be unsuccessful.
[90] In the circumstances, there will be no costs order and each party shall bear their own costs.
AWARD
In the premises I make and publish the following award and order:
1. Applicant’s claim succeeds:
1.1 Respondents’ interpretation and application of ELRC Resolution 1 of 2012 is wrong;
1.2 In terms of the correct interpretation and application of ELRC Resolution 1 of 2012, any relevant experience after registration with the HPCSA must be considered when translating a psychologist (other than a senior psychologist) for purposes of the agreement. Such experience is not limited to experience as psychologist after registration as psychologist with the HPCSA, but includes experience after registration with the HPCSA as psychometrist (counsellor);
1.3 On the date that the collective agreement was implemented and applicant translated, applicant should have been translated to Education Psychologist Grade 3 and not to Education Psychologist Grade 2.
2. Respondents are directed to correct applicant’s designation to Education Psychologist Grade 3;
3. As from 1 April 2018 applicant must be remunerated on the scale of Education Psychologist Grade 3;
4. First respondent is directed to pay to the applicant, on or before 30 April 2018 the amount of R691 679 less deductions (such as income tax, UIF and pension fund contributions);
5. Interest on the aforesaid amount will accrue at the applicable interest rate from 30 April 2018 to date of payment;
6. No order as to costs is made.
D P Van Tonder
Senior ELRC Arbitrator
Western Cape