South African Police Service v Sotheni and Others (JR2236/16) [2020] ZALCJHB 57 (4 March 2020)

Key Facts

Issues

• The Labour Court was required to review and set aside an arbitration award under sections 145 and 158(1)(g) of the Labour Relations Act (LRA). The applicant argued that the arbitrator failed to apply the correct test for review, specifically whether the award was unreasonable due to errors in interpreting the policy and the law.
• The court evaluated whether the applicant's prior backdating of the scarce skills allowance to other employees (before they qualified) indicated inconsistency or a valid policy application. The applicant argued these payments were errors, not deliberate policy deviations, and that the principle of inconsistency did not apply in this context.
• The court addressed whether the applicant's decision not to backdate the scarce skills allowance to the date the first respondent joined the Special Task Force (STF) in 2010, despite qualifying for the allowance in 2012, constituted an unfair labour practice under the LRA. The applicant maintained it had an objective and justified basis for its decision.

Holdings

• The court reviewed and set aside the arbitration award issued by the third respondent, substituting it with a determination that the applicant did not commit an unfair labour practice. The original award had granted the first respondent R151,992 in back payments, but the Labour Court found this outcome unreasonable and unsustainable given the policy and evidence of errors in previous payments.
• The Labour Court determined that the applicant did not commit an unfair labour practice towards the first respondent regarding the back payment of the scarce skills allowance. The court found that the employer's decision not to back date the allowance was in line with the policy, as the first respondent did not qualify for it until 18 December 2012. The court also dismissed the inconsistency argument, noting that the back payments to other employees were made in error and not as a deliberate policy change.
• The Labour Court found that the arbitrator's conclusion of 'consistently inconsistent' application of the policy was unreasonable. The court emphasized that the evidence showed the policy was consistently applied, with the back dated payments to other employees being isolated errors. The court concluded that the employer never intended to waive its rights under the policy, and thus the inconsistency claim could not be sustained.

Remedies

• The court decided not to make a costs order, considering the ongoing employment relationship and the discretion under the Labour Relations Act. No party was required to pay costs.
• The Labour Court granted the applicant's review application, allowing the case to be decided on its merits despite being filed late. The applicant was permitted to proceed with challenging the arbitration award.
• The court substituted the original award with a new one, determining that the applicant did not commit an unfair labour practice regarding the scarce skill allowance. The first respondent's claim was dismissed.
• The court reviewed and set aside the arbitration award made by the third respondent (arbitrator E Maree) on 27 August 2016. This was due to the award being found unreasonable and inconsistent with the policy terms.

Legal Principles

• The applicant had to establish that the arbitrator's decision was unreasonable, not merely that errors existed. The court emphasized that procedural irregularities must directly affect the outcome's reasonableness for the review to succeed.
• The court applied the reasonableness standard for judicial review under section 145 of the LRA, determining whether the arbitrator's award was unreasonable due to errors in interpreting the policy and inconsistency claims. The review required the applicant to prove that the arbitrator's outcome could not be sustained as reasonable, even if based on different grounds.

Precedent Name

• Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
• Skhosana v Commission for Conciliation, Mediation and Arbitration and Others
• Gbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd and Another
• Duncanmec (Pty) Ltd v Gaylard NO and Others
• Zungu v Premier of the Province of Kwa-Zulu Natal and Others
• National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
• Herholdt v Nedbank Ltd and Another
• Mathibeli v Minister of Labour

Cited Statute

Judge Name

Passage Text

• The first respondent cannot benefit from what is clearly, in my view, a once off error never repeated again. It is not lost on me that this mistake was in respect of a few individual employees out of what must clearly be several hundreds of others. To ascribe to the approach that the mistake negates the policy will open the doors to all the hundreds of other employee to also come and claim back pay of the scarce skills allowance, which will be entirely unfair to the applicant as employer.
• The outcome that a ULP had been committed on the basis the arbitrator thought it had been committed cannot logically be connected to the notion that paying the appellant a back-salary at the grade 11 rate was appropriate. Thus, because it is not justified by its premises it is irrational. Accordingly, the award was unreasonable and must be set aside.
• 3. The arbitration award is substituted with an award that the applicant did not commit an unfair labour practice towards the first respondent, and the first's respondent's dispute referral to the SSSBC is dismissed.