Tshifhango v Minister of Justice and Correctional Services (JR951/16) [2017] ZALCJHB 97 ; (2017) ILJ 2131 (23 March 2017) per Connie Prinsloo J.
Administrative officers applied to the LC, in terms of sec 158(1)(h) of the LRA, to review their downgrading with regard to their pay from occupational level 8 to 7 in terms of the provisions of section 32 of the Public Service Act. This was based on a job evaluation process that was later found to be incorrectly applied.
Excerpts without footnotes
Analysis
[28] Mr Hulley for the Respondents submitted that pursuant to the job evaluation exercise the post of administrative officer was to be remunerated at salary level 7, but instead the Applicants were remunerated at salary level 8. Section 38 of the PSA provides for such situations in that the executing authority is obliged to correct the incorrect salary, salary level or salary scale.
[29] Mr Hulley argued that section 38(1) of the PSA is cast in the form of a conditional syllogism, “if X, then Y”, where X is the condition and Y the consequent, if the condition is present, the consequent must necessarily also be present. In my view this conditional syllogism begs the question of the existence or the truth of “X”.
[30] In casu the condition is the existence of an incorrect salary, salary level, salary scale being awarded to an employee. If the condition exists, the consequence is that the relevant executing authority shall be obliged to correct it. The executing authority exercises no discretion as the said consequence that flows from the existence of the condition arises by operation of law and not by the exercise of any discretion.
[31] The Respondents’ case is thus that since no discretion was exercised, no decision was taken. The right to be consulted before a decision adverse to one’s interest is taken, can only exist where there is a decision taken. The power to correct the salary, salary level or scale is permissible in law as it is expressly provided for in section 38 of the PSA.
[32] I agree with the submission that where an incorrect salary, salary level, salary scale or reward is awarded to an employee, the consequence is that the relevant executing authority is obliged to correct it and no discretion is exercised.
[33] I however do not agree that no decision or action was taken. The consequence of correcting an incorrect salary flows from the existence of an incorrect salary, salary level, salary scale or reward being awarded to an employee. The determination of whether an incorrect salary, salary level, salary scale or reward awarded to an employee indeed exists, would require some form of investigation or assessment. The executing authority certainly does not wake up one morning and correct incorrect salaries, without any preceding process or action to determine whether a salary is indeed incorrect.
[34] Section 38 of the PSA permits the State as employer to correct salaries and to make deductions from an employee’s salary in circumstances where the employee was awarded and incorrect salary, salary level, salary scale or reward. The question as to whether the provisions of section 38 of the PSA had been triggered and whether the requirements or conditions for the said section to apply have been met or nor, is a factual enquiry. Once it is found that the requirements or conditions have been met, section 38 of the PSA will be triggered and the executing authority is obliged to correct the incorrect salary, salary level, salary scale or reward, as the case may be.
[35] On the other hand, if the requirements or conditions have not been met, section 38 will not come into operation.
[36] In my view the Department has to follow some process to determine whether an employee was awarded an incorrect salary or level or scale before the provisions of section 38 of the PSA could be applied. This process and the exercising of powers the executing authority has in respect of section 38 of the PSA, must be effected reasonably and must be exercised within the confines of legality, fairness, rationality and reasonableness.
[37] The principle of legality derives from the provisions of the Constitution and the components of legality relevant to this application are that the action taken must be procedurally fair and it must be rational and not be arbitrary or capricious.
[38] Where the Department thus foresee a situation that the executing authority will correct an incorrect salary, the action taken to initiate the process whereby the executing authority will act in terms of the provisions of section 38 of the PSA, must be procedurally fair. The very first step in a process that is fair, will be to afford the individual whose rights or benefits will be adversely affected the opportunity to be heard.
[39] In casu the Applicants complain that they were merely informed that the Department made an error when their salary levels were upgraded and that it would be corrected. The letter the Applicants received mentioned an instruction from the Chief Operation Officer at national office that the positions the Applicants occupy have been job evaluated on salary level 7 and approved as such and that they were wrongly upgraded from salary level 7 to 8 and they would be downgraded to the correct level.
[40] As much as Mr Hulley argued that no decision was taken in this matter, I find it hard to accept. I do accept that the executing authority does not take a decision but simply applies section 38 of the PSA, but before the executing authority applies section 38 of the PSA, a decision or some action is indeed taken to decide that the salary or level or scale is incorrect. Once this is decided, section 38 of the PSA is triggered.
[41] The Applicants were not informed that the downgrading of their salaries was considered prior to being informed that their levels were to be downgraded from 1 June 2015, they were not provided with reasons, apart from being told that they were wrongly upgraded from salary level 7 to 8, and they were not afforded an opportunity to make representations before the Department decided that an error occurred and that it should be corrected. Only after the decision was taken that the Applicants were wrongly upgraded or some act performed to determine that, the executing authority acted in accordance with the provisions of section 38 of the PSA.
[42] In my view the Applicants were entitled to be told why the Department alleges that a mistake was made when they were upgraded to salary level 8 and they should have been afforded the opportunity to make submissions and to respond to the Department.
[43] Before the application of section 38 of the PSA is triggered, there has to be an incorrect salary or scale or level that requires correction. The Department cannot unilaterally decide that an error exists and that the Applicants were placed on the incorrect salary scale or level, without affording them the opportunity to respond and to make representations on the issue. There is the possibility that the Department or the executing authority may be wrong in determining whether an incorrect salary or level or scale was awarded.
[44] If the existence of the prerequisite is based on wrong information, it is doubtful that the provisions of section 38 of the PSA could be triggered.
[45] It cannot be that the Applicants have no recourse if the application of section 38 of the PSA is triggered by a mistake or a possible mistake, more so where the determination in respect of the existence of an incorrect salary or level or scale is made unilaterally and without any consideration of the employee’s case and without following any due or fair process.
[46] The Applicants have to be informed about what the error is the Department seeks to correct and be afforded the opportunity to make representations on that.
The relief sought
[47] The Applicants approached this Court for the review and setting aside of the decision to downgrade or demote them from salary level 8 to salary level 7. They approached the Court in terms of the provisions of section 158(1)(h) of the LRA, which provides for the review of any decision taken or act performed by the State in its capacity as employer on such grounds as are permissible in law.
[48] In my view the Applicants are entitled to this relief for the reasons I have set out
[49] The Applicants further seek to be reinstated to salary level 8 and that they be paid the difference between salary level 7 that they were downgraded to and salary level 8.
[50] The entitlement to be reinstated to salary level 8 and to be paid accordingly is an entirely different and separate question. In casu the Applicants’ attack on the decision is largely process related and for that reason alone substitution is not appropriate. The matter ought to be remitted to the Respondents to comply with due process.
[51] It is not for this Court to decide whether the Applicants should be placed and remunerated on salary level 8 or whether they are correctly placed on salary level 7. This is an issue that should be addressed and resolved internally, after due consideration of the facts, the applicable prescripts and the Applicants submissions. The outcome of the internal process to be followed, will determine what consequences are to flow from that.