Zithobe Maxwell Mbala v The Minister of Public Works N.O. and Others

The applicant was employed by the Department of Public Works as an Industrial Technician: Quantity Surveyor since 2007 and was professionally qualified and registered as a quantity surveyor. Following the introduction of Occupational Specific Dispensations (OSD) through collective agreements in the public service, Resolution 3 of 2009 applied to quantity surveyors, while Resolution 5 of 2009 applied to various categories of technicians. Although three other Industrial Technician: Quantity Surveyors were translated to Quantity Surveyor posts under Resolution 3, the applicant alone was translated under Resolution 5 to an architectural technician position, despite not performing architectural work. He continued performing the same quantity surveying duties as his colleagues. The applicant challenged this differential treatment, and an arbitration award upheld the employer’s approach. He then brought a review application to the Labour Court.

The arbitration award was reviewed and set aside. The Court ordered that Resolution 3 of 2009 be applied in the translation of the applicant, as was done with his three colleagues. No order as to costs was made.

This case is significant for reinforcing the proper application of the golden rule of interpretation in the context of collective agreements, particularly OSD agreements in the public service. It confirms that commissioners must consider context, background circumstances, and relevant extrinsic evidence, and that failure to do so may render an arbitration award reviewable for unreasonableness. The judgment also underscores the importance of consistent treatment of similarly situated employees.