Nomava Rejoice Keswa and Another v Office of the Premier and Others

The applicants were employed by the first respondent (Office of the Premier) in its Provincial Public Service Training Academy as Education Training and Development Practitioners: Curriculum Development at salary level 9, a post created in 2008/9. The applicants contended that the first respondent made a decision approved by the Executive Authority on 31 May 2019 to upgrade their posts from level 9 to level 12. The applicants relied on a route form and submission from the Director of Provincial Organisational Development (POD) to the Director General requesting benchmark approval on grading. The Provincial Job Evaluation Panel was unable to reach a decision to upgrade the posts as they perceived the posts to be similar to departmental HRD practitioner posts and could not appreciate the technical functions. The matter was referred to the bargaining council as an unfair labour practice dispute concerning provision of benefits, but the arbitrator ruled on 2 May 2023 that the bargaining council had no jurisdiction. A previous consent order (case D 2058/18) had ordered the first respondent to submit job evaluation results to the second respondent for verification.

• Whether the first respondent made a decision to upgrade the applicants' posts from level 9 to level 12
• Whether the second respondent was barred from validating job evaluation exercises or giving direction on grading
• Whether the bargaining council had jurisdiction to hear the applicants' unfair labour practice dispute concerning provision of benefits
• Whether a grading dispute constitutes an unfair labour practice relating to the provision of benefits under section 186(2) of the LRA

1. The legality review application is dismissed. 2. The ruling rendered by the fourth respondent on 2 May 2023 is reviewed and set aside and substituted with a ruling that the bargaining council has jurisdiction to decide the applicants' unfair labour practice dispute concerning the provision of benefits. 3. The applicants' unfair labour practice dispute is remitted to the bargaining council for a rehearing on its merits before a different arbitrator. No costs order was made against the first respondent despite the applicants' partial success.

1. A submission or recommendation requesting approval for a job grading upgrade does not constitute a decision to upgrade until it has received the necessary approvals from the relevant authorities. 2. Grading disputes fall within the jurisdiction of bargaining councils as unfair labour practice disputes concerning the provision of benefits under section 186(2) of the LRA, because benefits (including status, remuneration, and eligibility for promotion) are normally determined by job grade. 3. Jurisdiction is determined by the cause of action pleaded, not by the merits of the case. 4. The question of jurisdiction must not be conflated with questions regarding the substantive merits of a dispute or rules of evidence relating to expert testimony.

The court observed that even if one accepted the applicants' interpretation of sections 41 and 45 of the Public Service Regulations 2015 and the relevant Circular, these provisions would have no effect in relation to the applicants' dispute given that no decision to upgrade had been made. The court also noted that the applicants' submission that the second respondent was barred from validating job evaluation exercises or giving direction on grading had no merit, particularly in light of the consent order in case D 2058/18 which specifically ordered submission to the second respondent for verification. The court found no reason to make a costs award against the first respondent despite the applicants' partial success, though no reasons were elaborated for this exercise of discretion.

This case clarifies important principles in South African labour law regarding grading disputes and bargaining council jurisdiction. It confirms that grading disputes constitute unfair labour practice disputes relating to the provision of benefits under section 186(2) of the LRA, as benefits (including status, remuneration, and eligibility for promotion) are normally determined by job grade. The case demonstrates the importance of distinguishing between recommendations/submissions and actual administrative decisions in the public service context. It also illustrates the proper application of jurisdictional principles, emphasizing that jurisdiction is determined by the cause of action pleaded, not the merits of the case, and that jurisdictional questions must not be conflated with substantive merits or evidentiary considerations.