Refiloe Monica Choane v Elsabe Skinner N.O. and Others

The Applicant was employed by the Department of Health (Free State Province) as an Administration Clerk from 15 March 2006. In July 2008, she was transferred to the Security Directorate doing Supply Chain and Procurement duties. In 2010, she was promoted to post level 5 Notch 1 in Supply Chain Management. On 1 November 2010, she was transferred to the MEC's office and upgraded to post level 6, with a written condition that "your transfer is linked to the term of the office of the MEC and thereafter, you will revert to your post and salary level". On 2 June 2011, while still at the MEC's office (now under a different MEC following the former's death), she was upgraded from post level 6 to post level 8 effective from 1 May 2011. This letter of upgrade bore no condition attached to the upgrade. On 22 July 2013, the Applicant was transferred back to Supply Chain Management at the medical depot in Bloemfontein where she was placed at post level 5 Notch 1 effective from 15 July 2013, resulting in a downgrade from post level 8 to post level 5. The Applicant referred an unfair labour practice dispute to the Public Health and Social Development Sectoral Bargaining Council. The arbitrator found that the Third Respondent did not commit an unfair labour practice. The Applicant then applied to review and set aside the arbitration award.

• Whether the arbitrator's finding that the Third Respondent did not commit an unfair labour practice when it transferred the Applicant back to Supply Chain Management and downgraded her from post level 8 to post level 5 was reasonable
• Whether a secondment to an MEC's office governed by the Ministerial Handbook meant that any subsequent upgrade while in that position remained subject to the initial condition that the employee would revert to their original position and salary level upon transfer back
• Whether the absence of a condition in the second upgrade letter superseded or nullified the initial condition attached to the transfer to the MEC's office
• Whether the arbitrator committed a reviewable irregularity by failing to give proper weight to the unconditional nature of the second upgrade letter
• What is the appropriate test for reviewing an arbitration award under Section 145 of the Labour Relations Act

The application for review was dismissed. No order was made as to costs.

A departmental policy or regulation prevails over an individual letter or communication to an employee, even where that letter does not explicitly reference the policy conditions. Where an employee is seconded to an MEC's office on terms that the secondment is linked to the MEC's term of office and the employee will revert to their original position and salary level thereafter, any subsequent upgrade while in that seconded position remains subject to those original conditions unless explicitly varied. The absence of a condition in a subsequent upgrade letter does not automatically supersede or nullify the initial conditions of secondment. An arbitrator's award will only be set aside on review under Section 145 of the Labour Relations Act if the decision is one that a reasonable decision-maker could not reach on the available evidence (the Sidumo test), and the decision must be entirely disconnected from the evidence or unsupported by any evidence. Errors or irregularities must be material and result in an unreasonable outcome or misconception of the enquiry before an award will be set aside on review.

The Court noted that if the Applicant was supposed to retain the higher post level even after transfer back to her original post, the upgrade letter would have indicated so. The Court observed that arbitrators are human and may commit errors or irregularities, but these must be material to constitute reviewable conduct. The Court emphasized that judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny, but also that the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner, and there must be a fair trial of the issues. The Court noted that it had regard to the requirements of law and fairness in considering costs and found that a cost order was not warranted in this matter.

This case is significant in South African labour law as it clarifies the interaction between departmental policies (such as the Ministerial Handbook governing secondments to political offices) and individual letters of appointment or upgrade. It establishes that policies and regulations prevail over individual communications or letters, even where those letters do not explicitly reference the policy conditions. The case reinforces the principles governing review of arbitration awards under Section 145 of the Labour Relations Act, confirming that the Sidumo test of reasonableness is the applicable standard and that courts will only interfere where the arbitrator's decision falls outside the band of reasonableness. It demonstrates that review courts must distinguish between review and appeal, and that errors or irregularities must be material and result in an unreasonable outcome or misconception of the enquiry before an award will be set aside. The case also provides guidance on secondments to political offices in the public service and confirms that upgrades during such secondments remain subject to the original terms of the secondment unless explicitly varied.