Sssbc Agreement 5 Of 1999
It should also be noted that the original litigation, which was referred to the CBSS, was an unfair dispute over labour practices. The nature of the dispute before the SSSBC was amended to rebut the issue of the interpretation and application of the collective agreement. The Commissioner then framed the question as follows: “I must decide whether the respondent [SAPS] complied with the provisions of collective agreement 5 of 1999 when the applicant [Nel`s] transfer application was denied. In addition, I must decide what the appropriate discharge should be if it is determined that the respondent did not comply with the collective agreement in question. The Commissioner therefore had to check whether the directive was compliant or not. In addition to the fact that the Commissioner clearly felt that he could replace an employer`s decision without even verifying whether that decision was rational or not, the Commissioner also did not properly consider the explicit provisions of the policy that a transfer should be refused if it is not in the best interests of the SAPS and the worker. On the face of it, the SAPS decision was consistent with the explicit provisions of the directive, which orders the decision maker to refuse a transfer if it is not in the interests of the SAPS or the worker. In section 10.2.3, the provincial or departmental commissioner is required to take into account various factors when deciding to authorize a transfer. At 10.2.3.4, it is appropriate to check whether the transfer is being made “in the interest of the service and/or the worker.” In accordance with point 10.2.5, the transfer “should not be authorized” if the Commissioner (of SAPS) believes that this is not in the interest of the service and/or the worker. On behalf of THE SAPS, it was argued that the directive indicated that there was no need to balance the interests of the worker with the SAPS. If point 10.2.5 indicates that the transfer is not in the interests of the SAPS or the worker; The transfer cannot be allowed.
Accordingly, the Commissioner wrongly held that the collective agreement required a balance between the two competing interests. The Commissioner did not properly enforce the collective agreement; The Commissioner characterized the dispute as a dispute over the interpretation and application of the collective agreement (to which the previous paragraphs were referred to). In particular, the Commissioner had to decide whether or not the SAPS had complied with the provisions of the collective agreement (5 of 1999). Moreover, the Commissioner does not appear to have taken into account the fact that, with respect to the directive, the SAPS has discretion to authorize a transfer (in the interest of the SAPS) whose discretion must be exercised rationally and without bias or wrong decision. Workers do not have the right to transfer within the meaning of the directive. The directive also does not entitle the transfer of a worker, nor does it provide that employees are not transferred. The policy only confirms that “in principle any worker can be transferred” but that certain considerations must be taken into account before making a final decision (paragraph 2). It is clear that the employer has discretion over discretion that cannot be arbitrarily taken without due consideration of the factors outlined in the directive. It goes without saying that the decision should not be taken in a biased or mala fide manner.
There is no indication on the documents that the decision-makers did not take into account the considerations listed in the policy.