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[2021] ZALAC 35
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South African Police Services v Solidarity obo Slingers and Another (JA57/2020) [2021] ZALAC 35; (2021) 42 ILJ 1934 (LAC) (14 June 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 57/2020
In
the matter between:
SOUTH
AFRICAN POLICE
SERVICES Appellant
and
SOLIDARITY
obo BRIGADIER SM SLINGERS First
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL Second
Respondent
Heard:
20
May 2021
Delivered:
14
June 2021
Coram:
Waglay JP, Davis JA and Molefe AJA
JUDGMENT
DAVIS
JA
Introduction
[1] This
case concerns litigation launched by a disgruntled applicant for
various positions which were advertised
by the appellant where his
applications proved to be unsuccessful. A key question to be
determined in this appeal is the nature
of the remedy that may follow
a finding that the first respondent has been treated unfairly in
being unsuccessful in all the applications
which he lodged for the
posts so advertised.
[2] On
22 May 2011, the appellant advertised various positions within its
organisation, the advertisements being
published both internally as
well as externally. The first respondent applied for the position of
Operations Officer at the level
of Major General as well as for
various other positions which are not relevant to the present
dispute. On 17 June 2011, the appellant
generated further
advertisements both internally and externally for the post of
Provincial Head: Legal Service, again at the level
of Major General
in a number of provinces including the Free State, Limpopo, Northern
Cape, Mpumalanga and the North West. The
closing date for these
applications was 4 July 2011.
[3] The
first respondent applied timeously for all these positions, save in
respect of the position in Mpumalanga
in which he applied when it was
advertised on 15 January 2012. He was not shortlisted for any of the
posts as a result of which
he lodged grievances against the decisions
not to promote him to any of the advertised posts. The dispute
remained unresolved and
was thus eventually referred to the second
respondent.
[4] The
various disputes raised by the first respondent were consolidated and
eventually set down for arbitration
before Commissioner Thothezela
Ndzombane between 4 to 8 November 2013.
[5] On
5 February 2014, Commissioner Ndzombane ruled that, save for the post
in the Free State, any dispute that
challenged the appointment of an
applicant for the post in the other provinces fell outside of the
jurisdiction of the bargaining
council given that the mandated
internal processes had not yet been exhausted.
[6] Following
this ruling, a further arbitration was heard before Commissioner P M
Venter who issued an award on
17 August 2017. In keeping with the
disturbing period over which this dispute was brought, evidence at
the hearing to be led before
Commissioner Venter on 2 July 2015 and
eventually concluded at a further hearing between 25 to 27 July 2017.
It is important to
emphasise that Commissioner Venter was required to
resolve a dispute which related to an unfair labour practice
concerning the
appellant’s refusal to promote the first
respondent to the two positions that were advertised in the Free
State; positions
that were ultimately filled by Major General Sempe
and Major General Macala.
[7] Commissioner
Venter found that the first respondent should have been shortlisted
for the advertised position
or ‘at least being provided with an
opportunity to contest the positions.’ However, the
Commissioner went on to say:
‘it is virtually impossible to
predict whether the applicant (the first respondent) would have been
promoted if he was interviewed.
He claimed that he would have been
promoted but in my view this is merely speculation.’
[8] Although
Commissioner Venter found that the first respondent ‘might have
even outscored the second and
third respondents (Generals Macala and
Sempe) the employer party is not obliged to promote on that ground
alone. For these reasons,
he found that the first respondent had not
been treated fairly and it followed therefore that an unfair labour
practice had been
committed by the appellant. Thus an order was made
that the appellant pay compensation to first respondent in the amount
of R 261
925.00, which was equal to four months of salary of the
first respondent at the time when the post was filed.
The
decision of the court a quo
[9] Following
this decision, the appellant approached the Labour Court for an order
declaring that the first respondent
was not entitled to any further
relief relating to the other unfair labour practice disputes lodged
in relation to the posts determined
by Commissioner Venter, It
contended further that the unfair labour practice dispute relating to
the promotion of the candidates
to posts in Limpopo, Northern Cape
and North West had effectively been determined to the extent that the
arbitration award issued
by Commissioner Venter involved similar
posts that are ‘at the same level (Major General) that were
advertised in the same
publication and during the same period.’
[10] The
appellant argued that the disputes in all the advertised cases
involved similar circumstances, to the
extent that the first
respondent was not shortlisted for any of the positions that were
advertised in the different provinces for
the position of Provincial
Head: Legal Service. As the arbitration award had already granted the
first respondent compensation,
which was based on a finding of an
unfair labour practice dispute in that the appellant had failed to
shortlist the first respondent
and thus denied him an opportunity to
compete for the various positions advertised the appellant contended
that the first respondent
was not entitled to any further
compensation because he would have only been able to be appointed to
one of these positions and
not to all of them.
[11] Before
the court
a quo,
the first respondent contended that he sought
protective promotion in the light of the appellant’s refusal to
promote him
to one of the provincial positions for which he had
applied.
[12] Lallie
J, sitting in the court
a quo
, considered these arguments and
found with regard to the first respondent’s argument pertaining
to protected promotion that
‘he chose the nature of the unfair
labour practice the applicant committed against him and this has been
dealt with by Commissioner
Venter. It is not open to the first
respondent to seek different relief in the form of protected
promotion or any other relief
for the same unfair labour practice in
that he has not been promoted to one of the advertised provincial
head positions he applied
for.’
[13] The
learned judge went on to say:
‘
Absent valid
reason an employee cannot be denied the opportunity to assert his or
her right against being treated unfairly by an
employer. The
applicant failed to establish valid grounds to deny the first
respondent the right to challenge the fairness of the
applicant’s
conduct of not promoting him to a position of Provincial Head for
Mpumalanga.’
[14] For
this reason, Lallie J ordered that the first respondent was not
entitled to further relief relating to
the unfair labour practices
lodged in relation to the same posts as those that were determined by
Commissioner Venter. However,
the learned judge ordered that the
second respondent schedules an arbitration hearing when the dispute
is ripe to determine the
case of an unfair labour practice relating
to the appellant’s refusal to promote the first respondent to
the post of Provincial
Head: Legal Services Mpumalanga which was
advertised on 15 January 2012 and to which Brigadier Nogwanya was
appointed as of 1 May
2012.
[15] The
appellant approaches this Court on appeal against the order that an
arbitration must be scheduled in respect
of the Mpumalanga post. The
first respondent has lodged a cross-appeal against his failure to
gain an order of protected promotion
.
Evaluation
[16] This
Court in
Apollo Tyres SA (Pty) v Commission for Conciliation,
Mediation & Arbitration & others
(2013) 34 ILJ 1120 (LAC)
held that while an employee, who alleges a case of an unfair labour
practice relating to a promotion ,
does not need to prove that he has
a right to promotion, he still bears the onus of proving that the
decision of the employer not
to promote him was unfair.
[17] Commissioner
Venter dealt with this question and concluded, as I have indicated,
that there was no basis by
which the first respondent had established
that he would have been promoted if he had been interviewed for the
posts that formed
the basis of the arbitration .However, Commissioner
Venter granted relief to the first respondent, based on the fact that
an unfair
labour practice had been committed by virtue of the
appellant’s omission to interview the first respondent for any
of the
advertised posts. Accordingly, Lallie found ‘it is not
open to the first respondent to seek different relief in the form of
protected promotion or any other relief for the same unfair labour
practice of not being promoted to one of the advertised Provincial
Head positions he applied for.’
[18] It
was therefore not possible to adjudicate upon an unfair labour
practice dispute that had been resolved
by virtue of an order of
compensation in favour of the first respondent. Manifestly, the first
respondent could only have obtained
promotion to one of the
advertised posts. For the appellant’s failure to consider the
various applications of the first respondent,
a
solatium
for
the loss of a right to be considered was ordered in the form of
compensation based on four months’ salary. That compensation
was clearly predicated on a particular cause of action. That cause of
action was a failure to consider the first respondent for
one or
other of the posts which had been advertised. It is a clear
proposition of law as articulated in
Custom Credit Corporation v
Shembe
1972 (3) SA 462
(A) at 472 that:
‘
The law requires a
party with a single cause of action to claim in one and the same
action whatever remedies the law accords him
under such cause.’
[19] This
is a text book case in which the law must prevent a repetition of
litigation between the same parties
based on the same cause of
action, namely a failure to be considered for promotion to one or
other of the advertised posts.
[20] In
short, the court
a quo’s
decision is unassailable with
regard to its finding that the order of compensation awarded by
Commissioner Venter for failure to
consider the first respondent for
the then vacant Free State posts. This finding is equally applicable
to the determination of
this appeal. There is no basis by which to
demarcate the Mpumalanga post as being predicated on a different
cause of action to
that which relates to the remaining posts. In
short, the first respondent was compensated for the unfair labour
practice which
was committed by the appellant in respect of the first
respondent’s application all the range of advertised posts. As
the
first respondent could only have been promoted to one of the
positions so advertised, there is one cause of action which is based
upon the failure to appoint the first respondent to any of the post
for which he applied. On the
Shembe
principle, the first
respondent is not entitled to a multiple award of compensation simply
because he applied for more than one
position. Accordingly, there was
no basis shown by which the court
a quo
should have ordered an
arbitration to be constituted in respect of the Mpumalanga posts. In
the result, the appeal against the
order to schedule an arbitration
in respect of the position of Provincial Head: Legal Services:
Mpumalanga must be upheld.
[21] It
appears that the cross-appeal which was lodged by the first
respondent was based essentially on the failure
of the court
a quo
to order promotion for the first respondent to any of these posts. I
use the word “appears” to described the cross-appeal
because both the drafting thereof as well as the heads which were
lodged on behalf of the first respondent leave much to be desired.
They are prolix, repetitive and lack any level of precision or
clarity which should be demanded of any litigant who has the benefit
of legal representation. Both documents regrettably produce only one
consequence which is to throw obscurity rather than light
upon the
nature of the dispute.
[22] Nonetheless
it is clear for all of the reasons that I have advanced that the
cross-appeal must fail in that
as the dispute based on one cause of
action had been resolved by order of compensation, the first
respondent had no entitlement
to additional relief by way of
protected promotion. In the result, the appeal succeeds and the
cross-appeal must be dismissed.
[23] In
the result, the order of the court
a quo
of the 8 February
2019 is set aside and replaced with the following:
1. The
first respondent is not entitled to further relief relating to the
unfair labour disputes
lodged in relation to the same posts as to
those that were determined by Commissioner PM Venter on 14 August
2017 under case number
PSSS 483 and 489-12/13
2. The
unfair labour practice disputes relating to the promotion of Major
General Mbana and Major
General Mpomane have been effectively
determined.
3. There
is no order as to costs.
[24] The
first respondent is order to pay the costs of this appeal.
Davis
JA
Waglay
JP and Molefe AJA concur.
APPEARANCES:
FOR
THE APPELLANT: Adv
Sb Nhlapho and AdvR Ramatselela
Instructed
by the State Attorney
FOR
THE FIRST RESPONDENT: N Ras of
Solidarity