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[2024] ZALCJHB 62
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Minister of Public Works and Infrastructure v General Public Service Sectoral Bargaining Council and Others (JR245/2023) [2024] ZALCJHB 62 (12 February 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR245/2023
In the matter between:
MINISTER OF PUBLIC
WORKS AND INFRASTRUCTURE
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
First
Respondent
BARGAINING COUNCIL
(“GPSSBC”)
MARTIN SAMBO
N.O.
Second Respondent
PSA obo LM
NEMAVHIDI
Third Respondent
Heard:
08 December 2023
Delivered:
12 February 2024
JUDGMENT
PHAKEDI, AJ
Introduction
[1]
The
Applicant approached this Court seeking an order to review and set
aside the arbitration award issued by the Second Respondent
dated 19
October 2022. The review application was filed on 1 March 2023
outside the prescribed period of six weeks.
[2]
The
applicant further seeks an order condoning the late filing of its
review application.
If condonation application
is not granted, this Court lacks the necessary jurisdiction to
consider the merits of the review application
and the application
stands to be dismissed. If the condonation is granted, then I will
consider the merits of the review application.
Condonation
[3]
Although
the award is dated 19 October 2022, the applicant was only served on
24 November 2022 electronically via email. The applicant
ought to
have filed the review application on or before 5 January 2023 and it
was only filed on 1 March 2023.
[4]
In
respect of the degree of lateness, the review was filed seven weeks
outside the prescribed timeframe. The Applicant submitted
that the
reasons for lateness is due to the delays in obtaining the relevant
authorization for the review application to be filed.
The Applicant
received the authority to review the award on or about 1 February
2023 and the papers were served on the Third Respondent
on 23
February and on the First and Second Respondent on 28 February 2023.
The Applicant stated that it has strong prospects of
success because
its failure to shortlist the Third Respondent was a result of her
failure to meet the minimum educational requirements
for the position
of Chief Director: Marketing and Communication. It was further
submitted that the Third Respondent will not suffer
any prejudice if
the late filing of the review application is condoned. The Third
Respondent did not file any opposing papers despite
being properly
served with the review application.
[5]
In
applying the ratio in
Melane
v Santam Insurance Co Ltd
[1]
,
the Court in
Academic
and Professional Staff Association v Pretorius NO and Others
[2]
summarized
the principles for consideration as follows:
‘
The factors which
the court takes into consideration in assessing whether or not to
grant condonation are: (a) the degree of lateness
or non-compliance
with the prescribed time frame; (b) the explanation for the lateness
or the failure to comply with time frame;
(c) prospects of success or
bona fide defence in the main case; (d) the importance of the case;
(e) the respondent's interest in
the finality of the judgment; (f)
the convenience of the court; and (g) avoidance of unnecessary delay
in the administration of
justice. …. It is trite law that
these factors are not individually decisive but are interrelated and
must be weighed against
each other. In weighing these factors for
instance, a good explanation for the lateness may assist the
applicant in compensating
for weak prospects of success. Similarly,
strong prospects of success may compensate the inadequate explanation
and long delay.’
[6]
In
Foster
v Stewart Scott Inc
[3]
,
his Lordship Mr Justice Froneman (as he then was) held as follows:
“
It
is well settled that in considering applications for condonation the
court has a discretion, to be exercised judicially
upon a
consideration of all the facts. Relevant considerations may include
the degree of non-compliance with the rules, the explanation
therefore, the prospects of success on appeal, the importance of a
case, the respondent's interest in the finality of the judgment,
the
convenience of the court, and the avoidance of unnecessary delay in
the administration of justice, but the list is not exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other. A slight delay and good
explanation
for the delay may help to compensate for prospects of success which
are not strong. Conversely, very good prospects
of success on appeal
may compensate for an otherwise perhaps inadequate explanation and
long delay. See, in general, Erasmus Superior
Court Practice at
360-366A.”
[4]
[7]
In
applying the above principles to this present application, I am
satisfied that the period of delay is not too excessive and the
Applicant has provided some explanation for the delay. The
application is not opposed; therefore, I have decided to grant the
condonation application
for the purposes of
properly considering the prospects of success. I will now proceed to
consider the review application on the
merits.
Relevant background
[8]
The
crux of the Third Respondent’s complaint relates to her
non-shortlisting for the position of Chief Director: Communication
and Marketing which was advertised with a requirement for a minimum
qualification of an undergraduate degree (NQF level 7) in
communication and marketing and related field plus a minimum of five
(5) years’ experience as a senior manager in the related
field.
She then lodged a grievance on or about 18 October 2021 and the
outcome of her grievance was that she was not shortlisted
because she
possessed a BA Degree in Social Sciences, BA Honours in Development
Communication and not the relevant NQF level 7
qualification as per
the advertisement.
[9]
On
or about 20 January 2022, the Third Respondent referred an unfair
labour practice dispute relating to promotion and the Second
Respondent was the appointed arbitrator. The Second Respondent
concluded that the Applicant committed an unfair labour practice
by
failing to shortlist the Third Respondent and awarded compensation
equal to one month salary in the amount of R91 311.00.
[10]
Not
satisfied with the arbitration award, the Applicant seeks to review
and set aside the arbitration award on the basis that it
is not one
which a reasonable decision maker could make based on the grounds of
review stated below.
Grounds for review
[11]
The
Applicant filed a review application and stated that the Arbitrator
committed misconduct in relation to the duties of the Commissioner
by
failing to take into account the new regulations relating to minimum
educational requirements for appointment into SMS positions
in the
Public Service.
[12]
The
Applicant further submitted that the Commissioner committed an
irregularity by interfering with the minimum requirements prescribed
set by the employer by seeking to impose his own criteria to favour
the Third Respondent and he erred by taking into account a
criterion
that was not applied by the selection panel to all candidates.
[13]
The
Applicant does not dispute that the Third Respondent had the
requisite experience in that he had been the Director: Marketing
and
Public Relations for 16 years but what was in dispute is whether the
Third Respondent met the minimum educational requirements
as
advertised. The Commissioner found that the failure to shortlist the
Third Respondent was not done in good faith and found that
the
Applicant committed an unfair labour practice.
Analysis
[14]
Section
186(2)(a) of the Labour Relations Act
[5]
(the LRA) provides that unfair labour practice means an unfair act or
omission that arises between an employer and an employee
involving
unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for
a reason relating
to probation) or training of an employee or relating to the provision
of benefits to an employee.
[15]
The
arbitrator’s award which is the subject of these review
proceedings concluded that the Applicant committed an unfair labour
practice by failing to shortlist the Third Respondent because she had
16 years’ experience as a Director and the Applicant
emphasized
the educational qualification despite the Applicant’s
experience and the provisions of the SMS Handbook.
[16]
The
Applicant contends that the recruitment, selection and filling of
vacancies in the public service is governed by the Public
Service
Act
[6]
(the PSA) as well as the
Public Service Regulations (the PSR) which were applicable during the
advertising of the position of Chief
Director: Communications and
Marketing. Part C.1.1 of the PSR deals with recruitment and provides
that “
an
executive authority shall determine composite requirements for
employment
”.
[17]
The
selection panel had excluded the Third Respondent from shortlisting
because her qualifications (BA Degree in Social Sciences,
BA Honours
in Development Communication) did not meet the relevant NQF level 7
qualification as per the advertisement. The Arbitrator
was alive to
the fact that the Third Respondent did not have an NQF level 7
qualification as prescribed in the SMS Handbook but
emphasized that
clause 8.2 (2)(b) of the Handbook states that educational
qualifications should not be the sole determinant of
suitability. The
Applicant conceded that the Third Respondent had the requisite
experience but she was not shortlisted because
she did not meet the
academic requirements as prescribed in the advertisement.
[18]
In
Herholdt
v Nedbank Ltd
,
[7]
the Labour Appeal Court emphasized there is no requirement that the
commissioner must have deprived the aggrieved party of a fair
trial
by misconstruing the whole nature of the enquiry. The threshold for
interference is lower than that; it being sufficient
that the
commissioner has failed to apply his mind to certain of the material
facts or issues before him, with such having potential
for prejudice
and the possibility that the result may have been different’.
[19]
In
PSA obo
Thorne v Department of Community Safety (Western Cape) and Others
[8]
,
the LAC stated
that
in the setting of appointment criteria in relation to
the
requirements of a post, the Department is allowed to set an
educational
standard
which it believes is reasonable
for the requirements of the post.
[20]
In
KwaDukuza
Municipality v Rajamoney and Others
[9]
the Labour Court held that:
‘
for the
requirements of an advertised post to be met therefore, cognisance
must be taken of the objective of the policy to ensure
that the
candidate who best meets the selection criteria is appointed. The
short listing of a candidate who least meets the set
selection
criteria will ordinarily fly on the clear face of the objective of
the policy. Such short listing would then be arbitrary
as contrary to
the selection criteria. The applicant set out requirements to be met
for the contested post. The fairness of the
selection process lay in
the screening of all candidates against the set requirements in a
similar approach. It has to be borne
in mind that there would be
people who desired to apply for the contested post but did not submit
their applications merely because
they did not meet the set
requirements. It would also be unfair to set all candidates who met
all requirements against any candidates
who lack any of the
requirements.
[21
Having
regard to the conclusions reached by the arbitrator in this matter, I
am
of the view that he
failed to appreciate that the selection panel could not
mero
motu
amend the requirements for the advertised
position in order to shortlist
the
Third Respondent who did not meet the prescribed academic
requirements.
The
requirements as set out in the advertisement were set out by the
relevant
executive authority
as envisaged in clause C1.1 of the Public Sector
Regulations and the
Panel did not have the authority to
disregard them.
[22]
In
the premises, the following order is made:
Order
1.
The
condonation application is granted.
2.
The
arbitration award of the second respondent issued under case number
GPBC80/2022 is reviewed and set aside.
3.
There
is no order as to costs.
G. C. Phakedi
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant
: KF Magano
Instructed by
: State
Attorneys,
Pretoria
For the Respondent
: No appearance
[1]
1962 (4) SA 531
(A) at 532C – F.
[2]
(2008) 29 ILJ 318 (LC) at paras 17–18.
[3]
(1997) 18 ILJ 367 (LAC) at para 369.
[4]
See also:
Melane
v Santam
1962
(4) SA 531
(A) at 532C - F;
Mansoor
v CCMA and others
2000
(1) BLLR 79
(LC) at 83, at para 18;
National
Union of Mineworkers v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at 211D - 2;
Foster
v Stewart Scott Inc
(1997)
18 ILJ 367 (LAC);
SA
Broadcasting Corporation v CCMA and Others
(2003)
24 ILJ 999 (LC);
Achilles
v HE Auto Import and Export (Pty) Ltd
(2000)
5 LLD 18 (LC);
Fortuin
v CCMA and Others
(2005)
26 ILJ 96 (LC).
[5]
No.
66
of 1995, as amended.
[6]
No.
103 of 1994.
[7]
(2012) 23 ILJ 1789 (LAC) at para 39.
[8]
[2018]
12 BLLR 1173
(LAC) at para 24.
[9]
(D880/10)
[2013] ZALCD 17 (13 June 2013) at para 15.