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[2012] ZALAC 9
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Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9; [2012] 9 BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) (1 June 2012)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
(HELD AT PORT
ELIZABETH)
CASE NO.: PA 1/11
Reportable
In the matter between
:
GEORGE NOONAN
…...............................................................................................
Appellant
(Third Respondent in the
Court
a quo)
and
SAFETY & SECURITY
SECTORAL
BARGAINING COUNCIL
…..........................................................................
First
Respondent
(First Respondent in the
Court
a quo)
JOHN C ROBERTSON N.O.
…...............................................................
Second
Respondent
(Second Respondent in the
Court
a quo)
MINISTER OF POLICE
…............................................................................
Third
Respondent
(Applicant in the Court
a
quo)
Heard: 01 March 2012
Delivered: 01 June
2012
CORAM: TLALETSI JA,
NDLOVU JA, LANDMAN AJA
Summary:
Appeal
against a refusal to review an arbitration award. Employer failing to
comply with obligation to check application form of
rival applicant
for promotion. This failure causing procedurally unfair promotion
process. Appellant not proving he would have
been promoted but for
the procedural unfairness. Appellant compensated for unfair
procedure.
_____________________________________________________________
JUDGMENT
_______________________________________________________________
LANDMAN AJA:
Captain George Noonan,
the appellant, appeals against the whole of the judgment delivered
by the Labour Court (Cheadle AJ) dated
27 October 2010, which set
aside an award of the Second Respondent and substituted it with an
order that “The referral
of the dispute is set aside with no
order as to costs”.
The background
The South African Police
advertised Post 1436, Section Head: Evaluation Services (with rank
of Superintendent).
The appellant, Captain
(now Superintendent) V P Matshaya (“the third party”),
Capt Landu and others, applied for the
post.
The selection panel sat
on 28 October 2004. The panel ranked and recommended for promotion,
in order of preference: the third
party, the appellant and Landu.
The third party was subsequently appointed to the post and promoted
to Superintendent with effect
from 1 December 2004.
The appellant referred a
dispute in terms of
s 194
of the
Labour Relations Act 66 of 1995
to
the Safety and Security Sectoral Bargaining Council, the first
respondent. Commissioner Maepe conducted the arbitration proceedings
and handed down an award, dated 4 April 2006. He ordered the
“protected promotion” of the appellant to the rank of
Superintendent.
The Minister of Safety
and Security (now the Minister of Police, the third respondent), to
whom I shall refer as “the Minister”,
launched a review
application in respect of Maepe’s award. The appellant and the
Minister agreed that Maepe’s award
should be reviewed because
the third party had not been joined in the arbitration proceedings.
The third party was
joined. The dispute was subsequently set down for arbitration
de
novo
before the second respondent on 20 November 2006.
The second respondent
issued an award dated 16 August 2008. He found that the third
respondent committed an unfair labour practice
against the appellant
and awarded the appellant promotion.
The Minister launched a
review application to set aside the second respondent’s award.
The court
a quo
set the award aside. Hence this appeal with leave of the court
a
quo
.
The award
In view of the narrow
compass upon which the appeal was argued the following summary of
the award will suffice:
(a) The third party
received a verbal warning, which was still valid when he submitted
his application for the post. The third party
failed to disclose it
and in fact indicated that he had not been convicted of any
disciplinary offences during the period of his
current rank or post
level;
(b) The third party’s
failure to disclose his prior disciplinary record resulted in the
selection panel not being able to
apply its mind to the integrity and
suitability of the third party;
(c) The selection panel’s
failure to apply its mind to this aspect (suitability of the third
party on the grounds of his prior
disciplinary record), whether
intentional or not, rendered its recommendation of the third party
invalid;
(d) The fact that the
National Commissioner condoned the third party’s failure to
include his verbal warning in his application
did not affect the
action or conduct of the SAPS
vis-á-vis
the appellant
in relation to his application for promotion. The condonation was, in
any event,
ex post facto
the incident complained of by the
appellant;
(e) Had the true
circumstances been known to the selection panel at the time, it would
have rejected the third party’s application
and the appellant
would have been afforded a proper and fair opportunity to advance his
candidature on the basis of his application;
(f) Had the panel been
aware of the true situation it would have recommended the appellant
as the number 1 choice and the National
Commissioner in due course
would have appointed the appellant to the post in question; and
(g) SAPS committed an
unfair labour practice relating to promotion in not promoting the
appellant to the position of Section Head:
Evaluation Service (post
1436), which prejudiced him in his career progression within the
SAPS.
The Arbitrator went on
to make the following award:
1 The conduct of the
employer (South African Police Service by way of its authorised
representatives) in failing to promote the
employee (Capt. G Noonan)
to the rank of Superintendent (level 9) in the post of Section Head:
Evaluation Services (post 1436)
with effect from 1 December 2004,
constitutes an unfair labour practice relating to promotion as
envisaged in
Section 186
(2) of the
Labour Relations Act No. 66 of
1995
.”
The employer is
ordered:
To promote the
employee to the Rank of Superintendent (level 9) at the Station
where he is currently posted, on the same terms
and conditions as
the employee would have enjoyed had he been promoted on 1 December
2004 and to amend the employee’s
service record accordingly.
Pay the employee,
subject to lawful deductions for tax, in an amount equivalent to
the difference in quantum of salary, benefits
and perquisites which
he actually received during the period of 1 December 2004 to the
date of this award and the quantum of
salary, benefits and
perquisites that he would have received had he been promoted to
Superintendent (level 9) on 1 December
2009 to date of this award.
The employer must
complete 2 above within 30 days of the date of this award.
No order is made
against the 3
rd
Party (Superintendent V Matshaya).
Interest is payable
as provided for in
Section 143
(2) of the
Labour Relations Act No.
66 of 1995
on the amounts referred to in 2 above.
There is no order as
to costs.
The review application
13.The grounds (a curious
mix of statements, opinion and complaints) upon which the Minister
sought to review the award may be summarised
as follows:
The award was not
rational or justifiable in relation to the reasons given for the
findings or the documentary or oral evidence
placed before the
Arbitrator.
The evidence before the
Arbitrator was that both the appellant and the third party were
promotable and had met the requirements
of the post and furthermore
that the manner in which the applications were evaluated was not
challenged and indeed was accepted
to be fair.
It was not in dispute
that the National Commissioner had the final decision to approve or
reject the recommendation of the selection
panel and further it was
not disputed that, despite the non-disclosure of the previous
conviction by the third party, this was
condoned by the National
Commissioner as he was empowered in terms of paragraphs 15(2), (3)
and (4) of NI 1/2004.
There was no evidence
that the appellant would have been promoted but for the
non-disclosure. The Arbitrator’s finding was
not in itself
sufficient to support the grant of the relief contained in the
award. The appellant had to prove that but for the
non-disclosure or
false information, he would have been appointed to the post or that
there was a causal connection between the
act complained of and the
prejudice suffered.
In terms of NI 1/2004,
the National Commissioner is not obliged to promote the next
candidate if it is found that the recommended
candidate is
unavailable for promotion for whatever reason and has the discretion
to either re-advertise the post or to appoint
any of the recommended
candidates.
The Arbitrator, by
appointing the appellant usurped the powers of the National
Commissioner and therefore exceeded his powers.
The Arbitrator did not
apply his mind to all the material placed before him; alternatively
took into consideration irrelevant
factors in arriving at his
decision. An Arbitrator should regard promotion as an area of
managerial prerogative unless bad faith
or improper motives are
present, which were neither alleged nor proved by the appellant. It
is insufficient for a complainant
to allege that he was the better
candidate compared to the successful candidate, he must in addition,
prove that he was better
than any of the other candidates applying
for the job.
The evaluation of
candidates for promotion is not a mechanical or mathematical one and
it is quite possible that the assessment
of candidates and the
resultant appointment will not always be the correct one. However,
in the absence of gross unreasonableness
which leads to the
inference of
mala fides
arbitrators should be hesitant to
interfere with the exercise of management’s discretion.
It is insufficient for a
complainant to say that he or she is qualified by experience,
ability and technical qualifications; he
or she must also show that
the decision to appoint someone else in preference to him or her was
unfair. If the employer’s
decision to appoint another
candidate is rational, no question of fairness can arise. Ultimately
the finding of the Arbitrator
leads one to conclude that the
decision is so unreasonable that no reasonable decision maker could
have arrived at such decision
and therefore stands to be reviewed
and set aside.
The judgement
14.The judgment of the
court a quo can be summarised as follows:
There is no right to
promotion in the ordinary course; only a right to be given a fair
opportunity to compete for a post.
Any conduct that denies
an employee an opportunity to compete for a post constitutes an
unfair labour practice.
If the employee is not
denied the opportunity of competing for a post then the only
justification for scrutinising the selection
process is to determine
whether the appointment was arbitrary or motivated by an
unacceptable reason.
As long as the decision
can be rationally justified, mistakes in the process of evaluation
do not constitute unfairness justifying
an interference with the
decision to appoint.
As a general rule the
appropriate remedy is to refer the decision back in order to allow
the complainant a fair opportunity to
compete. The exception being
where there has been discrimination or victimization and there are
compelling constitutional interests
at stake or if the applicant
proves that but for the unfair conduct, he or she would have been
appointed.
The nub of the appeal
15.Mr Grobler, who
appeared for the appellant, in the course of developing his
submissions:
(a) conceded that, even
if the third party was notionally thought away from the competition,
the appellant could not show that he
would have been promoted to the
post and rank in question.
(b) conceded that the
relief awarded by the second respondent should be confined to
compensation and that the compensation should
be limited as
prescribed by
s 194(4)
of the LRA.
(c) confined his
challenge to the court
a quo
’s approach that, only if
the procedural unfairness is such that it denies an applicant a fair
opportunity to compete, should
the appointment be set aside.
(d) relied
only
on
the third party’s non-disclosure of his disciplinary sanction
as his contribution to the unprocedural fairness of the
process.
Evaluation
16.The National
Commissioner, as he was entitled to do, decided that the selection
process for the post would be done without the
need to conduct
interviews (a so called “Paper Board”). See clause 9(1)
of the National Instruction. Subsequent to
the appearance of the
advertisement the following steps were followed:
Several applications for
the post were received.
The HR department
verified the contents of the applications.
The panel consisting of
Assistant Commissioner Novuka (chair), Senior Superintendent Kunto
and Superintendent O Meyer convened.
The secretary, who was
not part of the panel, read out the application forms one by one to
the panel.
A short list was agreed
upon. The appellant, the third party and Captain Landu were
shortlisted.
The applications that
were shortlisted were read to the panel.
Each candidate was
scored immediately after it had been read.
The third party scored
the most marks. The appellant scored the next highest marks. But the
marks were only part of the evaluation.
The panellists did not
view the applications before the process was concluded.
No minutes were kept of
the proceedings.
The panels submitted a
list of three for appointment. The third party, was placed first on
the list, the appellant second with
Captain Landu third.
The National
Commissioner subsequently appointed the third party to the post.
The fairness of the
process
17.It is common cause
that the third party had received a verbal warning which was valid at
the time he submitted his application
for the post. It is also common
cause that the third party failed to disclose this in his
application. He indicated, as the second
respondent correctly
observed, that he had not been convicted of any disciplinary offence
during the period of his current rank
or post level.
18.The National
Instruction deals with the case of an employee who has a disciplinary
conviction and wishes to apply for promotion
in this way:
Clause 12(3) provides
that:
“
Employees
against whom department or criminal investigations are pending and
employees who have been convicted of any criminal offence
or at a
disciplinary hearing during the period in which they have been
holding their present rank, may apply for
advertised
posts
and their applications must be considered and the panel must pay due
regard to the merits or seriousness of the case(s).”
And clause 15(3) provides
that:
“
An
employee against whom an investigation (departmental or criminal) is
pending, and an employee who has been convicted of any criminal
or
disciplinary action during her or his service in the present rank,
must include full particulars of the investigation(s) or
conviction(s) in her or his applications. Failure to disclose this
information may result in the withdrawal of promotion of such
employee. The same applies to an employee who provided false
information in her or his application.”
19.The effect of this is
that an employee, such as the third party, is at liberty to apply for
the post. But he was obliged to disclose
an applicable disciplinary
conviction.
20.In terms of the
National Instruction the existence of a criminal conviction or a
conviction of a disciplinary infraction is linked
to the concept of
“suitability” for the post. This is stressed in clauses
1, 6(1), 7(3)(c), 9(3), 9(10), 10(2)(f),
12(1)(f), 13(10)(b) and
15(2).
21.Suitability is defined
in clause 1 of the National Instruction as:
“
Suitability
of an employee to function effectively at the next higher post level
and may be affected by previous findings of misconduct
against the
employee, previous convictions of the employee or pending
investigations into misconduct or criminal offences allegedly
committed by the employee.”
22.The requirement of
“suitability” arises at three stages of the promotion
process.
(a) Prior to the
consideration of an application.
(b) In the consideration
of the application.
(c) After approval of
promotion.
(a) Prior to the
consideration of an application.
23.Suitability as defined
is so important that it must be established before an application is
considered. Clause 9(3) reads:
“
A
panel must be satisfied that an application complies with the
requirements referred to in paragraph 7(2), before the application
is
considered. If an application does not comply with the said
requirements, the application must be rejected.”
Clause 7(2) refers to
clause 6(1). Clause 6(1), inter alia, requires that every applicant
must before or on the closing date for
an advertised post be suitable
for that post.
(b) In the
consideration of the application.
24.Clause 9(10) requires
that:
“
A
panel must be satisfied that a recommended candidate complies with
the requirements for promotion as stipulated in paragraph 6(1)
and
that the candidate is suitable for promotion to the post.”
25. If no interviews are
conducted, only information contained in candidates’
applications may be considered by the panels.
Personal knowledge of a
candidate by members of the panel may not be taken into account to
favour or prejudice a candidate. And:
”all applications must be
evaluated against the criteria in paragraph 12”. See clause
10(1) of the National Instruction.
Clause 12(1) in turn requires
that:
The selection of a
candidate must be based on the following criteria:
Competence based on the
inherent requirements of the job or the capacity to acquire, within
a reasonable time, the ability to
do the job;
Prior learning, training
and development;
Record of previous
experience;
Employment equity in
line with the Employment Equity Plan of the relevant business unit;
Evidence of satisfactory
performance;
Suitability; and
Record of conduct.
(c) After approval of
promotion
26.Finally the approval
of a promotion is conditional and a promotion will only become
effective, after compliance with the following
requirements:
“
(a)
receipt of a letter by the employee stating that she or he
(i) accepts the promotion
to the post offered to her or him,
(ii) has no personal or
other circumstances which may adversely effect her or his ability to
function in the post offered to her
or him,
(iii)
has declared all
convictions during the period of her or his present rank and pending
criminal or disciplinary cases or actions
, and
(iv) is able to render
services for at least 24 months in the higher post;
(b)
receipt of a
certificate by the commander of the employee stating that the
employee is still suitable for promotion in all respects
, and
(c) the employee taking
up the specific post offered to her or him within the time period
specified by the National Commissioner.
See clause 13(10) of the
National Instructions. (My emphasis.)
27.The second respondent
took the view that the third party’s failure to disclose his
disciplinary sanction was unfair. He
accepted the evidence of Meyer.
Meyer had been a panellist. He was called by the Minister. He
expressed the view that the third
party’s application would
have been disregarded by reason of the non-disclosure and that had
the panel been aware of the
true situation it would have recommended
the appellant as the number 1 choice.
28.The court
a quo
criticized the second respondent for relying on Meyer’s
evidence to decide a question of law and then for failing to find
that clause 13(10) allows for condonation of the lapse after
disclosure and after the candidate has had an opportunity to make
representations. The court
a quo
pointed out that the National
Commissioner also has the power to condone such a lapse. The court
a
quo
was also of the view that to deny an applicant who had a
relevant disciplinary sanction, such as the third party, an
opportunity
to compete would constitute an unfair labour practice.
29.Although the second
respondent may have relied on Meyer’s evidence as regards a
question of law, clause 9(3) requires the
first selection panel to be
satisfied that an application complies with the requirements referred
to in paragraph 7(2), before
the application is considered. If an
application does not comply with the said requirements, the
application must be rejected.
30.In this case a
verification process was not undertaken by the selection committee.
The verification process was conducted by
the HR department but it
did not discover the non-disclosure.
31.Meyer’s evidence
becomes important because he testifies what the panel would have done
had it known of the non-disclosure.
Mr Gqamana, who appeared for the
Minister, submitted that this was Meyer’s own opinion. It may
be an opinion but it is the
opinion of a panellist who was called by
the Minister and who was not challenged as a hostile witness.
32.The second arbitrator
formed the view that he was entitled to invalidate a decision of the
National Commissioner. The National
Commissioner could condone a
non-disclosure in terms of the National Instruction. The National
Commissioner condoned the third
party’s lapse by letter dated 1
June 2007 ie some three and a half years after the promotion became
effective. Even if the
National Commissioner could condone the lapse
(which the third party did not explain to the second respondent) it
does not have
the effect of condoning any procedural or substantive
unfairness of the selection process.
33.The court
a quo
’s
view is that if the third party’s application was rejected
without being considered, he would be denied the right
to compete and
this would constitute an unfair labour practice. This view is based
on clause 12(3). But it is only an applicant
who discloses his or her
criminal convictions or disciplinary sanction that may be considered.
Where an applicant does not make
disclosure that applicant is acting
unfairly, and is not entitled to rely on clause 12(3).
34.The effect of the
third party’s non-disclosure is that the panel, which in the
first instance must be informed of the disciplinary
infraction, was
unaware of it and therefore could not evaluate its seriousness in the
context of the requirements for the post
in question.
35.A further effect of
the non-disclosure is that the other shortlisted candidates were
competing against a candidate who had possibly
entered the contest
illegitimately. I say possibly because without disclosure and without
an evaluation of the disciplinary sanction
as required by the
instruction it cannot be said whether the third party would have been
shortlisted or selected as one of the
three candidates.
36. The court
a quo
took the view that the unfairness of the non-disclosure and its
consequences were not material unless it affected the opportunity
for
promotion which it held was not the case here.
37. This approach
overlooks several aspects. The first is that there was no disclosure
by the third party at all. The second is
that the National
Commissioner condoned the failure after the appointment was made. The
third is that it downplays the value of
process and lends support to
possible dishonest practices. Fourthly it devalues the role of the
first selection panel. And importantly
it prejudiced the appellant as
he would possibly have been ranked first on the list of
recommendations.
38. Mr Gqamana submitted
that the court
a quo
correctly held that the ranking of the
candidates recommended for the post was irrelevant. He pointed to the
National Instruction
which states that no one has a right or
expectation of promotion and that the highest scoring candidate too
has no such right.
See clause 3(3) of the National Instruction.
39.Mr Grobler submitted
that whilst the National Instruction allows the National Commissioner
to appoint any of the recommended
candidates (or indeed to
re-advertise the post) it does not follow that the preference ranking
has no relevance or importance.
The National Instruction requires the
National Commissioner to justify the appointment of a candidate other
than the recommended
candidate (first ranked candidate). See clause
12(5) of the National Instruction.
40.It is true that the
National Commissioner and not the first selection panel makes the
appointment but the structure of the National
Instruction confers
upon the first selection panel important duties, inter alia, to
select the most suitable candidate. See clause
9 of the National
Instruction.
41. Where an applicant
incapacitates the first selection panel from performing its task he
or she defeats the purpose of having
a first selection panel and
illegitimately advantages himself or herself. And, of course,
disadvantages the other candidates.
42. Not only this, but
the non-disclosure enables the non-disclosing candidate to rise
through the process to a stage where the
National Commissioner is
able to condone the lapse. This is manifestly unfair. Every applicant
is obliged to apply his or her mind
carefully to the application form
and to complete it honestly and diligently so as to compete fairly
with other candidates.
43. The remaining
question is whether the South African Police Service is any way
responsible for the consequences of the third
party’s omission
and its unfair effect on the promotion process.
44. The system, as
contemplated in the National Instruction, is that applications for
promotion, requires that:
(a) A commander must
verify the information in the application of an employee under her or
his command and must certify the information
to be correct. Clause
7(6).
(b) A commander must,
inter alia, ensure that a candidate has declared all pending
investigations or undeleted disciplinary convictions
in her or his
present rank. Clause 7(7).
45. The third party’s
commander certified his application but clearly the commander did not
properly verify the correctness
of all the information. This omission
constitutes the causal connection between the third party’s
omission and SAPS’s
responsibility for the unfairness of the
process.
46. In the result, I am
satisfied that the second respondent’s finding that the SAPS
had committed an unfair labour practice
in relation to the promotion
practice involving the appellant was one which a reasonable decision
maker could have made.
Compensation
47. The appellant must be
compensated for the procedural unfairness. Instead of competing on
equal terms he was competing against
a candidate whose handicap would
be later revealed; but not by himself. Compensation must be fair and
equitable and not exceed
twelve months remuneration. I am of the
view, taking all the circumstances into account, including the extent
of the breach of
the rules of fairness, that nine months compensation
would be fair and equitable.
Costs
48. Costs should follow
the result as there is nothing exceptional about the legal issues or
the application of the law to the facts.
Order
49. The following order
is made:
[1] The appeal is upheld
to the extent that paragraph 67.1 of the order of the court
a quo
is altered to read:
1 . “The award of
the second respondent is reviewed and amended to read:
The conduct of the
employer (South African Police Service by way of its authorised
representatives) regarding the promotion process
concerning the
employee (Capt. G Noonan) to the rank of Superintendent (level 9) in
the post of Section Head: Evaluation Services
(post 1436)
constitutes an unfair labour practice relating to promotion as
envisaged in
Section 186
(2) of the
Labour Relations Act No. 66 of
1995
.
The employee is
entitled to compensation for procedural fairness.
The employer is
ordered to pay the employee, within 30 days of the date of this
award, an amount of compensation equivalent to
nine months
remuneration payable to the employee as at 1 August 2008 being the
date of the award.
No order is made
against the 3
rd
Party (Superintendent V Matshaya).
Interest is payable
as provided for in
Section 143(2)
of the
Labour Relations Act No. 66
of 1995
on the amount referred to in 3 above.
There is no order as
to costs.”
[2] The third respondent
is to pay the costs of the appeal.
.
_________________________
Landman AJA
I agree
_________________________
Tlaletsi JA
I agree
_______________________
Ndlovu JA
Appearances:
For appellant: Adv M
Grobler instructed by Chris Unwin Attorneys
For third respondent: Adv
N Gamana instructed by the State Attorney