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[2014] ZALAC 48
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Ethekwini Metropolitan Municipality: Durban Metropolitan Police Services v Khanya and Others (DA9/2012) [2014] ZALAC 48 (18 September 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case no: DA9/2012
In
the matter between:
ETHEKWINI
METROPOLITAN MUNICIPALITY:
DURBAN
METROPOLITAN POLICE SERVICES
Appellant
and
DUMILE
JOSEPH KHANYA
First Respondent
A.S.
DORASAMY
N.O.
Second respondent
THE
SOUTH AFRICA LOCAL GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Heard:
31 October 2013
Delivered:
18 September 2014
Summary: Unfair labour
practice related to promotion- Employer re-advertising position of
Sergeant and adding requirement of code
15 motorcycle licence. First
respondent contending code 15 motorcycle licence discriminatory
because of his disability. Commissioner
finding that bargaining
council lacking jurisdiction- Labour Court reviewing arbitration
award and awarding employee compensation.
Appeal –Labour Court
incorrect in reviewing award. Appeal upheld
Cross-appeal.
Employees contending code 15 motorcycle licence not an essential
requirement for the advertised position. Commissioner
finding that
previous arbitration award that code 15 licence a requirement for the
post of Sergeant. Employees failing to discharge
the
onus
that
employer committed unfair labour practice. Arbitration award
reasonable Cross-appeal dismissed.
Coram: Waglay JP,
Dlodlo
et
Mokgoathleng AJJA
JUDGMENT
DLODLO AJA
[1]
The Labour Court dealt with an application in terms of section
158(1)(g) of the Labour Relations Act 66 of 1995 (LRA) which
sought
to review and set aside an arbitration award dated 17 April 2009
issued by the second respondent (Commissioner). In terms
of the
arbitration award, the first respondent’s (Mr Khanya) claim of
unfair labour practice was dismissed together with
the claim of the
other aggrieved employees on the grounds that the appellant had not
committed an unfair labour practice. The review
application was
opposed. The Labour Court set aside the arbitration award in respect
of Mr Khanya and ordered that Mr Khanya be
compensated in an amount
of R15 000.00. It is against this order that the Appellant appeals.
There is also a cross-appeal on behalf
of the other aggrieved
employees. This matter concerns both the appeal and the cross-appeal.
I might mention that there were altogether
nine Applicants before the
court
a quo
in this matter. Save for Mr Khanya, the other
applicants are now referred to as the aggrieved employees in this
appeal. We are
told that at the review application stage, two of the
aggrieved employees (Ms Miller and Ms Williams) had been promoted to
the
rank of Sergeant but that they remain parties to these
proceedings insofar as the question of costs is concerned.
Background
[2]
All the aggrieved employees were in the employment of the Appellant
and they held the rank of Constable within the Metro police
Department. An internal advertisement known or referred to by the
parties as Circular 183 was published by the Appellant advertising
the post of Sergeant. It would appear that the aggrieved employees
lodged their applications seeking promotions to the rank of
Sergeant.
The Appellant subsequently issued another Circular that was Circular
189 which was similar to Circular 183 save that
it added a
requirement that interested candidates had to be in possession of a
valid code 15 motorcycle licence. The aggrieved
employees, except for
Mr Matyobeni (who was shortlisted but not appointed), were not
appointed or shortlisted for the position
of Sergeant. Mr Matyobeni
challenges the fairness of his non-appointment on the basis that it
was unfair for him to be interviewed
in English in circumstances
where Zulu is his mother tongue and he maintained that he was
disadvantaged by the fact that the interview
was conducted in
English.
[3]
The reason the Appellant did not shortlist some of the remaining
aggrieved employees was that they did not possess a valid code
15
motorcycle licence. Many from amongst the aggrieved employees were
females, they were not shortlisted because they failed to
meet the
minimum criteria that of being in possession of a code 15 motorcycle
licence. The contention advanced on behalf of the
aggrieved employees
is that a code 15 motorcycle licence is not an inherent requirement
for the job and making it an essential
requirement is unfair and
indirectly discriminates against women who generally do not possess
such a licence; and this requirement
also discriminates against
persons with disabilities in that the disability prevents them from
obtaining such a licence. Notably,
the Appellant’s evidence in
this regard was that the only reason it did not shortlist any woman
is because they did not meet
the motorcycle licence requirement. Mr
Khanya on the other hand, has a disability which prohibits him from
obtaining a motorcycle
licence.
[4]
It is common cause that the Appellant advertised the post of Sergeant
by way of Circular 183 as mentioned earlier on. This advertisement
was placed on the notice board where it was customary to place such
advertisement for vacant positions. It is also common cause
that in
terms of the Appellant’s Employment Practices Policy Agreement
(referred to hereinafter as “EPPA”) all
posts must be
internally advertised on dedicated and accessible notice boards. The
aggrieved employees saw Circular 183 for the
position of Sergeant
advertised on the notice board. According to the Appellant, the
Circular concerned was posted on 23 March
2007. The closing date for
the advertisement was stipulated as 5 April 2007. Circular 183 gave
two essential requirements for those
eligible for appointment, being
(i) in possession of a post Matric certificate (M+2) and (ii) a valid
code EB driver’s licence.
The aggrieved employees applied for
the advertised post of Sergeant in terms of Circular 183 before the
closing date mentioned
above. However, on 18 June 2007, and by way of
Circular 189, the vacant positions of Sergeants were re-advertised
and the essential
requirements for the post were amended to include
an additional requirement of being in possession of a valid code 15
drivers’
licence (a motorcycle licence).
[5]
The aggrieved employees challenged the fairness of not being
shortlisted or appointed (save for the specific challenges by Mr
Matyobeni) on the following basis:
(a)
that it is unfair for the Appellant not to have
shortlisted the aggrieved employees on the strength of the amendment
contained in
Circular 189 without the Circular having been brought to
their attention in terms of its EPPA;
(b)
that a motorcycle licence which was made an
essential requirement by the amendment contained in Circular 189 is
not an inherent
requirement for the job, and that they were therefore
not shortlisted on an arbitrary ground which indirectly discriminated
against
women and those with disabilities;
(c)
that the panellists on the interview panel did not
have the necessary qualifications and certificates that allowed them
to be on
the panel.
[6]
The aggrieved employees contended that the amendment of Circular 183
by Circular 189 which inserted the requirement of a motorcycle
licence was not adequately published in terms of the EPPA and
accordingly that it was an unfair labour practice for the Appellant
not to shortlist them when they had satisfied the requirements of
Circular 183. It is the aggrieved employees’ evidence that
Circular 189 was not placed on the notice board.
[7]
However, it was contended on behalf of the Appellant that Circular
189 was placed on the notice board just as Circular 183 was.
For
purposes of guiding the discussion that is unfolding in this regard,
I find it prudent to set out
infra
clause 4.3 of the Durban
Metropolitan Council EPPA:
‘
All
vacancies shall be internally advertised on dedicated, accessible and
secure notice boards to ensure that every council employee
has
knowledge of such vacancies and adequate time to reply.’
[8]
The nine aggrieved employees lodged disputes with the Third
Respondent for conciliation consequent upon failure to have them
appointed. The dispute was described as unfair labour practice
pertaining to promotion. When the dispute could not be resolved,
it
was referred to arbitration before the Second Respondent. It was
agreed that the arbitration would be held in two phases: firstly
for
employees that were not shortlisted and secondly for those
shortlisted but not appointed. It is common cause that in relation
to
both phases of the arbitration process, the Second Respondent found
that the Appellant had not committed any unfair labour practice
and
proceeded to dismiss the aggrieved employees’ claims.
Evidence led before
the arbitrator
[9]
Ms Ritha Chetty (Chetty) testified that she was a Constable and has
been in that rank for the past 14 years. She told the arbitrator
that
even though she had previously applied five or six times to be
promoted to the next rank, she had never been successful. She
would
be told that she was unsuccessful and, at times, she failed the test
that normally precedes the interview. But she emphasised
that this
time, she was not given any reasons why she was not even shortlisted.
She, however, assumed that this was as a result
of not having a code
15 motorcycle licence. When asked which of the two Circulars she
responded to when she applied, she told the
arbitrator that she
applied in terms of Circular number 183 which did not have the
requirement of code 15 motorcycle licence. She,
however, conceded
that she had heard from other people about the “changes in
advert” but she never saw such changes
herself. Asked what
exactly she heard from people she answered “I have heard males
were appointed and females were not because
they obviously [did not]
possess a code 15 motorcycle licence.” She told the arbitrator
that she never saw Circular 189 and
only saw it for the first time
when it was produced at the arbitration hearing.
[10]
In cross-examination, Ms Chetty conceded that in 2004/2005, she was a
party to a grievance that was lodged as a result of which
an
arbitration award was issued in terms of which a code 15 motorcycle
licence was made a requirement for the post of Sergeant.
It emerged
that some employees that were parties to the grievance (including Ms
Chetty) were compensated in an amount of R10 000
each in terms of the
arbitration award consequent upon the employer having issued an
incorrect advertisement. Ms Chetty testified
further that the
employer did not give employees a fair chance to procure such a
licence as it advertised the post just after the
award prescribing
the code 15 licence requirement was published. In her view,
management failed also to assist the staff to procure
such a licence.
Importantly, Ms Chetty in cross-examination categorically stated that
it was practice for her to frequently check
what was displayed on the
notice board and that is the reason why she saw Circular 183. She
emphasised that she saw Circular 189
in the morning of the
arbitration hearing. She conceded that an error in Circular 183 could
be cured by the re-advertisement of
the post, that is, if the
Appellant intended to correct the error. Asked specifically in
cross-examination if for any reason she
did not see the amendment
would it be the fault of the Appellant, Ms Chetty responded and
stated that “I would think it [is]
the fault of the Council
because it was supposed to be brought to – it should be in
parade, it [is ]part of parade information.”
[11]
Ms Loretta Marlene Williams testified that she applied for the
advertised post of Sergeant in terms of Circular 183 and not
in terms
of Circular 189. She testified that she did not know about Circular
189. She conceded in cross-examination that if management
made an
error in Circular 183 it was quite entitled to correct same by way of
re-advertisement. Not much came from this witness.
[12]
Mr Khanya testified that he applied for the post of Sergeant as
advertised in both Circulars 183 and 189. According to him,
he met
all the qualifications required except for additional qualification
which was a motorcycle licence. Mr Khanya testified
that he could not
meet the latter requirement not because he did not have it at the
time but because “[he] cannot have it
in the future because of
a medical condition that prevents [him] from meeting that
requirement.” Respondents’ representative
during
examination asked the following question:
‘
Q:
“Are you telling this court that through your medical
condition, you were discriminated
from getting a job?”
Mr Khanya responded thus:
“
It
is my feeling simply because as I stress that it’s not a
requirement that I can meet next year, it’s not a requirement
that I can meet in the future. Therefore if I am prevented from being
considered for a position of a sergeant, it means in terms
of my
progression I don’t have a future at Metro Police.”
Q:
“…are you saying that Metro Police by putting bike
licence as an essential,
they are discriminating against people who
are with disabilities?”
A:
“Yes, yes. It solely means that.”
Q:
“So, you are telling us that because you’ve got this
disability, you’ll
never be promoted within this unit?”
A:
“Under the current circumstances, yes.”
Q:
“If I hear you correctly, there are areas in Metro police where
discrimination
is being promoted?”
A:
“It will seem that simply because if you don’t have this
requirement
because of a medical condition which fortunately was well
documented to the powers be and they are fully aware of it, it
amounts
to pure discrimination. Also if I may add, simply because in
my application form I had detailed the medical condition as it is a
requirement on the application form wherein you have an operation or
a medical condition, which hinder you in the advertised post,
you
need to summarise that.”
Q:
“So you are telling this court that the inclusion of the
motorbike licence disadvantaged
you about mobility?”
A:
“Yes.”’
[13]
It is important to note that, according to Mr Khanya’s
testimony, he saw both Circulars 183 and 189 and that he saw Circular
189 appended to the notice board just as Circular 183 was appended on
the notice board. Mr Khanya also testified in cross-examination
that
he knew of a few people in Metro Police with disabilities. He
specifically mentioned a Captain who was involved in an accident
with
his motorcycle and had his ankle or leg amputated. Mr Khanya
expressed the view and based on his experience that it was strange
that such a requirement was made for the post of Sergeant in that
Sergeants never rode motorcycles in their supervisory duties.
According to him, even when they escorted very important persons,
Sergeants used motor vehicles and not motorcycles. In
cross-examination,
Mr Khanya emphasised that the requirement of code
15 motorcycle licence is discriminatory and prevents upward mobility
in terms
of rank. It was put to Mr Khanya in cross-examination that
if he was raising discrimination then he was in the wrong forum in
that
he should rather be at the Labour Court and not at arbitration.
[14]
Zabuzile Petros Matyobeni testified that when he entered the
interview room, he was not asked which language he preferred to
be
interviewed in. Similarly when he entered the examination room he was
never asked which language he would prefer to write his
examination
in. According to him, both the examination and the subsequent
interview were conducted in the medium of English language.
Mr
Matyobeni testified before the arbitrator that he attended a township
school named Jabile High School in Johannesburg which
was one of the
“bantu schools”. Asked if he was comfortable with all the
questions in his examination as well as in
the interview, Mr
Matyobeni explained that he found some questions not comfortable at
all. He testified that he would have done
well both in the
examination and interview if his own mother tongue which is IsiZulu
was used. According to his testimony, he only
knows what he described
as “more of communicative English” but that if it is too
formal then he gets what he described
as “a little bit of
problem”.
[15]
In cross-examination, Mr Matyobeni was asked if he indicated to the
panel that he wanted to be communicated to in Zulu language.
He
answered that he did not do that. Asked, if he did not think that it
was important for him to indicate to the panel that he
was not
comfortable in English, Mr Matyobeni answered in the negative saying
“
No, at that time I didn’t.”
The
cross-examiner asked Mr Matyobeni in which language was the test
conducted to which question the answer was English. He put
to Mr
Matyobeni that he obviously passed the test. Mr Matyobeni answered
merely that “
I’ll presume so.”
There were a
lot of unwarranted and frivolous objections to the pertinent
questions asked in cross-examinations.
[16]
The crux of Mr Matyobeni’s testimony is that the use of the
English language in the test and interview disadvantaged
him. If his
own language had been used, he would have been better able to answer
questions put to him. He strangely, though, conceded
that he had
passed the written test (conducted in English) and hence he qualified
to proceed to the interview stage. He also agreed
in
cross-examination that all candidates were asked three questions in
the interview. Mr Matyobeni testified that he met all the
requirements for the post applied for. According to him, he had
potential for the job because he had previously acted in that
position.
[17]
Mohamed Saeed Ally was a Constable at the time he testified before
the arbitrator. He asked to be allowed to hand in a document
containing his evidence in chief. The arbitrator allowed this. His
testimony was that he is stationed at what he called “
the
South substructure in Isiphingo”
and that the history in
the Metro police shows that 80% of the members that were appointed to
the positions of Sergeants came from
the “
central command”
.
He unsuccessfully applied five times in the past for promotion to the
rank of Sergeant. According to Mr Ally, members based in
the
substructures were disadvantaged and not promoted. He opined that it
would be fair if the panellists were drawn from substructure
members
as well. Mr Ally was concerned that there should be an equitable
number of people from the “substructure” that
should also
be appointed. Mr Ally was of the view that he was more qualified for
the appointment in that he had previously acted
in the position of
Sergeant and in that of an Inspector. He emphasised that after the
interview he was not informed telephonically,
in writing or verbally
whether he got the position. It was put to Mr Ally in
cross-examination that the staff vacancy circulars
contained a clause
that read as follows: “
Applicants who have not been
contacted or notified within three months from the closing date of
the advert, should consider himself
(sic) unsuccessful”.
But
whilst Mr Ally had no quarrel with the above quoted clause, he
insisted that after having gone through the whole process as
he did,
fairness demanded that he be informed of the result.
[18]
Ravendren Lutchmiah testifying in chief was asked if he was given any
reason why he was not appointed or interviewed. Mr Lutchmiah
answered
that he believed that it was because he failed the test. Asked if he
in fact failed the test he answered firmly “yes.”
He had
no knowledge of the person who set the test, marked it and moderated
same. Asked if he was told that he failed, Mr Lutchmiah
answered
“that’s correct.” Asked if he was comfortable with
the test, he answered that he was not because there
was one or two
questions asked which he thought were strange with respect to the
advertised position. He testified that when writing
the test all the
candidates were squashed next to each other. This witness brought a
strange scenario as he testified that he was
aggrieved about failing
the test even though (according to him) all the appointees copied
most of his answers. He testified that
he was aggrieved by the fact
that a person who copied most of his answers passed the test but he
himself failed the test.
[19]
In an endeavour to explain this somewhat laughable assertion, Mr
Lutchmiah stated that maybe he failed because of his bad handwriting.
He was very concerned that somebody can copy his answers and gets
‘
the interview and gets appointed.”
He expressed a
view that maybe he should have been appointed as well. When Mr
Lutchmiah was asked if the squashing of the people
did affect him
psychologically, he answered as follows:
‘
Psychologically,
to really answer, when we got in the room and we saw all that in one
table there were these people sitting and
I said to the people and to
myself, the people that are now going to be appointed, had already
been chosen, because the only reason
that this test is being done is
only because of a formality, because if somebody is going to bring a
whole lot of people into a
room to write an examination like that
there, then I believe to my knowledge I really assumed that, you
knew, this is a done deal.’
[20]
It comes clearly from Mr Lutchmiah’s evidence in essence that
he was worried that so many people came to write the test
and were to
be accommodated into one room resulting in congestion. When
confronted in cross-examination about the candidate that
copied his
answers and passed the test whilst he himself failed, Mr Lutchmiah
stated that he ought to have reported that incident
as it amounted to
a crime.
[21]
Denzil Pillay, an officer with 20 years’ experience in the
Metro Police also testified before the arbitrator. The gist
of his
evidence is that he previously acted in the position of Sergeant and
that therefore he had expertise for the job. He was
not informed
about the outcome of the interview he underwent. He testified that he
had no problems at all with the panellists,
the three questions asked
and the answers he gave. He was of the view that he performed well in
the interview as he left the room
full of confidence. It is only when
he was not appointed that he thought there was some bias and
mala
fides
in the whole process. He did not know and could not know
how the other candidates answered questions in the interview –
this
he conceded in cross-examination. Mr Pillay was once also a
patrolman. He has training in many fields including working with
motorcycles,
vans, “freeways and numerous other stations”.
He testified that after 20 years without a promotion he found that he
was working backwards. In his view, the management treated him
unfairly. He applied for promotional posts unsuccessfully more than
10 times. He failed to understand why he was not promoted in that he
had no criminal record, he did not abuse sick leave and he
always
reported for duty timeously. Each time he failed to secure promotion
he would be told to come next time.
[22]
Only one witness testified before the arbitrator on behalf of the
Appellant: Manesakumarar Chin, a Senior Superintendent in
charge of
special enforcement on the beach. He was a panel member for the post
of Sergeant. He gave an account of the process from
the time the
advertisement was closed to the time the appointments were made. He
testified that applications were received and
that he, together with
HR sorted them out by finding out whether the applicants met the
minimum requirements for the job. According
to Senior Superintendent
Chin, where they found that applicants met the minimum requirements
they were then submitted to a test
which was held at Springfield
depot. After the test (which was marked by Superintendent Zama and
moderated by Chin himself) all
applicants that received 25 marks out
of 50 were called for the interview. All such applicants (according
to Chin) came for the
interview. They were asked three questions each
and each question carried a maximum mark of five and they were each
given an individual
mark for each question that they answered until
the interviews were completed. Asked how they as panellists arrived
at a decision,
Senior Superintendent Chin answered that decisions
were arrived at through consensus. He was asked specifically what his
involvement
was in the setting of the test. Senior superintendent
Chin explained that the test was set by two officers who worked
together
on this. That was Superintendent Zama together with himself
(i.e. Senior Superintendent Chin). They both decided on the questions
to be asked and so they set the test. The questions related to one’s
performance of one’s job. Question related to
the South African
Police Service (SAPS) because the Metro police use the same Act. He
explained that the Metro Police works under
the SAPS Amendment Act.
Senior Superintendent Chin further explained that the questions had
to therefore cover SAPS Act.[23] When
asked about the manner in which
the candidates were appointed, Senior Superintendent Chin elucidated
that the appointment was done
in compliance with the demographic
composition of the staff. He gave an example and said that otherwise
there would be too many
appointees of Indian descent that were going
to be promoted – but they could not do that. Explaining
further, Senior Superintendent
Chin stated that they took the cut-off
point of nine marks out of the possible 15. In other words, if the
candidate scored nine
and above in the interview then they would have
been considered – because they considered everybody that had
nine and above.
This means that for a candidate to be considered,
he/she had to fall within the appointable range. He revealed that the
panellists
consisted of himself (Chin), Superintendent Zama (a
female) and Monty Naidoo. He was asked if there was any truth in the
assertion
that the panel was bias towards Central in that 80% of the
people that were appointed were allegedly from Central. Senior
Superintendent
Chin refuted this allegation and labelled it as not
correct saying, they as panellists, did not even look at it that way.
He even
singled out Bradley Myburg who was also appointed and
mentioned that he came from the outer region. According to this
witness there
were no region based appointments.
[24]
When asked why no women were shortlisted. Senior Superintendent Chin
explained that the reason was because they did not meet
the minimum
requirement and, if they did, they would have been shortlisted. He
reiterated that the majority of the applicants did
not have code 15
motorcycle licence. Asked whether that was fair, the witness answered
thus: “Yes, a minimum requirement,
it had to be, we had to
comply with that.” He commented on the earlier testimonies of
some of the aggrieved employees that
Captains do not need a
motorcycle licence. Senior Superintendent Chin testified that the
statement that Captains do not ride motorcycles
is a wrong statement
because there is for an example a Captain that was riding a
motorcycle and she only came off it lately, that
is, Captain Keal, a
female. Senior Superintendent Chin further elucidated by saying that
he would say a motorcycle is a requirement
because in traffic, that
is the easiest way to get away. According to him, it is a requirement
to be complied with because in certain
days it is necessary to ride a
motorcycle. He hastened to add that he himself rode on a motorcycle
as a Captain. He added “We
need more bikes on the road,
especially for the escorts and vehicles will not be able to get
through the traffic.”
[25]
In cross-examination, Senior Superintendent Chin testified that he
was not a trained moderator. When asked if he had any formal
experience to moderate examination papers, he answered as follows:
‘
I
am not moderating exam papers. All I did was to check if, when these
persons has (sic) answered the question, whether it was marked
correctly, if there was no favouritism for certain people, and that’s
what I did. It wasn’t moderating that I was checking
the
answers and making sure that I’m a moderator, I must have
qualifications. All I did was check whether it was marked correctly
and with my experience that I got to handle the situation, the
questions were all asked on handling a situation on the road and
it’s
common knowledge that policemen have to have that knowledge. So, I
would use my knowledge to answer those questions
and check if it was
answered correctly.’
[26]
Asked if he would accept that the best persons got the job, Senior
Superintendent Chin testified that if a person during the
interview
scored nine and above, he would have got the job based on his merits
and demographic composition. In other words, the
appointment was not
based purely on merits, but employment equity had to be taken into
account as well. He emphasised that Circular
183 was replaced by
Circular 189. In other words, the closing date was extended and
Circular 183 was changed and replaced with
Circular 189. He conceded
that in the past, officers were appointed to the rank of Captain even
though they were not holders of
a code 15 licence. But this was
changed because it is the aggrieved employees who raised a grievance
and referred the matter to
arbitration and the arbitrator found that
code 15 motorcycle licence had to be an essential requirement for the
position of Sergeant.
The employment equity policy had to be
considered to satisfy the demographic composition of the staff.
Consequently some of the
highest scoring candidates were eliminated
from being appointed if they were not favoured by the equity
considerations. There were
12 posts to be filled and 12 names were
selected according to the criteria in use and submitted to the Head
of Metro Police for
further consideration. Once appointments were
made, the Head called those candidates who were selected for
appointment to inform
them. Thereafter a circular was then issued to
inform the staff members. Quite apart from the above summarised
evidential material,
the arbitrator also had before him bundles of
documents handed in by the parties. On behalf of the aggrieved
employees two Unions
representatives handled the arbitration
proceedings. The Unions involved were the South African Municipal
Workers Union (SAMWU)
and the Independent Municipal and Allied Trade
Union (IMATU).
The arbitration
award
[27]
The arbitrator found
inter alia
that a previous arbitration
award found that the motorcycle licence was a requirement for the
post of Sergeant. Accordingly, the
employer was entitled to amend
Circular 183 with Circular 189 in order to comply with that
requirement. The arbitrator found that
the aggrieved employees ought
to have been aware of this requirement. As far as Mr Khanya’s
assertion that he was discriminated
against (on account of his
disability rendering it impossible for him to procure code 15
licence) is concerned, the arbitrator
found that there were no merits
in that if the employer did not amend Circular 183 with Circular 189
it would have been faced with
a challenge in that regard. The
arbitrator found that the employer (the Appellant) timeously amended
the initial advertisement
and extended the closing date for the
applications. The arbitrator made a finding that the aggrieved
employees did not discharge
the
onus
resting on them to prove
the unfair labour practice. A finding was also made by the arbitrator
about candidates that were shortlisted
but not appointed. These
candidates wrote the test but were subsequently not appointed. They
fell in the same group as those candidates
who after passing the test
were interviewed but were not appointed among the 12 successful
candidates. The test sheet adduced as
evidence by the employer showed
that Mr Lutchmiah and Mr Naidoo scored below the cut-off line. The
employer explained the process
that was undertaken to select the
candidates that were to be recommended for appointment. The process
showed that certain candidates
who scored high during the interview
were not appointed to satisfy the demographic requirement. The
arbitrator found this explanation
to be clear and he found no
unfairness. In the arbitrator’s finding, the aggrieved
employees in this category failed to discharge
the
onus
. They
thus failed to prove that the employer perpetrated an unfair labour
practice.
Review proceedings
[28]
It is common cause in the Court
a quo
that the conclusion
reached by the arbitrator in this matter was
inter alia
described as unreasonable, irrational and unjustifiable on various
bases. On the other hand, in opposition to the review application
on
behalf of the Appellant, it was contended that Circular 189 was
placed on the notice board and that the aggrieved employees
were
obliged to have inspected the notice board. It was contended as well
that the job description of Sergeant obliged the Appellant
to set the
requirement of the code 15 licence as an essential requirement.
Discussion
[29]
Seemingly it is a critical contention at the heart of the aggrieved
employees who were not shortlisted that a motorcycle licence
is not
an inherent requirement for the job of Sergeant. The above contention
is premised on what Joseph Khanya testified to as
the primary
responsibility of Sergeant at the Metro Police. Mr Khanya’s
evidence summarised above
inter alia
is to the effect that
even Sergeants that supervise motorcycle patrols do not do so on
motorcycles but they use motor vehicles.
He referred to the group he
called “most competent motorcycle riders” that are
utilised to escort Presidents of the
Country and the Premiers and
testified that they too discharge their duties in motor vehicles. I
undertake to deal with all this
later on in this judgment.
[30]
For present purposes, let us consider the case presented by the First
Respondent – Mr Khanya. It is common cause that
Mr Khanya
acting through his Union (SAMWU) referred an unfair labour practice
dispute to The South African Local Government Bargaining
Council (the
“Third Respondent”) for conciliation. Details of the
unfair labour practice are indicated as relating
to
“non-shortlisting”. Conciliation was clearly unsuccessful
and the matter ended up unresolved and was referred to
arbitration.
See: section 186(2) (b) of the LRA.
[31]
Mr Khanya’s testimony was that he was not shortlisted,
interviewed and promoted to the position of Sergeant due to his
disability and that the Appellant was guilty of unfair discrimination
against him. It is important to hasten to mention that Mr
Naidoo
representing the Appellant at the arbitration was pertinent in
reminding not only Mr Khanya but also all concerned including
the
arbitrator that seeing that Mr Khanya was relying on unfair
discrimination he was not therefore in the correct forum. The
contention that failure to appoint Mr Khanya was “unfair and
discriminatory” was persisted with during the review
application.
It is common knowledge that in terms of section 186(2)
of the LRA, an unfair labour practice means any unfair act or
omission that
arises between an employer and an employee involving
unfair conduct by the former relating to the promotion, demotion,
probation
or training of an employee or relating to the provision of
benefits to an employee etc. There can be no dispute on the assertion
that an act consisting unfair discrimination is regulated by Chapter
2 of the EEA. Perhaps it will clarify this aspect to refer
to the
relevant provisions of the EEA. Section 10 of the EEA provides as
follows:
‘
10
(1) In this section, the word ‘dispute’ excludes a
dispute about an unfair dismissal, which must be referred
to the
appropriate body for conciliation and arbitration or adjudication in
terms of Chapter VIII of the labour Relations Act.
(2)
Any party to a dispute concerning this Chapter may refer the dispute
in writing to
the CCMA within six months after the act or omission
that allegedly constitutes unfair discrimination.
(3)
The CCMA may at any time permit a party that shows good cause to
refer a dispute after
the relevant time limit set out in subsection
(2).
(4)
The party that refers a dispute must satisfy the CCMA that…
(5)
The CCMA must attempt to resolve the dispute
through conciliation.
(6)
If the dispute remains unresolved after conciliation –
(a)
any party to the unresolved dispute may refer it to the Labour Court
for adjudication;
or
(b)
all the parties to the dispute may consent to arbitration of the
dispute.’
[32]
In term of the above provisions of the EEA, disputes relating to
unfair discrimination must be referred to the CCMA for conciliation.
If the dispute remains unresolved, the employee concerned enjoys an
entitlement to refer such unresolved dispute directly to the
Labour
Court for adjudication unless all the parties involved have consented
to the arbitration of the dispute. Mr Khanya referred
the unfair
discrimination dispute to the CCMA for adjudication. The record of
proceedings does not reveal that there was an agreement
by all
involved that Mr Khanya’s unfair discrimination dispute shall
be the subject of arbitration presided over by any arbitrator.
Clearly the arbitrator (the Second Respondent) had no jurisdiction to
arbitrate Mr Khanya’s dispute. In the circumstances,
the CCMA
had no jurisdiction to deal with Mr Khanya’s complaint and the
decision of the Labour Court that found the arbitrator’s
award
reviewable for not finding in favour of Mr Khanya claim of
discrimination was erroneous.
[33]
I shall now deal with issues raised in the cross-appeal. I am of the
view that the Court
a
quo
handled
these issues correctly. In the words of Davis JA in
Wasteman
Group v SAMWU and Others:
[1]
‘…
the
commissioner is required to come to an independent decision as to
whether the employer’s decision was fair in the circumstances,
these circumstances being established by the factual matrix
confronting the commissioner.’
[34]
The Court
a quo
correctly found that it remains the employer’s
prerogative to set the standard for its employees (although in this
case the
employers hand was forced by its employees who won an
arbitration award requiring the employer to force the requirement of
a code
15 motorcycle licence for the position of Sergeant). The
setting of the requirement of code 15 licence for the position of
Sergeant
does also not conflict with the provisions of either the
Constitution or the LRA. Certainly to require code 15 licence for the
post of Sergeant as an essential requirement is and cannot amount to
unfair labour practice as contended by the aggrieved employees.
I
share the view of the Court
a quo
that the essential
requirement for the post of Sergeant cannot also be said to be aimed
at excluding female candidates. In any event,
that was not for the
arbitrator to deal with as this also was an issue of discrimination
which the arbitrator could not determine..
[35]
The materials which the arbitrator was obligated to consider before
arriving at a decision in this matter I have summarised
earlier. I
may add that this Court in
Fidelity
Cash management Service v CCMA
[2]
held:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA Commissioner,
the
Court feels that it would have arrived at a different decision or
finding to that reached by the Commissioner. When that happens,
the
Court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the Commissioner and that the system would never
work if the Court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the Court, would have
dealt with the matter differently…’
I
fully agree with the above. Very often one is inclined to interfere
with the arbitrator’s awards and very often it is left
out of
account that there are a range of reasonable findings the arbitrator
can arrive at after taking into consideration all the
material
factors presented before him.
[36]
One indeed must be conscious whenever one is called upon to review
the arbitrator’s award. Hence a strict application
of the test
enunciated by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC) needs to be adhered to.
The review Courts must adhere to the simple formulated test in the
above authority: “
Is
the decision reached by the Commissioner one that a reasonable
decision-maker could not reach?”
There
have been decisions after
Sidumo
matter
but none can be said to postulate the test any differently. For
instance in
Afrox
Healthcare Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
this
Court per Mlambo JP held as follows:
‘
The
fact of the matter is that the reasonable decision-maker yardstick
crafted in
Sidumo
,
viewed in proper context, is none other than that in the absence of a
‘rational objective basis’ (the
Carephone
test)
between the decision arrived at and the material placed before the
decision-maker, the relevant decision is clearly not one
which a
reasonable decision-maker would have arrived at.’
The
judge in the Court
a quo
was alive at the correct test and its
proper application. The judge correctly approached the review and
“travelled on the
correct path” in respect of facets of
this matter save for the issue pertaining to Mr Khanya.
[37]
At the risk of repeating an aspect already dealt with, it is totally
wrong of the aggrieved employees to endeavour to hold
the Appellant
to the contents of the earlier advert contained in Circular 183. I
would of course understand the reliance on Circular
183 if that
Circular was not subsequently amended upon discovery of an error
therein contained. Circular 183 was replaced by Circular
189 which
spelled out the correct essential requirement for a Sergeant post. In
order to ameliorate any conceivable harm caused
by Circular 189, the
Appellant extended the closing date which was contained in the
initial Circular 183. Certain applicants timeously
noticed in the
notice board that Circular 189 effectively amended or even replaced
Circular 183. This clearly demonstrates that
Circular 189 was indeed
placed on the notice board. In my understanding, communication in
matters of this nature between employer
and employees is achieved
through the use of the notice boards. To me, that in effect means
that all employees interested to know
what the employer says in
matters of this nature, are under an obligation to frequent the
notice board. Those that do not do so,
they do that at their own
peril. As regards those who were shortlisted but not appointed: none
of them made out a case of unfair
labour practice and the dismissal
of their referral cannot be faulted.
[38]
Concerning Mr Matyobeni’s complaint that he was not addressed
in IsiZulu in the interview, I am of the view that his
complaint does
not deserve too much attention at all. Mr Matyobeni was first
subjected to a written test which was in English.
His fluency in
English was evidenced by the fact that he even passed that test. His
passing of the test qualified him for an interview.
He underwent the
interview also in English. He was not successful in the interview.
The interview, we gather from the papers, consisted
of only three
questions. For Mr Matyobeni to blame his failure to pass the
interview to the use of the English language is surprising.
As the
judge in the Court
a quo
correctly observed at no stage did Mr
Matyobeni complain or even request that in his particular case
IsiZulu language must be used.
Accordingly, I hold that the decision
of the arbitrator was indeed the one that a reasonable decision-maker
could have reached
regard being had to all the circumstances of this
matter. The factual matrix facing the arbitrator, also justify the
conclusion
he reached. It certainly fell within the range of
reasonable outcomes that the arbitrator could reach based on the
materials presented
before him. That there are no merits in the
cross-appeal is beyond question.
[39]
The question of costs in labour matters is regulated by section
162(1) of the LRA. In terms thereof, the Court may make orders
for
the payment of costs “
according to the requirements of the
law and fairness
”. There are certain considerations which
the Court must ordinarily take into account. In the instant matter, I
am of the
view that it would be unfair to make an order obliging the
aggrieved employees to pay costs of the Appellant. Importantly, the
general rule is that in the absence of special circumstances costs
follow the result. However, considerations of fairness may require
differently. Accordingly, I hold that there be no order as to costs.
Order
[39] In the
circumstances, I make the following order:
(a)
The Appeal by the Appellant on the issue of Mr
Khanya is upheld and the cross-appeal is dismissed. The arbitration
award thus stands.
(b)
There shall be no order as to costs either in this
Court or the court below.
________________
Dlodlo AJA
I
agree.
________________
Waglay
JP
I agree.
__________________
Mokgoathleng AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv J Nxusani
Instructed
by Kathy James Attorneys
FOR
THE RESPONDENTS:
Adv P Schuman
Instructed
by Brett Purdon Attorneys
[1]
[2012]
8 BLLR 778
(LAC) at 781D-E.
[2]
[2008]
3 BLLR 197
(LAC) at para 98.
[3]
(2012)
33 ILJ 1381 (LAC);
[2012] 7 BLLR 649
(LAC) at para 21.