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[2015] ZALAC 17
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Monyakeni v SSSBC and Others (JA 64/13) [2015] ZALAC 17 (19 May 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case no: JA 64/13
DATE: 19 MAY 2015
Not reportable
In the matter
between:
CAPTAIN
M. S.
MONYAKENI
..............................................................................................
Appellant
And
SSSBC
............................................................................................................................
First
Respondent
RUSSEL
MOLETSANE
..........................................................................................
Second
Respondent
SOUTH AFRICAN
POLICE
SERVICE
..................................................................
Third
Respondent
Heard: 19 March
2015
Delivered: 19 May
2015
Summary: Unfair
labour practice related to promotion – employee’s
recommendation for promotion by the evaluation panel
set aside by the
divisional evaluation panel – employee referring dispute to the
bargaining council – commissioner
finding process flawed;
employee entitled to promotion; and ordering compensation –
Labour setting aside arbitration award
– Appeal –
Divisional Commissioner chairing the divisional evaluation panel –
divisional commissioner conflating
steps rendering promotion process
irregular – however employee having little experience in the
core function of the job –
Appeal partially upheld with no
costs – Appeal reinstated - Labour Court’s judgment
substituted to the effect that
the review application is dismissed
save for the arbitration costs.
Coram: Landman
JA, Sutherland JA and Mngqibisa-Thusi AJA
JUDGMENT
LANDMAN JA
Introduction
[1] The appellant,
Captain M S Monyakeni, appeals against the judgment delivered by the
Labour Court (Swanepoel AJ) on 20 January
2012 in terms of which it
reviewed and set aside an award issued by the second respondent, an
arbitrator acting under the auspices
of the Safety and Security
Sectoral Bargaining Council, the first respondent. The appeal is
opposed by the third respondent, the
South African Police Services
(the Police Services).
Application for
condonation and reinstatement of the appeal
[2]
The appellant failed to prosecute the appeal as required by the Rules
of this Court. Consequently he applied for condonation
for this
failure and for the reinstatement of the appeal. Mr Laka SC, who
appeared on behalf of the third respondent, opposed the
application
but solely on the grounds that there was no reasonable prospect that,
in his submission, the appeal would succeed.
I am satisfied with the
explanation tendered by the appellant and, therefore, I turn to the
merits of the appeal which will determine
whether the appeal will be
reinstated.
The facts
[3] In 2006, the
National Commissioner of Police internally advertised the post of
Assistant Director: Social Services-Disability
Management (post
number 6000). The appellant applied for this post. No interviews were
conducted. One may assume that the Commissioner,
as he was entitled
to do so waived this provision. An Evaluation Panel was established
and convened. The Evaluation Panel received
six applications
including that of the appellant. One candidate was disqualified. Two
candidates were not recommended. Three candidates
including the
appellant were shortlisted. The appellant was recommended by the
Evaluation Panel for promotion. The appellant scored
73% as against
the 60% scored by each of his rivals.
[4] The
recommendations of the Evaluation Panel served before a Divisional
Evaluation Panel chaired by the Divisional Commissioner.
This panel
declared that the minutes of the Evaluation Panel were null and void
because they were insufficient and it replaced
those minutes with its
own minutes. It also concluded that the appellant and the other
candidates had little or no experience in
the core functions of the
post. The upshot was that no recommendations for promotion were made
and the vacant post was re-advertised.
The arbitrator’s
findings
[5] The arbitrator’s
findings can be summarised as follows:
(a)
Post 6000 was a level 10 post, and in terms
of clause 11(3) read with 13(5) of the National Instruction 1/2004,
it ought to have
been considered by the National Commissioner of
Police, and not the Divisional Commissioner. Therefore there was
non-compliance
with the National Instruction in that the National
Commissioner was not given an opportunity to consider the
recommendation of
the evaluation panel. (Para’s 48 and 49 of
the award).
(b)
The chairperson of the Divisional
Evaluation Panel was above that of a Director which requires in terms
of clause 82 that the chairperson
of the panel for levels 8 to 10
must be at the level of a Director. Therefore there was
non-compliance with the National Instruction.
(Para 50 of the award).
(c)
There was a further violation of the
National Instruction in that the Divisional Evaluation Panel
consisted of more than five members.
This was a violation of clause
8(3). (Para 51 of the award).
(d)
The Divisional Commissioner should not have
been part of the Divisional Evaluation Panel. The purpose of
excluding the Divisional
Commissioner from sitting on the panel is
for her or him to make an independent decision without his or her
mind being contaminated.
(Para 52 of the award).
(e)
The National Instruction does not give
powers to the Divisional Evaluation Panel to nullify the minutes. In
any case, even the minutes
of the Divisional Evaluation Panel that
was chaired by the Divisional Commissioner were not a true reflection
of what transpired
in that the panel’s replacement of candidate
Mathebe with Ishmael was not supposed to have happened. (Para 53 of
the award).
(f)
‘
The First Respondent did not comply
with its Employment Equity Plan which, in terms of the priorities
statistics an (sic) African
Males were under-representative. Instead,
the post was re-advertised and Coloured and White women, who were
over-represented were
appointed to the post. That shows bad faith on
the part of the First Respondent.’ (Para 55 of the award).
(g)
‘
While the Second and Third
Respondents did not apply for the post when it was initially
advertised internally as they did not have
the two years’
experience, they were appointed to the posts when they were
externally advertised and the applicant was not
appointed despite the
fact that the Applicant met the requirements of experience when he
applied for the post internally.’
(Para 56 of the award).
[6] The result is
that, the arbitrator found that the Police Services had committed an
unfair labour practice and, in view of the
gross irregularity
committed by the Divisional Commissioner on behalf of the Police
Services and the bad faith on the part of Police
Services, he awarded
the appellant compensation in the amount of R181 983 and ordered the
Police Services to pay the appellant’s
costs of the
arbitration. (Paras 69 and 70).
The court
a
quo’s
ruling
[7] The court
a
quo
examined the evidence presented at the arbitration
particularly that presented by the appellant, and concluded that even
though
the appellant may have met the criteria for appointment, he
lacked experience in the core functions of the post. The court
a
quo
concluded that the arbitrator had not applied his mind to
this issue.
[8] The court
a
quo
found that the arbitrator had misunderstood or not applied
his mind to the National Instruction. Had he done so, he would have
concluded, as did the court
a quo
, that only when a Divisional
Commissioner makes a recommendation for promotion must the
documentation be submitted to the National
Commissioner for a
decision. The Divisional Commissioner had not acted irregularly.
[9] The court
a
quo
examined the arbitrator’s findings that the Police
Services had acted in bad faith towards the appellant. The basis for
this
finding was that the Divisional Evaluation Panel exceeded the
permitted number of members and that this was a significant violation
of the National Instruction. The court
a quo
considered that
there was no evidence of bad faith on the part of the Police
Services. It remarked that the arbitrator did not
explain why this
violation was evidence of bad faith.
[10] The court
a
quo
held that the Evaluation Panel recommended the appellant and
that the Divisional Evaluation Panel’s interference with the
view of the recommendation that the appellant did not have the
necessary experience was within the spirit and meaning of the
National
Instruction.
[11] The court
a
quo
found that the arbitrator had ignored clause 13(6) and that
this constituted a gross irregularity.
[12] As regards the
arbitrator’s findings that the Police Services did not comply
with the National Instruction on the basis
that the chairperson of
the Divisional Evaluation Panel was more senior than the required
level of a Director, the court
a quo
found that the appellant
did not offer any valid reason as to why he was prejudiced by the
chairperson, being at a higher rank
of a Director. The court said:
‘
The
fact that the chairperson was at a rank higher than a Director did
not prejudice the [appellant]. Bottom line prevailed - he
had been
with the [Police Services] for a rather short time, whether the
Chairperson was of a rank higher than that of a Director
and whether
that panel consisted of five or seven people had no, if any, bearing
on the validity of his application for promotion.
If indeed there
were minutes in his application, one would have suspected that
someone on the extended panel would have drawn the
attention of the
Chairperson to such aspects. The fact that the recommendation lacked
merit can be inferred from the evidence presented
by Nkabinde as
stated above.’ (Para 105 of the judgment.)
and
‘
I
therefore hold that the [appellant] was not prejudiced by the fact
that the Divisional Evaluation Committee meeting consisted
of more
than five members, nor was it prejudiced by the fact that the
chairperson was at a higher rank than that of a Director.
Given the
above, the [arbitrator] committed a gross irregularity. When he found
that the non-compliance or violation as he had
phrased it,
constituted an unfair labour practice.’ (Para 108 of the
judgment).
[13] The court
a
quo
found that the employment equity plan was not relevant to the
question of his suitability for promotion. The appellant simply did
not have the relevant experience. The court
a quo
noted that
clause 2 of the National Instruction referred to “recognised
experience” meaning any relevant experience
in the Service or
the Public Service at the required level and remarked:
‘
However,
given the fact that the post advertised was not a level 8 post, but a
level 10 post and that the [appellant] had but five
months of
experience in the service of the [Police Services]. I hold not even
this clause would have vindicated or entitled the
[appellant] to be
appointed to the position’. (Para 126 of the judgment.)
[14] The appellant
contended that the arbitrator committed a gross irregularity, when he
did not take into account that it was the
prerogative of the Police
Services, as employer, not to promote anyone but to order that the
post be re-advertised.
[15] The court
a
quo
pointed out that the re-advertised post was a second event
that had no bearing on the appellant’s dispute. The appellant
was not even shortlisted when he applied in response to the
re-advertised post.
[16] The court
a
quo
noted that even a candidate who obtained the highest rating
in the assessment or highest marks or percentages did not have a
legitimate
expectation to be promoted. See paragraphs 1, 2, and 7 of
the judgment. The appellant’s case is that he had a right to
promotion.
Peremption
[17]
When Mr Mogane, who appeared for the appellant, addressed the court,
we inquired whether the appellant was entitled to process
a dispute
concerning his initial application for promotion as he had re-applied
for promotion. Had the appellant perempted, abandoned
or waived
whatever rights he had regarding relief based on the initial
application? Mr Mogane submitted that this was not the case.
Mr Laka
SC, on the other hand, espoused the proposition.
[18]
Peremption, abandonment or waiver is a factual question where the
onus
rests, in this case on the Police Services, to show that
the appellant with full knowledge of his right, decided to abandon
his
right to seek relief regarding the initial application, whether
expressly or by conduct plainly inconsistent with an intention to
enforce it. See Innes CJ in
Laws v Rutherford
1924 AD 261
,
Feinstein v Niggli and Another
1981 (2) SA 684
(A) at 698 and
Borstlap v Spangenberg
1974 (3) SA 695
(A) at 704.
[19]
The Police Services did not raise this issue at the arbitration or in
the court
a quo
. Had this been done, the appellant may have
had an answer. It is doubtful whether it would be fair to decide this
appeal on this
issue especially as both applications relate to
promotion post 6000.
Evaluation
[20] There are two
components to a complaint regarding a failure to promote an employee
as an unfair labour practice. The one relates
to the procedure
followed by the employer. The other relates to the substantive merits
and it concerns the suitability of the candidate
for promotion to the
post in question.
Promotion
procedure in terms of the National Instruction
[21] As the
procedure for promotion is regulated by the National Instruction, it
is desirable to set out the procedure mandated
by the National
Instruction in so far as it is relevant to this case. It will be seen
that the procedure involved evaluation and
sifting as the application
progresses up the chain. The decision to promote a recommended
candidate is vested in the Provincial
or Divisional Commissioners (up
to level 9) and the National Commissioner (levels 10 to 12).
[22] Applications
for promotion may be considered following an interview or without an
interview. A letter dated 1 September 2006,
emanating from the office
of the National Commissioner, required applicants for level 10 and
higher posts to be interviewed. This
was not done. The parties seemed
to be in agreement that the promotion process conducted in respect of
the appellant was properly
conducted without an interview. The
recommendations of the Evaluation Panel together with all relevant
applications of candidates
are required to be submitted to a
Divisional Evaluation Panel for consideration. The Divisional
Evaluation Panel is entitled to
review the Evaluation Panel’s
recommendation on wide grounds and substitute them with its own.
(Clause 10(2)).
[23] The chairperson
of the Divisional Evaluation Panel is required to submit the
recommendations of the panel and the applicable
reports and the
reasons for its review of the recommendations of the Evaluation Panel
to the Divisional Commissioner. (Clause 10(3)).
[24] Upon receipt of
the recommendations of the Divisional Evaluation Panel, the
Divisional Commissioner must satisfy herself or
himself that the
process took place in accordance with the National Instruction.
(Clause 13(2)).
[25] If the
Divisional Commissioner is of the opinion that the recommendation for
promotion does not address representivity at the
level of the post in
the business unit, but decides to nevertheless approve such a
promotion, she or he must record this in writing
with a full
motivation. (Clause 13(3)).
[26] The Divisional
Commissioner may accept or reject the findings and recommendations of
the Divisional Evaluation Panel. Should
the Divisional Commissioner
not approve a recommendation of an Evaluation Panel, she or he must
record the reason for her or his
decision in writing. (Clause 13(5)).
If the Divisional Commissioner does not approve the promotion of a
recommended candidate,
she or he may consult with, in this case, the
Divisional Evaluation Panel if she or he deems necessary and either
promote ie recommend
another candidate of her or his choice from the
preference list submitted by the Evaluation Panel, or direct the post
to be re-advertised.
(Clause 13(6)).
[27]
Should a Divisional Commissioner recommend the promotion of a
candidate, the Divisional Commissioner must forward all the relevant
documentation and recommendations to the National Commissioner.
(Clause 13(4)). The role of the Divisional Commissioner concerning
applications to posts at Level 10 and higher was considered by the
Constitutional Court in
South
African Police Service v Solidarity obo Barnard
[1]
where
it was said that:
‘
The
Instruction sets out the parameters within which a selection panel
must work. Its promotion guidelines vest a wide discretion
in the
National Commissioner. Although the interviewing panel and the
Divisional Commissioner must recommend a list of suitable
candidates,
the recommendations are not binding on the National Commissioner.
Rule 13(4) stipulates that appointments to salary
level 8 and higher
must be forwarded to the National Commissioner for his approval. He
or she may decline to appoint or leave a
vacancy unoccupied. The
ultimate decision remains with him or her.’
[2]
[Footnote omitted]
[28] It is clear
that should the Divisional Commissioner not make a recommendation,
the material regarding the candidates is not
sent to the National
Commissioner. See the evidence of Supt Kemp and clause 13(1). The
National Commissioner has enough to do without
the further burden of
wading through applications which her senior officers consider
unmeritorious.
[29] No one has a
right to promotion. See clause 3(3) and 4(2).
Evaluation
of the process followed
[30] In this case,
the first panel recommended the promotion of the appellant. It sent
the necessary recommendation and documentation
to the Divisional
Evaluation Panel. The Divisional Evaluation Panel should have met
with its own chairperson having the rank of
a Director. It was
required to examine the recommendation and motivation and could have
reviewed the recommendation of the first
panel and sent its own
recommendation to the Divisional Commissioner. However, the
Divisional Commissioner conflated the last two
processes.
[31] The arbitrator
was of the opinion that this was an irregular step. In my opinion,
the arbitrator’s decision is a reasonable
one. The Divisional
Evaluation Panel, once it was appointed, performs a distinct role
from the next phase which involves the Divisional
Commissioner
reviewing the recommendation of the Divisional Evaluation Panel. The
Divisional Evaluation Panel was entitled to meet
in the absence of
the Divisional Commissioner. The absence of the head of the division
was necessary so that the officers could
arrive at an independent
decision according to their own in-sights. Thereafter, the Divisional
Commissioner would be entitled,
after consultation, to accept or
reject the recommendation. The conflation of these steps deprived the
Divisional Evaluation Panel
of their role in the promotion process.
It downplays the value of process and it devalues the role of
the divisional selection panel.
[32]
Had the Divisional Commissioner allowed the Divisional Evaluation
Panel to play its role, she might have had the benefit of
its own
wisdom. The Supreme Court of Appeal pointed out in
Solidarity
obo Barnard v South African Police Service
[3]
(reversed on appeal but not on this issue) with reference to the
National Commissioner but of relevance to a Divisional Commissioner:
‘
It
is safe to assume that the interviewing panels are constituted to
serve a purpose. They are a management tool, comprised in the
present
case of senior police officers to be of assistance to the National
Commissioner when he makes a final decision on whether
to fill a
vacancy. Thus, one can conclude that even though he is not bound by a
panel’s evaluation and recommendation, the
National
Commissioner must at the very least give consideration to and engage
with what is put before him by them. He discounts
relevant and
material factors at his peril, rendering him liable to legal
challenge.’
[4]
[33] The arbitrator
seems to have appreciated this although he expressed it in terms of
formality rather than substance.
[34] The process
followed in the case of the appellant was therefore deficient. It is
necessary to consider the substantive merits
of the appellant’s
bearing in mind the procedural deficiency.
Substantive
promotion
[35]
At the outset, it must be noted that whether the appellant met the
requirements for promotion to the post must be judged, as
far as
possible, on the basis of his written application form.
Minimum
experience
[36] The first issue
that needs to be addressed is whether the appellant had the minimum
experience as required by clause 6(1) for
the post on level 10. As
regards this requirement, a minimum of three years uninterrupted in
the Police Service on level 9 or a
minimum of three years
recognisable experience (ie service in the Public Service) on level 9
was stipulated. However, the letter
referred to above reduced the
period of three years to two years and also permitted employees, on
level 8, who were otherwise qualified,
to apply for promotion to a
post on level 10.
[37] This raises the
question on what level was the appellant in the Police Services and
more importantly, in view of his short
service with the Police
Services, what level was he on in the public service for the
uninterrupted period of two years prior to
his application? The
application form does not require a candidate to set out the level of
the posts he has held or holds but in
his evidence, the appellant
says he was on level 8 for a period of six years.
[38] The court
a
quo
considered that the appellant did not meet the required
minimum experience. However, the court
a quo
did not make a
finding on the level of his post in the Police Services. The court
a
quo
overlooked his six year experience on level 8 in the
public service.
[39] Neither the
Divisional Evaluation Panel nor the Divisional Commissioner
disqualified him on the basis that he lacked the minimum
experience.
The court
a quo
misdirected itself on this issue.
[40] I am satisfied
that the matter must be judged on the basis that the appellant was
entitled to apply for promotion.
Core experience
[41] Post 6000 was
for Assistant Director: Social Work Services - Disability Management.
The post description specifies:
‘
Participation
in policy, projects, planning international liaison and research
prog, regarding disability issues. Execute middle
and snr management
responsibility. Co-ordinate disability man prog. Evaluate and
co-ordinate feedback received from prov. Assist
management in
implementation of disability management strategic plan. Registration
as a social worker is a statutory requirement
for promotion to this
post.’
[42] The appellant
described his experience in his application form as follows:
‘
1995-03-03
to 1995-04-331.
Transferred to
Department of Correctional Services. Social worker (Department of
Social Services Mpumalanga Province). Duties performed:
provided
therapeutic services to the community members through pro-active and
re-active programmes. Represented the Department
of Social Services
in various community forums (welfare, disability and policing).
Executed middle management responsibilities
facilitated the
implementation of transformation policies through coordination of the
establishment of transformation units/forums
in the province.
Coordinated workshops for training the forums on the roles and
responsibilities.’
‘
1999-05-012
to 2006-03-31
. Transferred into
Department will transferred to South African Police Services. Chief
social worker (Department of Correctional
Services. Duties
coordinated HIV/AIDS, disability and victim empowerment programmes
for the management area. Participated in the
formulation of employee
assistance program policies for the management area. Participated in
a research, which evaluated the relevancy
of social work services for
the Department of Correctional Services. Executed middle management
responsibilities when delegated,
which included Supervision. Rendered
rehabilitation services to offenders.’
‘
2006-04-01
until present.
Chief Social Worker.
Duties performed: execute some management tasks when delegated.
Facilitate the implementation of the HIV-AIDS
and disability
management pro policies in workplace. Render pro-active and re-active
employee assistance services to management
and front line employees.
Advised SAPS and police, social worker management regarding trends
that can influence the work performance
and do strategic human
resource and then planning and development.’
[43] The minutes of
the evaluation panel were done away with. But as that panel
recommended the appellant one ought to be able to
infer that that
panel considered that the appellant had sufficient experience. But
this would be incorrect.
[44] Because of the
conflation of the Divisional Evaluation Panel and the Divisional
Commissioner’s function, the arbitrator
could not know what
that panel, if it had met on its own, would have decided. But the
arbitrator knew that this panel, under the
chairmanship of the
Divisional Commissioner, recommended that the post be re-advertised
saying: ‘The shortlisted candidates
have little or no
experience in the core functions of the post as advertised.’
[45] The reason for
the appellant having not been considered by the Divisional Evaluation
Panel/Divisional Commissioner was the
lack of core experience for the
post. Consequently, the commissioner who presided over the
arbitration proceedings was required
to evaluate this question with
regard to the evidence and with appropriate deference to the
evaluation.
[46] The evidence
before the commissioner by the Assistant Provincial Commissioner was
that the appellant had the potential to perform
the duties of the
post. The view of Director Stratford, who served on the Divisional
Evaluation Panel, was that the appellant did
not have sufficient
experience. The commissioner did not make a specific finding on the
suitability of the appellant having regard
to the Divisional Panel’s
Evaluation of his core experience for the post and the evidence. But,
clearly, this was the central
issue and the best evidence, aside from
the appellant’s own assessment of his suitability was that of
the Assistant Commissioner
who was of the view that he had potential;
meaning that he did not yet have the experience but he would be able
to acquire it.
[47]
The substantive issue as regards the appellant’s dispute with
his employer relates to the issue of his core experience
in the field
of disability management. The determination of whether the
appellant’s experience including “recognized
experience”
was such as to make him suitable for promotion is primarily a matter
for the employer and the arbitrator was
required to defer to this
decision when it is taken following a fair and proper process. In
this case the procedural deficiency
does not assist the appellant.
[48] The assessment
by the court
a quo
on this aspect is spot on and put paid to
the other complaints raised by the appellant including his reliance
on the employment
equity plan.
Conclusion
[49] A failure to
follow the prescribed process may often lead to a decision which is
substantively flawed. The so-called no difference
principle, is not
easily applied in the Labour Court nor in this Court mainly because
it devalues the role of process. But in this
case, it is clear that
even had the prescribed process been faithfully followed, the
appellant was simply not qualified, at that
time, for promotion to
post 6000.
Compensation for
procedural unfairness
[50] This brings me
to the question whether any compensation should be ordered for the
procedural irregularities which transpired
in the promotion process.
In deciding this issue, this Court is at large to decide it afresh as
the Arbitrator’s award of
compensation also took substantive
unfairness into account. I am of the view that it would not be fair
nor appropriate to order
compensation but the appellant should not be
mulcted in costs. The arbitrator awarded the costs of the arbitration
to the appellant.
This too was set aside on review. As the Divisional
Commissioner had been at fault, albeit without malice, it is
appropriate that
the Police Services bear the costs of arbitration
but not the costs of appeal.
Reinstatement
[51] As there is
partial merit in the appeal, it is appropriate to order that the
failure to prosecute the appeal be condoned and
the appeal be
reinstated on the roll.
[52]
The appellant has been partially successful; so has the Police
Services in opposing the appeal. It seems fair to make no order
as
regards the costs of appeal.
Order
[53] In the
premises, I make the following order:
1.
The failure to prosecute the appeal is
condoned and the appeal is reinstated on the roll.
2.
The appeal is partially upheld.
3.
The order of the Labour Court is replaced
by the following:
‘
1.
The arbitration award save for the order for costs is reviewed and
set aside.’
4.
There is no order as to the costs of the
appeal.
AA
Landman JA
Sutherland
JA and Mngqibisa-Thusi AJA concur in the Judgment of Landman JA
APPEARANCES:
FOR
THE APPELLANT: Mr C Mogane of Mohlaba and Moshoana Inc.
FOR
THE THIRD RESPONDENT: Adv Laka SC
Instructed
by the State Attorneys.
[1]
2014
(6) SA 123
(CC).
[2]
At para 47.
[3]
[2014]
2 BLLR 107 (SCA).
[4]
At para 60.