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[2016] ZALAC 6
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Nelson Mandela Metropolitan Municipality (NMMM) v Mkumatela and Others (PA/10/2011) [2016] ZALAC 6; [2016] 6 BLLR 585 (LAC) (19 February 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PA/10/2011
In the matter between:-
NELSON MANDELA
METROPOLITAN
MUNICIPALITY
(NMMM)
Appellant
and
TSEDISO MKUMATELA
First Respondent
S V P MAFONGOSI
Second Respondent
NYAMEKO GQAMANA
N.O.
Third Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Fourth Respondent
Heard
:
24
November 2015
Delivered
:
19
February 2016
Summary
:
Alleged
unfair labour practice related to non-appointment – policy
making no provision in case of deadlock concerning consensus
on the
appointment of a candidate – employer taking into account
observers’ scores in order to resolve the impasse-
candidate
claiming unfair labour practice and proposing arithmetical mean of
panel members’ score – employer not breaching
policy -
procedure adopted more transparent, fair and objective.
Commissioner’s award reasonable – Labour Court’s
judgment set aside. Appeal upheld.
Coram: Waglay JP, C J
Musi JA e
t
Savage AJA
JUDGMENT
C J MUSI JA
[1] This is an appeal
against the judgment of the Labour Court (Cawe AJ), wherein it set
aside the award rendered by the third respondent
(the Commissioner),
and referred the matter back to the fourth respondent (the South
African Local Government Bargaining Council)
to be arbitrated by a
Commissioner other than the third respondent.
[2] The first and second
respondents are employees of the appellant. Both of them applied,
were shortlisted and interviewed for
the position of Assistant
Manager: Operations in the Environmental Services Business Unit
(ESBU) (the position). Sixty two (62)
persons applied for the
position of which only eight were shortlisted and interviewed. The
second respondent was appointed. The
first respondent, being
dissatisfied with the said appointment, launched review proceedings
in the Eastern Cape High Court, Port
Elizabeth. The High Court
(Revelas J) rejected the appellant’s contention that it did not
have jurisdiction to adjudicate
the dispute. It went on to consider
the merits of the dispute and dismissed the application. The first
respondent subsequently
appealed to the Supreme Court of Appeal
against the judgment of the High Court. The Supreme Court of Appeal,
without considering
the merits, dismissed the appeal on the ground
that the High Court did not have jurisdiction to adjudicate the
dispute.
[3] The first respondent
then referred the dispute to the fourth respondent. Conciliation did
not yield a positive result.
The matter was referred to
arbitration. The Commissioner dismissed the first respondent’s
claim. The Commissioner’s
award, as stated above, was set aside
by the court
a quo
. The appellant appeals with the leave of
this Court against the judgment of the Labour Court.
[4] The appellant adopted
a recruitment, selection and placement policy on 17 July 2002. It was
not in dispute that the said policy
was applicable to the filling of
the post under discussion. The objectives of the policy are
inter
alia
:
4.1 To
introduce fair and objective principles and procedures for the
staffing of the Municipality.
4.2 To
provide guidelines for the appointment of candidates to the NMMM.
4.3
To reduce the potential for labour disputes resulting from the
recruitment, selection and appointment processes.
[1]
[5] In terms of the
policy document, the position was at middle management level and the
interviews were to be conducted by the
appointments committee
consisting of the Human Resources Manager or his/her proxy and the
Manager of the ESBU or his/her proxy.
The Affirmative Action Officer
and a representative of each of the two in-house trade unions had
observer status. The ESBU Manager
was supposed to be the chairperson
of the appointments committee, however a chairperson was not
appointed. The appointments committee
were to send their
recommendation to the Municipal Manager who would make the
appointment in consultation with, the Executive Mayor.
Although the
observers had no voting right, they were required to keep score
sheets, which were kept as part of the records of
the selection
process.
[6] In
terms of the policy, the appointments committee should discuss
suggestions on whom to appoint and attempt to reach consensus,
as far
as practically possible. The final decision to appoint was to be made
at the discretion of the Municipal Manager, with the
Executive Mayor
reserving the right to change or amend that appointment.
[2]
[7] During the
interviews, the ESBU was represented by Ms Nozuko Zamxaka, Manager:
Waste Management and the Human Resource Manager
was represented by Mr
Jamda. Ms Mdaka was the Affirmative Action Officer whilst the unions
were represented by Ms Meltz and Mr
Gwadela respectively.
[8] The scores of the
ESBU and the HR representatives were diagrammatically as follows:
CANDIDATE
HR JAMDA
RANKING
ESBU ZAMXAKA
RANKING
Mafongosi
44.5
(1)
33.5
()
Skweza
42.5
(2)
40
(2)
Mkumatela
42.5
(2)
41
(1)
Malaka
41
(5)
32
(3)
[9] The above diagram
illustrates that the HR representative ranked the first respondent
second and the second respondent first
whilst the ESBU representative
ranked the first respondent first and did not rank the second
respondent amongst the top three.
[10] The HR
representative and the ESBU representative unsuccessfully attempted
to reach consensus. Ms Zamxaka was of the view that
the aggregate of
her and Jamda’s scores should be used. The result would then be
that the first respondent would be ranked
first with 83.5 points and
the second respondent would be ranked third with 78 points. Mr Jamda
disagreed.
[11] In a report dated 3
April 2006, Ms Zamxaka wrote to the Business Unit Manager:
Environmental Services and
inter alia
stated the following
about the process: “On the basis that consensus could not
be reached, it was noted that the final
decision would have to be
made by the Acting Municipal Manager and that a report indicating the
deliberations would be prepared
by HR. Subsequently, HR advised
that the scores of all penal members i.e. including the observers
(union) (sic) be added
and the totals would determine the preferred
candidate. This was conducted amid indication from the Business Unit
that only two
scores i.e. Jamda and Zamxaka should be considered…
However, at 17h45, the HR recommendation was signed by all parties
with
an agreement that a report would accompany such and would be
submitted to the Environmental Services Business Unit Manager for a
final decision.”
[12] It is clear that
reference to the ESBU Manager in the last sentence is a mistake
because, firstly, in the same report, she
says that the final
decision would have to be made by the Acting Municipal Manager and
secondly HR wrote to the Acting Municipal
Manager on 6 April 2006. I
pause to set out the scores of the observers before reproducing some
of the contents of the HR Acting
Business Unit Manager. The
observers’ scores were diagrammatically as follows:
CANDIDATE
UNION (Meltz)
UNION (Geraldela)
EE Mdaka
Mafongosi
40
(1)
44
(1)
39
(1)
Skweza
39
(2)
34
(2)
38
(2)
Mkumatela
31
(3)
31
(3)
36
(3)
[13] All the observers
ranked the second respondent first and the first respondent third.
Therefore, everyone who attended the interviews
and allocated points
to the candidates, except Zamxaka, ranked the second respondent
first.
[14] On 6 April 2006, Mr
Ndoyana, the Acting Business Unit Manager: Human Resources wrote to
the Acting Municipal Manager setting
out that interviews were
conducted on 30 March 2006 for the position and who formed part of
the panel. He further stated that:
‘
Note that
officially only the representatives from Human Resources and the
applicable Business Unit were entitled to score.
A difference of opinion pertaining to
the preferred candidate existed between the Human Resources
representative vis a vis the representative
from the Business Unit
and in an effort to attempt to reach consensus, the panel was
reconvened on 3 April 2006 and in the absence
of the Unions who were
requested to recuse themselves during the deliberations among the
representative of the Business Unit, the
Human Resources
representative and the Employment Equity representative.
Undeniably the scores reflected on the score sheets
of the Human
Resources representative and that of the Employment Equity
representative both supported Mr SVP Mafongosi as the preferred
candidate. (Note that notwithstanding the fact that Employment
Equity and the in-house Unions have no status insofar as scoring
is
concerned, these role-players are nevertheless allowed to complete
score sheets for their own benefit. These score sheets
are
however always retained for record purposes.)
The aforementioned effort
notwithstanding the deadlock still remained and in an effort to
resolve that impasse, the two Unions were
called into the meeting and
requested to reveal their choice of the preferred candidate.
Both Unions confirmed that, in terms
of their score sheets, Mr
Mafongosi was undeniably the preferred candidate.
In terms of established procedure the
undermentioned documentation is submitted for your kind consideration
and confirmation of
Mr SVP Mafongosi as the preferred candidate.’
[15] The second
respondent was appointed by the Acting Municipal Manager. On 18 April
2006, the first respondent’s attorneys,
Randell-Oswald
Incorporated, wrote to the Acting Municipal Manager complaining that
the process leading up to the appointment of
the second respondent
was flawed because it was irregular, unfair and unprocedural. The
first respondent requested the Acting Municipal
Manager to withdraw
or set aside the appointment of the second respondent. The first
respondent pointed out to the Acting Municipal
Manager that there was
no deadlock because the aggregate point should have been considered
in making the recommendation of the
HR and ESBU representatives. The
Acting Municipal Manager did not respond to the letter.
[16] The parties did not
adduce any
viva voce
testimony at the arbitration. They agreed
that the facts were common cause and submitted a consolidated bundle
of documents to
the Commissioner. They agreed that the issue that the
Commissioner had to decide was whether the appellant committed an
unfair
labour practice by taking the scores of the observers into
account.
[17] The Commissioner
rejected the first respondent’s contention that the “average”
scores of Jamda and Zamxaka
were supposed to have been used to make
the recommendation. The Commissioner found that approach too
simplistic. The Commissioner
also found that the committee had to
adopt an unorthodox approach to break the deadlock. He said the
following:
‘
I am
satisfied that this approach was fair and sensible in the
circumstances, although I am fully aware that this approach is
neither
sanctioned, nor prohibited by the first respondent’s
(Municipality) selection policy.’
He
however went on to state the following:
‘
In addition,
I am also bound by the findings of Revelas J in her judgment
mentioned above that, when disagreement between the scorers
occurs,
it is imminently reasonable to call upon the other members of the
existing panel for their input.’
He
concluded that the appellant did not commit an unfair labour
practice.
[18] The Labour Court
correctly found that the Commissioner could not be bound by the High
Court’s decision in circumstances
where the Supreme Court of
Appeal found that the High Court did not have jurisdiction to hear
the matter. The court
a quo
concluded as follows:
‘
In the
instant case I find that the decision maker (the Commissioner)
misdirected himself by adhering to Revelas J’s findings
and by
so doing made a decision that a reasonable decision maker could not
make.’
[19] The Labour Court
found that the Commissioner did not explain why he found the first
respondent’s approach that the scores
of the two panellists
should be “averaged” simplistic. The court
a quo
was of the view that the Commissioner did not explain why he found
the selection committee’s deviation from the prescribed
procedure acceptable.
[20] The appellant
contended that the court
a quo
adopted a narrow approach by
confining itself to the question whether the Commissioner found as he
did simply because he considered
himself bound by Revelas J’s
judgment.
[21] The first respondent
contended that there could be no doubt that the Commissioner based
his own findings on Revelas J’s
findings which could in any
event not prevail because the High Court did not have jurisdiction to
adjudicate the matter. He further
contended that even if it is
accepted that the Commissioner embarked upon his own assessment of
the facts; the decision was still
not one which a reasonable
decision-maker could make, given the failure of the appointments
committee to adhere to the provisions
of the policy.
[22] The appellant and
the first respondent were
ad idem
that the Commissioner was
correct in stating that the only issue that he had to decide was
whether the appellant committed an unfair
labour practice in taking
the scores of the observers into account when the recommendation was
made to the Acting Municipal Manager.
[23]
Fairness involves making a value or moral judgment. What is fair in
one case may not be fair in another. The assessment of
fairness is
therefore a fact specific and not a fact free enquiry. There is
therefore no right or wrong answer, when fairness is
assessed, and
the review court must therefore defer to the decision of the
Commissioner. In assessing whether an unfair labour
practice was
committed, the Commissioner had to have regard to what was said in
National
Union of Metalworkers of SA v GM Vincent Metal Sections (Pty) Ltd
[3]
that:
‘
It is
necessary to have regard to what was fair in all the circumstances
and to apply the concept of fairness in accordance with
the rules and
norms that have evolved in the field of labour jurisprudence. This is
not to say that a decision on fairness is a
decision on a question of
law in the strict sense: it is the passing of a moral judgment on a
combination of findings of facts
and opinions.”
[4]
[24] If the
Commissioner’s assessment of fairness is one that a reasonable
Commissioner could make, then there would be no
reason to set the
Commissioner’s award aside. If the decision of the Commissioner
is one which a reasonable Commissioner
could make then the decision
of the Commissioner should prevail. This Court must, in assessing the
decision of the Commissioner,
be cautious not to substitute its own
assessment (or determination of fairness) for that of the
Commissioner.
[25] This case was badly
prepared, pleaded and presented. There is no allegation that the post
was a promotion post as opposed to
a parallel level post for the
first respondent. It was assumed that appointment to the post would
not be a parallel appointment
but a promotion. The first respondent
rushed to the High Court to have the process leading up to the
appointment of the second
respondent set aside without asking the
Acting Municipal Manager for his reasons for appointing the second
respondent.
[26] The first
respondent, in his founding affidavit in the court
a quo
,
blamed the appellant for not advancing rational reasons for not
appointing him whereas he did not ask for such reasons. He stated
the
following in his founding affidavit:
‘
Apart from
the fact that there ought to have been no lack of consensus had the
committee behaved rationally, the provisions of clause
4.6 of the
policy document make it clear that the decision as to who should be
appointed is a discretionary one. Such a decision
would also
have to stand the test of rationality and the doctrine of legality.
Ignoring the legitimate scoring record would not
be a rational
decision unless appropriate and rational reasons were in fact
advanced.’
[27] The first respondent
was supposed to ask the appellant for the reasons for the appointment
of the second respondent instead
of him. Having received such, he was
supposed to assess whether those reasons are rational before rushing
to court to set the decision
aside because the process was ostensibly
flawed. It must be pointed out that a flawed process does not
necessarily lead to a flawed
decision where the decision-maker
applies his/her discretion rationally. Likewise, a proper process
would not necessarily lead
to a proper exercise of discretion. In
this matter, the Acting Municipal Manager exercised his discretion to
appoint the second
respondent. There is no allegation that he
exercised his discretion arbitrarily, capriciously or upon a wrong
principle. What is
being challenged is only the process leading up to
the Acting Municipal Manager making the decision. Although it was not
specifically
pleaded, I will assume that the unfair labour practice
relates to the non- promotion of the first respondent.
[28]
Section 186(2)(a) of the Labour Relations Act
[5]
reads as follows:
‘
Unfair
labour practice means an unfair act or omission that arises between
an employer and an employee involving unfair conduct
by the employer
relating to the promotion … of an employee.’
[29] The unfair conduct
complained of, as I understand the first respondent, was the flawed
process. The first respondent assumed
that the Acting Municipal
Manager approved the appointment based solely on the recommendation
of the HR Business Unit Manager,
who, in turn, based his
recommendation on the flawed and unsanctioned process followed by the
appointments committee. The unfairness
seemingly lies in the manner
in which the appointment committee handled the matter.
[30] In the court
a
quo
, the first respondent argued that the decision of the
Commissioner is not one which a reasonable Commissioner could reach
because
the Commissioner found that the first respondent contended
that the scores of the two panellists should have been averaged
whereas
he argued that they should have been added up.
[31] On the facts of this
case, the above submission is of no value. Whether one uses the
average score of the two panel members
or the aggregate of their
scores; the result would still be that the first respondent would get
the higher score. This is so because
the aggregate of the scores were
as follows:
First
respondent 83,5
Second
respondent 78
The
average scores would be as follows:
First
respondent 83.5 ÷ 2 = 41.75
Second
respondent 78 ÷ 2 = 39
[32] The Commissioner was
aware that the mathematical basis advanced by the first respondent
favoured him. Therefore whether one
used the aggregate or the
arithmetic mean, the result would still be the same; the first
respondent would score higher. The Commissioner
was of the opinion
that this approach was too simplistic compared to the one which was
followed and which he favoured.
[33] The first respondent
contended that there was no deadlock because the first respondent
would have a superior score if the scores
of the two panellists with
voting rights were added up. This submission is incorrect. It is
clear that all the parties accepted
that there was a deadlock in that
the HR representative and the Business Unit representative could not
reach consensus. The policy
did not make provision for how the
deadlock could be broken. Adding up the scores of the two panellists
with voting rights was
one option. Looking at the entire picture by
having regard to the scores of the other panel members (observers)
was another option.
The latter option was chosen. The first
respondent obviously favours the arithmetical option but the
appellant and the Commissioner
favoured the total picture approach.
[34] The Commissioner
said the following in this regard:
‘
The only two
panellist, who were entitled to score, could not reach consensus on a
preferred candidate. Mr Jamda identified
the second respondent
as the preferred candidate, whereas Ms Zamxaka’s preferred
candidate was the applicant. In the
circumstances, the
Committee had to adopt an unorthodox approach in order to resolve the
deadlock. That approach was to allow
scores of the observers to
be taken into account in making its recommendation to the Municipal
Manager. I am satisfied that
this approach was fair and
sensible in the circumstances, although I am fully aware that this
approach is neither sanctioned, nor
prohibited by the first
respondent’s selection policy.’
[35] It is clear that the
Commissioner used is own reasoning and assessment to come to the
conclusion that he reached. His award
on this issue could have ended
there. He however, decided to overkill the point by saying:
‘
In addition,
I am also bound by the findings of Revelas J in her judgment
mentioned above that, when disagreement between the scorers
occurs,
it is imminently reasonable to call upon the other members of the
existing panel for their input…’
[36] This paragraph was
totally unnecessary and did not influence the Commissioners
independent reasoning. It is for that reason
that he started the
paragraph with the words “in addition”. Those words were
used to make plain that he had already
reached a conclusion on the
point but in addition to his reasoning, Revelas J’s reasoning
also found resonance. In my view,
the court
a quo
was wrong in
its finding that the Commissioner based his decision solely on
Revelas J’s judgment.
[37] Although the
observers had no voting rights they sat through the entire interview
process. They observed the candidates, made
notes of their answers
and scored each candidate. When their scores were revealed they all,
without exception, gave the second
respondent a higher score than the
first respondent. The first respondent’s contention that the
scores were thus manipulated
to his prejudice is without merit. The
policy is merely a guide and not the law of the Medes and the
Persians. It did not seek
to dictate, it merely guided. It did not
even have a guide as to how a deadlock should be resolved.
[38] The process
suggested by the first respondent is open to abuse and malfeasance,
because all that one panellist has to do is
to give one candidate a
very high score and the other a very low score in order to load the
dice in favour of his/her preferred
candidate. This can surely not be
a fair and objective procedure to fill vacancies. The procedure
adopted to request the observers
to reveal their scores is indeed
more transparent and objective. It is less susceptible to malfeasance
than the arithmetic mean
approach suggested by the first respondent.
It is also not inherently unfair. The Commissioner’s decision,
on the facts of
this case, is one which a reasonable decision-maker
could reach.
[39] The matter was
postponed on a previous occasion at the instance of the first
respondent. Mr Partington contended that the first
respondent should
be ordered to pay the costs occasioned by such postponement. This
matter has a protracted history in which the
first respondent tried
to vindicate, albeit unsuccessfully, his right. The first respondent
was already mulcted in costs, which
includes the costs of two counsel
by the Supreme Court of Appeal. The dictates of fairness and the law
militate against a costs
order.
[40] The following order
is made:
(a)
The
appeal is upheld with no order as to costs;
(b)
The
order of the court
a
quo
is set aside and replaced with the following:
The
review application is dismissed with no order as to costs.
______________
C J Musi JA
Waglay, JP and Savage AJA
concur in the judgment of C J Musi JA.
APPEARANCES
FOR THE APPELLANT:
Mr Partington
Instructed by
Chris Baker & Associates
Port
Elizabeth
FOR THE FIRST
RESPONDENT: Michael
Randall Attorneys.
Port
Elizabeth
[1]
See Clause 1 of
the policy document.
[2]
Clause 4.6 of the
policy document.
[3]
(1999) 20 ILJ 2003
(SCA).
[4]
At para 18.
[5]
66 of 1995.