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[2016] ZALAC 64
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Health and Others Service Personnel Trade Union of South Africa (HOSPERSA) and Others v Member of the Executive Council (MEC) for Health, Eastern Cape and Others (PA2/2015) [2016] ZALAC 64; (2017) 38 ILJ 890 (LAC) (8 December 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Case no: PA 2/2015
In the matter between:
THE
HEALTH AND OTHER SERVICE PERSONNEL
TRADE
UNION OF SOUTH AFRICA (HOSPERSA)
First
Appellant
N.M.
GXOLO
Second Appellant
M.R.
PADAYACHY
Third Appellant
and
THE MEMBER OF THE
EXECUTIVE
COUNCIL (MEC) FOR
HEALTH, EASTERN CAPE
First Respondent
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
Second Respondent
F.A. BATWINI
N.O
Third Respondent
M.D
MANUEL
Fourth Respondent
Heard:
15 September 2016
Delivered:
08 December 2016
Summary: In a claim
for unfair labour practice relating to promotion- The Department of
Health, Eastern Cape, advertised a post
of Deputy Director: Clinical
Support Services. It set as a requirement that the job applicants be
registered with the Health Professional
Council of South Africa
(HPCSA). The individual appellants, although registered as required,
were unsuccessful. The successful
candidate was not registered with
the HPCSA but with the South African Nursing Council (SANC). The
arbitrator found that the department
could not justify the deviation
from the requirement set and concluded that it committed an unfair
labour practice against the
appellants. She ordered that the post be
re-advertised. The Labour Court reviewed and set aside the decision
of the arbitrator
on the basis that she gave no reasons for it and
remitted the matter to the Bargaining Council for arbitration
de
novo
before a different arbitrator. On appeal:
Held
,
the department failed to discharge the evidentiary burden to justify
the
departure from the requirements set for the position. T
he
deviation not only prejudiced the individual appellants but
disqualified potential candidates from applying.
Held
,
that although the arbitrator’s conclusion to the effect that
the appellants discharged the onus to prove their unfair labour
practice claim was not comprehensive and appeared to be terse, it
could hardly be said that she did not provide adequate reasons.
She
fully comprehended the nature of the enquiry she was required to
undertake and dealt with the primary issue. The decision reached
by
her, that the post be re-advertised, was justifiable on the facts.
The
order of the Court
a quo
substituted with an order dismissing
the review application.
Coram: Coppin JA,
Landman JA and Phatshoane AJA
JUDGMENT
PHATSHOANE AJA
[1]
Several applications served before the Labour Court. These included
inter alia
: The application to review and set aside the
arbitration award issued under Case No: PSHS88-10/11 by the third
respondent (the
arbitrator) under the auspices of the Public Health
and Social Development Sectoral Bargaining Council (PHSDSBC), the
second respondent;
the application for condonation of the late
filing of the review application by the Member of the Executive
Council (MEC)
for the Department of Health, Eastern Cape, the first
respondent; the application to dismiss the review application by the
Health
and other Service Personnel Trade Union of South Africa
(HOSPERSA), Ms Ntombizodwa Mirriam Gxolo and Ms Mano Ranjinee
Padayachy,
the first to the third appellants; and the application to
join HOSPERSA in the proceedings by the MEC for Health.
[2]
The appeal is not sought against the order of the Labour Court in
respect of the application for condonation of the late filing
of the
review application; the application to dismiss the review
application; and the application for joinder. It primarily lies
against the judgment and order of the Labour Court (per Lallie J) in
granting the application for the review and setting aside
of the
arbitration award issued under Case No: PSHS88-10/11 and remitting
the matter to the Bargaining Council for arbitration
de novo
before a different arbitrator. The appeal comes before us with leave
of that Court.
[4]
The dispute between the parties concerns an alleged unfair labour
practice relating to the promotion of Ms Ntombizodwa Mirriam
Gxolo
and Ms Mano Ranjinee Padayachy, the second and third appellants, by
the Department of Health, Eastern Cape (the department).
[5]
On 25 October 2009 the department advertised a post of Deputy
Director: Clinical Support Services. One of the requirements was
that
the job applicants must have “current registration with the
Health Professional Council of South Africa (HPCSA)”.
Gxolo and
Padayachy were both registered with the HPCSA. They applied for the
position but were unsuccessful. Padayachy was ranked
in the fourth
position whereas Gxolo, sixth position. Ms Marisha Desree Manuel, the
fourth respondent, was appointed. Gxolo and
Padayachy took no issue
with the panel scores as allocated to competing candidates. Their
major grievance was that Manuel did not
satisfy the requirements for
the position in that she was not registered with the HPCSA but with
the South African Nursing Council
(SANC). According to Gxolo, as
allied workers, this was the only position they could be promoted to.
In other words, the advertisement
targeted only HPCSA members. She
says that they would not have had a problem had the advertisement
specified that the incumbent
be registered with either the HPCSA or
the SANC, but it did not.
[6]
Ms Charmaine Jaggers, referred to as Ms Jacobs on the transcribed
record of the arbitration proceedings, is an Assistant Director:
Administration. She testified in the case of the MEC for Health,
Eastern Cape. The position of Deputy Director: Clinical Support
Services was newly created on the staff structure and had been
identified as critical. The advertisement was circulated to the
relevant managers to ensure that the requirements set out therein
were correct. She says that during the shortlisting process the
panel
had regard to the job applicants with appropriate experience and
engaged in a specific field. It also agreed to consider
other
candidates registered with other professional bodies apart of the
HPCSA.
[7]
The National Education, Health and Allied Workers Union (Nehawu) was
the only trade union that responded to the invitation to
attend the
shortlisting process and the interviews. According to Jaggers, Nehawu
had no quibbles with the procedures adopted during
the appointment
process. Manuel scored higher than all the other candidates that were
interviewed. She had qualifications in a
health related field
(nursing qualifications) as set out in the advertisement and was
registered with the SANC. Ms Jaggers could
not explain why it had
been set out in the advertisement as a requirement that the
applicants be registered with the HPCSA only
and made no mention of
the SANC as an alternative.
[8]
Having regard to the background sketched the arbitrator succinctly
ruled that insofar as the advertisement required the incumbent
to be
registered with the HPCSA, it meant that by appointing a candidate
who had not been registered with the HPCSA, the Department
of Health
deviated from the requirements set out in the advertisement. She was
of the view that the department did not justify
why the requirement
set in the advertisement was changed during the selection process.
The arbitrator then concluded that Gxolo
and Padayachy had discharged
the
onus
to prove that the department committed an unfair
labour practice against them. Resultantly, she ordered the Department
of Health,
Eastern Cape, to re-advertise the position by 15 January
2012.
[9]
In granting the application for the review and setting aside of the
arbitrator’s award the Court
a quo
reasoned as follows:
‘
[10]…A reading of the
arbitration award reflects that the arbitrator stated the version of
both parties before her and concluded
that she was satisfied that the
respondents had discharged the
onus
of proving that the applicant had committed an unfair labour
practice. She did not deal with the evidence before her and gave no
reasons for being satisfied that the
onus
of proof had been discharged. She was enjoined by section 138(7) of
the Labour Relations Act 66 of 1995 (“the LRA”)
to give
brief reasons for her decision. She gave none thus rendering her
award reviewable.’
[10]
The grounds of appeal can be fused into one. In the nutshell, Gxolo
and Padayachy contended that the Court
a quo
erred in
concluding as it did in the preceding paragraph and in setting aside
the award which was not only merely reasonable but
correct.
[11]
It is trite that the commissioner may conduct the arbitration in a
manner that the commissioner considers appropriate in order
to
determine the dispute fairly and quickly, but must deal with the
substantial merits of the dispute with the minimum of legal
formalities.
[1]
The following
lucid remarks by Ngcobo AJP (as he then was) in
County
Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration and Others
[2]
are apposite:
‘
[28] Given the finality of the
awards and the limited power of the Labour Court to interfere with
the awards, commissioners must
approach their function with caution.
They must bear in mind that their awards are final - there is no
appeal against their awards…”
[3]
The
learned Acting judge President proceeded as follows at 1715 para 39:
‘
[39]…..Though desirable
it may be,
it is not
expected of commissioners to write well researched and scholarly
awards. Awards must be brief and the proceedings before
commissioners
must be dealt with expeditiously.
See s 138(1) read with s 138(7)
(a)
. However, failure to deal with an important facet may, depending on
the circumstances of the case, provide evidence that the commissioner
did not apply his or her mind to that particular facet.’ (My
emphasis)
[12]
The facts of this case do not present any difficulty or require any
intricate analysis. The issues are largely common cause.
The long and
short of it is that the department appointed a candidate who was not
registered with the HPCSA contrary to the requirements
it laid down
and could not justify the deviation as found by the arbitrator. Not
only did this prejudice Gxolo and Padayachy but
disqualified other
potential candidates who may have applied but did not do so on the
basis of the requirements set. It was not
in dispute that had Gxolo
or Padayachy been appointed to the advertised position this would
have amounted to a promotion for them.
The arbitrator correctly
found, in my view, that although the SANC and HPCSA were health
professional bodies, the department had
not justified why the job
requirements were changed. Put differently, the department failed to
discharge the evidentiary burden
that had shifted to it to justify
the departure from the requirements set for the position. Although
the arbitrator’s conclusion
to the effect that Gxolo and
Padayachy discharged the
onus
to prove their unfair labour
practice claim was not comprehensive and appears to be terse, it can
hardly be said that she did not
provide adequate reasons for her
decision as found by the Court
a quo.
[13] The practice of
setting requirements for appointment and departing therefrom when
effecting the appointment was condemned as
follows in
Khumalo
and Another v MEC for Education, Kwazulu-Natal
[4]
‘
[62]
……Fairness in employment practices and labour relations
requires the state to be even-handed and transparent
not only to
those whom it employs, but so too to those who may wish to apply for
employment at a state institution. It would not
be fair if the state
were to employ persons who do not meet the very requirements that the
state itself sets. It is neither fair
nor in compliance with the
dictates of transparency and accountability for the state to mislead
applicants and the public about
the criteria it intends to use to
fill a post. The formulation and application of requirements for a
particular post are a minimum
prerequisite for ensuring the
objectivity of the appointment process. Persons who do not meet the
requirements for a post in the
public sector ought not to be
appointed.
[63]
But is the public sector permitted no flexibility in its appointment
process? If the ideal applicant happens not to meet one
of the formal
criteria, is a state employer barred from considering that applicant?
The reading of the corollary into s 11 of the
PSA [
The
Public Service Act, Proc 103 of 1994]
,
in the context of s 195 of the Constitution, implies that it would
generally not be fair or in terms of an objective process for
public-sector employers to consider applicants who fall outside of
the formal criteria. However, the fairness of the decision will
typically be weighted heavily on the process and justification of the
decision-makers….’
[5]
[14]
The arbitrator fully comprehended the nature of the enquiry she was
required to undertake and dealt with the primary issue.
The awards by
arbitrators might invariably not be flawless and complete. In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration and Others,
[6]
this Court made the
following instructive pronouncement:
‘
[16] In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated
the facts
presented at the hearing and came to a conclusion that is reasonable.
[17] The fact that an arbitrator
committed a process-related irregularity is not in itself a
sufficient ground for interference
by the reviewing court. The fact
that an arbitrator commits a process-related irregularity does not
mean that the decision reached
is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18] In a review
conducted under s 145(2)
(a)
(ii)
of the LRA, the reviewing court is not required to take into account
every factor individually, consider how the arbitrator
treated and
dealt with each of those factors and then determine whether a failure
by the arbitrator to deal with one or some of
the factors amounts to
process related irregularity sufficient to set aside the award.
This
piecemeal approach of dealing with the arbitrator's award is improper
as the reviewing court must necessarily consider the
totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision maker could
make’
[7]
.
(with emphasis)
[15]
The ultimate decision reached by the arbitrator that the post of
Deputy Director: Clinical Support Services be re-advertised
is
justifiable on the facts of this case. I am satisfied that the award
of the arbitrator falls within the band of reasonable
decision-makers. This much, Mr Simoyi, for the MEC, sensibly
conceded. On the whole, I am satisfied that the arbitrator did not
commit any gross irregularity which justified the reviewing and
setting aside of his award. It follows that the review application
by
the MEC ought to have been and stands to be dismissed.
[16]
In a situation where there is an ongoing employment relationship
between the parties, such as the present, the Court would
be slow to
make costs orders against any of them. However, in this case, the
department could be said to have acted unreasonably
in resisting the
appeal and in the end conceding that the opposition was
unmeritorious. The appellants should not be out of pocket.
I am
satisfied that the requirements of law and fairness dictate that the
costs should follow the result of this appeal.
Order
[17] In the result, the
following order is made:
1.
The appeal
is upheld with costs as against the first respondent ( the MEC for
Health), Eastern Cape;
2.
Paras 10.4
and 10.5 of the order of the Court
a
quo
are
set aside;
3.
The order
of the Court below is substituted with the following:
‘
1.
The application for joinder is granted;
2.
The application to dismiss the review application is dismissed;
3.
The application for the condonation of the late filing of the review
application
is granted;
4.
The application to review and set aside the arbitration award issued
by the Public
Health and Social Development Sectoral Bargaining
Council under case No: PSHS88-10/11 dated 12 December 2011 is
dismissed.’
____________________________
MV
Phatshoane
Acting
Judge of the Labour Appeal Court
Landman
JA and Coppin JA concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR
THE APPELLANT:
A Christison
Instructed by Llewellyn
Cain Attorneys
FOR
THE FIRST RESPONDENT:
Adv M Simoyi
Instructed by State
Attorney
[1]
See
s138(1)
of the
Labour Relations Act, 66 of 1995
.
[2]
(1999) 20 ILJ
1701 (LAC).
[3]
At 1712 para 28.
[4]
2014 (5) SA 579
(CC).
[5]
At 597-598 paras
62-63.
[6]
(2014) 35 ILJ 943
(LAC).
[7]
At 949D-G paras
16-18.