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[2017] ZALAC 1
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Ncane v Lyster NO and Others (DA27/15) [2017] ZALAC 1; (2017) 38 ILJ 907 (LAC); [2017] 4 BLLR 350 (LAC) (10 January 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 27/15
In the matter between:
H N NCANE
Appellant
and
R LYSTER NO
First Respondent
SAFETY AND SECURITY
SECTORAL
BARGAINING COUNCIL
(SSSBC)
Second Respondent
NATIONAL COMMISSIONER
OF THE SOUTH
AFRICAN POLICE
SERVICE
Third Respondent
S
KHAMBULE
Fourth Respondent
Heard:
8 November 2016
Delivered:
10 January 2016
Summary: The appellant
applied for promotion to the post of Captain in the SAPS. Another
candidate was recommended and appointed.
The appellant unsuccessfully
challenged the decision in arbitration proceedings on a number of
grounds. On review the Labour Court
awarded him an extra point for
prior learning but although unhappy with the score awarded by the
panel for experience awarded him
compensation and not protective
promotion. On appeal, and in the absence of a cross-appeal against
this order, the LAC was bound
by the Labour Court judgment as regards
the aforementioned score. As regards the score awarded for
appellant’s experience,
the LAC held that an arbitrator may
only interfere with an employer’s substantive decision to
promote a certain person (as
opposed to a procedural decision where
objective criteria have set) where the decision is irrational,
grossly unreasonable or mala
fide unless the employer has set an
objective standard. The decision reached by the arbitrator was
a reasonable one. The
appeal was dismissed with costs.
Coram: Tlaletsi DJP,
Ndlovu JA and Landman JA
Neutral citation:
H N
Ncane v National Commissioner of the South African Police Service
(LAC
:
DA 27/15)
JUDGMENT
LANDMAN JA
Introduction
[1] Warrant Officer HN
Ncane, the appellant, appeals with leave of the Labour Court (Nel AJ)
against part of the judgment delivered
on 8 December 2014 granting
compensation for an unfair labour practice concerning the South
African Police Service, the third respondent
(the SAPS), to promote
the appellant to the position and rank of captain.
[2] Two applications for
condonation for lapses attributable to the appellant were lodged.
There was no objection to the granting
of these applications. The
delays have been adequately explained and consequently condonation
was granted.
The background facts
[3] In promotional phase
1 2009/2010, SAPS advertised “post 337 Wentworth,
subcomponents: Detective service station: Sub-section
commander,
Captain level 8”. The appellant, a warrant officer on level
seven, was eligible to apply and did so as did other
applicants.
Eight candidates were shortlisted for interviews, including the
appellant and the fourth respondent.
[4] The promotion process
was governed by National Instruction 2 of 2008 of the SAPS (the
National Instruction).
[5] The interview panel
scored the candidates on three criteria namely competency, based on
the interview questions and answers,
prior learning, training and
development and lastly record of previous experience.
[6] According to the
testimony of Major-General Chiliza, the chairperson of the
three-person interview panel, qualifications are
scored by awarding a
maximum of 10 points, as follows:
‘
Holding a
Matric certificate - 5 points
Holding a ‘National
Diploma/Undergraduate’ degree – 1 point
Holding an ‘Honour’s
degree or a B. Tech then that is a first post-graduate’ or
‘National Higher Diploma’
– 1 point
Holding a Master’s degree –
1 point
Holding a Doctorate – 1 point
Completing a Detective course- 1
point.’
[7] It is only necessary
to present the appellant’s and the fourth respondent’s
scores as regards prior learning and
training. Appellant was scored 7
(Matric 5, Nat dip and LLB 1, (Detective course 1). The fourth
respondent was scored 6 (Matric
5, Detective course 1).
[8] As regards
competency, the appellant was scored 5 while the fourth respondent
was scored 6.
[9] The Major-General
took the view that experience is taken into consideration by the fact
that the appellant and other candidates
were shortlisted. In
addition, experience was adjudicated on the answers given to
questions put to candidates by the panel. The
appellant was scored 5
and the fourth respondent 6.
[10] The appellant became
a constable on 11 June 1991. He was promoted to sergeant on 1 January
1996. On 1 April 1999, he was promoted
to inspector (now again known
as a warrant officer). At this time, he joined the detective branch.
He became a group supervisor,
then an acting branch commander and
finally a crime office commander.
[11] The fourth
respondent became a constable on 8 April 1994 until he was promoted
to sergeant on 1 July 1996. He was assigned
to the detective branch
on 10 January 2000. He was promoted to inspector on 1 July 2001. He
became a group supervisor after this
date.
[12] The scores totalled
17 for the appellant and 18 for the fourth respondent.
[13] In accordance with
National Instruction, where two candidates of the same race or gender
apply for a promotion, the candidate
with the highest score must be
recommended for promotion.
[14] In this round,
Warrant Officer Lutchman scored the highest points followed by the
fourth respondent. The appellant and Yarley
scored equal points.
Lutchman and Yarley were eliminated as Employment Equity came into
play. The result was that the fourth respondent
was recommended by
the panel for promotion and was subsequently promoted.
The arbitration
[15] The appellant was
dissatisfied and referred a dispute (against SAPS) concerning an
alleged unfair labour practice to the Safety
and Security Sectoral
Bargaining Council. Certain documents that should have been kept by
the panel that interviewed the candidates
were not disclosed simply
because the individual scores allocated by each panellist were
consolidated on one sheet of paper.
[16] The arbitrator heard
evidence and found in favour of SAPS.
The judgment of the
court
a quo
[17] The appellant was
dissatisfied with the arbitrator’s award and launched an
application to review and set aside the award.
[18] The appeal is
directed only against paragraph 22 of the judgment of the court
a
quo
which contains both the reasons of the court
a quo
and
the order that was made. The result is that it is unnecessary to
summarise the entire judgment. But I must record that the
court
a
quo
awarded the appellant one extra point in respect of
appellant’s qualifications. Although the court
a quo
was
concerned about whether the panel had evaluated the appellant’s
experience correctly the court did not award him an extra
point for
this. The appellant’s amended score totalled 18 as against the
fourth respondent’s score of 18.
[19] There is no appeal
and no cross-appeal as regard the award of an extra point to the
appellant for holding an LLB degree. The
result is that this Court is
not at liberty to reconsider this finding and it stands.
[20] The order appealed
against in paragraph 22 of the judgment reads:
‘
Given the
fact that I am unable, on the evidence before me, to state that the
applicant ought to have been preferred to the fourth
respondent, I
cannot afford relief in the form of the protected promotion he seeks.
The only appropriate relief, in the circumstances,
is compensation
for the applicant. In this regard, I consider it fair and equitable
that the applicant be awarded five (5) months
compensation calculated
at the rate of his remuneration as per the date of the arbitration
award, being 11 December 2011.’
[21] The appeal, from the
appellant’s perspective, rests on the foundation that the court
a quo
has reviewed the decision of the first respondent, an
arbitrator of the Safety and Security Sectoral Bargaining Council,
and has
found that SAPS committed an unfair labour practice ie; the
failure to promote the appellant was substantively and procedurally
unfair. Ms A Naidoo, who appeared for the appellant, emphasised that
the appellant did not appeal against the court
a quo’
s
award of an extra mark in respect of his qualifications. On this
premise, the issue is whether an arbitrator, acting reasonably,
should have ordered the “protected promotion” of the
appellant. The appellant contends that as the court awarded that
extra point and as the court
a quo
conceded, in granting leave
to appeal, that in the light of his experience the court should have
found that he should have been
promoted, and therefore the court
should have granted the appellant different relief ie protective
promotion, the appeal must succeed.
[22] Ms LR Naidoo, who
appeared for SAPS, accepted that SAPS was limited in its opposition
to the appeal because SAPS had not cross-appealed.
Her principal
contentions can be summarised as follows:
(a)
A piecemeal dissection of the point allocation made by the court
a
quo
runs
contrary to the general approach adopted by the court regarding
promotion. See
Goliath
v Medscheme (Pty) Ltd
[1]
where it was said:
‘
Inevitably,
in evaluating various potential candidates for certain position, the
management of an organization must exercise discretion
and form an
impression of those candidates. Unavoidably this process is not a
mechanical or mathematical one where a given result
automatically and
objectively flows from the available pieces of information. It is
quite possible that the assessment made of
the candidates and the
resultant appointment will not always be the correct one. However, in
the absence of gross unreasonableness,
which leads the court to draw
an inference of mala fides, this court should be hesitant to
interfere with the exercise of management’s
discretion.’
(b)
It would be artificial and speculative to seek to analyse the score
allocated for experience
in the manner advocated by the appellant as
the panellists had the benefit of observing the candidates during the
interviews and
making assessment of their suitability in relation to
the experience; and
(c)
In the absence of
mala fides
and as long as the decision can
be rationally justified, mistakes in the process of evaluation do not
constitute unfairness justifying
an interference with the decision to
promote. Accordingly, even if it is found that the appellant should
have scored one point
more for experience, it would only place he
appellant, one point ahead of the fourth respondent. This finding, in
the absence of
any
mala fides
, cannot entitle the appellant to
protective promotion.
Evaluation
[23] At the outset, it is
essential to appreciate how an arbitrator must approach a dispute
concerning an unfair labour practice
as defined in
section 186(2)(a)
of the
Labour Relations Act 66 of 1995
ie “any unfair act or
omission that arises between an employer and employee involving
unfair conduct by the employer relating
to the promotion … of
an employee….” The Labour Court is obliged to approach a
review on the same footing save
that the ambit of its decision may be
limited by the grounds of review. Likewise, this Court will approach
an unfair labour practice
in the same way save that in arriving at
our decision we may be limited by the grounds of review and also the
grounds of appeal.
[24]
The purpose of promoting an employee is usually because the
employer’s organisation has a vacancy for a person to perform
a
particular task and candidates for promotion are employees
functioning at a lower level who possibly have the qualifications,
skills and ability to perform the tasks of the higher position. Good
labour relations dictate that an employer must act fairly
towards its
employees. In the context of promotion, this means that an employer
must abide by the law and the objective standards
and criteria that
it has set for promotion including eligibility for the post and
ensure that an eligible employee has a fair opportunity
to compete
for the post.
[2]
It is usually
said that this leg of the promotion process must be procedurally
fair. But as the aim of a fair process is to achieve
a fair
substantive result, procedural unfairness may result in the final
decision itself being substantively unfair.
[25]
When it comes to evaluating the suitability of a candidate for
promotion, good labour relations expect an employer to act fairly
but
it also acknowledges that this is not a mechanical process and that
there is a justifiable element of subjectivity or discretion
involved. It is for this reason that the discretion of an arbitrator
to interfere with an employer’s substantive decision
to promote
a certain person is limited and an arbitrator may only interfere
where the decision is irrational, grossly unreasonable
or
mala
fides
.
See on this
Goliath
v Medscheme
(supra).
[3]
[26] But where an
employer provides that certain rules apply as regards the decision to
promote or to recommend a candidate for
promotion, eg as in this
case, the candidate who scores the most points must be recommended by
the panel, good labour relations
requires an employer to be held to
this. A failure to comply with the rules may result in substantive
unfairness.
[27]
In the case where another person has been promoted to the post then
the unsuccessful candidate must show that this is unfair.
And as
Wallis AJ (as he then was) said in
Ndlovu
v Commissioner for Conciliation, Mediation and Arbitration and
Others
:
[4]
‘
That will
almost invariably involve comparing the qualities of the two
candidates. Provided the decision by the employer is
rational
it seems to me that no question of unfairness arises.’
[5]
Qualifications and
prior learning
[28] Before turning to an
examination of the scores, I should deal with the appellant’s
submission that as the individual
scorecards were not made available
that the process was unfair. But the evidence is that the individual
scores were collated/consolidated
and the average score became that
of the entire panel. Nothing turns on the missing individual
scorecards.
[29] The scoring of
candidates on the basis of prior learning is an objective standard.
The National Instruction makes reference
to the NQF (National
Qualification Framework) so that the qualifications were to be rated
according to this standard. These scores
were compiled on the
strength of documentation presented by each candidate. There was some
debate about whether a candidate should
be given one point for each
diploma or degree that he or she may possess, but as the total is
limited to 10 points, it must be
accepted that one point is awarded
in each category regardless of the number of diplomas or degrees. The
Major-General wrongly
regarded a B Tech as a post-graduate degree.
[30] The appellant
submits that, applying the criteria mentioned by Major-General, he
should score an 8 as the LLB degree is a post-graduate
degree. The
appellant was awarded his LLB by the University of Zululand in 2007.
It is not a post-graduate degree. It was not preceded
by any other
degree. It is therefore a first degree. A National diploma and a
first degree are rated on the same level. Although
the appellant has
both a national diploma and a first degree, they are counted as one
on the criteria listed by the Major-General.
[31] The court
a quo
considered that the appellant’s LLB counted for one extra
point. There is no cross-appeal and the appellant does not challenge
this finding therefore this decision prevails.
Competency
[32] No complaint is made
as regards this factor. The appellant was scored a 5 and the fourth
respondent a 6.
Experience
[33] Initially,
Major-General created the impression that experience is taken into
consideration by the fact that an applicant was
shortlisted. This
proposition would ignore the criteria of experience in respect of
which marks must be allocated. But later in
his evidence,
Major-General explains that experience for the position is not
measured by years of service nor solely on the candidate’s
curriculum vitae but on a candidate’s response to questions put
to a candidate by the panel.
[34] There can be no
quarrel that experience may be distinct from the length of service.
Undoubtedly, the panel was entitled to
interrogate a candidate’s
record of experience in order to determine the extent of the
candidate’s experience. But
no such questions were put to the
appellant and the fourth respondent. The result is that the panel was
left with the record of
experience.
[35] The record of
experience shows that when the appellant became an inspector in 1999
he joined the detective branch. He became
a group supervisor, then an
acting branch commander and finally a crime office commander. The
fourth respondent was assigned, after
he became a sergeant, to the
detective branch on 10 January 2000. He was promoted to inspector on
1 July 2001 and became a group
supervisor.
[36] A layperson may
think that the appellant’s experience is closer to that which a
layperson may think a captain would exercise.
But the evaluation of
this aspect is primarily for that of the panel composed of
experienced senior police officers. However, I
share the uneasiness
of the court
a quo
that the appellant may not have been
correctly scored for performance. In the judgment for leave to
appeal, the court
a quo
suggests that it was arguably,
inter
alia
, that the appellant had more experience than the fourth
respondent. But an arbitrator may only interfere where the decision
is
irrational, grossly unreasonable or
mala fides
. The
arbitrator did not interfere with the panel’s evaluation.
[37] The question is
whether the decision of the arbitrator on this leg was one that a
reasonable arbitrator would have reached?
The arbitrator paid
attention to the requirements for promotion including experience. He
was satisfied that the appellant had had
a fair opportunity to
compete for the post and that any errors were not such as to vitiate
the process. He was satisfied that the
appointment of the fourth
respondent was rationally justifiable. I am of the view that it
cannot be said that the arbitrator’s
decision is one that a
reasonable arbitrator would not reach.
[38] The result is that
the court
a quo’
s allocation of one extra point for
prior learning and qualifications leaves the appellant and the fourth
respondent level as regards
their total scores. On this basis, it
cannot be said that the appellant should have been promoted above the
fourth respondent.
Protective employment is not warranted. This means
that the award of compensation by the court
a quo
is the
appropriate relief.
[39] Both parties sought
costs on the basis that costs should follow the result. But the test
is whether it would be in accordance
with the law and fairness to
grant costs. See
section 162
of the LRA. The appellant had an
arguable case and in so far as the court
a quo
, in its
judgment on Leave to Appeal, appeared to concede that he should have
succeeded in that court. The appeal was not a frivolous
one. It would
be fair to make no order as to costs.
[40] In the premises, the
appeal must be dismissed and costs of the application for leave to
appeal and the costs of appeal should
be awarded to SAPS.
Order
[41]
I would make the following order:
1.
The
appeal is dismissed.
2.
There
is no order as regards costs.
_______________
AA Landman
Judge
of the Labour Appeal Court
Tlaletsi DJP and Ndlovu
JA concur in the judgment of Landman JA
APPEARANCES:
FOR THE APPELLANT:
Adv A Naidoo
Instructed
by
FOR THE THIRD RESPONDENT:
Adv LR Naidoo
Instructed
by
[1]
[1996] 5 BLLR 603
at 609-610
[2]
See
Khumalo
and Another v MEC Education
2014 (5) SA 579
(CC) at paras 62-63,
Nainaar
v Department of Works, KZN and Others
(D839/05) [2015] ZALCD 26 (19 May 2015) and
Manana
v Department of Labour and Others
[2010]
6 BLLR 664 (LC).
[3]
See also
Ngcobo
v Standard Bank of South Africa and Others
(D439/12 [2013] ZALCD 33 (25 September 2013).
[4]
(2000) 21 ILJ 1653 (LC).
[5]
At para 12.