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[2018] ZALAC 24
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Public Servants Association obo Thorne v Department of Community Safety (Western Cape) and Others (CA07/2017) [2018] ZALAC 24; [2018] 12 BLLR 1173 (LAC) (8 June 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable/Not
Reportable
Case
no: CA07/2017
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION o.b.o. EL
THORNE
Appellant
and
DEPARTMENT
OF COMMUNITY
SAFETY
(WESTERN
CAPE)
First
Respondent
GENERAL
PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL
Second
Respondent
JACQUES
BUITENDAG
N.O.
Third
Respondent
Heard:
08 May 2018
Delivered:
08 June 2018
Summary:
Unfair labour practice – employee’s appointment for the
advertised post fell through because she did not have
the requirement
NQF qualification with 320 credits – employee having a level
qualification but with 120 credits – employee
contending unfair
labour practice that but for her qualification she would have been
appointed.
Held:
In the setting of appointment criteria in relation to the
requirements of a post, the Department is allowed to set an
educational
standard which it believes is reasonable for the
requirements of the post. The employee’s argument attaches
insufficient
significance to the number of credits assigned to a
qualification. The goal of professional merit in the public service
confers
a managerial prerogative to require a three-year or 360
credits qualification at NQF Level 6 for the post of a Deputy
Director;
and hence it may reasonably be held, as the arbitrator did,
that this is what the Department meant in the job advertisement by an
appropriate tertiary qualification at NQF Level 6. It might have been
better to have stipulated the number of credits required
for the post
in the advertisement, but the condition of an appropriate
qualification was broad enough to include the Department’s
prerequisites of 360 credits for eligibility and appointment. There
is accordingly no merit in the appellant’s submission
that the
Department amended the advertised criteria. Labour Court judgment’s
upheld – Appeal dismissed.
Coram:
Waglay JP, Murphy and Savage AJJA
JUDGMENT
MURPHY
AJA
[1]
The appellant appeals (on behalf of its member, Ms Thorne) against a
decision of the Labour Court (Matyolo AJ) dismissing its
application
to review the arbitration award of the third respondent (“the
arbitrator”) which held that the first respondent,
the
Department of Community Safety (“the Department”) had not
committed an unfair labour practice
[1]
by refusing to promote Ms Thorne to the post of Deputy Director:
Security Support Services, Strategic Planning and Knowledge
Management.
The appellant appeals with the leave of the court
a
quo.
[2]
On 27 January 2014, the Department advertised the post of Deputy
Director: Security Support Services, Strategic Planning and
Knowledge
Management. The job advertisement stipulated three minimum
requirements: i) an appropriate tertiary qualification at
NQF level
6; ii) a minimum of three years’ management experience; and
iii) a valid driver’s licence.
[3]
Ms Thorne, an Assistant Director: Security Support Services in the
Department applied for the post during February 2014. She
had acted
in the post between 1 August 2007 and September 2014, and thus in
effect sought promotion to the post she had occupied
in an acting
capacity for seven years.
[4]
Ms Thorne was shortlisted and then interviewed for the post on 11
June 2014 by the Department’s selection panel. Subsequent
to
scoring Ms Thorne and a colleague, Ms Lutz, the same, the selection
panel nominated Ms Thorne to the post as their preferred
candidate.
[5]
After the selection panel’s recommendation of Ms Thorne as the
preferred candidate, her documentation was sent in accordance
with
the prescripts of the advertisement to a service provider to conduct
checks for verification purposes. After confirmation
that Thorne
indeed held the relevant qualification, as indicated in her
curriculum vitae
, further checks were conducted to determine
its level. It then came to light that Ms Thorne had not met the
requirements of the
post. Ms Thorne’s Advanced Certificate
qualification at NQF level 6 comprised only 120 credits. The
Department maintains
that as such her qualification fell below the
minimum of 360 credits required for the post.
[6]
An NQF level 6 tertiary qualification may be a diploma or an advanced
certificate. An advanced certificate has 120 credits while
a diploma
may have 240 or 360 credits. Ms Thorne has an Advanced Certificate in
Management Studies, which is a tertiary qualification
at NQF level 6
with 120 credits.
[7]
Ms Thorne was informed on 30 September 2014 that she had been
unsuccessful in her application for the position. She lodged a
grievance against her non-appointment on 10 October 2014. The
Department determined the grievance on 3 December 2014 and addressed
a letter to Ms Thorne as follows:
‘
Your
grievance dated 9 October 2014, has reference.
After
careful consideration of all the relevant facts and information at
the Department's disposal, it was found that your grievance
relating
to the recruitment and selection process followed in the post of
Deputy Director: Security Support Services [SL 11], within
the
Department of Community Safety (CS 4/2014), is unsubstantiated for
the reasons as set out below.
One
of the minimum requirements as per the advertisement of the said post
was for applicants to have an appropriate tertiary qualification
at a
NQF level 6.
During
the verification process, it was found that you had successfully
completed an Advanced Certificate in Management Studies
at the
Management College of Southern Africa (MANCOSA). This qualification
meets the requirements of the South African Qualifications
Authority
(SAQA) as a National Qualifications Framework (NQF) level 6
certificate with 120 NQF credits. You have therefore only
obtained120
NQF credits towards the required 360 NQF credits attached to a NQF
level 6 tertiary qualification.
You
could not be appointed in the post as you did not obtain the minimum
tertiary qualification at NQF level 6 as stipulated in
the
advertisement
.
In
light of the above, your grievance is unsubstantiated.’
[8]
Ms Thorne thus has completed an Advanced Certificate in Management
Studies at MANCOSA which met the requirements of the South
African
National Qualifications Authority (SAQA) as a National Qualifications
Framework (NQF) Exit Level 6 certificate with 120
minimum total
credits.
[9]
The only material issue in dispute during the arbitration proceedings
was whether her qualifications met the minimum requirement
set by the
advertisement of an appropriate qualification at NQF 6 level. It was
common cause that she met the other minimum requirements
and in fact
would have been appointed but for the dispute over her
qualifications.
[10]
The Department’s case, as appears from the letter of 3 December
2014, and persisted with in the arbitration, is that
Ms Thorne’s
qualification only constituted 120 NQF credits of the required 360
NQF credits which it alleged was required
in order to constitute a
NQF level 6 qualification. Her qualification was a one year as
opposed to a three-year tertiary qualification.
Mr Human, an
Assistant Director: Talent Sourcing Unit, testified on behalf of the
Department that the appropriate tertiary qualification
for this post
was one with a minimum of 360 credits. Ms Thorne referred to the
gazetted NQF
[2]
to substantiate
her contention that 120 NQF credits was sufficient to qualify one for
a NQF exit level 6 qualification. Her case
was that the Department
had unilaterally and unfairly increased the minimum entry
requirements beyond what was encompassed in the
advertisement. She
alleged that but for this change, she would have been appointed to
the advertised position.
[11]
The arbitrator found that the Department had not committed an unfair
labour practice. His essential reasoning was as follows:
‘
From
the onset… it was never in d
i
spute
that the Applicant has the abil
i
ty
to perform the duties of the advertised position… The
Respondent also trusted her to act in
t
h
i
s
pos
i
t
i
on
for several years and nom
i
na
t
ed
her for appo
i
ntment.
I must however hasten to add that act
i
ng
in a pos
i
t
i
on
does not c
r
eate
an automat
i
c
right to be appointed
…
..
The
only reason for the Respondent not to appoint the Applicant was
because, according
to
the
Respondent, she did not meet their minimum qualification requirements
for appointment as Deputy Director……
The
Applicant and the Respondent have different interpretations of what
an appropriate tertiary qualification at NQF level 6 is.
The
Respondent claims that the Applicant's one-
year
qualification with 120 NQF credits are
towards a required 360 NQF credits attached to a NQF
level
6
tertiary
qualification. The Applicant on the other
hand
argues that
her one-year advance certificate of 120 NQF
credits
is
indeed a NQF level 6 qualification
From
Mr. Human's testimony it
is
clear
that the Respondent always considered the minimum qualification
requ
ir
ement for
appointment to
this
posit
i
on
being a three-year
qualification
with
360
NQF
credits
and not a one-year qualification
worth
120
NQF credits. The fact that the advertisement did not clearly
state
a three-year tertiary qualification,
sim
il
ar to the
wording
in
the
advert for the Deputy Director: Security Advisory Services posit
i
on
(annexure J1 of the Applicants bundle), does not mean that the
Respondent amended the qual
ifi
cation
criteria or acted dishonest or unethical
in
the process (
sic
)….
Ho
w
ever
,
the three spheres of government, wh
i
ch
include Prov
i
nc
i
al
Government
,
must
be allowed to set reasonable minimum academic qualificat
i
ons
for appo
i
ntment
into certain senior positions. I cannot find that a m
i
nimum
qualif
i
cation
standard of a tertiary three-year (360 NQF credits) for appo
i
nt
(
sic
) as a
Deputy Director Dep
u
ty
Director
:
Security
Support Services, Strategic Planning and Knowledge Management is
unreasonable or unfair
.
To
put it d
i
fferently
,
I do not be
li
eve
that I can intervene when an employer has set reasonab
l
e
min
i
mum academ
i
c
requirements for appointment.
The
App
li
cant had a
fa
i
r opportunity
to compete for the post and I have no doubt that if she had a
tert
i
ary
three-year 360 NQF credit qualification she would have been
appointed. I cannot find bad fa
i
th
on the part of t
h
e
Respondent for not appointing the Applicant and
i
ts
conduct was not motiva
t
ed
by any unacceptable reasons…”
[13]
In its review application, the appellant contended that the
arbitrator’s award was unreasonable because Ms Thorne met
the
requirements of the post and the Department had accordingly acted
unfairly by denying her promotion. It submitted that the
arbitrator
committed a gross error of law by effectively finding that the
Department had an overriding discretion to make a promotion
based on
its subjective (and allegedly erroneous) views as to what the
qualification criteria were.
[14]
The Labour Court
held that the decision of
the arbitrator was reasonable and not vitiated by a gross error of
law. It found that the Department had
not changed the requirement
that a candidate must be in possession of an NQF level 6. Rather
there are various credit levels within
NQF level 6 and the evidence
established that in this case the requirement was a NQF level 6
qualification with 360 credits. The
fact that the number of credits
was not in the job advertisement, the Labour Court held, could not
justify the appointment of an
employee who otherwise did not meet the
minimum requirements. It concurred with the arbitrator’s
finding that the government
enjoys a prerogative to set reasonable
standards or levels of qualifications for senior positions provided
it is not driven by
prejudice or wrong principle. There was moreover
no evidence of bad faith or improper motive. Thus, the award of the
arbitrator
was not so unreasonable that no reasonable arbitrator
could have made it. It accordingly dismissed the application for
review.
[15]
Section 186(2)(a) of the LRA defines an unfair labour practice to
include any 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.
[16]
When evaluating the suitability of a candidate for promotion an
employer must act fairly. A promotion decision is however not
a
mechanical process and there is a justifiable element of subjectivity
or discretion involved. Thus an arbitrator typically will
interfere
only where the decision is starkly unreasonable, improperly motivated
or
mala
fide
.
[3]
The employee bears the
onus
to prove the alleged unfairness.
[17]
The merits of the appellant’s case must be evaluated against
the backdrop of the Higher Education Qualifications Framework
(HEQF),
and the revised Higher Education Qualifications Sub - Framework
(HEQSF). The HEQF was published on 5 October 2007
[4]
by the Minister of Education as a policy in terms of the
Higher
Education Act, 1997
.
[5]
The implementation date of the HEQF was 1 January 2009. The Council
for Higher Education reviewed the HEQF in October 2010.
The Higher
Education Qualifications Sub-Framework (the HEQSF) was approved as a
revised policy by the Minister of Higher Education
and Training in
terms of the National Qualifications Act.
[6]
[18]
The HEQSF took effect in January 2013.
[7]
The framework applies to all higher education institutions, both
public and private, and to all qualifications that purport to
be
higher education qualifications and is an integral part of the NQF.
It consists of level descriptors, the qualification routes,
the main
qualification types and their descriptors, qualification standards
and designators for designated variants and qualifiers
for
qualification specialisations. It recognises credits as the measure
of the volume of learning required for a qualification,
quantified as
the number of notional study hours required for achieving the
learning outcomes specified for the qualification.
The volume of
learning required for a qualification is specified in terms of the
total number of credits required, and in terms
of the minimum number
of credits required at its specified exit level on the qualifications
framework. An average full-time equivalent
student is expected to
study for a 40-hour week, thus requiring a minimum credit load of 120
credits per academic year for Certificates,
Diplomas and Bachelor’s
Degrees.
[19]
The NQF has 10 levels. Higher education qualifications occupy six
levels of the NQF, namely levels 5 to 10. Levels 5 to 7 comprise
undergraduate qualifications (with the exception of the professional
Bachelor’s degree at Level 8) and levels 8 to 10 refer
to
postgraduate qualifications.
[20]
The HEQS specifically provides that the positioning of two or more
qualifications on the same NQF level indicates only that
the
qualifications are broadly comparable in terms of the general level
of learning achievements. It does not indicate that they
have the
same purpose, content or outcomes, nor does it necessarily
demonstrate equivalence of qualifications or credits.
[21]
The erstwhile HEQF provided for an advanced certificate with 120
minimum total credits and a diploma with 360 minimum total
credits at
NQF Exit Level 6. There were no variants within the diploma
qualification during 1 January 2009 to January 2013 when
the HEQF was
in force. The HEQSF now provides for an advanced certificate with 120
minimum total credits and for two variants of
diplomas with either
240 or 360 minimum total credits.
[22]
Despite both qualifications being at the same NQF Level 6, the
advanced certificate (120 credits) differs significantly from
a
diploma (360 minimum total credits under the old HEQF and 240 or 360
minimum total credits under the HEQSF) in the volume of
learning as
specified in terms of the total number of credits required for these
qualifications.
[23]
Ms Thorne’s certificate is thus recognised as a qualification
at NQF Level 6 with 120 minimum total credits. At the time
that the
advertisement was placed in January 2014, the HEQSF was already in
operation and the variance (240 or 360 credits) within
the diploma
qualification at NQF Level 6 was applicable.
[24]
In the setting of appointment criteria in relation to the
requirements of a post, the Department is allowed to set an
educational
standard which it believes is reasonable for the
requirements of the post. The appellant’s argument attaches
insufficient
significance to the number of credits assigned to a
qualification. The goal of professional merit in the public service
confers
a managerial prerogative to require a three-year or 360
credits qualification at NQF Level 6 for the post of a Deputy
Director;
and hence it may reasonably be held, as the arbitrator did,
that this is what the Department meant in the job advertisement by an
appropriate
tertiary qualification at NQF Level 6. It might
have been better to have stipulated the number of credits required
for the post
in the advertisement, but the condition of an
appropriate qualification was broad enough to include the
Department’s prerequisites
of 360 credits for eligibility and
appointment. There is accordingly no merit in the appellant’s
submission that the Department
amended the advertised criteria. Nor,
given the level and responsibilities of the post, was it
illegitimate, irrational or unfair
to insist on the highest
qualification (360 credits) at Level 6 and to interpret the threshold
requirements in the advertisement
accordingly.
[25]
Counsel for the appellant, Mr van der Riet SC, however, contended
that there was in fact no policy requiring 360 credits for
the post.
He submitted that the evidence of Mr Human was insufficiently
credible and reliable in that regard.
[26]
It is clear from the award that the arbitrator accepted the evidence
of Mr Human that there was such a policy even though Mr
Human could
not point to any documentary evidence in support of it. Mr Human was
nonetheless adamant that a 360 credit qualification
was the minimum.
His stance is borne out by the facts of this case. Ms Thorne had
acted in the position for 7 years, she was the
preferred and
initially selected candidate, and was only disqualified after a due
diligence exercise revealed that her certificate
fell short of the
360 credits. Those facts lend some support to a reasonable inference
that the alleged policy was in place. But
even had the arbitrator
erred with regard to the existence of the policy, such error would
not distort the outcome so as to render
the award unreasonable. The
arbitrator identified the issues correctly and considered the
evidence fully. He weighed the managerial
prerogative to impose
higher qualifications for senior professional staff against Ms
Thorne’s legitimate career ambitions,
and struck a reasonable
equilibrium by deferring to the requirement of higher standards in
the public service. In so doing he acted
reasonably, and the Labour
Court consequently did not err in concluding that the award was not
reviewable.
[27]
As regards costs, Ms Thorne has reasonably sought to vindicate her
rights in the face of an admittedly ambiguous job advertisement
for
the post she occupied for seven years. In the circumstances, there
should be no award of costs against her.
[28]
In the result, the appeal is dismissed.
________________
JR
Murphy AJA
I
agree
____________
B
Waglay JP
I
agree
______________
K
Savage AJA
APPEARANCES:
FOR
THE APPELLANT: Adv van der Riet SC
Instructed
by Cheadle, Thompson and Haysom
FOR
THE FIRST RESPONDENT: Adv M C Solomon
Instructed
by: The state attorney
[1]
As
contemplated in section 186(2)(a) of the LRA
[2]
GG 36797 30 August 2013
[3]
Ncane
v Lyster NO and Others
(2017) 38 ILJ 907 (LAC) at para 25.
[4]
Government
Gazette, Vol 508, No. 30353.
[5]
Act
101 of 1997.
[6]
Act
67 of 2008.
[7]
Notice
1040 of 2012; Government Gazette No. 36003 of 14 December 2012.