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[2002] ZALCJHB 21
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City of Johannesburg (Midrand Administration) v Bean NO and Others (JR393/2001) [2002] ZALCJHB 21 (11 March 2002)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
JOHANNESBURG
CASE
NO JR393/2001
In
the matter between:
CITY
OF JOHANNESBURG (MIDRAND
ADMINISTRATION)
Applicant
and
M
BEAN
NO
First
Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL, GAUTENG
PROVINCIAL
DIVISION
Second
Respondent
ID
BEZUIDENHOUT
Third
Respondent
JUDGMENT
JAMMY
AJ
1.
In this application, brought in terms of
Section 33
of the
Arbitration Act 42 of 1965
, read with the relevant
provisions of the Labour Relations Act 66 of 1995 (“the Act”),
the Applicant seeks an order
reviewing, correcting and setting side
an award made by the First Respondent in arbitration proceedings
conducted by her under
the auspices of the Second Respondent.
That award is dated 26 February 2001 and in terms thereof the
First Respondent
held that the Applicant’s failure to appoint
the Third Respondent to the position of Project Manager was an unfair
labour
practice. It is common cause that on 17 March 2001 and
by way of a letter telefaxed by her to the Trade Union of which the
Third Respondent was a member and copied to the Applicant’s
attorney and to the Second Respondent, the First Respondent conveyed
what she referred to as “clarification” of her award
dated 26 February 2001 by the addition of the following sentence:
“
As
a result of my finding that the employer committed an unfair labour
practice the Applicant is to be appointed retrospectively
to the
position of Project Manager since the day he started acting in the
post”.
2.
The grounds of review submitted by the
Applicant are, in essence, that the First Respondent failed to apply
her mind properly to
the evidence before her and failed to appreciate
the nature and extent of her powers, duties and responsibilities,
thereby committing
a gross irregularity as contemplated by
Section
33(1)(a)(b)
of the
Arbitration Act. The
conclusion reached by
her, it is contended, cannot be regarded as justifiable in relation
to the reasons given for it and the First
Respondent accordingly
exceeded her powers as contemplated by that Act read with Section
23(2), 33 and 195(1) of the Constitution
and Section 6(2) of the
Promotion of Administrative Justice Act.
3.
The Third Respondent, who is still in the
employ of the Applicant, has held the position of Recreation Officer
at post level 6 in
the Department: Environment and Recreation
Management, since 1 October 1993. In March 1998 he was
appointed as an Acting
Project Manager, at a higher post level, in a
post which had at that stage not yet been formally created but in
respect of which,
it is alleged, a proposal had been irregularly
submitted to the Applicant’s Council.
4.
The process followed by the Third
Respondent and the head of his department in that context was to
endeavour to have the Third Respondent’s
existing post upgraded
to that of Project Manager. That proved administratively not
possible however and the Third Respondent
was informed that he would
need formally to apply for the post only once it had been created.
5.
Albeit in what the Applicant submits was
“circumvention of specific procedural requirements”, the
post of Project Manager
in the Department: Environment and Recreation
Management, was thereafter created and in May 1998 the Applicant
advertised internally
for applicants for that position. The
Third Respondent was one of a number of candidates who applied, none
of whom however
was suitably qualified but of whom the Third
Respondent, following tests and an interview, was found to be the
most suitable.
He was not however appointed to that position,
the Applicant’s Council exercising its prerogative not to make
an appointment
but rather to convert the post from a permanent
position to a contractual one and to re-advertise it on that basis.
Inherent
in the decision not to appoint the Third Respondent was a
funding factor, the alleged collusion between the Third Respondent
and
his head of department to create the post and reserve it for the
Third Respondent and, in addition, an objection to the Third
Respondent’s
appointment to the post which had been lodged by
the South African Municipal Workers Union and which was premised on
the Applicant’s
employment equity programmes and what was
alleged to be the undue favouring of the Third Respondent in that
context.
6.
The consequent declaration of a dispute by
the Third Respondent was duly referred to the Second Respondent for
conciliation, which
proved unsuccessful, resulting in the reference
of the matter to arbitration under its auspices, by the First
Respondent.
As has been stated, a finding of unfair labour
practice was made by the First Respondent followed by a purported
amendment which,
in the Applicant’s submission, was “not
in the nature of a correction of a patent error or omission”.
7.
I have no difficulty with the Applicant’s
submission that the test to be applied to reviews of awards in terms
of the provisions
of
Section 33
of the
Arbitration Act are
akin to
those determined by the Labour Court in a number of instances to be
applicable to reviews in terms of
Section 145
of the
Labour Relations
Act. Simply
stated, and has now been endorsed by the Labour Appeal
Court in -
Shoprite Checkers (Pty)
Ltd v Ramdaw NO and Others
(2001) 9 BLLR 1011
,
that
test is one of “justifiability”, propounded in –
Carephone v Marcus and
Others
(1998) 11 BLLR 1093
(LAC)
and
exhaustively examined and followed in a significant line of cases in
this Court.
8.
A fundamental aspect of this application is
a challenge to the jurisdiction of the First Respondent to have heard
the matter and
her power to have made the award which she handed
down. The First Respondent however, records the agreement
between the parties
stipulating her powers and her terms of reference
as follows:
“
1.
The Respondent’s failure to appoint (our member) Mr I D
Bezuidenhout
to the position of Project Manager as the selected
successful candidate by the interview panel, without valid and
substantiated
reasons; and
2.
The Respondent’s actions undermine sound labour practices
within the Local
Government”.
(sic)
That
dispute, she determined,
“…
does
not relate to an unfair dismissal. Therefore, it would have to
be “classified” as an unfair labour practice
dispute in
terms of Schedule 7 of the Act”.
That classification, the
Applicant now contends, is incorrect and fatal to the validity of the
award. The dispute, it is submitted,
does not relate to an
unfair labour practice as envisaged in the provisions of item 2(b) of
Schedule 7. Those are defined
as –
“…
any
unfair act or omission that arises between an employer and an
employee, involving … the unfair conduct of the employer
relating to the promotion, demotion or training of an employee or
relating to the provisions of benefits to an employee”.
The dispute, the
Applicant suggests, may have been one of unfair discrimination and in
that context capable of determination not
by arbitration but only by
this Court.
9.
It is common cause however that the
Applicant agreed to argue the matter on the basis that the dispute
may have related to promotion,
but this notwithstanding, the
Arbitrator, it is contended, failed to appreciate the true nature of
the dispute and therefore exceeded
her powers in pursuing the matter.
10.
That contention is challenged, in my view
with justification, by the Third Respondent on the basis that it is
irrelevant.
The Third Respondent, it contends, was
dominus
litis
and decided to pursue his
remedies under Schedule 7 to the Act, the parties subsequently
agreeing to that course of action and
thus to the nature of the
dispute and the Second Respondent’s jurisdiction to deal with
it. The Third Respondent was
at all relevant times employed by
the Applicant and what occurred in the process giving rise to the
dispute was a matter of internal
administration. He was not a
job applicant, to whom the concepts of promotion, demotion, training
or benefits would have
no application. Quite apart therefore
from the jurisdiction conferred on the First Respondent by agreement
to deal with the
matter, her classification of the dispute as one
falling within the ambit of Schedule 7 of the Act is not open to
question.
11.
The Applicant has presented an exhaustive
review of case authority dealing with promotional disputes,
emphasising the principle
that unfair conduct in that context can
involve “a failure to meet objective standards” and
“arbitrary, capricious
or inconsistent conduct”.
Acknowledging the concept of managerial prerogative, and the wide
discretion vested in an
employer in that context, it argues for the
right of the Applicant to have made any appointment it deemed fit, to
stop the recruitment
process, change the nature of the position and
utilise an external process of application in the prevailing
circumstances and financial
constraints to which it was subject.
Unfairness in that context, must extend not only to the
non-appointment of someone manifestly
qualified for the position in
question but by the appointment of someone else in his or her stead.
In the present instance
no one was appointed and that requirement was
therefore not satisfied. The relevant applicable principles in
that context,
although argued before the First Respondent, were not
applied by her, it submits.
12.
The Applicant proceeds thereafter to attack
findings of credibility made by the First Respondent and the
disregard by her of evidence
alleged to be pertinent to the
Applicant’s case. Her rejection of the evidence of
specific witnesses identified by
her as being biased, untruthful and
acting in bad faith, “is unfounded and erroneous and
constitutes an irregularity”.
She failed, it is alleged,
to apply her mind to the facts and arguments set out in heads of
argument presented to her by the Applicant
which negated any
suggestion of unfairness on its part and which were not addressed by
the First Respondent.
13.
Finally and pertinently the relief which
she purported to grant in the subsequent telefax of 17 March 2001
was, it is submitted,
grossly irregular and in excess of her powers.
In the first instance the order that the Third Respondent be
appointed to
the position in which he had been acting since the date
he started acting in that post was not competent. At best for
the
Third Respondent had his application been successful, he could
only have been appointed as at the date upon which it was
considered.
He could not be retrospectively appointed to a post
which, at the time that he was acting in it, had not yet been
formally created.
14.
Secondly, once the First Respondent had
handed down her award of 26 February 2001, she was
functus
officio
in that that award was
“complete in all respects and disposed of all the matters in
dispute” –
See Butler and Finsen :
Arbitration in South Africa. p103
Section 30
of the
Arbitration Act vests
in an Arbitrator the power to correct a
clerical mistake or patent error arising from an accidental slip or
omission but, the applicant
argues, none such existed in this
instance. The omission to specify the relief subsequently
awarded by her did not constitute
a clerical mistake or patent
error. It was an omission to grant appropriate relief which
could not be rectified by a subsequent
ruling or determination,
requiring that the award be remitted back to the Arbitrator for
finalisation. Section 68(2)(f) of
the Arbitration Act 1996
provides for the remittal or review and setting aside of an award
containing serious irregularities and
it is that relief for which the
Third Respondent should, if he believed that grounds existed for him
to do so, have properly applied.
The First Respondent had no
power to effect what was in essence an amendment to the award and in
purporting to do so, she exceeded
her powers. Even had the
Third Respondent adopted that course of action, it would have been
open to challenge by the Applicant
on the basis that no established
grounds existed for such an order in the context of Section 32
of the Arbitration Act.
15.
The heads of argument submitted by the
Third Respondent’s representatives to the First Respondent in
the arbitration conclude
with a prayer that the Third Respondent
“should be appointed in the position of Project Manager which
position still exists
and which he still occupies”.
Conversely, specific relief in the form of an order that the Third
Respondent’s
appointment as Acting Project Manager on a
contractual basis should immediately cease and that he should “be
required to
with immediate effect revert to his former position of
Recreation Officer” is sought in the Applicant’s heads of
argument
to the First Respondent. Neither form of relief was
granted and this was a patent omission which, in the subsequent
telefax
of 17 March 2001, the First Respondent sought to
address.
16.
Section 30 of the Arbitration Act, as I
have said, empowers an Arbitrator to “correct in any award any
clerical mistake or
any patent error arising from any accidental slip
or omission”. The omission in question in this matter
constituted,
in my view, a failure on her part to determine one of
the issues submitted to her in the form of the relief sought and
rendered
her award incomplete in that context. She was not yet,
in that context,
functus officio
when she proceeded to do so in her subsequent augmentation of
17 March 2001. The sense and substance of her award as
a
whole was not affected and the tenor of her judgment was preserved :
See Mervis Brothers v
Interior Acoustics 1999(3) SA607 at 613
S v Wells 1990 (1) SA816
(AD) Firestone SA (Pty) Ltd v Genticuro 1977 (4) SA289 (A)
17.
The award as at 26 February 2001 did
not dispose of all matters in dispute between the parties, of which
the nature of any
relief to which the Third Respondent might be
entitled was one, and as such was not complete. The First
Respondent was justified
and entitled to address this omission as she
subsequently proceeded to do without thereby impugning the validity
of the award as
a whole.
18.
With regard to her assessment of the
probative value or otherwise of the evidence presented to her and her
evaluation of the credibility
or lack of it of certain witnesses who
testified in the hearing, the challenge mounted by the Applicant
would appear to be more
the stuff of appeal than review. The
First Respondent, as is always the case where issues of credibility
arise, had the benefit
of direct visual and aural evaluation of the
witnesses in question – the manner of the presentation of their
testimony, their
demeanour in the witness chair, their reaction to
cross-examination, and so forth. Her evaluation of the
substance of their
evidence was necessarily subjective and any
differences of perception in that regard do not constitute grounds
for review.
19.There
is furthermore no substance to the argument that unfairness on the
part of the applicant would necessarily involve the
appointment of
someone else to the post in question. Whilst that might, all
other elements being present, have constituted
unfair discrimination,
it was neither alleged nor pleaded in the circumstances of this case
and is irrelevant to the basic issue
of unfairness in terms of item
2(b) of Schedule 7 of the Act upon which the Third Respondent bases
his claims.
20.
I have considered the substance of the
First Respondent’s award in the light of the specific
challenges mounted thereto by
the Applicant and find them to be
unsustainable in the context of review. I can find no
legitimate or valid grounds to support
the contention that any aspect
of her conduct of the hearing or her determination of the issues
referred to her, merits interference
by this Court. She was
entitled to determine the issues in question on the evidence
presented, both in the context of the
substance of that testimony and
of the credibility of the witnesses who testified. In my view
there is nothing to support
the contention that the findings made and
conclusions reached by her were either unreasonable or unjustifiable
on the conspectus
of that evidence. The award, as I have
stated, is not subject to appeal and, for the reasons which I have
stated, is not
in my view susceptible to review.
21.
With regard however to the specific relief
eventually granted by the First Respondent, there is in my opinion
merit in the Applicant’s
contention that the effective date of
the retrospective appointment of the Third Respondent to the position
of Project Manager
as ordered by the First Respondent cannot be
earlier than what would have been the date of such appointment had
his application
been successful
ab
initio.
That minor adjustment however
will not, to my mind, justify any variation in this instance of the
conventional principle that an
award of costs in litigation of this
nature should follow the result.
22.
For all of these reasons, the order that I
make is the following:
22.1
The words “since the day he started
acting in the post” in the First Respondent’s telefaxed
completion of her
award on 17 March 2001, are deleted and are
replaced by the following:
“
with
effect from what would have been the date of his appointment as such
had his application been successful ab initio”
22.2
Save as provided for in 21.1 above, the
application is dismissed.
22.3
The Applicant is to pay the Third
Respondent’s costs.
___________________________
B
M JAMMY
Acting
Judge of the Labour Court
11
March 2002
Representation:
For
the Applicant:
Mr
J Olivier : Brink Cohen Le Roux & Roodt Inc.
For
the Third Respondent:
Mr
H F Kocks: Kocks & Dreyer Attorneys