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[2006] ZALCJHB 3
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Nysschen v General Public Interest Sectoral Bargaining Council and Others (JR1531/03) [2006] ZALCJHB 3 (24 November 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 1531/03
In
the matter between:
DE
NYSSCHEN P
Applicant
and
THE
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
1
st
Respondent
G.G.
SEBOTHA
(
Commissioner)
2
nd
Respondent
THE
MEC DEPARTMENT OF EDUCATION
(NORTH
WEST PROVINCIAL
GOVERNMENT)
3
rd
Respondent
JUDGMENT
REVELAS
AJ
[1]
The applicant seeks to set aside an arbitration award delivered by
the second respondent (“the arbitrator”) and
have it
substituted with an award to the effect that the third respondent
committed an unfair labour practice in not appointing
her in the
upgraded position she had been acting in. In the alternative, the
applicant seeks on order that the matter be remitted
to the first
respondent to be arbitrated afresh.
[2]
The applicant had been in the employ of the third respondent since
1997 when she was appointed to the position of Director (Human
Resources Management) with effect from 1 November 1997, in the
Department of Education for the North Western Provence.
[3]
During 2001, the third respondent revised its organisational
structures and in the process, created eleven posts at the level
of
Chief Director and one post at the level of Deputy Director-General.
The functions attached to the post of Director: Human Resources,
occupied by the applicant, was subject to a grading exercise and was
subsequently graded as a level 4 (Chief Director) post.
[4]
The upgraded post of Chief Director (Executive Manager) Human
Resources Management (“CDHRM”) was advertised nationally.
The applicant was critical of the advertisement of the post. She
contended that the post and salary of the present Superintendent
General of the Department of Education (Dr AM Karodia) was not
advertised, therefore the upgraded post in which she was the
incumbent,
should similarly not have been advertised. The applicant
nonetheless applied for the CDHRM post in respect of which she claims
she had a legitimate expectation to be appointed to. She was
shortlisted for the post along with Mr T.S. Molelle and Mr K.J.
Oagile
and attended the interviews conducted by the selection
committee on 21 February 2002.
[5]
The selection process for filling the Executive Manager posts was
approved by the third respondent on 29 October 2001. In terms
thereof
Thomas International (as a service provider), would perform the
initial screening of applications, the short-listing of
applicants
(six maximum) and conduct competency based interviews with those
short-listed candidates of which the applicant was
one. The selection
committee appointed by the third respondent had to compile a final
short-list of not more than three candidates
based on the
recommendations of Thomas International and then interview these
candidates. The committee was also required to verify
the educational
qualifications, citizenship and experience and submit final
recommendations on the suitability of the candidates.
The aforesaid
had to take place with due consideration of the applicable employment
equity targets for the occupational levels
of the Department’s
top management (chief director and higher) and senior management
(director).
[6]
The selection committee in question comprised of the following
persons: the third respondent’s Superintendent General,
Dr A.M.
Karodia, who was also the chairperson of the committee, Mr. P. Tjie
and Mrs L Sebego who were Provincial Department Heads
and Mr S.F. van
Blerk of Thomas International.
[7]
The applicant pointed out that whereas she applied for the post of
Executive Manager: Human Resources Management, Mr T.S. Molelle
(who
was eventually appointed to the post) applied for three posts at
Chief Director level.
[8]
On 21 February 2002, the interviewing panel recommended to the third
respondent that the applicant be appointed to the post
of Executive
Manager: Human Resources, and that Mr Molelle was also suitable for
that post, however more suitable for the post
of Executive Manager:
Educational Support. This report was termed the “final”
report.
[9]
In June 2002, a further report which was also deemed to be a final
report, was issued by the same panel. Therein Mr Molelle
was not
expressly recommended for any of the specific executive manager’s
posts, but said to be suitable for all three chief
director’s
posts. The post of Executive Manager: Educational Support was
re-advertised shortly after the first “final
report” and
remained unfilled. In the June 2002 report, the recommendation in
respect of the applicant remained unvaried.
Copies of both reports
were annexed to the applicant’s founding affidavit.
[10]
The applicant subsequently wrote a letter to the third respondent
expressing her dissatisfaction with the outcome of her unsuccessful
application for the CDHRM post, and requested certain disclosures and
reasons. Dr Karodia, the chairperson of the interviewing
panel
declined to disclose certain information regarding Mr Molelle who was
ultimately appointed in the post she had wanted to
be appointed to.
Dr Karodia did however provide her with the actual recommendations
and the list of factors taken into account
in assessing candidates
and in making recommendations. It appears that the applicant was
initially recommended as a result of her
“excellent track
record” and experience. In the February 2002 report, the
applicant is described as “Appointable”.
Her several
outstanding qualities are also listed. Finally the report stated as
follows:
“
Therefore
this panel recommends Ms de Nysschen for the post of Human Resources
with Mr Mollele as the panel’s first choice.
However, the panel
feels that his contribution to Education
Support
Services
is far more
advantageous to the department”.
(My
underlining)
The
support services position was subsequently re-advertised but never
filled. In the second report, already referred to, Mr Molelle
was
recommended without qualification.
[11]
The applicant then referred a dispute about an unfair labour practice
to the first respondent and this dispute was eventually
arbitrated by
the second respondent (“the arbitrator”) who held that no
unfair labour practice was committed and in
particular, that the
correct procedures of assessment and interviews were followed in the
appointment of the successful candidate
(Mr Molelle). Under the
heading “AWARD”, the arbitrator specifically noted that
the applicant was not the only candidate
for the post by the panel
and: “
The post was advertised and
open for competition. The criteria Applicant chose to use as having
not applied to her was not the deciding
factor for the appointment.
Several criteria and recommendations by the assessing authority and
the interviewing panel was also
considered”.
[12]
The applicant’s case before the arbitrator was that she was
unfairly treated in that the criteria set out for appointment
was not
applied to her. She relied mainly on the fact that she had acted for
a long period in the position in question before it
was advertised.
She was of the view that her career path, retention of skills and
other criteria was not considered. The arbitrator
found that no
evidence was presented that the incorrect criteria was implemented to
appoint Mr Molelle. The arbitrator accepted
the evidence of Dr
Karodia that Mr Molelle (who had applied for three posts) was the
stronger candidate, but gives no reason for
doing so. In my view, it
was necessary for the arbitrator to do so, particularly since the
applicant had acted in that position
for five years and Mr Molelle
had not. Further, Mr Molelle was initially recommended for the
support services post which was later
re-advertised, before a second
report, recommending him, was issued. Certainly that calls for a
valid explanation.
[13]
There was no compelling evidence to support a view that Mr Molelle
was indeed the stronger candidate. If the fact that he is
a black
(African) person and the racial demographic factors determined that
he should be appointed, that should have been expressly
given as the
main reason by the arbitrator. It was not. It is also of great
significance in this case that a gender demographic
distribution in
place for the North West province. That should have played a role in
the applicant’s case, since the prescripts
for the employment
equity targeting of women was approved by the respondent on 17
October 2001. In my view, the appointment of
Mr Molelle, instead of
the applicant, is indicative of a certain arbitrary reasoning which
was unreasonable and unfair, and was
unjustifiably perpetuated in the
arbitration award.
[14]
It is common cause that there was a deviation from the recommendation
of the interviewing panel. There was no evidence that
the correct
procedure was followed in doing so, but even if it were, the
arbitrator had to assess the substantive fairness of such
a step. She
did not.
[15]
The applicant argued very strongly, that the third respondent was
bound to apply only the criteria in the Public Service Act
103 of
1994 and its Regulations, and not “self-imposed”
criteria. The applicant,
inter alia,
relied on the Public Service Regulation
C.6 (a chapter in part V of the Regulations) which reads as follows:
‘
C.6
If an executive authority increases the salary of a post as provided
under regulation V C.5, she or
he may continue to employ the
incumbent employee in the higher-graded post without advertising the
post if the incumbent –
(a)
already performs the duties of the post;
(b)
has received a satisfactory rating in her or his most recent
performance assessment;
and
(c)
starts employment at the minimum notch of the higher salary
range’.
[16]
The applicant also referred me to Regulation 24(b) of the South
African Police Service Employment Regulations 1999 (government
notice
R389 of 14 April 2000), which is worded the same as the Public
Service Regulation C.6 referred to above, as well as the
judgment of
the Supreme Court of Appeal (“the SCA”) in
The
Public Servants Association v The National Commissioner of the South
African Police Service,
case no 573/04,
dated 25 November 2005. The Police Service Employment regulation in
question (regulation 24(6)) was the subject-matter
in that case. The
SCA was called upon to make a declarator as to whether or not the
National Commissioner of the South African
Police Service had a
discretion not to appoint an incumbent in an upgraded post. The
majority of the court held that despite its
permissive language (the
operative word being “may”) the national commissioner was
obliged to retain the incumbent
of an upgraded post if the
requirements of the sub-regulation are met.
[17]
The decision of the majority of the SCA was then overturned by the
majority of the Constitutional Court (“the CC”)
(under case number CCT 68/05), where it was held that the approach of
the SCA was too inflexible and found that the national commissioner
indeed had a discretion to advertise the post and not to appoint the
incumbent of such a post, but held that the discretion must
be
exercised in the context of the regulations, the act under discussion
and the Constitution (page 38, paragraph 61 of the CC
judgment).
[18]
It was pointed out (page 44, paragraph 72 of the CC judgment) that
the Constitution provides for a balanced approach. On the
one hand,
fair labour practices and affirmative action must be observed. On the
other hand effectiveness, efficiency, high ethical
standards and
progressive human resource policies are crucial and the question at
hand had to be interpreted in that context.
[19]
The discretion of the executive authority in the case before me, is
therefore not an unlimited one. Although the incumbent
does not enjoy
a right to automatic promotion in an upgraded post, the discretion
not
to
promote should be exercised in a way which does not constitute an
unfair labour practice and does not fall foul of the balanced
approach called for by the Constitutional Court in the abovementioned
judgment. Section 23(1) of the Constitution provides that
everyone is
entitled to fair labour practices. If the executive authority
exercises his discretion in a way that is in conflict
with fair
labour practices, his decision cannot be unassailable. To determine
whether the discretion is fairly exercised will always
depend on the
facts of the matter. In the case referred to above, the SCA and the
CC did not decide the matter in respect of a
specific individual or
particular factual matrix, but the principles set out by the CC
applied to the facts of this case, has the
result that the third
respondent’s decision had to be interfered with by the
arbitrator.
[20]
It was undisputed that by appointing Mr Molelle as Executive Manager:
Education Support, as suggested by the interviewing panel,
would
neither have prejudiced the Department or Mr Molelle. Neither would
the applicant be prejudiced.
[21]
Even if the criteria imposed by the third respondent were the proper
ones, Mr Molelle’s appointment contradicted the
criteria of
career pathing, continuity, staff motivation and retention of skills.
If the applicant was appointed in the post (in
which she was the
incumbent) the State would not have incurred the financial burden of
a new appointment in that post and the support
services post could
have been filled, preventing an additional work load in that
department.
[22]
Even though I agree with the third respondent’s submission that
he was not bound only to the criteria in the Public Services
Act,
such criteria as he did impose, were imposed in a manner which, given
the facts of this case, make no sense. The unfairness
of not
appointing the applicant in the post she applied for is clear.
[23]
In my view, the facts of this case demonstrate that the third
respondent exercised his discretion unfairly in that none of
the
objectives of the Constitution were achieved by sidelining the
applicant.
[24]
The application for review should succeed for all of the above
considerations. I do not believe that any facts could be led
at a
de
novo
arbitration hearing which would
change the inherent unfairness of the failure to retain the applicant
in her post. The applicant
is to be appointed and remunerated as if
she was successful in her application.
[25]
In the circumstances I make the following order:
1.
The award of the second respondent under case number PSGA 3533 dated
11 July 2003, is hereby
set aside and substituted with the following:
“
a.
The failure of the third respondent to promote the applicant to the
post of Executive Resources Management
and Development Manager,
constituted an unfair labour practice.
b.
The applicant is to be employed and remunerated at the level of Chief
Director (level 14)
with retrospective effect as from 1 July 2002”.
2.
The third respondent is ordered to pay the applicant’s costs.
________________
Elna
Revelas
Acting
Judge of Labour Court
Date
of hearing: 26 October 2006
Date
of judgment: 24 November 2006
On
behalf of the Applicant:
Adv.
M.R. Hitge, instructed by Nienhaber and Wissing Attorneys
On
behalf of the third Respondent:
Adv.
G.I Hulley, instructed by The State Attorney