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[2008] ZALCJHB 23
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Minister of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR1128/07) [2008] ZALCJHB 23 (26 March 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 1128/07
In the
matter between:
MINISTER
OF HOME
AFFAIRS Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL 1
st
Respondent
NOMAGCISA
CAWE
N.O. 2
nd
Respondent
PUBLIC
SERVANTS ASSOCIATION obo LUNGILE SITOLE 3
rd
Respondent
LERATO
SHARON
MORE-AFILAKA 4
th
Respondent
JUDGMENT
JAMMY,
AJ
1.
The Third Respondent’s answering
affidavit in this matter was filed approximately twenty-one days
late. An application
before this Court for condonation of that
late filing was not opposed and good cause having been shown,
condonation was granted.
2.
This is an application for the reviewing
and setting aside of an arbitration award dated 30 March 2007, issued
by the Second Respondent
(“the Arbitrator”) acting under
the auspices of the First Respondent. The dispute which was
referred to arbitration
was declared by the Third Respondent
(hereinafter referred to as Ms Sitole) represented by her trade
union, the Public Servants
Association of SA, arising from her
non-promotion to a position advertised by the First Respondent and to
which the Fourth Respondent
(hereinafter referred to as Ms
More-Afilaka) was appointed in her stead. The Arbitrator found
that non-appointment to have
constituted an unfair labour practice
and in his award, ordered the Applicant in these proceedings, the
Minister of Home Affairs,
to appoint Ms Sitole to the position in
question, that of Area Manager – Gauteng West and to pay her
“the retrospective
amount the Applicant would have earned in
the position had she been rightfully appointed”. That
amount, he determined,
would be based on the difference between what
Ms Sitole currently earned and the salary applicable to the
position in question.
3.
The advertised requirements for appointment
to that post, Area Manager – Gauteng West, were the following -
“
1.
An appropriate recognised post-matric or equivalent qualification.
2.
Solid knowledge in the fields of immigration, asylum and civic
service matters.
3.
Programme and project management.
4.
Financial management within the framework of the
Public
Finance Management Act No. 1 of 1999
5.
Problem solving and analysis, people management and empowerment”.
4.
The evidence before the Arbitrator
indicated that both Ms Sitole and Ms More-Afilaka were amongst
candidates short-listed for
the position. Each was evaluated by
the interviewing panel and applying criteria considered by it to
accord broadly with
the requirements advertised, Ms More-
Afilaka was appointed to the designated post.
5.
It was that appointment, the Arbitrator
found, that was unfair. Ms Sitole in her evidence before
him, had testified that
she held at the time a position of
Deputy-Director for Soweto and that she held a Senior Education
Diploma. Her management
functions and experience included civic
services, migration and the budget. She had, the award records,
extensive experience
in handling refugees and had actually attended a
conference in that regard.
6.
She had, furthermore, acted in the
advertised post from February 2004 to March 2006 and in that context
had acquired knowledge of
immigration and asylum.
7.
Evidence adduced on behalf of the
Department of Home Affairs by a Chief Director who had sat on the
interviewing panel, was to the
effect that the concept of
“appropriate qualification” meant “any
qualification that would make a candidate suitable
for the position
applied for”. Notwithstanding the substance of the
advertisement, educational qualifications, it was
stated, were not of
primary importance to the panel. Other criteria were crucial
and Ms More-Afilaka’s curriculum vitae
was considered to be
appropriate to the appointment in question. She was, according
to the evidence “a cut above the
rest” whilst, for
reasons apparently not elaborated upon, Ms Sitole had not impressed
the panel in the course of the interview.8.
In reaching his conclusion, the Arbitrator
defined the main issue as being whether Ms Sitole was a better
qualified candidate for
the job than Ms More-Afilaka.
That, he opined, hinged on “whether the appointed candidate has
an appropriate recognised
post-matriculation or equivalent
qualification plus appropriate experience as set out in the
advertisement”. Proceeding
to review the interviewing
panel’s evaluation of the respective candidates, the Arbitrator
concluded that “it is clear
that the incumbent appointee (i.e.
Ms More-Afilaka at that stage) has no post-matriculation
qualification at all”.
Ms Sitole on the other hand, held
a teacher’s diploma – most certainly, in the ordinary
course, a post-matriculation
qualification. At the time of the
interview however, it was apparent that Ms More-Afilaka held no such
qualification.
9.
Taking into account what he considered to
be the further comprehensive evidence before him relating to the
degree of experience
appropriate to the position in question
attributable to the respective candidates, and the applicability to
each of them of the
advertised criteria for appointment, the
arbitrator concluded that Ms Sitole was manifestly more suited to the
position in question
than Ms More-Afrlika. Hence therefore his
determination that the department’s failure to appoint her as
opposed to
Ms More-Afilaka constituted an unfair labour practice
entitling her to the redress defined in his award.
10.
What emerges from this saga, was submitted
by Counsel for the Third Respondent as an indication that the
Applicant employer had
flouted its own policy and acted irregularly
by appointing someone who did not meet the advertised requirements
and in identifying
another person, the Fourth Respondent, as the
appropriate appointee.
11.
The submission by Counsel for the Applicant
on the other hand, borders, with due respect, on the simplistic - all
that the interviewing
panel was required to determine, irrespective,
by inference, of the precise wording of the advertisement, was
whether the successful
candidate held
appropriate
post-matric qualifications. In an assessment of such
qualifications as the Fourth Respondent held (and these do not appear
clearly defined either in the papers before me or in the award),
together with her indicated experience, she was determined to
be the
best person for the job and having regard to the discretion vested in
her employer, there was nothing irregular, improper
or unfair in that
conclusion.
12.
An assessment of the propriety or otherwise
of the arbitration award in this matter requires a brief examination
of the situation
which prevailed before the principles governing the
review of arbitration awards were defined, as I will indicate later,
with what
appears to be finality by the Constitutional Court.
In -
Arries v CCMA and Others
(2006) 27 ILJ 2324
the
Labour Court defined as trite law, three basic requirements for a
fair appointment or promotion. The procedure must have
been
fair, there must have been no discrimination, and the decision must
not have been grossly unreasonable. What constitutes
the last
of these criteria has been examined in a line of cases from which
there appears the consistent conclusion, confirmed in
Arries
(
supra
),
that –
“…
an
employee can only succeed in having the exercise of a discretion of
an employer interfered with if it is demonstrated that the
discretion
was exercised capriciously, or for insubstantial reasons, or based on
any wrong principle or in a biased manner”.
13.
It is apparent to me that the Arbitrator in
the instant case, in reaching his conclusion, determined that, of
those three factors,
that of “insubstantial reasons”
characterised the decision reached by the interviewing panel in
appointing Ms More-Afilaka,
rather than Ms Sitole, to the position in
question.
14.
In so doing, his conduct was within the
ambit of the unanimous view of the Constitutional Court in -
Sidumo and Congress of
South African Trade Unions v Rustenburg Platinum Mines Ltd, CCMA and
Moropa N.O. 2008(2)BCLR 158
that, in deciding a
dismissal dispute, a Commissioner/Arbitrator is not required to defer
to the decision of the employer.
The Commissioner is, however,
not given the power to consider afresh what he or she would do but to
decide whether what the employer
did was fair. Stated
differently, the Court concluded, the question to be determined is
whether the decision reached by the
Commissioner was one that a
reasonable decision-maker could not reach.
15.
On the conspectus of the papers before me
and the respective submissions by Counsel for the parties in this
matter, I have
no hesitation in concluding that that is not an
evaluation which can fairly be applied to the Arbitrator’s
determination
here in question. I am satisfied that he
conducted a rational and responsible analysis of the evidence before
him, and that
in assessing its persuasive and probative value, he
reached a reasonable conclusion, whether or not it was one which
might have
attracted unreserved affirmation.
16.
I turn finally to deal with the submission
by Counsel for the Applicant that the Arbitrator had no authority to
make the order that
he did for the reason that power to appoint and
promote employees in the department involved is vested in the
Executing Authority,
who, in this case, is the Applicant Minister.
17.
That submission is without substance in the
face of the provisions of Sections 209 and 210 of the Labour
Relations Act 66 of 1995,
respectively providing that that Act binds
the State and that in the event of any conflict between the Act and
the provisions of
any other law, save for the Constitution or any
other enactment specially amending this Act, its provisions will
prevail.
18.
For these reasons, the order that I make is
the following:
The application is
dismissed.
__________________________________________________
B
M JAMMY
ACTING
JUDGE OF THE LABOUR COURT
26 March 2008