About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 57
|
|
Minister of Safety And Security and Another v Hattingh and Others (JR244/07) [2009] ZALCJHB 57 (22 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 244/07
In
the matter between:
MINISTER
OF SAFETY AND SECURITY
1
st
APPLICANT
NATIONAL
COMMISSIONER: SOUTH
AFRICAN
POLICE SERVICES
2
ND
APPLICANT
and
A
HATTINGH
1
ST
RESPONDENT
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
2
ND
RESPONDENT
J.
TOHLANG N.O
3
RD
RESPONDENT
M.A
MOHLAPHULI
4
TH
RESPONDENT
JUDGMENT
Nyathela
AJ
Introduction
[1]
This is an application for review in terms
of section 145 of the Labour Relations Act 66 of 1995 (the LRA) of an
arbitration award
issued by the third respondent (the arbitrator) on
21 August 2007 under case number PSSS752-06/07.
[2]
In terms of the award, the arbitrator ruled
that: “
6.1 I find that by failing
to promote the applicant the respondent committed an unfair labour
practice.
6.2 I accordingly order
the respondent to promote the applicant to the rank of captain with
effect from the date of the award.
6.3 No order as to
costs”.
[3]
It is this award which applicant seeks to
review and have it set aside.
[4]
The application is opposed by the first
respondent.
The
parties
[5]
The first applicant is the Minister of
Safety and Security who is cited herein in his official capacity as
nominal head of the South
African Police Services.
[6]
The second applicant is the National
Commissioner for the South African Police Service cited herein in his
official capacity.
[7]
The first respondent A. Hattingh is an
employee of the first respondent.
[8]
The second respondent is the Safety and
Security Sectoral Bargaining Council (SSSBC), a statutory council
established in terms of
the LRA.
[9]
The third respondent is J. Tohlang who is
cited herein in her official capacity as the arbitrator who handed
the award under the
auspices of the SSSBC.
[10]
The fourth respondent is M.A Mohlaphuli who
is cited herein as the successful candidate who currently occupies
the post sought by
the first respondent.
The
facts
[11]
The first and fourth respondents both
applied for a post of Senior State Accountant and were both
shortlisted. The post was ultimately
awarded to the fourth
respondent.
[12]
The first respondent lodged a grievance and
requested reasons for her non appointment. First respondent was
advised that the post
was awarded to the fourth respondent due to
equity. The grievance procedure was followed by first respondent.
After the grievance
remained unresolved, the first respondent
referred a dispute to the second respondent. At the Bargaining
Council, first respondent
argued that:
10.1 Fourth respondent
failed to declare in her interview that she had received a
departmental sanction;
10.2 The fourth
respondent was on sick leave for two years prior to applying for the
promotion; and
10.3 The evaluation panel
was not properly constituted.
[13]
The arbitrator found amongst others that
the panel was not properly constituted in accordance with Clause 8.2
of the National Instruction
which provides that: “
Panels
must be appointed as follows:
Level 8-10:
Chairperson of the panel must be on the level of a Director.
Members
of the panel must at least be on the level of a Senior Superintendent
or equivalent rank”.
[14]
In the present case, it is common cause
that the panel consisted of a director, senior superintendent and a
superintendent.
[15]
Applicant seeks to review the order and
have it side aside.
Grounds
for review
[16]
In the founding affidavit, applicant
contends that:
14.1 The arbitrator
committed gross irregularity by finding that the panel misdirected
itself by not enquiring what the fourth respondent
was doing in the
past four years. This information was irrelevant given that fourth
respondent met the established criteria for
the pot in that she was
inspector from 1994.
14.2 The arbitrator
committed gross irregularity in the conduct of the proceedings,
alternatively, exceeded her powers as arbitrator
by ordering that the
first respondent must be promoted to the post in question. This was
beyond her powers given that:
14.2.1 She found that the
panel was not properly constituted. Thus any decision of the
interview panel including her own scoring,
would be vitiated. The
only course open was to order that a new interview panel be
constituted to consider the applications; and
14.2.2
The filling of the post was circumscribed by the equity plan.
14.3 The arbitrator acted
unjustifiably and irrationally in that:
14.3.1 There was no basis
for her finding that, on the information before the panel, the fourth
respondent was not properly qualified
for the position.
14.3.2 She disregarded
the applicant’s equity plan and proceeded to order the first
respondent’s promotion as if the
equity plan was not in place.
14.3.3 There is no
rational connection between her decision and the evidence properly
before her.
Applicant’s
Submissions
[17]
Applicant’s representative reiterated
the grounds for review stated above.
First
Respondent’s Submissions
[18]
She was scored higher than the fourth
respondent. The equity report provided that no white females were to
be promoted. However,
three white females were promoted to level 3.
According to the applicant, if no suitable candidate could be found,
the Provincial
Commissioner may give a Directive to disregard the
equity plan. The panel did not give the commissioner the opportunity
to exercise
this discretion.
[19]
The panel was improperly constituted.
[20]
The arbitrator’s decision is correct
and should be confirmed.
Legal
position
[21]
In Le Roux v CCMA & others
(2000) 6
BLLR 680
(LC), the court held that “‘
exceed’
does not mean only that which is awarded is greater than that which
can permissibly be awarded. It simply means that
the award is one
which the commissioner did not have the power to make”.
[22]
In
Sidumo &
another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ
2405 (CC)
Ngcobo J at para 276-7
offered the following explanation: “
Where
a commissioner renders an award that is inconsistent with his or her
powers conferred on a commissioner by the LRA, ...the
commissioner
exceeds his or her powers and the award falls to be reviewed and set
aside under section 145(2)(a)(iii)of the LRA.
Given the
constitutional right to fair labour practices, ...an award which is
manifestly unfair to either employer or employee
can hardly be said
to be consistent with the powers conferred upon a commissioner to
make an award that is fair. ....If section
145(2)(a)(iii) of the LRA
were to be construed as permitting a manifestly unfair award to go
unchallenged, then its provisions
would fall foul of section 23 of
the Constitution. A construction which requires a commissioner to
render an award which is fair
is consistent with section 23 and must
be preferred to a construction which would render section 145
(2)(a)(iii) unconstitutional.
[23]
In
Sidumo
(supra)
Navsa AJ at para 72 stated the
following: “
In deciding how
commissioners should approach the task of determining the fairness of
a dismissal, it is important to bear in mind
that the security of
employment is a core value of the Constitution which has been given
effect to by the LRA. This is a protection
afforded to employees who
are vulnerable. Their vulnerability flows from the inequality that
characterizes employment in modern
developing economies...”
[24]
In
Sidumo
(supra)
the court held that in
reviewing an arbitration award, the test should be whether “
...
having
regard to the reasoning of the commissioner,
based
on the material before him, it cannot be said that his conclusion was
one that a reasonable decision maker could not reach.”
Analysis
[25]
In this matter, it is common cause that the
selection committee which interviewed the first and fourth
respondents was improperly
constituted. The commissioner proceeded to
find that in view of the defect in the composition of the selection
committee, the assessment
made by the committee was vitiated.
However, instead of simply setting aside the assessment made by the
panel, the commissioner
proceeded to use the same scores of the
improperly constituted panel to promote the first respondent.
[26]
In my view, the commissioner’s
reasoning is very much flawed in this regard in that on the one hand,
he accepted that the
assessment of an improperly constituted panel is
vitiated but on the other he proceeded to accept the vitiated
assessment to justify
a promotion of the first respondent. In other
words, the commissioner has found that the assessment of an
improperly constituted
panel cannot justify the promotion of the
fourth respondent but he proceeded to find that the same assessment
of the same improperly
constituted panel can justify the promotion of
the first respondent. This is illogical.
[27]
Clearly the commissioner has
committed a gross irregularity which is discernable from the
reasoning leading to the conclusion he
has reached in this matter.
Order
[28]
In the premises I make the following order:
(i)
The award issued by the arbitrator under
case number PSSS752-06/07 dated 21 August 2007 is reviewed and set
aside.
(ii)
The matter is remitted to the second
respondent to be heard by a commissioner other than the third
respondent.
(iii)
There is no order as to costs.
_______________
Nyathela
AJ
Date
of Hearing :
19 June 2009
Date
of Judgment :
22 September 2009
Appearances
For
the Applicant :
Adv. Baloyi
For
the Respondent: A. Hattingh
appeared in person