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[2010] ZALCJHB 365
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Gouden v South African Police Services and Others (JR2364/08) [2010] ZALCJHB 365 (14 September 2010)
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Reportable
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interest to other judges
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN
JOHANNESBURG
Case
No: JR 2364/08
In
the matter between:
GG
GOUDEN
First
Applicant
SOUTH
AFRICAN POLICE
SERVICES First
Respondent SUPERINTENDENT F E
STEYN
Second Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Third Respondent
E
BESTER
(
N.O.
)
Fourth Respondent
JUDGMENT
HEAD
NOTE: Review – unfair labour practice – promotion –
material procedural irregularity – appropriate
relief –
remitted on existing record
LAGRANGE,
J
Introduction
[1]
The applicant has applied to review and set
aside an award issued in his favour on 28 August 2008 by the fourth
respondent, an arbitrator
appointed by the Safety and Security
Sectoral Bargaining Council (' the SSSBC'), in terms of section 145
of the Labour relations
act 66 of 1995 ('the LRA’). The award
concerned and alleged unfair labour practices concerning the failure
to promote the
applicant to the post of Senior Superintendent, post
number 2, Commander Organised Crime, North East Rand, Germiston.
[2]
The applicant has also applied for
condonation for the late filing of the review application which was
approximately five weeks’
out of time. The explanation for the
lateness related to the need to consult with the applicant’s
legal insurers and obtain
an agreement on the attorneys representing
the applicant, which was only done on 13 October 2008. The
application was filed on
6 November 2008. The explanations is
reasonably satisfactory and the delay was not unduly excessive.
Moreover, the respondent
did not appear to feel prejudiced by the
matter as it did not oppose it. In the circumstance, the condonation
application for the
late filing of the review application succeeds.
Factual background
[3]
The applicant has been employed by the SAPS
since 1984. He applied for the above-mentioned post which was
advertised and was interviewed
after being short listed as a
candidate. He scored the third highest points in the interviews. The
only persons to do better than
him were the acting incumbent in the
post, Superintendent Nel and the second respondent Superintendent
Steyn. Steyn scored the
highest mark, followed by Nel. Steyn scored
82% and the applicant 70%.
[4]
Notwithstanding the rankings of the
candidates by suitability as measured by their score, the applicant
was placed second after
Steyn as a recommended nomination for the
post. The applicant did not dispute that Steyn was an appropriate
candidate for appointment,
but as he said under cross-examination,
“
The procedures were all wrong
”.
[5]
The applicant’s essential argument
was that Steyn was not one of the original eight short-listed
candidates, and therefore
should never have been interviewed. The
logic of his argument was that, if it were not for this procedural
irregularity, Steyn
would never have been interviewed and therefore
would never have been recommended as a candidate. If this
irregularity had not
occurred, it followed according to the applicant
that he would have been the first choice of the interview panel
followed by Nel.
[6]
There was also a suggestion in the evidence
that in recommending Steyn for the post that recommendation was made
by the panel on
the basis that the members of the panel were under
the impression that Steyn was acting in the post at the time instead
of Nel.
The applicant contends likewise that if it were not for this
misunderstanding, he would have been appointed.
[7]
When one of the interview panellist,
Director Palko when asked whether the applicant, as the second
recommended appointee, would
not have got the post if Steyn had not
been appointed his answer was ‘no’. He explained that
according to his recollection
the applicant’s was put forward
as the panel’s second recommendation for equity reasons.
The logic was that if
Steyn was not appointed, then the second person
to be offered the post should not be another white candidate which
Nel was.
The award
[8]
The arbitrator found that two of the
panellists who gave evidence were well aware that Steyn was not
acting in the promotion post
at the time of the interviews and found
that it was unlikely the panel could have been misled that he wa, but
he found that the
recommendation of the panel to approving authority
that he was acting was misleading. Nevertheles, she concluded that it
was not
possible to tell if this was the decisive factor that was
ultimately considered in appointing Steyn, in the sense that if this
representation had not been made, she could not be confident the
applicant would necessarily have been appointed.
[9]
She also found that the fact that the panel
had not short-listed Steyn, was a material irregularity because it
was clear it should
have been done by the panel. Such conduct she
held was unfair in terms of section 186(2)(a) of the LRA.
[10]
Although the arbitrator then held that if
it was not for the unfair inclusion of Steyn in the interview, the
applicant would have
been appointed. However, she decided it would
not be appropriate to make a finding in respect of the validity of
Steyn’s
appointment in circumstances where the panel did not
object to Steyn’s inclusion on the short-list. She then decided
to award
compensation in the absence of Steyn’s appointment
being set aside and in the absence of a suitable alternative position
available.
The review
[11]
The applicant contends essentially that the
relief awarded by the arbitrator was out of line with her finding,
which made the award
of relief irrational and unjustifiable.
[12]
The applicant also argued at the hearing
that he was the best candidate, on the evidence before the panel,
though this ground of
review was not clearly articulated in his
notice of motion. It was simply the contention in his notice of
motion that, but for
the procedural irregularity, he would
necessarily have been appointed.
[13]
He also argued that it was not correct in
law that Steyn’s appointment had to be set aside in order for
him to be promoted
to the post.
[14]
At the hearing, Mr Ascar, for the
applicant, emphasised that the thrust of the applicant’s case
on review was that he ought
to have obtained substantive relief given
that the arbitrator found that he would have been appointed if it
were not for the irregular
inclusion of Steyn in the interviews.
Analysis
[15]
It must be said that the record provided
left much to be desired, as the bundle of documents was missing.
Nevertheless both parties
were content to proceed on the basis of the
transcript and the award.
[16]
The essential question is whether it was
irrational for the arbitrator to only award the applicant
compensation, or whether she
ought to have awarded him ongoing relief
in the form of a protective promotion to the rank but not the post
occupied by Steyn.
[17]
Effectively, the arbitrator granted the
applicant relief for a procedural irregularity by awarding him
compensation from the date
of the appointment until the date of the
award.
[18]
It is true that there is a tension in the
arbitrator’s findings. On the one hand she found that but for
the irregularity of
the improper short-listing of Steyn, the
applicant would have been appointed. On the other hand, she found
that it was inappropriate
for her to make a finding on the validity
of Steyn’s appointment in particular because the selection
panel did not object
to Steyn’s inclusion on the short-list.
[19]
I agree that it is hard to reconcile the
arbitrator’s conclusions. If indeed she found that but for the
irregularity Steyn
would have been successful, then that would seem
to be determinative of the matter. In truth her finding amounts to
more than a
finding of a mere material procedural irregularity: it is
implicit that she found that it also robbed the applicant of an
appointment
that was rightfully his. On the other hand, she seems to
have decided that substantive relief was not appropriate because the
panel
had no difficulty in interviewing Steyn despite the
irregularity. This suggests that she found that the substantive
outcome might
have been justified, which is something she also hints
at by suggesting she was unable to decide on the validity of Steyn’s
appointment. In the circumstance, it cannot be said she unequivocally
decided whether or not there was substantive unfairness in
not
appointing the applicant to the post.
[20]
In such a case, it is difficult to
understand why the applicant was only entitled to compensation for
the period during which the
procedural irregularity had not been
remedied. On the face of it, the arbitrator should have also
considered how to remedy the
substantive injustice the applicant
suffered, if indeed she felt he ought to have been appointed. She
could have done this without
setting aside Steyn’s appointment,
but by promoting the applicant, with benefit, to the rank of the post
until such time
as he was appointed to a post at such rank, or
promoted to a higher position, sometimes referred to as a ‘protective
promotion’.
[21]
In the circumstance, it appears to me that
the relief flowing from the arbitrator’s finding of procedural
irregularity should
be set aside because of the abovementioned
contradictions in her findings and her failure to make an unequivocal
finding on the
question of substantive unfairness.
[22]
Ordinarily, the court would substitute its
own findings in this regard in a matter of this nature. However, any
adjudicator reconsidering
the appropriate relief will be compelled to
consider whether or not the finding of procedural irregularity had
the effect of denying
the applicant substantive fairnes, because it
is essentially this that the arbitrator was grappling with. It is
well established
that for substantive relief to be justified, the
adjudicator must be satisfied that the aggrieved applicant would have
been appointed,
on a balance of probabilities, not merely that they
qualified for it and would have made a suitable appointee.
[23]
The absence of the bundle of documents
relied on by the arbitrator is an obstacle to the court in this
regard and it seems that
any reconsideration of the appropriate
relief would require this to be reconstructed. For this reason, it
seems to me that the
only practical solution is to require the
applicant with the respondent’s co-operation to reconstruct the
bundle and for
the complete record to be set down before another
arbitrator for re-consideration without the need to hear further
evidence.
[24]
However, the failure of the applicant to
attend to this before the matter was heard inclines me to disallow
the applicant an order
of costs.
Order
[25]
In the light of the above:
a.
The arbitrator’s finding in her award
dated 28 August 2008 on the appropriate relief due to the applicant
flowing from her
finding that there was a material irregularity in
the appointment process leading to the appointment of the second
respondent is
set aside.
b.
The third respondent is directed to set the
matter down before another arbitrator to determine the appropriate
relief including
any substantive relief which ought to be granted to
the applicant flowing from the arbitrator’s finding of a
material irregularity
in the appointment procedure.
c.
The arbitrator appointed by the second
respondent shall determine the appropriate relief based on a
reconstructed record of the
arbitration proceedings under review in
this matter.
d.
Each party is to pay its own costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of judgment: 17 January 2011
Date
of hearing: 14 September 2010
Appearances:
For
the applicant: C Ascar instructed by Fluxmans Inc.
For
the respondent: T K Manyage instructed by the State Attorney