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[2011] ZALCJHB 192
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Gounden v South African Police Services and Others (JR 2364/08) [2011] ZALCJHB 192 (17 January 2011)
Not Reportable
Of
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
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.
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
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%.
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
”.
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.
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.
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
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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’.
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.
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.
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.
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
In
the light of the above:
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.
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.
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.
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