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[2011] ZALCJHB 272
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Minister of Correctional Services v POPCRU obo Selolo and Others (JR3007/09) [2011] ZALCJHB 272 (25 February 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no.: JR 3007/09
In
the matter between:
THE
MINISTER OF CORRECTIONAL SERVICES
Applicant
and
POPCRU
obo PETER SELOLO
First Respondent
ADVOCATE
M J MOLAPO N.O
Second Respondent
THE
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL
Third Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
The applicant seeks to review and set
aside the award of the second respondent (“the commissioner”)
under case number PSGA 1360-08/09
in
terms of section 145(1)(a) of the Labour Relations Act, 66 of 1995
(“the Act”).
The applicant
further seeks condonation for the late filing of the review
application. The application is opposed by the first respondent.
Background
facts
[2]
The applicant advertised 3128 positions nationally on salary grade 7
(Correctional Officer Grade 1) on 12 November 2007. The
first
respondent (“the employee”) applied for a position and
was shortlisted but was not appointed despite meeting
the minimum
requirements for the position. He was at the time on salary grade 6
(correctional officer grade II). He referred an
unfair labour
practice dispute in terms of section 186 (2)(a) of the Act to the
third respondent. The commissioner found that the
failure to appoint
him was unfair and issued an award in his favour.
[3]
The criteria for promotion from salary level 6 to 7 (correctional
officer grade II to grade I) were set out in departmental
guidelines
(paragraph 3.2) as follows:
- grade 12 ;
- 7 years’
applicable experience ;
- at least three
years’ service in the rank of correctional officer grade II;
- average performance
rating (at least 65%) for 2006/2007.
Paragraph 7.3 provided
that officials are considered in terms of the abovementioned criteria
and where there are still more qualifying
officials than the
available posts the following additional selection criteria may be
applied:
- area of locality
- seniority (i.e number
of years on current salary level)
- performance rating in
respect of the 2006/2007 year under review
- passing of the
prescribed promotional exams/further studies etc.
Paragraph 3.4 of the
national advertisement provided that "
officials should take
note that all applications for posts will be subject to a selection
process and promotions approved will inter
alia depend on the number
of vacancies available".
[4]
The employee testified that he complied with the minimum criteria as
set out in paragraph 3.2 and given the fact that there
were thus more
applicants than posts available, the additional selection criteria
would have to be applied. In this regard he was
stationed in the area
i.e. at the Bavianspoort Correctional Center where the promotions
were to take effect and this was a factor
in his favour. He was also
more senior than all the preferred candidates except one, and should
have been entitled to promotion
on the additional selection
criteria. He conceded however that the other candidates scored
higher than him on the performance
rating when applying the minimum
selection criteria, but still contended that had his performance
rating of 77.14% been taken into
account it would have resulted in
the number of applicants exceeding the requirements and hence would
have triggered paragraph
7.3.
[5]
The applicant alleged that all the successful candidates were
appointed in terms of paragraph 3.2, thus dispensing with the
need to
apply the additional selection criteria. It did not lead any evidence
at the arbitration, and submitted that the employee
was outclassed by
the preferred candidates on the performance rating, which was a
minimum requirement of the position.
Grounds
of review
[6]
The conclusion reached by the commissioner is not a reasonable
conclusion that could have been reached on the evidence presented.
The commissioner, Ms Matlejoane submitted on behalf of the applicant,
was confused about the application of the criteria in paragraphs
3.2
and 7.3, and concluded that once the employee met the minimum
requirements he was entitled to a promotion. However he took
into
account only two requirements i.e. the grade 12 qualification and
seven years’ applicable experience. He ignored the
other
minimum requirements, specifically the performance rating of at least
an average of 65% in the previous year. This indicates
that he
deliberately disregarded evidence to the effect that the first
respondent was outclassed by the preferred candidates on
the
performance rating.
[7]
The commissioner misdirected himself in finding that the applicant
was required to apply the additional selection criteria,
even though
this is clearly only applicable where there are more qualifying
officials than available posts. In doing so he disregarded
material
evidence that it was not necessary for the applicant to apply
paragraph 7.3 in that all the preferred candidates were
eligible for
promotion simply by application of the initial criteria, and that
they had all scored more than 80 % on their performance
ratings. He
failed to apply his mind to the fact that paragraph 7.3 would only be
invoked if the employee also had a performance
rating as high as the
other candidates. He would then have been eligible for promotion,
resulting in more qualifying candidates
than posts, and this would
have triggered the application of the additional criteria.
[8]
The commissioner committed misconduct in that he failed to act as an
impartial decision maker. He committed a gross irregularity
in that
he ignored material facts placed before him and took into account
irrelevant considerations and argument not based on the
evidence.
The
award
[9]
The commissioner sets out the issue to be determined as being whether
the applicant’s conduct was unfair in relation to
the
non-promotion of the employee, and if so, whether he is entitled to
the relief sought. He concludes as follows :
"Since the
applicant and other qualifying candidates had already met the
requirements in 3.1, therefore making it to the selection
stage, I
concur that the respondent had to effect the promotions by applying
its criteria in paragraph 7.3 above. The respondent
in its own
document providing for the guidelines, warns all officials that the
applications will be subject to a selection process.
It is only
paragraph 7 that provides for this process as outlined above. The
respondent's case is that they were a limited number
of promotional
posts. He concedes that had there been more posts the applicant would
have been promoted. His only justification
for the non- promotion is
based on the contention that the preferred candidates were rated
higher than the applicant at the qualifying
stage provided in
paragraph 3.
The respondent's
argument in this regard does not in my view pass the scrutiny of
paragraph 3.4 above. The latter is very clear
what process has to
succeed the shortlisting of qualifying candidates. In other words had
all the qualifying candidates number
be (sic) equivalent to the
available posts the applicant would have been promoted. Since the
qualifying candidates were more than
the available posts the
selection process in accordance with paragraph 7.3 would then be
invoked. The applicant equated the criteria
in 7.3 to a house, which
would require a complete phase after another to become real. He
contends that the criteria as outlined
in its sequence in 7.3 had to
be followed by the respondent. He would had that taken place, have
made it by first considering him
being stationed at the Bavianspoort
prison, then being more senior to all the other respondents except
Khoza (who is at the same
number of years of seniority). He believes
the criteria in his respect should have ended at the seniority
requirement, advantaging
him as compared to the other respondents.
Having referred to the spirit of the advert by referring to paragraph
3.3 above, I conclude
that the respondent by not adhering to its
selection process in terms of the advert read in its whole context,
acted unfairly by
not promoting the applicant."
[10]
The applicant was ordered to effect the promotion of the employee to
the promotion post with effect from 1 April 2008 and also
pay him the
difference in salary.
Analysis
and conclusion
[11]
In regard to the merits of the review it is by now trite that the
test applicable is as set out in
Sidumo
&
Another v Rustenburg Platinum Mines Limited & Others
(2007) 28 ILJ 2405 (CC), namely that a decision is
reviewable if it is one which a reasonable decision maker could not
have reached.
[12]
In opposing the review Mr Basson submitted that the employee’s
version at the arbitration was not disputed and the commissioner’s
conclusion therefore could not be interfered with. Furthermore, the
applicant’s submission that it was not obliged to apply
paragraph 7.3 was based on a misreading of the circulars advertising
the positions, in that it failed to distinguish between the
minimum
requirements that all applicants had to comply with and the
additional selection criteria that were triggered by more applicants
meeting the minimum criteria than available posts. It followed as a
matter of logic that the process in paragraph 7.3 would then
have to
be complied with. The reference to being “outclassed” in
terms of a performance evaluation did not follow grammatically
or
logically from any interpretation of the circulars. This is clear
from the simple meaning of paragraph 3.1 which refers to “
the
criteria
to
be considered for posts…
”
and the reference to “
additional
criteria
” where the number of
qualifying candidates exceeds the number of posts. The applicant
elected not to tender evidence which
could have clarified the
confusion surrounding the application of the criteria. In the
circumstances the commissioner correctly
rejected the applicant’s
version and his award cannot be said to be one that could not be made
by a reasonable decision-maker
on the evidence before him.
[13]
It is trite that the
Sidumo
test
requires consideration of the decision in the context of the material
presented and in the present matter the commissioner
was undoubtedly
constrained in his interpretation of the applicant’s conduct
given its election not to lead evidence. However,
at the same time it
cannot be disputed that the reasoning of the commissioner is
eminently flawed in that even on a literal interpretation
his
assumption of the automatic triggering of the additional criteria
cannot be sustained. Even if the employee met the minimum
criteria,
which was not in dispute, he would still only be entitled to
consideration for promotion, which is subject to the employer’s
discretion and has to be exercised fairly. As for the reference
to the “
spirit”
of the circulars, it is unclear from the record what evidential basis
exists for this. This would in my view render the award
reviewable on the
Sidumo
test.
[14]
I am of the view that good cause exists for the granting of
condonation and that the delay involved is minimal. In the
circumstances
the review succeeds and there is no need to determine
the section 158(1)(c) application.
[15
] In the premises, I make the following order:
1.
The award is reviewed and set aside.
2.
The matter is remitted to the third
respondent for determination de novo by a senior commissioner other
than the second respondent.
3.
There is no order as to costs.
_____________
Bhoola
J
Judge
of the Labour Court of South Africa
Date
of hearing : 17 February 2011
Date
of judgment: 25 February 2011
Appearance:
For
the Applicant: Ms M B Matlejoane instructed by the State Attorney
For
the Respondent: Adv J L Basson instructed by Groskopf Attorneys