About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 90
|
|
Minister of Safety and Security v Safety and Security Sectoral Bargaining Council and Others (JR885/07) [2011] ZALCJHB 90 (1 November 2011)
THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case: JR 885/07
In the matter between:
Reportable
MINISTER OF SAFETY AND
SECURITY
…................................
Applicant
and
SAFETY AND SECURITY
SECTORAL
BARGANING COUNCIL
…..............................................
First
Respondent
Z S SIBEKO (
N.O.
)
….................................................
Second
Respondent
M J MTUNGWA
…..........................................................
Third
Respondent
JUDGMENT
Head notes: (failure
to promote - single interview - two posts)
LAGRANGE, J:
Introduction
This is an application
to set aside an award issued by second respondent an arbitrator
appointed by the Safety and Security Sectoral
Bargaining Council on
21 February 2007. The arbitrator held that the applicant's failure
to promote the third respondent, Superintendent
Mtungwa, to the rank
of senior superintendent was procedurally and substantively unfair.
He then ordered the applicant to appoint
the third respondent to
that rank backdated to the date of appointment of the candidate who
was successfully appointed in post
number 2210. The third respondent
also launched an application to dismiss the review application
because of delays in finalising
the review application, but did not
persist with this application and the parties argued the merits of
the review.
The application was
filed on 15 April 2007 which meant it was five days late. The
applicant sought condonation for this, which
was unopposed.
Essentially the explanation for the delay was that the instruction
to appoint counsel to draft the review papers
was only received by
the state attorney on 30March 2007 and the first consultation could
only be held on 3 Apri,l after which
documents still had to be
forwarded to counsel to complete the drafting exercise. The delay is
minimal and the explanation for
the delay is acceptable in relation
to the length of the delay. Below I consider the merits of the
review application fully,
from which it is apparent that I consider
them to be strong. For these reasons the late filing of the review
application is condoned.
Prior to the arbitration
the parties agreed to a pre-arbitration minutes. In terms of those
minutes certain facts were agreed
as being common cause namely:
Supt. Mtungwa had
applied for two posts, one being post 2208 (Station Commissioner:
Piet Retief), the other being post 2210
(Station Commissioner:
Tonga).
Both posts were
designated for African female candidates. However no African female
was shortlisted for post 2208, a deal was
an African female
candidate for post 2210.
Supt. Mtungwa was
shortlisted for both posts but not recommended for appointment in
either. No reasons were provided for not
appointing him.
Supt. Mtungwa was only
interviewed for post 2208 and not for post 2210.
In terms of the same
minutes the parties were in dispute about whether the applicant had
acted fairly by not interviewing Supt.
Mtungwa for the second post
and in not appointing him. He also questioned whether the employer
had acted fairly in not following
the Employment Equity plan at the
Piet Retief station, but this was not an issue which ultimately
played any role in the dispute.
The arbitrator's award
To answer the question
whether or not the applicant had acted improperly by not
interviewing Supt. Mtungwa for the second post,
the arbitrator
relied on the provisions of National Instruction 1/2004. The
pertinent provisions selected and relied on by the
arbitrator read
as follows:
"Paragraph 7:
applications for promotion to posts read with paragraph 9 sub
paragraphs 5
(1) The National
Commissioner may restrict the number of posts employees may apply
for.
(2) an application for an
advertised post must –
(a) be made on the form
determined by the National Commissioner;
(b) be received at the
appropriate office within the time limit specified in the
advertisement;
(c) mention the post
numbers of the posts applied for;
(d) contain sufficient
information showing that the candidate meets the applicable promotion
requirements as set out in paragraph
6 (10);
(e) be completed, signed
and dated; and
(f) the documentation
requested in the advertisement must be attached.
(3) An employee who
applied for an advertised post must be considered for the post if she
or he –
(a) meets the applicable
promotion requirements;
(b) meets the
requirements of this specific post;
(c) is in all respects
suitable for promotion; and
(d) is able to render
services for at least twenty four months in the higher post.
(4) An employee may only
apply for promotion to a post at the next higher level. Ranks or
levels may not be skipped.
Paragraph 8: Appointment
of evaluation panels
(7) A secretary must be
assigned to assist the selection panel by rendering administrative
services during the selection process
and may not form part of the
evaluation panel. A secretary of a panel may not be a candidate for
any advertised post in respect
of which the panel has been appointed.
Paragraph 9: Generic
functions of evaluation panels (where the interviews are conducted or
not)
(5) Candidates must be
considered for all the posts they have applied for taking into
account any restriction by the National Commissioner
on the maximum
number of posts for which candidates may apply.
Paragraph 11: evaluation
process where interviews are to be conducted
(2) When scheduling
interview, secretary of the panel must inform the candidates in
writing of the date, time and venue of the interview
as well as of
the post(s) for which the candidates will be assessed.
In the
event that a candidate cannot attend a scheduled interview without a
valid acceptable reason, he or she will forfeit the
opportunity of
being assessed for the specific post
."
(Arbitrator’s own
emphasis)
On the basis of his
interpretation of the provisions set out above the arbitrator drew
four conclusions. Firstly, he decided that
the National Commissioner
may restrict the number of posts employees may apply for. Secondly,
once an employee applied for a
post that employee has to be
considered for the post if he meets its requirements. Thirdly the
secretary of the interview panel
may not be part of the panel.
Lastly, if a candidate does not attend a scheduled interview without
a good reason the candidate
forfeits the opportunity of being
assessed for the specific posts.
Applying these
principles to the matter before him, the arbitrator found that there
was no restriction on Supt. Mtungwa applying
for both posts, but in
deciding not to interview him for the second post this amounted to a
restriction which was not authorised
by the National Commissioner.
He also found that because Supt. Mtungwa met the requirements for
the post he ought to have been
considered for it, and the fact that
the marks he obtained in the first interview were transferred to
evaluations for that post
did not amount to consideration for the
post as envisaged by the National Instruction. For that to have
taken place he had to
be interviewed and considered together with
the other candidates who applied for that post.
The arbitrator dismissed
the employer's contention that if Supt. Mtungwa had been interviewed
for the second post he would have
been advantaged over other
candidates, because the employer had shortlisted him for both posts
and invited him for interviews.
Therefore he should have been
considered together with the other candidates for post 2210.
Supt. Mtungwa was
invited to both interviews for the posts he had applied for and
attended the first interview for the Piet Retief
post. He claimed
that he was not advised that he would not be required to attend an
interview for the second post until after
the interview was
completed when he was advised of this by the secretary of the panel.
The arbitrator found that the secretary
acted outside of the course
and scope of the duties in advising him of this.
The arbitrator also
concluded that, by not interviewing Supt. Mtungwa for the Tonga
post, he lost the opportunity to be considered
together with the
other candidates. He also concluded that he probably would have done
better when compared with the other Tonga
candidates than he did in
the interview for the Piet Retief post.
Grounds of review
The applicant raises a
number of grounds in support of its review application, which are
set out below.
The applicant submitted
that the arbitrator’s finding that Supt. Mtungwa was not
considered for that post was not sustainable
because his score from
the first interview was transferred to the evaluation of the Tonga
candidates and that his application
was indeed considered. The
chairperson of the selection panel confirmed in his testimony that
he was considered but not found
to be the most suitable candidate.
Moreover, whereas Supt. Mtungwa was not placed in the list of the
five most preferred candidates
for the Piet Retief post, he was
ranked third in the five most preferred candidates for the Tonga
post.
It must be mentioned
that a number of candidates had applied for more than one station
commissioner post in the province, and
the composition of the
interview panel was the same for each post except that the area
level member of the panel varied. Also,
the same questions were
asked in each interview and each candidate was scored when they were
interviewed. Thus, in the case of
Supt. Mtungwa, if he had been
interviewed for the Tonga position after the Piet Retief interview
he would have had a second opportunity
to deal with the same
questions he had just answered in the previous interview.
In defending the
arbitrator’s decision, Supt. Mtungwa submits that the single
interview approach could not have been fair
because a score given in
relation to the Piet Retief post could not provide an objective
assessment for the Tonga post, and at
the time of his interview he
did not know it would be used as the basis for the second interview.
It should be noted in this
regard that if there was any area
specific character to each interview, every candidate who was
shortlisted for more than one
post would have been in the same
position as Supt. Mtungwa insofar as they would not have had an
opportunity to deal with that
aspect of the post they were not
interviewed for.
Because the composition
of the panel was virtually the same and because the interview
questions were the same, the employer believed
that it would give
persons who were interviewed twice an unfair advantage over persons
who had only applied for one post and
were interviewed for that post
alone. The applicant contends that the arbitrator did not properly
consider this when he decided
that Supt. Mtungwa would not have been
advantaged
vis-a-vis
other candidates if he was interviewed a
second time. The applicant also points out the arbitrator provided
no reasons for this
conclusion, indicating he did not apply his mind
to the question.
Secondly, the applicant
argues that the arbitrator was simply speculating when he concluded
that Supt. Mtungwa would probably
have done better in the second
post as there was no information before the arbitrator about the
other candidates against which
she could have made such an
assessment.
In reaching the
conclusion that the secretary of the selection panel acted
improperly in advising Supt. Mtungwa that he was not
required to
attend the second interview, the applicant maintains that the
arbitrator did not apply his mind to the role and function
of the
secretary of the panel. Her role as set out in the National
Instruction was clearly an administrative one and in advising
Supt.
Mtungwa that he would not be required to attend the second interview
she was not performing a deliberative function.
The applicant also
attacked the arbitrator’s finding that by excluding Supt.
Mtungwa from the second interview he had been
denied the opportunity
to be assessed to which he was entitled. It submitted this was based
on an elementary misreading of the
provision in the National
Instruction relating to an applicant forfeiting the right to be
assessed if he fails to attend an interview
without just cause.
The arbitrator stated
that he was required to decide whether the applicant acted
improperly in not interviewing him for the second
post and if so
whether to order that he be appointed to the post of similar rank or
status as he requested. The applicant contends
that the arbitrator
appeared to consider this relief to be the only relief he should
consider, whereas section 193(4) of the
Labour Relations Act, 66 of
1995 (‘the LRA’) required him to determine the dispute
on terms that he deemed reasonable
which meant that he had a
discretion to be exercised judicially, and he provided no reasons
for the relief he decided on and
appeared to believe was the only
appropriate relief he should consider.
Evaluation
The arbitrator’s
assessment of the panel secretary’s role is unsustainable on
the basis of what she actually did,
which was simply to advise the
third respondent of the panel’s agreed approach to all the
interviews, namely that he would
not be interviewed again. It is
patently clear she did not take this decision but merely conveyed
it, which was in keeping with
her function as described in the
National Instruction. There is simply no justification for
concluding that she performed a deliberative
function of any sort in
her own right.
Equally, no factual
foundation of any substance was provided in evidence for determining
the suitability of the third respondent
vis-a-vis the other
candidates for the Tonga post that could have enabled the arbitrator
to reasonably conclude that Supt. Mtungwa
would probably have
succeeded had he been interviewed.
Even
if his conclusion that Supt. Mtungwa had been prejudiced by not
being interviewed twice was correct, at best that would have
been
the basis for a finding of some kind of procedural unfairness. In
any event, that could only have been the starting point
for an
enquiry into the substantive fairness of Supt. Mtungwa’s
non-appointment. In
Ndlovu
v Commission for Conciliation, Mediation and Arbitration and others
(2000) 21
ILJ
1653 (LC)
,
Wallis AJ held that the
second stage of a dispute over an alleged unfair failure to promote
an employee requires an employee:
“
[12]
… to show that the decision to appoint
someone else to the post in preference to the complainant was
unfair.
That will almost invariably involve comparing the qualities of the
two candidates. Provided the decision by the employer
to appoint one
in preference to the other is rational it seems to me that no
question of unfairness can arise.”
1
Without a full and
detailed consideration of evidence why the panel acted irrationally
in appointing another candidate to the
Tonga post, the arbitrator
had no basis for reaching a conclusion that the he ought to be
compensated by an appointment to the
same rank level of the post for
which he had applied.
The heart of Supt.
Mtungwa’s complaint was that he should have been interviewed
twice and he was prejudiced by not doing
so. That failure in turn
allegedly led to him not being appointed to the post as he then
would have been selected as the best
of the preferred candidates. It
is true that the composition of the interviewing panel changed by
one member if the post under
consideration fell within a different
area. But the arbitrator clearly failed to evaluate the merits of
the employer’s
case for only interviewing candidates once,
particularly when the questions asked were the same, and candidates
were all scored
on the basis of the evaluation of their answers to
those questions. It is inconceivable on any rational basis how the
arbitrator
could have concluded that a candidate who was interviewed
twice in interviews following the same format by the same panel
would
not be advantaged over candidates who only had one interview.
Moreover, he failed to
consider the actual results of the rankings of the candidates for
the Tonga post in deciding that Supt.
Mtungwa was prejudiced, namely
that he did better in the rankings for the post where he did not
participate in an interview than
in the post in which he did.
On the question of
whether Supt. Mtungwa’s candidacy for the Tonga post was
effectively not entertained, there is an inescapable
inference that
he clearly was seriously considered based on the fact that he was
ranked as one of the five preferred candidates
for the Tonga post:
his absence from that interview did not prevent him being seriously
considered. The arbitrator could only
have reached the conclusion he
did by ignoring this material evidence.
In the circumstances, I
am satisfied that the award stands to be set aside for one or more
of the reasons mentioned.
In relation to
substituting for the arbitrator’s award, it is clear from the
reasons why it should be set aside that the
arbitrator ought not to
have found that the failure to promote Supt. Mtungwa to the Tonga
post was procedurally and substantively
unfair.
Order
In the circumstances an
order is made in the following terms:
The applicant’s
late filing of the review application is condoned.
The award of the second
respondent, issued on 21 February 2007 under case number
PSSS435-05/06 is reviewed and set aside.
The second respondent’s
findings are substituted with a finding that the applicant’s
failure to appoint him to the
post of Tsonga Station Commissioner
at the rank of Senior Superintendent was neither procedurally nor
substantively unfair.
No order is made as to
costs.
R LAGRANGE, J
JUDGE OF THE LABOUR
COURT
Date
of hearing: 21 October 2010
Date
of judgment: 01 November 2011
Appearances:
For
the applicant: L M Moloisane instructed by the State Attorney
For
the third respondent: S T I Mbethe
1
At
1655-6, paras [11] – [12]
15