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[2011] ZALCCT 65
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Department of Economic Development and Tourism, Western Cape v Hanekom NO and Others (C 381/10) [2011] ZALCCT 65 (23 September 2011)
Not reportable
Of interest to other
judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Case
no: C 381/10
In the matter between:
DEPARTMENT
OF ECONOMIC DEVELOPMENT
AND
TOURISM, WESTERN CAPE
..................................................
Applicant
and
ADV
JP HANEKOM N.O.
.......................................................
First
respondent
GENERAL
PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
.............................
Second
respondent
PSA
obo DAWID LABUSCHAGNE
.....................................
Third
respondent
Heard
:
15 September 2011
Delivered
:
23 September 2011
Summary: Review – unfair labour practice concerning
promotion – not reviewable
.
JUDGMENT
STEENKAMP J
Introduction
The applicant seeks to review the award of the First Respondent (the
arbitrator) in which he found that the applicant had committed
an
unfair labour practice in failing to shortlist the third respondent,
Mr Dawid Labuschagne, for a promotional post. The arbitrator
awarded
the third respondent compensation equal to two months’ salary.
The applicant seeks to review the award in terms of s 145 of the LRA
on the basis that:
1.1. “First Respondent has committed misconduct in relation to
his duties and has misconceived his duties and jurisdiction;
1.2. Has committed a gross irregularity in the conduct of the
proceedings;
1.3. Has exceeded his powers; and
1.4. The award is not rationally justifiable in relation to the facts
and reasons given for the award.”
In oral argument, though, Mr
Taylor
, for the applicant,
agreed that these grounds – as set out in s 145 of the LRA –
have been suffused in the standard
of reasonableness as set out in
Sidumo
1
and that that is the applicable test.
Background
The third respondent was one of 65 candidates who responded to the
applicant’s advertisement inviting candidates to apply
to be
interviewed for a post of manager: employee services at the level of
deputy director (level 11). This would be a promotional
post for the
third respondent.
The advertisement specified the following requirements:
"The
formal qualification required for this position is an appropriate B-
degree or equivalent (Human Resource Management or
Industrial
Psychology) plus extensive working experience in a human resource
management (personnel Administration and labour relations)
environment. Further requirements include: a valid driver's license;
good communication skills in at least two of the three official
languages of the Western Cape; at least three years
management/supervisory experience; financial management experience;
computer
literacy; report writing experience."
The advertisement did not set out the detailed requirements, weight
allocation and scoring method used by the selection committee
that
shortlisted candidates in terms of a "grid". These were:
requirements of post;
public service personnel management experience;
public service labour relations experience,
supervisory/management experience;
financial management experience;
report writing experience;
presentation skills;
project management skills;
equity (race, gender and disability).
The third respondent’s CV set out his extensive experience in
the public service labour relations area. He had been employed
in
personnel functions since 1986 and is at present an assistant
manager: employee services. His CV and also outlined his duties
as
Assistant Director: Labour Relations, a position he had filled from
1999 to 2006. That included the operational and strategic
management
of the departmental labour relations in: financial input; and
budgeting and control.
The selection panel did not shortlist the third respondent to be
interviewed because they did not allocate him a sufficiently
high
score in terms of the grid compared to his CV.
Grounds of review
The Applicant’s grounds for review rest on the following:
3.1. The Applicant disputes the First Respondent’s finding that
the question of point scoring during the screening process
was a
procedural flaw. According to the Applicant the point scoring
function is a reflection of the interpretation of a set of
facts
stated in the CV by the person presiding over the screening process.
3..2. The point scoring function during the screening process is a
substantive issue in that it was a matter of interpretation
of the
applicant’s CV by the shortlisting panel at the time that the
shortlisting was conducted.
3.3. The selection panel was precluded from drawing inferences from
information set out in a candidate’s CV but not specifically
stated therein.
3.4. The First Respondent arrived at his conclusion that the
shortlisting process was unfair by using inferential reasoning which
was not open to the selection panel at the time and by substituting
his own assessment of the points to be allocated by the selection
committee to the Third Respondent in circumstances where it was not
open to the First Respondent to act as an “
employment agency
or shortlisting panel”.
3.5. In estimating the points that, in the First Respondent’s
opinion, ought to have been allocated to the Third Respondent,
the
First Respondent failed to have regard solely to the information
provided in the Third Respondent’s CV.
Discussion
It became clear in oral argument that the crux of the Applicant’s
argument is that the points allocated by the shortlisting
panel was
based on its interpretation of the facts stated in the
curricula
vitae
before it, and that an arbitrator cannot second guess this
assessment and substitute it with his own interpretation of what the
most appropriate points should have been. Further, that the
selection committee was precluded from inferring information which
was not on the Third Respondent’s CV.
In effect, what the Applicant argued is that an arbitrator cannot
interfere with a choice of candidate which an employer has
made
based on a point scoring system.
But in
Minister of Safety & Security v Safety & Security
Sectoral Bargaining Council & Others
(2010) 4 BLLR 428
(LC)
Francis J made it clear that this sort of deference should not be
expected of an arbitrator: that would mean that employees
who are
victims of an unfair labour practice would be left with no remedy.
2
The Applicant, on the version of its own witness (Mr Romeo Adams),
was not sure as to how the scoring of the candidates had to
take
place. It appears that the grid contained in the applicant’s
“transversal policy” was not properly applied
or that
the incorrect grid was used for the shortlisting exercise. According
to Adams, the maximum score that could be allocated
for experience
was a 2. Adams further confirmed that the criteria should have been
1 for less than 2 years and 2 for more than
2 years. Adams conceded
that it was possible that he made mistakes in this regard.
What this means is that none of the candidates should have been
allocated a score above 2. Yet it did happen. The process that
the
shortlisting panel followed is commonly known as a “
screen
out process”.
This involves an objective assessment of
whether or not an applicant has met the broad requirements of an
advertised position.
It was clear that normally during this process
no discretion is given to the selection panel to decide on the
appropriate score
which an applicant must be given. For example, if
an applicant has report writing skills then he should be given the
points associated
with having such skills. The question as to the
weight to be attached to any specific requirement forms part of a
competency
assessment which takes place later, should a candidate be
shortlisted.
It was not open to the Applicant to criticise the Third Respondent
for his apparent lack of detail in his CV, when the advert
itself
was not specific on critical issues such as the length of service
required. It cannot be fair to apply the criteria based
on years of
experience to a job applicant when that applicant was not asked to
specify his length of experience in respect of
a specific
requirement.
There is also no merit in the Applicant’s argument that it was
not open to the shortlisting panel to infer from the Third
Respondent’s CV what his experience was, as the Applicant had
no problem inferring apparent experience from the successful
candidate’s CV. In this regard, the successful candidate did
not put any financial management experience down on his CV.
Notwithstanding this, during cross-examination Adams stated that
project planning involves looking “not only at the Human
Resources but also the financial resources for that specific
project.”
Ultimately, the conclusion that the arbitrator came to was that the
Third Respondent was not allocated scores in respect of issues
such
as supervisory skills even though these are mentioned on his CV. The
arbitrator also correctly readjusted the scores which
were patently
incorrect in respect of the other shortlisted candidates and arrived
at a decision which saw the Third Respondent
qualifying for the
shortlist.
Conclusion
In my view the decision reached by the arbitrator is one which a
reasonable decision maker could have reached. He applied his
mind to
the evidence before him, the relevant criteria, and the concessions
made by the applicant’s witness, Adams. His
decision that the
applicant committed an unfair labour practice in failing to
shortlist the third respondent, given the mistakes
in the scoring
system it applied, is not unreasonable. Neither is the award of
compensation of two months’ salary.
The application for review is accordingly dismissed with costs.
_______________________
Anton Steenkamp
Judge
APPEARANCES
APPLICANT: Graham Taylor
Instructed by the State Attorney.
THIRD RESPONDENT: Bradley Conradie attorney.
1
Sidumo
and Another v Rustenburg Platinum Mines Ltd & Others
(2007)
28
ILJ
2405 (CC).
2
At
para 24.