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[2011] ZALCPE 13
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Hlasela v General Public Service Sectoral Bargaining Council and Others (P192/10) [2011] ZALCPE 13 (18 November 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
case
no: p192/10
In the matter between:
LULAMA
HLASELA
….................................................................................
Applicant
and
GENERAL
PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
…........................................
First
Respondent
COMMISSIONER JOHN C ROBERTSON N.O
…......................
Second
Respondent
DEPARTMENT OF CORRECTIONAL SERVICES
…....................
Third
Respondent
Heard
:
15 November
2011
Delivered
:
18
November
2011
Summary:
Review for unreasonableness – no grounds for review
established - dismissed with costs
JUDGMENT
BHOOLA J
Introduction
This is an application in terms of
section 145
of the
Labour
Relations Act 66 of 1995
, in which the applicant seeks an order
reviewing and setting aside the award of the second respondent (“the
arbitrator”)
dated 5 July 2009 and issued under the auspices
of the first respondent (under case number PSGA 980-07/08). The
arbitrator dismissed
the dispute referred by the applicant and found
that the third respondent’s (“the Department’s”)
conduct
in not promoting him did not amount to an unfair labour
practice.
The review was filed eight months late and condonation for the late
filing was sought. The applicant has further delayed on more
than
one occasion in timeously prosecuting the review. Nevertheless, I am
of the view that the applicant should be given the
benefit of the
doubt in respect of his efforts to obtain legal representation and
secure finances and find that good cause has
been shown for the
delay. I proceed therefore to deal with the merits.
Background facts
The applicant was employed by the Department on 1 July 1992 as a
Correctional Officer at Grade III. The third respondent had
a policy
of conducting assessments for promotions every year between 1995 and
2001. Promotion assessments were done in 1997 and
1999 but not in
1998. The applicant met the requirements for promotion (CO III to CO
II) but did not submit his first year B.Juris
results in time (he
had passed three subjects), because he had to write a supplementary
exam for the fourth in early 1998. He
was promoted in 1999 on the
same policy for promotions as was applied in 1997.
The applicant lodged a grievance and thereafter declared a dispute
in which he alleged that the failure to promote him constituted
an
unfair labour practice within the meaning of
section 186(2)
of the
LRA.
Grounds of review
The grounds of review are stated as follows in the applicant’s
founding affidavit :
‘
14.
The Second Respondent erred grossly when he ruled that no assessment
(sic) were held in 1998 because I had not referred to any
incidents
for that particular year and as such no assessment for me was
scheduled. This is not the case as it was common cause
that no
assessment in totality was held during 1998. It was not because I
failed to hand up an incident report that the assessments
were not
held.
15. The finding that I was not
assessed during 1998 due to my action is not in line with the
evidence produced and is indeed contradictory
to the evidence
produced at the hearing.
16. The Second Respondent
further did not take into consideration that I was informally
assessed during 1998 and that my direct
superior as well as the next
in line indeed supported my application to be promoted.’
Evaluation of merits
Mr Harker, appearing for the applicant, sought to clarify the obtuse
grounds of review by submitting that the arbitrator failed
to have
regard to the key issue, which he presented as the applicant’s
‘legitimate or genuine expectation arising
from his right or
interest in ensuring an assessment in 1998’. Insofar as I
understood his submissions, they were that
the arbitrator had a duty
to call upon the Department to produce evidence as to why it had not
done assessments in 1998, and
that his failure to address this issue
resulted in an “unreasonable conclusion”. He implied
that the arbitrator ought
to have called for evidence since there
was a possible adverse inference to be drawn from the fact that
assessments had been
held annually from 1995 to 2001 but had not
been done for 1998. As a result of this omission, the applicant was
denied a fair
hearing. In addressing the grounds of review, he
submitted that the applicant’s supervisor had moreover
recommended that
his promotion should be backdated at the time when
he filed his grievance. Furthermore, the arbitrator contradicted
himself when
he found that the failure to promote the applicant
arose from his not having filed critical incidents when it was clear
that
no assessments were held for anyone in 1998 and blame could
therefore not have been attributed to the applicant.
Mr Wade submitted, on behalf of the Department, that the arbitrator
recorded the critical issue in dispute as being whether the
applicant had the necessary educational qualifications (i.e. the
required first-year B.Juris credits)
during 1997
. The
ancillary issue centered on the question of whether he should
accordingly have been promoted in 1997. As there were no assessments
in 1998, the relevance of determining his promotability in 1997 was
that he would have been promoted with his colleagues and
would then
have qualified for further promotion in 1999. Instead, he in effect
languished two years behind his colleagues. Mr.
Wade submitted that
the importance of this means that the applicant now misstates the
issues in seeking to focus on what transpired
during 1998 when this
was never before the arbitrator. The applicant does moreover not
take issue with the arbitrator’s
delineation of the two
critical issues to be determined. In this regard, the arbitrator
stated that the following was in dispute
between the parties :
‘
Relative
to the 1997 Promotions –
Whether the B.Juris degree
qualified as a requirement in terms of the promotion policy (First
year only).
Whether or not the employee
qualified for assessment or not in 1997
.’
Mr Wade submitted that the evidence of Mr Job (the Manager for Human
Resources Administration), which remained largely unchallenged,
was
that the applicant did not qualify for promotion during 1997. The
reason for this was that at the time he had only three
first-year
B.Juris credits and not the four required. The evidence was also
that the results of the supplementary examination
in respect of the
fourth subject were only submitted after January 1998, i.e. after
the relevant assessment period in 1997. What
may have transpired
during 1998 was accordingly not the focus of the arbitration, and
the evidence was that he did not meet the
defined promotion criteria
and was accordingly not eligible for promotion in 1997. The
arbitrator therefore accurately recorded
that ‘the employee
did not testify on this aspect i.e. the submission of incidents for
1998. In addition no assessment
was held in 1998. The relevance of
this is that the department would have no assessment or incidence on
which to make a decision
relating to 1998.’ The arbitrator
then correctly concluded as follows:
‘
[Hlasela]
had failed to make out a case for promotion to CO II as of 1 July
1997 or during 1998. In this regard I note that dual
responsibility
rests on the employer and the employee vis-à-vis assessment.
In other words once it has been announced that
assessments will be
made a supervisor cannot conduct an assessment until the employee
submits the critical incidents. They could
well be cases where an
employee may not wish to apply for assessment.’
Despite the fact that
section 138
(7) of the LRA requires an
arbitrator to issue an award with brief reasons, the arbitrator
provided a detailed and comprehensive
award. The arbitrator
summarised the substance of the applicant’s contentions then
conducted a detailed analysis of the
criteria for promotional
assessment, both at the level of education and experience. He then
applied the criteria to the applicant
in considering the reasons why
he was not promoted.
The arbitrator concluded that the relevant criteria for promotion
had not been met by the applicant. He stated his conclusion
as
follows:
‘
As at
1 July 1997 the promotion date in question the employee did not meet
the requirement for promotion in particular he did not
possess 4
first year credits. He obtained three credits at the end of the year
and his 4
th
credit by way of a supplementary examination in January 1998. His
peers who had obtained Module A and B of the Prison Management
Diploma, which served as a required qualification, by virtue of their
years of service (5 years) the same as the employee’s,
were
assessed and promoted accordingly. The point is that as at 1 July
1997 the employee did not qualify and accordingly could
not demand
that he be assessed, this is why his name was not on the list. This
applies equally at the end of 1997 as at this stage
he had only three
credits. Despite his complaints about not being assessed and taking
the matter up with Human Resources, who advised
him to ‘submit
your supplementary and you will be considered for promotion’,
the employee did not lodge a grievance
as in his words he expected
that he would be assessed in 1998. The above is in line with the PAS
and in the circumstances his next
opportunity for assessment would be
01 July 1998. As stated it is common cause that assessments for 1998
were not held. The reason
for this is not known, the next assessment
being 01 July 1999 during which process the employee was assessed and
as he met the
balance of the criteria he was promoted to CO II as
from 1 July 1999, i.e the anniversary of the date he joined the
department.’
The arbitrator then considered the years 1998 and 1999 and stated
that it is not clear whether the applicant submitted “incidents”
(i.e. proof of the required qualifications) for both these years or
only in 1999. The applicant, he stated, did not testify on
this
aspect and no assessment was held in 1998. He found that:
‘
[t]he
relevance of this is that the department would have no assessment or
incidents on which to make a decision relating to 1998.
The onus lies
on the employee to prove his case and given the above I find on
balance that it is more probable than not that the
employee did not
submit incidents for 1998. On the same basis it cannot be argued that
the first three levels of authority (who
would have been involved in
his assessment, in particular his supervisor), who recommended in his
grievance form that he be promoted
with effect from 1998, should be
treated as an assessment qualifying the employee for promotion in
1998 as no incidents or assessment
exist for 1998
.’
The arbitrator concluded then that the Department’s failure to
address the applicant’s grievance (made in 2001) relating
to
his promotion in 1997-1998, does not assist him in establishing that
he should have been promoted as he did not qualify in
1997 and no
assessments were made in 1998. Therefore, there could in the
circumstances be no “knock on effect”, and
the applicant
had failed to make out a case for promotion to CO II as of 01 July
1997 or during 1998.
However, as Mr. Wade submitted, even if this Court should find that
the arbitrator committed a reviewable defect, it does not
as a
matter of course follow that the award should be reviewed and set
aside. On the prevailing authorities as set out by Mr.
Wade this
result will not ensue where, in the context of reasonableness
review, the applicant is unable to establish that the
result of the
award falls outside a range of reasonableness. In
Sidumo,
1
the Constitutional Court held that an arbitration award will be
unreasonable and thus reviewable if it is a decision ‘that
a
reasonable decision-maker could not reach’. In applying this
test Navsa J emphasised that it was necessary to weigh all
the
relevant factors together
2
,
and that in a reasonableness review, the applicant must establish
that the
result
of the award falls outside the range of
reasonableness. In this regard, the Court held as follows:
‘
[t]o
my mind, having regard to the reasoning of the commissioner, based on
the material before him, it cannot be said that
his
conclusion
was
one that a reasonable decision-maker could not reach. This is one of
those cases where the decision-makers acting reasonably
may reach
different conclusions. The LRA has given that decision-making power
to a commissioner.
’
3
[15] In my view, the applicant does not even begin to address the
test on review. The pleadings and submissions were replete with
references to “errors” made by the arbitrator,
embellished at appropriate moments by reference to
“unreasonableness”.
This does not by any means meet the
Sidumo
standard. This Court is being inundated with reviews
being brought on spurious grounds simply where applicants are
dissatisfied
with the outcome despite the arbitrator having prepared
a comprehensive and well-reasoned arbitration award based on a
thorough
application to the issues and evidence well beyond what is
expected of him/her. In these circumstances, having regard to the
submissions
of the parties, I am unable to find that there is any
basis to conclude that the arbitrator made a decision that
could
not have been
made by a reasonable arbitrator on the material
evidence. For this reason, the review must fail and there are no
reasons why costs
should not follow the result.
Order
[16] Therefore, I make the following order:
The application is dismissed with costs.
_______________________
BHOOLA J
Judge of the Labour Court
APPEARANCES
APPLICANT: Advocate BC Harker
Instructed by Marius Van Zyl Attorneys, Port Elizabeth.
THIRD RESPONDENT: Advocate RB Wade SC
Instructed by the State Attorney, Port Elizabeth.
1
Sidumo
and A-nother v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC).
2
Sidumo
at para 116.
3
Sidumo
at para 119.